Victor Bebawi v Sydney Trains
[2022] FWC 1304
•2 JUNE 2022
| [2022] FWC 1304 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Victor Bebawi
v
Sydney Trains
(C2021/2010)
| DEPUTY PRESIDENT CROSS | SYDNEY, 2 JUNE 2022 |
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)]
This dispute concerns a dispute notification by Mr Victor Bebawi (the Applicant), regarding the refusal by Sydney Trains (the Respondent) to apply recognition of the Applicant’s previous experience as a train guard in the rail industry, and other experience, in determining the Applicant’s post-Trainee rate of pay, under sub-cl 129.4(b) of the Sydney Trains Enterprise Agreement 2018 (the Agreement).
The dispute concerns the operation of cl 129 of the Agreement. That clause provides:
“129.4. Trainee Guards
(a) Trainee Guards shall be paid the Trainee rate of pay until qualified as a Guard. Upon qualification as a guard the Employee shall complete the remainder of their first year on the completion rate of pay.
(b) The Employer will apply recognition of prior learning experience in determining the post-Trainee rates of pay for any guard who has been previously employed as a guard with Sydney Trains or other rail organisation(s).”
The Respondent accepted that the Commission is empowered by the dispute settlement procedure clause contained in cl 8 of the Agreement (the Dispute Settlement Clause) to resolve the dispute, so far as the scope of the dispute is confined to one or more matters falling within sub-cl 8.2.
There was no issue as to whether the dispute related to a matter arising under the Agreement, nor that the requisite steps in the Dispute Settlement Clause had been followed.
The Respondent submitted, to the apparent agreement of the Applicant, that the question for determination is:
“Does clause 129.4(b) of the Agreement require the Respondent to determine a higher post-Trainee rate of pay in light of the Applicant’s prior learning experience from 15 August 1995 to 9 August 1998”.
The Respondent submitted that the answer to that question is “no”.
Procedural History
This matter was previously allocated to Deputy President Bull for determination. A conference was conducted by Deputy President Bull on 27 April 2021, after which, the parties continued negotiations without the involvement of the Fair Work Commission (the Commission) for some time.
On 13 December 2021, the Applicant contacted the Chambers of Deputy President Bull, noting that the parties had failed to reach agreement, and requesting that the matter be progressed before the Commission. The Parties agreed to meet for further negotiations, and report back to the Commission if the matter remained unresolved.
On 25 January 2022, the Applicant again contacted the Chambers of Deputy President Bull requesting that the dispute be resolved by the Commission.
On 3 February 2022, Deputy President Bull conducted a conference in this matter. At that conference, the Deputy President indicated he intended to determine this matter on the papers. Later that day, Deputy President Bull issued the following directions for the filing of materials:
i.The Applicant (Mr Victor Bebawi) is directed to file with the Fair Work Commission, and serve on the Respondent, an outline of submissions, witness statements and other documentary material the Applicant intends to rely on in support of his application by no later than 4:00pm on 17 February 2022.
ii.The Respondent (Sydney Trains) is directed to file with the Fair Work Commission, and serve on the Applicant, an outline of submissions, witness statements and other documentary material the Respondent intends to rely on in opposition to the Applicant’s application by no later than 4:00pm on 3 March 2022.
iii.The Applicant (Mr Victor Bebawi) is directed to file with the Fair Work Commission, and serve on the Respondent, an outline of submissions, witness statements and other documentary material the Applicant intends to rely on in reply by no later than 4:00pm on 10 March 2022
The parties complied with these directions. In particular:
· The Applicant filed an Outline of Submissions on 12 February 2022;
· The Respondent filed an Outline of Submissions and Witness Statement of Mr Sean Jury, Senior Manager, Initial Employment Training, on 3 March 2022; and
· The Applicant filed an Outline of Submissions in reply on 9 March 2022.
On 14 March 2022, following the retirement of Deputy President Bull, this matter was allocated to my Chambers. On 16 March 2022, the parties confirmed their preference that the matter be determined on the papers.
Background Facts
Between 15 August 1995 and 9 August 1998, the Applicant was employed as a Train Guard with CityRail, a predecessor entity of Sydney Trains.
Additionally, the Applicant claims he has worked in the Railway Industry for a total period of 13 years from 11 April 1994 till 23 February 2007, in various positions which required continuous training and practical learning experience to develop and enhance skills necessary to perform the responsibilities in his current position as Train Guard. During that 13-year experience, the Applicant completed further related training courses and attained related qualifications including safe working, track inspections, customer service, risk management, negotiation, problem solving and communication training.
From 24 February 2007 to 5 March 2018, the Applicant was employed by various Federal Government organizations including the Australian Taxation Office in positions which he claimed required the same skills used to perform his current Train Guard duties, including communication, customer service, risk management, problem solving and negotiations.
The Respondent maintains a one-page document titled “PRIOR LEARNING MATRIX - TRAIN DRIVERS” (Prior Learning Matrix) which reflects the established custom and practice of determining post-Trainee rates of pay for Train Drivers. The Respondent submitted that the Prior Learning Matrix states that an employee must return to work within two years for their previous driving experience to be counted and qualify them for a higher rate of pay. The Respondent added that the same time frame applies to both Drivers and Guards.
On 5 March 2018, the Applicant commenced employment with Sydney Trains as a Trainee Guard.
On 25 March 2021, the Applicant issued a Notice of Dispute to his Local Manager.
On 1 April 2021, the Respondent notified the Applicant that they had concluded that recognition of the Applicant’s previous experience as a guard with CityRail cannot be applied to determine the Applicant’s post-Trainee rate of pay. That same day, the Applicant notified the Respondent that he considered that the dispute had not been resolved.
On 9 April 2021, a meeting was conducted between the Applicant, and the Work Place Relations Representative and Management Representatives of the Respondent, in accordance with Step 2 of the Dispute Settlement Clause, however the parties failed to reach agreement. Later on 9 April 2021, the Applicant notified the Respondent that the dispute remained unresolved. In response, the Respondent advised that it was best to skip Step 3 of the Dispute Settlement Clause and to initiate a claim with the Commission.
On 11 April 2021, the Applicant notified the Respondent of his agreement with the proposed course.
On 12 April 2021, the Applicant lodged a Form F10 Application to deal with a dispute in accordance with a dispute settlement procedure (the Application).
Applicant’s Submission
The Applicant submitted that sub-cl 129.4(b), contains a clear promise by the Respondent to recognise any previous guard experience in any rail organisation given the expressions used in the clause including “Sydney trains will apply recognition…”, and “…any guard who has been previously employed as a guard with Sydney Trains or other rail organization”. The Applicant submitted that the sub-clause does not impose any limitations in relation to the period during which the experience was attained, nor does it impose limitations related to the rail organisation with which the experience was attained.
The Applicant submitted that insofar as the Respondent relies on the Prior Learning Matrix, that document is not legally enforceable because:
(a) The document constitutes an impermissible variation to the Agreement;
(b) The document has not been approved by the Commission;
(c) The document applies to Train Drivers, and there is no reference in the document to Train Guard experience;
(d) The only conditions in the Agreement are outlined in sub-cl 129.4 (b). The Respondent is trying to add limitations or conditions which are not specified in the sub- clause; and
(e) The Agreement constitutes a contract between Sydney Trains and its employees. The “Contra Proferentem Rule” in contract law also known as “interpretation against the draftsman” requires that if there is any ambiguity in a contract clause, such ambiguity cannot be used to benefit the party who drafted the contract. The Agreement has been drafted by Sydney Trains.
The Applicant submitted that the only requirement for the recognition of previous experience is previous employment with a rail organisation. The Applicant added that the only requirement is “...has been previously employed as a guard…”. The time frame during which the experience was attained is not a consideration.
It was submitted by the Applicant that if the Respondent’s claim that the clause applies only if a train guard returns to work within two years of ceasing employment as train guard were accepted, sub-cl 129.4(b) would be made “null and void” and would never result in an increase to the post-Trainee rate of pay. The Applicant noted that a train guard who returns to work within two years of ceasing employment is not required to go through guards training program. In such a case, the employee’s qualifications would be recognised as current and valid qualifications. As such, the employee would not need to go through guards training again. The employee would recommence employment as a qualified train guard.
The Applicant argues that the Respondent’s claim that any qualification must be recognised and current defies the requirement imposed by sub-cl 129.4(b) to recognise experience with other rail organisations.
The Applicant submitted that the expression “Prior learning Experience” in sub-cl 129.4(b) is intended to mean “previous train guard experience” or the “length of previous train guard service” including actual work experience and structured training.
The Applicant noted that the rates of pay structure (Classification Structure) under the Agreement is linked to the train guard’s (or any other employee’s) length of service. A Train Guard will move to the next level in the Classification Structure upon the completion of twelve months service in each step of the incremental structure. The Classification Structure is not linked to what training courses have been completed by the train guard or the duration of the training program(s). Schedule 4A “Classifications & Rates of Pay” in the Agreement demonstrates that the rates of pay for Train Guards are linked to the length of service. A Train Guard moves to the next level in the Classification Structure upon the completion of twelve months service in each step of the incremental structure.
The Applicant submitted that the major component of the Sydney Trains guard training program is practical learning by performing actual work. Around 80% of the program is practical learning through the work environment. The duration of “in class learning” component of the train guard training program is not more than 8 weeks or around 20% of the program.
The Applicant submitted that he has worked in the Rail Industry for 13 years from 1994 to 2007. In addition to his three-year experience as a train guard, the Applicant has worked in the track maintenance field, undertook track inspections, managed track maintenance projects, attained worksite protection officer qualifications, worked as worksite protection officer, inspected and upgraded rail level crossings, and managed stations upgrading projects.
The Applicant submitted that his experience and training has resulted in outstanding performance. The Applicant pointed to a recent Competency Assessment (CA) which took place on 1st December 2021, in which the assessor wrote “One of the best CA’s conducted by me in a long time. Victor was able to answer all underpinning knowledge questions very promptly and correctly.”
The Applicant submits that it is neither rational nor reasonable to ignore relevant knowledge, skills, experiences and capabilities gained by the Applicant during his employment history, which includes more than 28 years in the Australian public sector and 6 years overseas. The Applicant has worked in the rail industry alone for 13 years. For part of his 13 years of learning experience, the Applicant was employed as a Train Guard for approximately 3 years during the period from 15 August 1995 to 9 August 1998. It was submitted that the knowledge, skills and abilities gained by the Applicant during his employment history are transferrable, and relevant to his current role.
The Applicant submitted that Courts and Tribunals have held that relevant experience is to be recognised regardless of the place of work in which it was attained.[1]
Respondent’s Submission
The Respondent’s Submissions incorporated the key elements of the short witness statement of Mr Jury. That evidence is referred to in the below summary of those submissions.
Regarding the Applicant’s Submission that the contra proferentem rule should be applied, the Respondent submits:
(a) The use of the contra proferentem rule is misconstrued because the clause the subject of the dispute is not ambiguous; and
(b) As was contemplated by the Commission in Construction, Forestry, Maritime, Mining and Energy Union - The Maritime Union of Australia Division v Transdev Brisbane Ferries Pty Ltd T/A Transdev Queensland,[2] in the absence of clear evidence that the Respondent drafted the Agreement and placed it before employees on a “take it or leave it” basis, and that those employees had minimal if any involvement in the negotiations, the contra proferentem rule should not be applied to resolve any ambiguity “simply because the employer party to the agreement drafted the clause or caused it to be included in the agreement.”[3]
The Respondent noted two preliminary matters regarding the proper interpretation of the Agreement, being that sub-cl 129(4)(a) provides:
(a) The rate of pay for a Trainee Guard is set out in Schedule 4A under “Guard 1 Year Trainee”; and
(b) Once an employee becomes qualified as a guard, the employee, for the remainder of their first year, is paid the completion rate of pay set out in Schedule 4A under “Guard 1 Year Completion”. Importantly, this rate of pay is applicable regardless of an employee’s prior learning or experience.
Regarding sub-cl 129.4(b), the Respondent submitted that the ordinary meaning of the words are clear to the following effect:
(a) the Respondent must undertake a process of determining the post-Trainee rates of pay;
(b) the Respondent must apply recognition of prior learning experience when undertaking that determination; and
(c) the sub-clause only applies to an employee who meets each of the following criteria:
(i) is employed by the Respondent as a guard;
(ii) has previous previously been employed as a guard;
(iii) where that employment was with Sydney Trains or other rail organisation(s).
The Respondent submitted that sub-cl 129.4(b) of the Agreement does not require or prescribe any particular outcome of the determination of the post-Trainee rate of pay, and in particular does not require or prescribe that recognition of prior learning experience will result in the determination of the post-Trainee rate of pay at a particular classification or rate.
The Respondent submitted that when construing sub-cl 129.4(b) as a whole, it is readily apparent that only prior learning experience obtained as a guard employed with the Sydney Trains or other rail organisation is relevant to the determination. The Respondent added that sub-cl 129.4(b) of the Agreement provides that the Respondent must take into account, or apply, a guard’s prior learning experience as a guard of the Respondent or other rail organisation when determining whether the rate of pay for that guard should be set at the “Guard 2nd Year” or “Guard Thereafter” rate of Schedule 4A of the Agreement.
The Respondent submitted that it followed the process required by sub-cl 129.4(b) in determining the Applicant’s rate of pay, and added that in the conciliation of this dispute in April 2021, the Respondent agreed to review the Applicant’s prior learning experience and conduct the determination following the process required by sub-cl 129.4(b). The Respondent submitted that through that process the Respondent confirmed that the Applicant’s rate of pay had been correctly determined.
The Respondent does not dispute that the Applicant has prior learning experience as a guard employed with a predecessor of Sydney Trains, or that he was employed by CityRail as a guard between from 1995 to 1998. The issue, the Respondent submits, is whether that experience, occurring 20 years prior to the Applicant’s commencement as a Trainee Guard with the Respondent, should have been recognised and resulted in a determination that the Applicant’s rate of pay was correctly “Guard Thereafter” and not “Guard 2nd Year” after the first year of his employment.
The Respondent submitted that other than the fact of his employment as a guard between 1995 and 1998, the Applicant has not demonstrated that his prior learning experience is transferable and applicable to his current employment as a Guard.
The Respondent submitted that the relevance of prior learning experience and recognition of that prior learning experience may be gleaned from a consideration of the statutory and regulatory framework in which the Respondent operates. The Respondent noted that Transport for NSW is a Registered Training Organisation who provides the Respondent its Trainee Guard program in accordance with the Australian Skills Quality Framework (ASQF) set by the Australian Skills Quality Authority. Within the ASQF is the commonly understood concept of “recognition of prior learning”. Under the AQSF, recognition of prior learning must be conducted with the same rigour as any other form of assessment.
The Respondent submits that it is a “rail transport operator” for the purposes of the Rail Safety National Laws. Pursuant to cl 52 of the Rail Safety National Laws, the Respondent is required to, among other things, ensure that safe systems for the carrying out of the operator's railway operations are developed and implemented. The Respondent submitted that in order to comply with this obligation, it has developed a set of national standards, the RailSafe National Standards - NS-0917: Operating rail traffic (NS-0917) (NS-0917), which prescribes the requirements for operators and managers of Train Crews and Track Vehicle Crews relating to fitness for work, route knowledge, traction knowledge, integrity of on-board safety systems, and crew compartment security.
The Respondent noted that NS-0917 provides that if a crew member has not operated a train in a two-year period, the crew member will require retraining on almost all areas of their role. Further, route competency for guards is maintained if they travel a route in both directions within 24 months.
The Respondent further submits that since 1998, traction knowledge has vastly changed, including but not limited to train sets, safety systems and route knowledge. The Respondent submitted that what was learned by the Applicant some 20 years ago, cannot be applied to the methods and systems of safe working that are currently in place at the Respondent. Further, a vast number of new routes and maintenance facilities have opened.
Applicant’s Reply Submission
The Applicant submitted that the Respondent’s acceptance that the Applicant has previous experience as a train guard is evident in its submission that “There is no dispute that the Applicant has prior learning experience as a guard employed with a predecessor of Sydney Trains. The Applicant was employed by CityRail as a guard between from 1995 to 1998”, and that the Respondent’s acceptance that the Applicant’s learning experience is still valid is evidenced by the Respondent’s observation that “… the Respondent accepts that historical learning experience does not mean that it is not valid…”.
The Applicant submitted that based on the ordinary meaning of cl 129.4, the Respondent should have applied recognition of the Applicant’s three years’ experience and have accepted that the Applicant’s post-trainee rate of pay should have been “Guard Thereafter” from the date he completed his guard training in August 2018 and became a qualified guard. The Applicant notes that he was instead paid “First Year Completion” after he completed the training.
The Applicant submits that, although the Respondent accepts that “the task of interpreting an agreement does not involve rewriting the agreement”, they are, in effect, rewriting cl 129.4 by imposing additional conditions to the condition in sub-cl 129.4(b) .
The Applicant submitted that there is compelling evidence that Sydney Trains has introduced cl 129.4 into the Agreement by copying the same clause from preceding enterprise agreements and that the clause remained unchanged. The Sydney Trains Enterprise Agreements of 2010 and 2014 contained the same clause. The Applicant submits that accordingly, the contra proferentem rule is to be used to resolve any ambiguity that may exist or be claimed to exist in cl 129.4.
The Applicant submits that the ordinary meaning of cl 129.4 is clear to the following effect:
(a)The clause affects employees who commenced employment as “Trainee Guards”,
(b)All Trainee Guards shall be paid the Trainee rate of pay (First Year Trainee rate) until qualified as Guards,
(c)After completing the guard training and becoming qualified guards, Train Guards who do not have prior guard experience with Sydney Trains or other rail organisations will be paid the “Guard 1 Year Completion” rate in accordance with Schedule 4A in the enterprise Agreement,
(d)After completing the guard training and becoming qualified guards, Train Guards who has previously worked as Train Guards with Sydney Trains or any other organisation, will be paid a post-trainee rate which is calculated based on the length of their prior of experience/service. The duration of prior experience/ service will be deemed equivalent to Sydney Train guard service for the purpose of determining the employee’s post – trainee rates.
(e)The Respondent will accept/recognise prior service for trainee guards who meet each of the following criteria:
(i)The employee has initially joined Sydney Trains as a Trainee Guard; and
(ii)The employee has successfully completed the required guards training; and
(iii)The employee has been previously employed as a guard with Sydney Trains or other rail organisation(s).
The Applicant submitted that there is no question that he meets the above criteria for the recognition of his prior learning experience under cl 129.4, and that the Respondent accepts this. The Applicant added that as he has three years prior experience, he should have received a post-Trainee rate of pay based on “Guard Thereafter” classification. The Applicant requires around 1 year and 7 months of recognised experience to be paid “Guard Thereafter” rates.
The Applicant submits that the Respondent’s approach, if adopted, means that a teacher's experience would not be recognised because he has not used a projector or the doctor’s experience would not be recognised because the new hospital is using different pieces of equipment. The Applicant submitted that the Respondent is not only adding conditions which are not warranted under cl 129.4, but, in addition, the approach taken by the Respondent to assess the relevance of the Applicant’s prior experience contradicts the case law established by decisions of the Australian Administrative Tribunal and other legal jurisdictions. In addition, it was submitted, it contradicts the NSW Public Sector Capabilities Framework which calls for the admissibility of transferable capabilities.
The Applicant noted he has 3 years’ experience as a train guard, 13 years’ experience in the rail industry and 11 years’ experience in the Federal Government. The Applicant needs approximately 1 year and 7 months of his service to be recognised by Sydney Trains to be paid “Guard Thereafter” rates. The Applicant submits that, at least, his experience as a train guard for the period from 15 August 1995 to 9 August 1998 must be recognised. As a result of the recognition of his prior learning experience, the Applicant is entitled to receive “Guard Thereafter” rates of pay from the date he completed his training in August 2018.
Consideration
The Applicant and the Respondent agreed that the principles relevant to the interpretation of enterprise agreements were as expressed by a Full Bench of the Commission in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Berri Pty Limited (Berri).[4] The parties also apparently agreed that the relevant terms of the Agreement are unambiguous.
I agree that the task of enterprise agreement interpretation is directed at finding the common intention of the parties by reference to what a reasonable person would understand the parties intended from the words used in their agreement. The starting point is the ordinary grammatical meaning of the words followed by any contextual indicators.
Those principles were summarised by the Full Bench in Berri (at paragraph [114]) 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 aid 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.”
As observed at Principle 1 in Berri, the resolution of a disputed construction of an agreement will turn on the ordinary grammatical meaning of the words followed by any contextual indicators, with such context being apparent from:
a)The text of the agreement viewed as a whole;
b)The disputed provision’s place and arrangement in the agreement; and
c)The legislative context under which the agreement was made and in which it operates.
While the dispute particularly concerns the operation of paragraph (b) of cl 129 of the Agreement, the clause as a whole must be considered. That clause provides:
“129.4. Trainee Guards
(a) Trainee Guards shall be paid the Trainee rate of pay until qualified as a Guard. Upon qualification as a guard the Employee shall complete the remainder of their first year on the completion rate of pay.
(b) The Employer will apply recognition of prior learning experience in determining the post-Trainee rates of pay for any guard who has been previously employed as a guard with Sydney Trains or other rail organisation(s).”
The Relevant Classifications that may arise for consideration are outlined in Schedule 4A of the Agreement as follows, with the post agreement approval rate of pay without industry allowance specified:
| Guard 1 Year Trainee | $1,171.80 |
| Guard 1 Year Completion | $1,177.75 |
| Guard 2nd Year | $1,197.40 |
| Guard Thereafter | $1,226.40 |
Paragraph (a) of cl 129.4 sets the default position for how Trainee Guards progress through the classifications. Paragraph (b) provides the exception for where a Trainee Guard has been previously employed as a guard with Sydney Trains or other rail organisation(s).
Contrary to the submission of the Applicant, there is no “clear promise by Sydney Trains to recognise any previous guard experience in any rail organisation”. Any deviation from the default position outlined in paragraph (a) of cl 129.4 arises only from the Respondent “determining the post-Trainee rates of pay” (emphasis added) after applying recognition of prior learning experience pursuant to paragraph (b).
I accept that sub-cl 129.4(b) of the Agreement does not require or prescribe any particular outcome of the determination of the post-Trainee rate of pay, and in particular it does not require or prescribe that recognition of prior learning experience will result in the determination of the post-Trainee rate of pay at a particular classification or rate.
If the Applicant’s contention were correct, and there was a promise to recognise any previous guard experience no matter how dated, there would be no need for the Respondent to make a determination of post-Trainee rates of pay. By way of example, a hypothetical Trainee Guard, with three years experience as a Guard from 1970 to 1972, must have their previous experience recognised. While an extreme example, that scenario is not beyond the bounds of possibility, and it exhibits the absurdity of the Applicant’s preferred interpretation.
Insofar as the Applicant relies on contra proferentum rule as disallowing the Respondent advancing their interpretation of the particular provision, such reliance is erroneous because:
(a) There is no ambiguity in the provision; and
(b) There is no evidence whatsoever that the Respondent has drafted the Agreement and placed it before employees on a “take it or leave it” basis, or that those employees had minimal if any involvement in the negotiations.[5]
Contrary to the submission of the Applicant, I consider the fact that cl 129.4 of the Agreement has been copied from preceding enterprise agreements of 2010 and 2014 and remained unchanged does not support application of the contra proferentum rule. Far from indicating considered inclusion of the provision by the Respondent alone, it supports a conclusion of considered inclusion by all parties. There is no evidence that the Respondent caused the provision to be included in the Agreement or its predecessors.
While I have found the ordinary grammatical meaning of the words of cl 129.4 to be clear, I note that interpretation is consistent with the legislative context under which the agreement was made and in which it operates.
Operators of Rail Traffic must have procedures in place to make sure that any person who operates rail traffic in the Sydney Trains Network has been assessed and is fit for work in accordance with legislative and regulatory requirements:
(a) Rail Safety (Adoption of National Law) Act 2012;
(b) Rail Safety (General) Regulation 2012;
(c) Rail Safety (Drug & Alcohol testing) Regulation 2012;
(d) National Standard for Health Assessments of Rail Safety Workers (NTC);
(e) Sydney Trains Network Rules and Network Procedures Training Standard; and
(f) Sydney Trains Network Rules and Network Procedures Certification Standard.
In satisfying its legislative and regulatory obligations, the Respondent engages Transport for New South Wales, a Registered Training Organisation, to provide the Sydney Trains Guard trainee program in accordance with the Australian Skills Quality Framework set by the Australian Skills Quality Authority (ASQA). Within the Australian Skills Quality Framework, Sydney Trains may recognise a Guard’s prior learning, and Guards are trained and assessed pursuant to a Guard Capability framework.
The training and assessment under the Guard Capability framework, pursuant to the legislative and regulatory obligations of the Respondent, is consistent with the determination of post-Trainee rates of pay by recognition of prior learning experience.
I find the case law referred to by the Applicant, being decisions of the Australian Administrative Tribunal and other legal jurisdictions, regarding other professions to be irrelevant to the proper interpretation of the unambiguous provisions of cl 129.4.
I note that the question for resolution addresses the requirement to recognise previous service no matter how dated, rather than the reasonableness of the decision made by the Respondent. I nonetheless observe that other than the fact of his employment as a Guard between 1995 and 1998, the Applicant has not demonstrated that his other prior learning experience is transferable and applicable to his current employment as a Guard. As to the fact of the Applicant’s employment as a Guard between 1995 and 1998, I consider such service extremely dated.
Conclusion
For the above reasons, I do not consider that the Respondent was required by sub-cl 129.4(b) of the Agreement to determine a higher post-Trainee rate of pay due to the Applicant’s prior learning experience from 15 August 1995 to 9 August 1998. The answer to the question posed in this dispute is “no”.
DEPUTY PRESIDENT
[1] Mavay v Director General, Department of Finance & Services [2011] NSWADT 217 (13 September 2011; Edrees v Commissioner for Fair Trading [2021] NSWCATAD 32 (16 February 2021.
[2] [2018] FWC 3421 at [17] to [19]
[3] Ibid. at [19].
[4][2017] FWCFB 3005.
[5] Construction, Forestry, Maritime, Mining and Energy Union - The Maritime Union of Australia Division v Transdev Brisbane Ferries Pty Ltd T/A Transdev Queensland[2018] FWC 3421, at [18].
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