v/Line Corporation t/a v/Line (Applicant) v Australian Rail, Tram and Bus Industry Union (Respondent)
[2020] FWC 916
•23 APRIL 2020
| [2020] FWC 916 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739—Dispute resolution
V/Line Corporation t/a V/Line
(Applicant)
v
Australian Rail, Tram and Bus Industry Union
(Respondent)(C2019/5819)
DEPUTY PRESIDENT MANSINI | MELBOURNE, 23 APRIL 2020 |
Application to deal with a dispute.
[1] This decision concerns an application by V/Line under s.739 of the Fair Work Act 2009 (Act) for the Commission to deal with a dispute in accordance with the dispute settlement procedure at clause 10 of the V/Line Rail Operations Enterprise Agreement 2015-2019 (the Agreement).
[2] V/Line provides public transport services to regional Victoria.
[3] The present dispute concerns a proposal by V/Line to relocate an office space which is provided by V/Line for its locomotive drivers to utilise in performing their roles as union delegates and health and safety representatives. The Australian Rail, Tram and Bus Industry (Union) contends that the proposal, if implemented, would be in breach of the Agreement.
Preliminary matters
[4] The parties initially attempted conciliation before me such that I was satisfied that there was no reasonable likelihood that further conciliation would result in agreement on terms of settlement of the dispute. The parties agreed that arbitration was the necessary next step and were content to proceed before the Commission as presently constituted.
[5] The parties filed an agreed question for arbitration and submissions. V/Line filed two witness statements of Mr Rob Hill (General Manager – Train Services) and one of Mr Craig Dance (General Manager – Health, Safety, Environment Risk & Assurance). The Union filed a witness statement of Mr Marc Marotta (Divisional Secretary of the Victorian Locomotive Division of the Union) and Mr Howard Hand (Locomotive Driver).
[6] On 21 November 2019, the Commission conducted a Site Inspection at the Southern Cross Precinct, attended by representatives of V/Line and the Union. The hearing commenced immediately thereafter, at the Commission’s Melbourne premises. At the hearing, V/Line represented itself and the Union was represented by Counsel (permission for which was opposed but ultimately granted having regard to the matters at s.596 of the Act). The parties subsequently agreed an amendment to the question for arbitration and filed further submissions. On 9 December 2019, the second and final day of hearing took place.
[7] There is no dispute and I am satisfied that the Agreement:
a) covers, applies to and is binding on V/Line and its employees, employed in classifications set out in Schedule A to the Agreement pursuant to clause 5.2(a) and (b) (and excluding those defined at clause 5.3) of the Agreement; and
b) covers the Union in accordance with s.201(2) of the Act, pursuant to the decision of Commissioner Lee to approve it in [2016] FWCA 8187 and clause 5.2(c) of the Agreement.
[8] There is also no dispute, and I am satisfied that:
a) the dispute relates to a matter arising under the Agreement, including the operation of the Agreement, such that the dispute settlement procedure at clause 10 is invoked; and
b) the prerequisites to the Commission’s involvement at clause 10.3 have first been followed or are not required pursuant to clause 10.4 and the additional prerequisites at clause 10.5 were met,
such that the Commission is empowered to resolve the dispute by way of arbitration as conferred by the parties at clause 10 of the Agreement and in accordance with s.739 of the Act.
[9] There was no suggestion during the course of the proceedings of any dispute that the status quo applies in accordance with the parties’ agreement at clause 10.2(b) or of compliance with the status quo.
The agreed question
[10] The parties agreed that the dispute would be resolved by the Commission determining the following question:
“If it was implemented would V/Line Corporation’s proposed relocation of the OHS & Employee Representative Facility to a building in the Southern Cross Precinct known as the ‘Old 1 Box’ be in breach of clause 92.13 of the V/Line Rail Operations Enterprise Agreement 2015-2019?” 1
The Agreement
[11] The provision of the Agreement subject of the dispute is:
“92.13 OHS & Employee Representative Facility
Locomotive Drivers representatives are currently provided with an office with access to communications and internet within the Southern Cross building. Should V/Line need to alter this arrangement it will provide office space and facilities of similar size and quality within reasonable proximity to the current location for relevant representatives to be able to continue their activities.”
The evidence
The current scenario
[12] V/Line employs approximately 650 locomotive drivers and approximately 90 trainee drivers. 2 In addition, there are approximately 37 support staff in the Train Services team.3 According to V/Line, around fifty percent of its drivers are based in regional Victorian depots.4 Trainee drivers are assigned to the Southern Cross Depot but perform work out of regional depots for 10 to 15 weeks as well as a component of classroom training at a Collins Street location.5
[13] V/Line provides an office space for its drivers who are union delegates and health and safety representatives (Locomotive Drivers Representatives) to utilise in the performance of those roles (the Facility). There are three union delegates and four health and safety representatives. 6 In addition, the Facility is currently used by groups that the Union describes as “locomotive driver representatives” who perform testing, inspection and quality assurance work. Specifically, the Cab Committee comprised of around 20 drivers, the Signal Sighting Committee comprised of two locomotive drivers and the Radio Committee comprised of two locomotive drivers.7
[14] The Facility is presently located on the second of three floors in a building within the Southern Cross Precinct known as “the Tissue Box” (Current Location). The Facility is a single room which contains desks, chairs and computers with wifi access and filing cabinets to store documents. 8 The Facility is used to send and receive emails, make and take phone calls, draft documents including reports, organise inspections, meet with Union members and conduct research using information sourced via the internet.9 Mr Hand estimates that, on any given work day, between 40 to 50 drivers and trainee drivers attend the Facility to meet or chat with the Locomotive Drivers Representatives and at least half of his duties as union delegate and health and safety representative involve dealing with Union members who attend the Facility (often without a prior appointment), for advice and assistance.10
[15] The Facility is within a building which presently also houses V/Line Locomotive Drivers, Driver Supervisors, Driver Managers, Workforce Controllers, Day of Operations Manager, Day of Operations Supervisors, Yard Masters and a number of other professional support staff who are critical to the day of operations in addition to contractors and asset management personnel. It is adjacent to a standby room where drivers are expected to wait whilst on standby, which includes a fridge, microwave and facilities for preparing meals (where meals can be taken, which Mr Hand ultimately accepted although it is his view the room is not used for this purpose); however the main meal facility is located on the third floor. 11 The Union contends that the Current Location is the “key facility”; or the hub for drivers at Southern Cross Station.12 It is where the drivers sign on and off; it contains the meal, locker, gymnasium, toilet and shower facilities at the Station; it contains the standby room; and it houses many service personnel who provide services to drivers (including the Rostering section who make roster changes, the Yard Foreman who has information about train movements and the Administration Clerk who deals with non-rostered leave entitlements, uniforms and keys).13 Mr Marotta believes that the Current Location is easy for drivers and trainee drivers to access because they start and end journeys at Southern Cross Station platforms, there is a tunnel from platform 5 and 6 to the Current Location and it is a short walk from the driver car park on level 2 of the Bus Terminal.14
[16] The Facility already existed in the Current Location but was not conferred as an entitlement under an enterprise agreement until the Agreement was made and approved in November 2016. 15 The intention of the parties in bargaining for the Agreement is mostly contentious, however it is agreed that the clause was originally proposed in bargaining by the Union.16 Mr Dance, who was involved in bargaining (for V/Line), recalled that the Union delegates were seeking certainty in the Agreement that the Locomotive Drivers Representatives would maintain access to appropriate facilities and that V/Line was open to such a clause but wanted to make provision for the Facility to be moved if the need arose. He did not recall any discussion about specific locations for any relocation of the Facility.17 Mr Dance gave evidence that (at the time) he considered it likely that additional space for train drivers would be required; the bargaining team had discussed that V/Line was “reviewing the accommodation generally” (including the Facility) and he recalled having stated that the Facility would be relocated if an increase in train driver headcount was realised.18 He recalled his own intentions in negotiating the provision, but did not recall any discussion about the definition of “size and quality” or that any new location was required to be within the same building.19 Mr Marotta, who was also involved in bargaining (for the Union), recalled that the claim was made by the Union because another employer had locked employees out of a similar facility during bargaining and the Union was keen to ensure such an incident did not repeat at V/Line and that V/Line was open to such clause provided that it also included some provision for V/Line to change the location if needed. Mr Marotta, recalled that there was discussion about relocating the Facility to either the ground floor or the third floor of the Current Location but not to another building and Mr Hand recalled that the discussions were only about moving the Facility within the Current Location.20 Mr Dance accepted that there was no decision or formal proposal to move the Facility at that time. 21
The proposal to relocate the Facility
[17] In July 2018, V/Line foreshadowed to the Union its intention to relocate the Facility due to concerns that the depot would be over capacity by November 2019. 22 An initial suggestion of relocation to the POD building, a different building within the Southern Cross Precinct, was discussed. Mr Hill’s evidence was that Mr Marotta had said to him: ”if you find a location in the POD building I think they’ll go” but ultimately V/Line was not able to deliver this option because there was no approval of Public Transport Victoria.23 Mr Marotta denied ever saying those words, but acknowledged the Union was notified of the proposal to relocate to the POD building and that it considered the proposal because that location may still provide convenient access to Union members.24
[18] On 9 September 2019, Mr Hill wrote to Mr Marotta. 25 That letter confirms V/Line’s proposal to relocate the Facility to an alternate office space due to: “insufficient space within the Tissue Box with current lunchroom facilities beyond overflow capacity” and “a requirement that this space remains available for V/Line’s operational necessities and support requirements”. The letter states that the space in the POD building is no longer an available option and instead it is proposed to relocate the Facility to the “Old 1 Box” in the Southern Cross Precinct (Proposed Location). The Proposed Location is physically situated across the yard from the Current Location which is “immediately next to” a car park used by seven drivers who V/Line considers would proceed past the Proposed Location on their natural route to the Current Location and is convenient to other drivers who need to access the shed or the two pool vehicles.26 At the Proposed Location, the Locomotive Driver Representatives would have access to a single floor of the building, which is to be furnished with transferred assets from the Facility at the Current Location (eg. chairs and computers), and also has internet access, a kitchenette and toilet facilities. V/Line considers the Proposed Location is in a good state of repair and cleanliness.27
[19] On 13 September 2019, the Union wrote to V/Line to formally notify of a dispute about an alleged failure to adhere to the provisions in clause 92.13 of the Agreement. 28 In its letter, the Union disputes V/Line’s claims about the alleged need for the relocation of the Facility and the suitability of the proposal to relocate to the Proposed Location.
[20] Before the Commission, Mr Hill gave evidence of the rapid growth V/Line has experienced over the last four years, with “the need for more services outpacing the number of train drivers able to deliver them”. 29 He relied on a review of proposed service alterations in preparation for the implementation of a new timetable established by the Victorian Government (anticipated to commence from July 2020).30 He also had regard to certain assumptions (including an attrition rate of 150 drivers over the next three years), project related increase in demand, future timetable and assumptions about timetable efficiency (including footplate time and “dead time”).31 Mr Hill concluded that an estimated 208 additional trainee drivers would be required, in addition to a further 80 drivers in year one and 25 drivers in each consecutive year (being a total of 130 new drivers), over three years.32 In addition, he estimated a further 20 full time equivalent roles in supporting functions to accommodate the increased driver headcount.33
[21] Based on his modelling, Mr Hill considers that the increased headcount will exceed the capacity of the facilities housed within the Current Location. Mr Hill assessed utilisation of meal and standby facilities in the Current Location at up to 32 drivers during peak periods at Southern Cross. 34 Mr Hill’s assessment included drivers on a meal break, a standby meal break and adjoining periods of available time (meaning often lengthy periods of time when a driver may or may not be utilised). Available time was included because, if not driving trains, the drivers are “required to go somewhere” and will wait in the meal or standby rooms or outside the building).35 The review had estimated that drivers spend 28% of shifts running revenue services and 42.5% of total rostered hours are considered as “dead time”.36 The meal and standby facilities are also shared and used by support and operations personnel.37 Mr Hill’s evidence is that the meal and standby facilities in the Current Location are already at capacity with current train driver headcount, and that these limitations mean that the support staff are forced to eat meals at their desks.38 He also considered the likely need to increase female toilet facilities in the Current Location, which would require more space, should there be increased female driver participation as part of V/Line’s Gender Action Plan.39 He defended his forecasting as more accurate than that presented by the Union because it was based on a detailed roster analysis prepared by V/Line’s Train Services Roster Analyst,40 the Union’s assessment did not include the 96 trainee drivers presently based at Southern Cross Station (who at times attend other facilities for training), drivers that are on rostered available time or the 37 support staff based in the Current Location.41
[22] The Union sought to challenge Mr Hill’s proposal for reconfiguration of the Current Location and facilities within the Current Location, forecasting and conclusions by tabling its own roster review, prepared by Mr Marotta and perused by the Roster Coordinator for V/Line. 42 It was prepared for the purposes of assessing whether the rosters are “EA compliant” and recorded the times when drivers went to a meal break.43 This roster analysis showed a maximum of 16 drivers on a meal break at any given time.44 Mr Marotta concluded that the current meal room is more than adequate for current V/Line drivers and even if that number increased by another 150 drivers over three years the meal facility will still be adequate to accommodate this growth.45 He says this on the basis that there will be high attrition given the age profile of drivers and because meal breaks are staggered due to varied sign on times for drivers in line with scheduled train services.46 He defended his approach in excluding trainees from this assessment because a number of them are in classroom time located elsewhere but, even in the unlikely scenario that all trainees and an instructor were included, only then would there be a maximum of 32 on meal break.47 He subsequently added that the 37 support staff are in administrative roles, who do not take a scheduled meal break and their practice is to eat at their work stations.48 Mr Marotta also considered Mr Hill’s roster analysis to be “artificially inflated”, “flawed” and “misleading” including because it includes more than just meal breaks and the strict analysis of revenue work did not have regard for ancillary duties which should be considered revenue work.49 Mr Marotta said that he “would have no way of knowing” whether Mr Hill’s forecast that a further 150 trainee drivers would be required over the next three years is “accurate”. He suggested that a high volume of attrition would explain high levels of recruitment, noting that whether attrition (and the necessary recruitment) even occurs as forecast is subject to when drivers choose to retire.50
[23] In any event the Union contended there is no “need” to relocate the Facility to the Proposed Location because there are alternatives available, being options to move the Facility to another space within the current building. It presented a range of scenarios to support this proposition: Mr Marotta’s “advice” from an unnamed signalman that No 1 Box Signalmen had been informed by their manager they would be moved from the Current Location to V/Line’s Bourke Street premises; the Workforce Control Manager’s office space could be utilised; the Computer and Training spaces could be rearranged because drivers do not require the use of computers and drivers do not need a large computer room. 51 Mr Hill conceded he had not considered moving the Facility to another space within the Current Location (that is, within the same building) because it would defeat the purpose of creating additional space for drivers in that building, V/Line is tight on space with a finite lifespan in this depot and any space that is or becomes available will be utilised.52 His evidence also contemplated and rejected the suggested alternatives: the No 1 Box Signalmen have not been funded to move and this is a mere proposal, if it proceeds the space will be reconfigured to provide more space for driver Rostering (including the Workforce Control Manager, in which case the Workforce Control Manager’s office would be occupied by the Regional Driver Manager who is supposed to be located in that office but in the interim has been required to spend the majority of the week away from Southern Cross Station); the computer based training and technology requirements are, and are forecast to be, necessary and increasing such that the proposed computer space is necessary; and he had previously attempted to relocate other work groups housed within the Current Location such as the Fleet team and contract cleaners to no success.53 Further, he gave evidence of modifications recently made to the current meal facilities in an effort to try and improve the capacity; and that, in his view, the only remaining alternative to relieve the pressure on the facilities within the current building would be to construct additional facilities at significant cost which is not an option with no present budget or funding commitment and time constraints to implement the new timetable.54
[24] Before the Commission, the Union gave evidence that it is not agreeable to the proposal to relocate the Facility to the Proposed Location because it is not within reasonable proximity to the Current Location. Walking time to the Proposed Location was estimated by Mr Marotta as 12 minutes each way from the Current Location and 12 to 15 minutes between the Station and the Proposed Location; estimated by Mr Hand as 10 minutes each way from the Current Location; and exceeds the 35 to 40 minute meal break time. 55 Mr Hand ultimately accepted there is an alternative route to the Proposed Location which would be quicker than the route timed but this shorter route was only available one-way.56
[25] Mr Marotta also said that the Union is not agreeable to the Proposed Location because: it is an aluminium hut on stilts accessed by 18 steep steps which are not under cover with toilet facilities in a container under the hut (like a structure used for temporary construction work); Union members may find it more difficult to access (particularly because it is dangerous for those over 60 years and when they are short on time, although he accepted a phone call might be a faster way to notify of an issue); is regularly attended by signalling staff, due to storage of signalling and communication equipment; it is “an entirely inconvenient and impractical location” for Union members because it is not near the facilities or services they use or near the train platforms where they begin and end journeys, they are not able to “just pop in” and see if a union delegate or health and safety representative is available to speak to them. 57 Mr Hand added that the Proposed Location lacks privacy which is necessary to meet with Union members in confidence; and the Proposed Location is “very noisy” and it is not possible to work in such a noisy environment.58 In cross examination, Mr Hand was taken to each activity performed by the Locomotive Drivers Representatives and acknowledged each one could be performed in another building, or “elsewhere”.59
[26] V/Line opposed much of the Union’s evidence about the suitability of the Proposed Location. Mr Hill remained confident that drivers have ample time to meet during work hours even if no time could be found within a meal break and, in any event, the Proposed Location is equipped with a kitchenette, microwave, toaster and kettle among other utilities, such that drivers could choose to meet the union delegates or health and safety representatives over their lunch break. 60 He also said that the signalling and communication equipment is accessed by VicTrack (not V/Line) personnel and even then that is an irregular occurrence. Mr Hill disagreed with Mr Hand’s view about noise, saying he does not regard the Proposed Location as “noisy whatsoever” and trains can clearly be heard from both locations, noting rolling stock travels past the Proposed Location at 25 kilometres per hour and does not generate substantial noise “during these low speed moves”. Mr Hill considered the Union’s concerns about accessibility to be inconsistent with drivers’ fitness for work requirements which require mobility to climb vertically into and out of a cabin using handrails only. In comparison, the Current Location can only be accessed by ramp and lift if also crossing active rail lines and egress in case of an emergency would be difficult. When questioned about light duties, which he accepted might be provided on occasion, Mr Hill gave an example of a driver with a broken leg who was assessed as not able to perform light duties because there is a risk in bringing him in to the office. In any event, workarounds are available in meeting at alternative locations or by telephone in the limited case of a driver or trainee driver performing light duties and unable to access the 18 steps to the Proposed Location.61 Mr Hill also gave evidence that the stairs to the Proposed Location are sturdy and covered with a high visibility, anti slip stair nosing with hand rails.62
V/Line’s interpretation
[27] V/Line contends that clause 92.13 imposes two prerequisites to a proposal to alter the existing Facility arrangements, each of which is met in this case:
a) First, that V/Line needs to alter the existing arrangement; and
b) Second, that the similarity of size and quality as well as the proximity of the Proposed Location allows Locomotive Drivers Representatives to continue their activities.
The Union’s interpretation
[28] The Union contends that, properly construed, clause 92.13 of the Agreement mandates four prerequisites in relation to any proposal to alter the existing Facility arrangements:
a) First, there must be a “need” to alter the existing arrangement;
b) Second, the proposed alternative “office space and facilities” must be of “similar size and quality”;
c) Third, the proposed alternative “office space and facilities” must be “within reasonable proximity” to the Current Location; and
d) Fourth, the proposed alternative “office space and facilities” must permit the representatives “to be able to continue their activities”.
[29] The Union argues that none of these four preconditions are met in this case.
Consideration
[30] The question before me is confined to whether, if implemented, the proposal to relocate the Facility to the Proposed Location would be in breach of clause 92.13 of the Agreement.
[31] 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, 63drawing on the earlier Full Bench decision in AMIEU v Golden Cockerel Pty Ltd.64The Full Bench in Berri affirmed that the interpretation 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 dispute over the interpretation of an enterprise agreement will turn on the language of the agreement, having regard to its context and purpose. The following principles from Berri are particularly relevant to the present dispute:
• Context might appear from the text of the agreement as a whole, the place and arrangement of the disputed provision in the agreement, and the legislative framework under which the agreement was made;
• The task of interpretation does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome, rather it is one of interpreting the agreement produced by the parties;
• If the agreement has a plain meaning, evidence of surrounding circumstances will not be admitted to contradict the plain language of the agreement;
• Context may be drawn from the evidence of prior negotiations, to the extent that the evidence tends to establish objective background facts known to all parties and the subject matter of the agreement; notorious facts of which knowledge is to be presumed; and evidence of matters in common contemplation and constituting a common assumption;
• Admissible extrinsic material may be used to aid interpretation of a provision with a disputed meaning but cannot be used to rewrite the provision in order to give effect to an externally derived concept of what the parties’ intention or purpose was. 65
[32] The Union also cited the following passage from a Full Court decision, in WorkPac Pty Ltd v Skene:
“The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context: City of Wanneroo v Holmes (1989) 30 IR 362 at 378 (French J). The interpretation ‘… turns on the language of the particular agreement, understood in the light of its industrial context and purpose …’: Amcor Limited v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 at [2] (Gleeson CJ and McHugh J). The words are not to be interpreted in a vacuum divorced from industrial realities (Holmes at 378); rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament (Holmes at 378–9, citing Geo A Bond & Co Ltd (in liq) v McKenzie [1929] AR(NSW) 498 at 503 (Street J)). To similar effect, it has been said that the framers of such documents were likely of a ‘practical bent of mind’ and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced: see Kucks v CSR Limited (1996) 66 IR 182 at 184 (Madgwick J); Shop Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [16] (Marshall, Tracey and Flick JJ); Amcor at [96] (Kirby J). 66
[33] In considering the ordinary meaning of clause 92.13, the first sentence is plainly a statement about the provision of the Facility at the point in time that the Agreement was made; it provides that the Locomotive Drivers Representatives “are currently provided with an office with access to communications and internet within the Southern Cross building.”. The words of the second sentence are the focus of this dispute. I prefer the Union’s approach to construe this second sentence of the clause with consideration to four components or prerequisites. I address each prerequisite in turn as follows.
“Need”
[34] The starting point is the phrase: ”Should V/Line need to alter this arrangement”. It was not controversial and the argument proceeded on the basis that “this arrangement” is that referred to in the first sentence of the clause, the current provision of an office with access to communications and internet within the Southern Cross building.
[35] The need is plainly that of V/Line. On the face of the clause itself, there is no additional qualification of or limitation on the “need”. The need is to be assessed objectively.
[36] The Union urged the Commission to have regard to the ordinary dictionary definition of the term, which it said is “To require (something) because it is essential or very important rather than just desirable.” 67 However V/Line argued this was an overly narrow or pedantic approach and that “need’ is synonymous with “require”. I accept that regard may be had to a dictionary definition. Whilst it should be acknowledged that the word “need” has a variety of meanings, depending on whether it is used as a noun or a verb, an alternative dictionary definition was not put or argued before the Commission. The Union also contended that, in assessing whether V/Line’s need is essential or important or something more than just desirable, regard must be had to whether alternatives are available, an approach which V/Line did not seriously oppose.
[37] I do not consider there is any legitimate basis to read in the words “operational requirements” by having regard to the statutory context as V/Line contends.
[38] I am also not persuaded that the evidence of bargaining establishes any mutual or common intention of what is meant by the word “need” or the threshold for establishing V/Line’s need. On the materials before the Commission, the evidence of bargaining goes no further than to establish that the following matters were relevantly in common contemplation: the Union sought to include clause 92.13 because it wanted certainty that it could retain access to office and facilities for use of its union delegates and health and safety representatives; V/Line was prepared to agree but wanted to retain the ability to move the Facility if needed; and there was no definite decision to relocate the Facility at the time of the negotiations. I accept that the evidence of another employer having locked employees out of a similar facility during bargaining would appear to be an objective background fact which was known to all parties. Whilst the clause is to be read in this context, the evidence of negotiations does not establish any definition or assist in interpretation of what is meant by “need”.
[39] I was not taken to any other contextual consideration that would assist.
[40] Adopting the Union’s definition of the ordinary meaning of the word “need”, the first question then is whether the evidence establishes V/Line’s need to alter the current arrangement.
[41] I have assessed the evidence of V/Line’ General Manager – Train Services about V/Line’s rapid growth, forecast recruitment plans and analysis of timetabling as credible and reliable, being informed by experts in workforce planning and timetabling. Mr Hill has established forecast workforce growth to meet the Victorian Government’s timetabling requirements. His forecasting took into account high levels of workforce attrition which is consistent with the Union’s evidence about age profile and the likelihood of attrition. An important distinction is that Mr Hill has assumed that an early recruitment ramp up is necessary in year one to implement the new timetable. V/Line’s assumption about the attrition rate was not seriously challenged in evidence and I find that attrition was appropriately accounted for in assessing the workforce levels and space required over the next three years.
[42] Mr Hill has also established that V/Line’s forecast workforce growth will impact capacity of the facilities in the Current Location. Mr Hill was criticised for his reference to the standby room as an overflow meal facility. However it is clear that Mr Hill arrived at his conclusions about capacity based on assumptions about timetabling which take into account not just meal breaks but also standby and other available time adjoining a meal break. I consider his assumptions to be appropriate in order to comprehensively assess utilisation and capacity of facilities in light of the evidence that drivers and trainee drivers may use both meal and standby facilities in the Current Location when they are taking meals, during standby or other available time (which can be lengthy periods of time). Mr Marotta’s evidence was confined to meal breaks and therefore was not a comprehensive assessment of utilisation and capacity of the facilities which are relevant to V/Line’s need.
[43] The assessments of Mr Marotta and Mr Hand that drivers do not need computers at all in the performance of their work, or at least do not need a large computer facility within the Current Location, is not a complete answer to the question of V/Line’s need. V/Line has articulated in evidence its requirement for drivers to complete training on computers and the time required to complete this, in addition to the forecast need for more technology or computer based work.
[44] The Union has presented a range of alternative locations for the Facility within the building of the Current Location. Some emphasis was placed on Mr Hill’s statement in cross examination that he had not considered alternative locations for the Facility within the current (the same) building. However Mr Hill also gave evidence, and I accept, that V/Line is constrained in creating an alternative location for the Facility within the current building because there is limited space and limited lifespan of the entire depot. V/Line has tried to implement alternative solutions to no success. In any event, Mr Hill engaged with the alternatives posed by the Union, and rejected each one for specific reasons, which was consistent with his evidence that there is no way to retain the Facility in the same building and it must be relocated to another building. This is consistent with V/Line’s first proposal, in July 2018, to relocate the Facility to a separate building (the POD building) which was not able to proceed. He concluded, and I accept, that there is no existing building suited to relocation of the Facility other than the Proposed Location.
[45] For completeness, I note that Mr Hill’s evidence about the need for additional female toilet facilities expressed an aspirational target which was not underscored by any definitive data, timing or plans. Whilst this may loom as an impending need, for present purposes I have not regarded it as a requirement which underpins the need for the current proposal.
[46] When viewed objectively, I accept that V/Line’s evidence establishes that V/Line requires the relocation of the Facility because it is very important to meet the Victorian Government’s new timetable and to facilitate the consequent workforce growth, which is more than just desirable having regard to all of the circumstances. I am satisfied that there is presently no available alternative. Accordingly, I am satisfied that V/Line does need to alter the current arrangement within the meaning of clause 92.13 of the Agreement.
“Office space and facilities of similar size and quality”
[47] In construing the words “office space and facilities of similar size and quality”, V/Line argued the assessment is relative to whether the Locomotive Drivers Representatives are able to continue their activities. The Union proceeded on the basis that the comparison is to be made between the Current Location and the Proposed Location.
[48] The adjective “similar” means “having likeness or resemblance, especially in a general way” and does not mean the same or identical. 68
[49] There is no dispute that the Proposed Location is of a similar size. Whether the Proposed Location is of similar quality is strongly opposed. The Union says that consideration of quality requires regard to be had to the composition of the building; disability access; privacy; noise; and toilet facilities. In closing, the Union confirmed that it no longer presses any submission related to internet access or temperature of the room. Whilst there would appear to me to be a legitimate question as to whether clause 92.13 requires a consideration of the size and quality of facilities ancillary to the current arrangement as defined in the first sentence of clause 92.13 of the Agreement (provision of an office with access to communications and internet), V/Line maintained its proposal satisfies this second prerequisite even on the Union’s approach.
[50] On the evidence before the Commission and with regard to the site inspection I have undertaken, I make the following findings relevant to an assessment of quality of the Facility in the Current Location as compared to the Proposed Location:
a) The Proposed Location is similar because it includes clean desk space, kitchen facilities in the adjacent room and is to be furnished with the exact same communications and office equipment as (transferred from) the Facility in the Current Location, including internet access.
b) The Proposed Location is similar in terms of privacy. Like the Current Location, it is a contained office space, with a door that may be closed to create privacy where required. I do not accept that the irregular attendance of VicTrack employees would cause interruption to the activities of the union delegates and health and safety representatives any more so than can occur at the Current Location which is said to be a hub with a relatively high volume of visitors, between 40 to 50 in any given day.
c) The two locations are located directly across from each other in the same yard. I prefer the evidence of Mr Hill regarding noise and find the Proposed Location is similar in terms of noise
d) I accept that the building materials, construct and toilets are not the same however an inspection of the internal office spaces revealed that they are similar and, further, although the toilet facilities at the Proposed Location are not identical there is a toilet facility and it is similar.
e) Disability access would initially appear to be a legitimate point of difference between the Current Location and the Proposed Location because access to the Proposed Location is via 18 steps to enter the building, whereas the Current Location is accessible by crossing active rail lines then a ramp then a lift. However, V/Line’s evidence as to the requirements of the workplace was unequivocal and equally applicable to both locations. I find on the evidence that any driver or trainee driver who is not able to access the Proposed Location is also not able to perform their role and is not required to be in the workplace. Also on the evidence of Mr Hill, any injured driver or trainee driver who could not navigate the necessary access, egress and emergency routes would not be approved for light duties in the workplace. In any event, a sufficient workaround is available for example through telephone calls. I find that the arrangements for access to the Locomotives Drivers Representatives are similar.
[51] Accordingly, I am satisfied that the Proposed Location offers an office space and facilities of similar size and quality to the Current Location for the purposes of clause 92.13.
“Office space and facilities .. within reasonable proximity to the current location”
[52] Again, V/Line argued that consideration of the phrase “within reasonable proximity to the current location” is relative to whether the Locomotive Drivers Representatives are able to continue their activities. The Union asked the Commission to find that, properly construed, any alternative office space must be within the same building as the Current Location.
[53] I do not accept that the clause requires the Proposed Location to be within the same building as the Current Location. Those are not the plain words of the clause. The first sentence of clause 92.13 clarifies that the office currently provided is in the Southern Cross building, and the second sentence goes on to say that this arrangement may be altered. There are some qualifications to the alteration (subject of this dispute) but no express limitation on the building. As the meaning is plain no regard may be had to the surrounding circumstances or evidence of the negotiations. Further, to adopt the Union’s approach would be to effectively rewrite the provision contrary to the principles in Berri. Even if it were admissible, the evidence of the negotiations does not establish the common intention that the Union contends and is inconsistent with the unopposed evidence that the Union did at least entertain the first proposal to relocate the Facility from the Current Location to another building (the POD building).
[54] Having concluded that an alternate location can be in a separate building to the Current Location, the Union argued it is not open for the Commission to find that the Proposed Location is “within reasonable proximity”.
[55] There is no qualification on the proximity to the current location other than that it be “reasonable”. The ordinary meaning according to the dictionary definition is:
“
1. Endowed with reason
2. Agreeable to reason or sound judgement
3. Not exceeding the limit prescribed by reason; not excessive
4. Moderate, or moderate in price” 69
[56] Like the Current Location, the Proposed Location is within the Southern Cross Precinct. The two locations are located directly across the yard from each other. The mode of accessing the Proposed Location, from the Current Location or the Station platforms or the car park, is on foot. The travel time is approximately a 10 to 12 minute walk (or “approximately 10 minutes”, as submitted by the Union in closing) each way from the main locations within the Southern Cross Precinct and the Current Location. There is a shorter route available in some circumstances. The proximity between the relevant points was a feature of the site inspection.
[57] In their submissions, both parties addressed the purpose of the Facility and the activities which are to continue to be performed by the Locomotive Drivers Representatives in arguing what is a reasonable proximity in the context of clause 92.13. V/Line conceded that location is material however argued, with reference to the evidence of Mr Hand, that the activities could be performed in a building other than the Current Location. Some focus was sought to be placed by the Union on the activity of meeting with members, based on the evidence that member meetings represent about half of Mr Hand’s activities in his roles as union delegate and health and safety representative. In relation this activity, a 20 minute round trip is said to be prohibitive in terms of Union members who may wish to meet face to face during a 35 to 40 minute meal break and therefore would be “short on time”. However on the evidence, meal breaks regularly adjoin drivers’ available time which can be significantly lengthier than 35 to 40 minutes, there are meal facilities to eat a meal in the Proposed Location and no one has pointed to a requirement that such meetings must occur during meal breaks (indeed Mr Hill accepted these meetings might be conducted at other times during work hours, in confidently saying there is “ample” time to meet with union delegates during hours of work even where time cannot be found during a meal break). The Union also considers the proximity of the Proposed Location to be “inconvenient”. Convenience may be relevant to, but is not determinative of, reasonableness.
[58] For the above reasons, I am satisfied that the office space and facilities at the Proposed Location are within reasonable proximity to the Current Location.
“For relevant representatives to be able to continue their duties”
[59] The argument before the Commission proceeded on the basis that “relevant representatives” means “Locomotive Drivers Representatives” (as defined) and that the activities described in evidence by Mr Hand and Mr Marotta are accepted as “duties” within the scope of this clause (also provided for at clause 92.12 of the Agreement and the Occupational Health and Safety Act 2004 (Vic)).
[60] Of those activities or duties, the evidence was one activity involves meeting with Union members who attend the Facility seeking advice or assistance, often without an appointment (which was acknowledged as being possible because the Facility is currently located in the drivers’ “hub” at Southern Cross). This activity represents half of Mr Hand’s current activities in his representative roles. The Union contended that Locomotive Drivers Representatives would not be able to continue to provide this activity or duty to Union members “as they currently do” because there is not enough time to have a meal and visit the Proposed Location during meal breaks; it would no longer be practical for Union members to “pop in” to the facility during breaks; some Union members would not be able to safely access the building because the only way to enter is via a steep set of 18 stairs; and the Proposed Location would not permit conversations to occur due to privacy.
[61] For the reasons given in relation to the third prerequisite the evidence supports a finding that there is sufficient time for at least short meetings, over a meal which is able to be prepared in the Proposed Location, and there are a range of other available times during work hours when meetings may occur, such that there is no proper foundation to conclude that this activity can not continue to be performed at the Proposed Location. For the reasons given in relation to the second prerequisite, the evidence establishes that access and privacy are similar at the Proposed Location. The agreement of the parties does not require the duties to be performed by the representatives “as they currently do”. As Mr Hand accepted in evidence, union delegates and health and safety representatives are able to continue performing all activities or duties in their roles, from another building other than that which houses the Current Location.
[62] Accordingly, I am satisfied that the fourth prerequisite is met and that the Locomotive Drivers Representatives are able to continue their activities at the Proposed Location.
[63] For completeness I note that, whilst context might appear from the text of the agreement as a whole, the place and arrangement of the disputed provision within the Agreement, neither party placed any emphasis on the relevance of clause 92.13 living within the broader clause 92 “Rostering and Rostering Committee/Consultations” and this would not appear to provide any assistance to resolving the dispute about clause 92.13.
Conclusion
[64] Having found that each of the four prerequisites are met, the answer to the question posed by the parties for determination by the Commission is “no”: if it was implemented, the proposed relocation of the Facility to the Old 1 Box would not be in breach of clause 92.13 of the Agreement.
[65] In the event of such determination, the Union sought an order that the proposed relocation of the Facility not occur for a reasonable period of time. I am satisfied that such order is within the scope of the Commission’s powers as conferred by the parties under clause 10.5 of the Agreement and that it is appropriate in the circumstances to order a transitional period. The Commission will separately correspond with the parties to invite their views about the term of a reasonable transition period, following which a final order will be made.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR716895>
Appearances:
H. Hilliar for the Applicant.
Y. Bakri for the Respondent.
Hearing details:
2019
Melbourne.
21 November and 9 December.
1 Amended by agreement of the parties, see email from Mr Hilliar of V/Line dated 25 November 2019 and Respondent’s Outline of Closing Submissions at 5.
2 Witness Statement of Marc Marotta at 9; Mr Hill on Transcript at PN337.
3 Second Witness Statement of Rob Hill at 4.
4 First Witness Statement of Rob Hill at 42.
5 Witness Statement of Marc Marotta at 11; Mr Marotta in cross examination at PN483; Mr Hill in cross examination at PN78 to PN80.
6 Witness Statement of Howard Hand at 21(a) and (b).
7 Witness Statement of Howard Hand at 21(c) to (e).
8 Witness Statement of Howard Hand at 17.
9 Witness Statement of Howard Hand at 23.
10 Witness Statement of Howard Hand at 24 and 25.
11 First Witness Statement of Rob Hill at 7 to 9 and 11; Mr Hand on Transcript at PN642 to PN649.
12 Witness Statement of Mr Marotta at 19.
13 Witness Statement of Mr Hand at 26.
14 Witness Statement of Marc Marotta at 22.
15 Witness Statement of Trevor Dance at 7; Witness Statement of Marc Marotta at 14 and 15.
16 Witness Statement of Trevor Dance at 8; Mr Dance in cross examination at PN30 and PN31.
17 Witness Statement of Trevor Dance at 6 and 9; Mr Dance in cross examination at PN32 and PN40; PN49.
18 Witness Statement of Trevor Dance at 10.
19 Witness Statement of Trevor Dance at 13 and 15.
20 Witness Statement of Marc Marotta at 15 to 17; Witness statement of Howard Hand at 14.
21 Witness Statement of Trevor Dance at 13; Mr Dance in cross examination at PN42, PN45 and PN47.
22 First Witness Statement of Rob Hill at 35.
23 First Witness Statement of Rob Hill at 37.
24 Witness Statement of Marc Marotta at 24, 25 and 28.
25 Application, at Attachment D.
26 First Witness Statement of Rob Hill at 41; Mr Hill in cross examination at PN279, PN284 and PN304 to PN305.
27 First Witness Statement of Rob Hill at 40; Mr Hill in cross examination at PN331 to PN334; Mr Hand in cross examination at PN626.
28 Application, at Attachment E.
29 Witness Statement of Rob Hill at 13.
30 Witness Statement of Rob Hill at 14.
31 First Witness Statement of Rob Hill at 15; Review of V/Line Driver Resourcing dated 31 August 2018, commissioned by Public Transport Victoria.
32 Witness Statement of Rob Hill at 14 and 15.
33 Witness Statement of Rob Hill at 16.
34 Second Witness Statement of Rob Hill at 4(c); noting Mr Hill referred to the standby facilities as “overflow meal facilities”.
35 Second Witness Statement of Rob Hill at 20; Mr Hill on Transcript at PN117 and PN123 and PN132.
36 Second Witness Statement of Rob Hill at 5 and 6.
37 Witness Statement of Rob Hill at 21, 22 and 23.
38 First Witness Statement of Rob Hill at 23 and 24.
39 First Witness Statement of Rob Hill at 30 and 31.
40 Exhibit A4, V/Line’s Roster Analysis.
41 Second Witness Statement of Rob Hill at 4; Mr Hill on Transcript at PN127.
42 Exhibit R2, Union’s Roster Analysis; Mr Marotta in cross examination at PN463.
43 Mr Marotta on Transcript at PN379 and 380.
44 Exhibit R2, Union’s Roster Analysis.
45 Witness Statement of Marc Marotta at 30(c).
46 Witness Statement of Marc Marotta at 30(c).
47 Mr Marotta on Transcript at PNPN407 and PN408.
48 Mr Marotta on Transcript at PN410.
49 Mr Marotta on Transcript at PN415 to PN417.
50 Mr Marotta on Transcript at PN479 to PN480, PN522 and PN461.
51 Witness Statement of Marc Marotta at 30; Witness Statement of Howard Hand at 31(c).
52 Mr Hill in cross examination at PN222, PN226 to PN232.
53 Second Witness Statement of Rob Hill at 9; see also at 10 and 11.
54 First Witness Statement of Rob Hill at 23 and 33 to 34; Second Witness Statement of Rob Hill at 9 and 10.
55 Witness Statement of Marc Marotta at 31; Mr Hand in cross examination at PN681 and PN690.
56 Mr Hand in cross examination at PN685 to PN702 and Exhibit R6.
57 Witness Statement of Marc Marotta at 31 and 32; Mr Marotta in cross examination at PN501.
58 Witness Statement of Trevor Hand at 32; Mr Hand in re-examination at PN724.
59 Mr Hand in cross examination at PN591 to PN625.
60 Second Witness Statement of Rob Hill at 7.
61 Mr Hand in cross examination at PN655 to PN657; Mr Hill in cross examination at PN262-278.
62 Second Witness Statement of Rob Hill at 18 and 19.
63 (2017) 268 IR 285 at [114] (Berri).
64 (2014) 245 IR 394 at 414-415 (Golden Cockerel).
65 Berri at 114.
66 [2018] FCAFC 131 at [197]; see also One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union (2018) 277 IR 23 at 64–65 [189]–[191]; Golden Cockerel at 414–415 [41].
67 Citing, in the Union’s Submissions, the Oxford English Dictionary (Third Edition).
68 Macquarie Online Dictionary.
69 Macquarie Online Dictionary.
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