Victor Bebawi v Sydney Trains - [2022] FWC 1304

[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:

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] FWC 1304
Decision Date: 2 JUNE 2022

CaseChat Overview and Summary

This case involved a dispute between Victor Bebawi and Sydney Trains regarding the recognition of Bebawi's prior experience as a train guard in determining his post-Trainee rate of pay. The dispute was referred to the Fair Work Commission, which found that clause 129.4(b) of the Sydney Trains Enterprise Agreement 2018 did not require Sydney Trains to determine a higher post-Trainee rate of pay in light of Bebawi's prior learning experience from 15 August 1995 to 9 August 1998. The Commission considered the ordinary grammatical meaning of the words of cl 129.4 to be clear, and found that there was no ambiguity in the provision. The Commission also found that the case law referred to by Bebawi regarding other professions was irrelevant to the proper interpretation of the unambiguous provisions of cl 129.4. The Commission ultimately concluded that Sydney Trains was not required by sub-cl 129.4(b) of the Agreement to determine a higher post-Trainee rate of pay due to Bebawi's prior learning experience from 15 August 1995 to 9 August 1998. The answer to the question posed in this dispute was "no".

The Fair Work Commission's decision in this case provides guidance on the interpretation of enterprise agreements and the proper application of the contra proferentem rule. The Commission found that the ordinary grammatical meaning of the words of cl 129.4 was clear, and that there was no ambiguity in the provision. The Commission also found that the contra proferentem rule was not applicable in this case because there was no evidence that Sydney Trains had 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. The decision highlights the importance of considering the legislative context under which the agreement was made and in which it operates, and the need for operators of Rail Traffic to 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.

Orders