| [2022] FWC 38 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Australian Rail, Tram and Bus Industry Union
v
Sydney Trains T/A Sydney Trains
(C2021/6829)
DEPUTY PRESIDENT BULL |
SYDNEY, 8 FEBRUARY 2022 |
Alleged dispute about matter arising under the enterprise agreement - Interpretation of incorporated document - admissibility of ‘without prejudice’ communication.
[1] In this matter, the Australian Rail, Tram and Bus Industry Union (RTBU) has made an application pursuant to s.739 of the Fair Work Act 2009 (the FW Act) in respect of a dispute with Sydney Trains.
[2] The application seeks to have the Fair Work Commission (the Commission) resolve a dispute relating to an overtime bonus payment (OTB) for train drivers (Drivers) when they have taken paid special leave relating to Covid-19 (Special Covid Leave) in accordance with the NSW Government Circular C2021-14 Employment Arrangements during COVID 19 (Circular). 1
[3] The dispute application was made pursuant to clause 8 of the Sydney Trains Enterprise Agreement 2018 (the Enterprise Agreement) which came into operation on 1 May 2018 and has a nominal expiry date of 30 April 2021. 2
[4] Clause 3.9 of the Drivers Rostering and Working Arrangements (DRWA), which is incorporated into the Agreement, outlines when a Driver is entitled to an OTB. 3
[5] The matter was subject to a telephone conference before the Commission on 25 October 2021, however the matter was not resolved and the RTBU requested that the dispute be referred for arbitration.
[6] On 8 November 2021, the RTBU provided the following question for arbitration:
“In the proper application of the Sydney Trains Enterprise Agreement 2018, Drivers Rostering and Working Arrangements, and 2019 OTB Agreement, do rostered shifts missed due to Paid Special Leave as provided by NSW Govt Circular c2021-14 count towards the “19 of 28 requirement” for Overtime Bonus calculations?” 4
[7] At the subsequent hearing, leave was granted for Sydney Trains to be legally represented pursuant to s.596(2)(a) of the FW Act on the basis that it would enable the matter to be dealt with more efficiently taking into account the issues involved with the interpretation question.
Background
[8] Clause 3.9 - Overtime Bonus of the DRWA provides Drivers working for Sydney Trains with an entitlement to an OTB when they work more than 19 shifts in a 28-day period. The clause reads in part as follows:
“3.9 Overtime Bonus
3.9.1 Overtime is allocated on a fortnightly/yearly basis to ensure an equitable distribution
3.9.2 An Overtime bonus for drivers working beyond nineteen (19) days in the twenty-eight (28) day period will apply.
3.9.3 The payments will be: …
3.9.4 RailCorp recognises the following days for the overtime bonus payment, while the driver is on roster:
3.9.4(a) All subject time
3.9.4(b) Annual leave, public holidays and non-proclaimed holidays cleared with annual leave.
3.9.4(c)… .
… ”
(My underline)
[9] Despite the use of the word ‘working’, the DRWA recognises in certain circumstances that certain shifts not actually worked count towards the calculation of the OTB entitlement. 5
[10] On 16 July 2021, the NSW Government published a Circular which provided an entitlement to Special Covid Leave of up to 20 paid days for NSW Government employees in stipulated circumstances. 6 Special Covid Leave was not available to employees who were themselves sick and unable to work, but for employees not able to work as they were either:
• excluded from the workplace due to isolation requirements
• required to care for family members or
• unable to attend work due to transport disruptions. 7
[11] In early 2019, the parties were involved in a previous dispute regarding the OTB (2019 OTB Dispute). The RTBU described this dispute as relating to what constituted a shift worked for the purposes of the OTB, and being relevant to this dispute. Sydney Trains submitted that the 2019 OTB Dispute related solely to the issue of ‘out of course annual leave’ and is not relevant to this dispute.
[12] Ms Bonelli provided a witness statement 8 and was subject to cross-examination.
[13] Ms Bonelli is a Driver Trainer at Sydney Trains, and her employment conditions are derived from the Enterprise Agreement. 9 Ms Bonelli is a Divisional Councillor of the Locomotive Division of the RTBU.10
[14] Ms Bonelli stated that the DRWA, which provides rostering guidelines and requirements as well as outlining overtime payments and other entitlements, applied to her employment. 11
[15] Ms Bonelli said that in 2018 she was appointed to the Drivers Concerns and Issues Taskforce (the Drivers Taskforce) which worked with Sydney Trains’ management to resolve industrial issues relating to Drivers, without engaging the formal dispute resolution procedure in the Enterprise Agreement. 12
[16] Ms Bonelli ‘s evidence was that she had received the OTB payment on several occasions and understood that eligible workers were entitled to the OTB when they worked more than 19 shifts in a specified 28-day period. 13 Ms Bonelli said that ‘shifts worked’ under the DRWA for the calculation of OTB included:
• actual shifts worked,
• shifts missed whilst on annual leave,
• some forms of special leave, and
• shifts missed in some other circumstances. 14
[17] According to Ms Bonelli, from 2019 to July 2021, Sydney Trains had recognised all cases of special leave for the calculation of the OTB. 15
[18] Ms Bonelli stated that a Driver was on roster when they were allocated a line of work on the depot’s roster to perform train driving work. Conversely, a worker was off roster when they were taken off their usual line of the roster and put into the relief line at the bottom of the roster. Ms Bonelli stated that a Driver who was off roster would not perform train driving work and would usually perform alternative non-driving duties. According to Ms Bonelli, she had only known Drivers to be taken off roster when they had failed a medical or had a safety critical incident. 16
[19] Ms Bonelli submitted that the 2019 OTB Agreement resulted from a dispute raised by the RTBU regarding annual leave not counting towards the OTB entitlement. 17 Sydney Trains disputed the payment of the OTB on the basis that short periods of annual leave could not be used in calculating eligibility for the OTB,18 which the RTBU disputed.19
[20] Ms Bonelli stated that at a meeting on 26 November 2018, it was agreed between the parties that all paid leave, except sick and carers leave, would count towards the calculation of the OTB. 20 Although under cross-examination, Ms Bonelli accepted that there was no reference to this in the meeting minutes.21
[21] Ms Bonelli attached a letter from Sydney Trains, dated 1 March 2019, which included an attachment marked “Without Prejudice” (without prejudice correspondence), and a subsequent acceptance letter dated 17 April 2019 from the RTBU, which formalised the 2019 OTB Agreement. 22
[22] Following this, Ms Bonelli said that the parties acted in accordance with the 2019 OTB Agreement until July 2021 when a dispute arose regarding Special Covid Leave 23
[23] Ms Bonelli stated that the current dispute arose as a Driver’s shifts not worked due to being on Special Covid Leave were not included in the OTB calculations by Sydney Trains. 24
[24] The dispute was unable to be resolved internally with Sydney Trains and on 27 September 2021, the matter was mediated before Unions NSW in accordance with Step 3 of the Dispute Settlement Procedure of the Agreement but remained unresolved. 25
RTBU’s submissions
[25] The RTBU stated that Sydney Trains employs Drivers whose terms of employment are governed by the Agreement. 26 Drivers are shift workers, working a 19-day month with their 19 shifts allocated in advance through a Master and Period Roster.27 The rosters are created having regard to the Enterprise Agreement, the DRWA, as well as the Transfer and Roster Placement Policy.28
[26] The RTBU submitted that the 2019 OTB Dispute with Sydney Trains regarding what constituted a shift worked for the purposes of the OTB resulted in the 2019 OTB Agreement which was relevant to the current dispute. 29
[27] The RTBU contended that the 2019 OTB Agreement, which included the “Without Prejudice” correspondence, was binding on Sydney Trains, and a plain reading of the 2019 OTB Agreement resulted in affirming the question for arbitration. Alternatively, if the RTBU was wrong on this ground, it was submitted that clause 3.9 of the DRWA is ambiguous in its application, and that the 2019 OTB Agreement resolves the ambiguity. 30
Special Covid Leave
[28] Whilst the RTBU acknowledged that an entitlement to Special Covid Leave was absent from the Enterprise Agreement as it arose from the Circular, it was submitted that it was encapsulated in the Enterprise Agreement by way of a broad definition of Special Leave at clause 28.8 of the Agreement, which is defined at 28.8(a) in the following terms:
“Special leave is paid leave which enables Employees to participate in community activities, or deal with public emergencies. It covers special situations not catered for by other forms of leave.” 31
[29] The RTBU submitted that Special Covid Leave meets this definition as it is paid leave to deal with a public emergency, being Covid-19. 32
The 2019 OTB Agreement
[30] The RTBU argued that the 2019 OTB Agreement remains binding on the parties and applied to the current dispute. Relevantly, the “Without Prejudice” correspondence reads:
“…prospectively from the date of this correspondence that the parties recognise the following types of leave, where a Driver is on roster, as being recognised for the purpose of overtime bonus calculations:
• All subject time whilst on the roster
• All paid leave, with the exception of sick leave, carers leave and alternate leave used for the purposes of an absence due to illness or carers responsibilities. Further any period of unpaid leave is also not recognised including (but not exclusively) leave without pay (LWOP), career breaks, fail no advice (FNA)…” 33
[31] It was submitted that Special Covid Leave is ‘paid leave’, as referenced in the 2019 OTB Agreement, and therefore recognised for the purpose of the OTB entitlement. Further, Special Covid Leave does not fall into any of the exempt categories of paid leave set out in the 2019 OTB Agreement. 34
On Roster
[32] Ms Bonelli provided evidence that a Driver would be “on roster” as required by clause 3.9.4 of the DRWA when they are assigned a line of working on their depot’s master and/or period roster that indicated their known ordinary shift workings. 35
[33] It was submitted that a Driver is ‘off roster’ when they have been removed from their usual line on their depot’s rosters, which usually occurred when there had been a safety incident or if the Driver was subject to a medical. When a Driver is ‘off roster’, they have no driving shifts allocated to them, and perform alternate duties, usually in an office, working normal office hours without regard to any rostered shifts. 36
[34] The RTBU submitted that whilst the rules of evidence are not strictly binding in proceedings brought before the Commission, they remain a useful guide. 37 The RTBU noted that sub-s.131(1)(a) of the Evidence Act 1995 (Cth) arguably applies to Sydney Trains’ without prejudice correspondence.38 However, the without prejudice correspondence would, in the RTBU’s submission, fall within the exception contained at sub-s.131(2)(f) as it is adduced to enforce the outcome of the 2019 OTB Agreement, and the enforceability of the 2019 OTB Agreement has been put in issue by Sydney Trains.39 The RTBU stated that this is supported by the common law, where without prejudice offers ceased being protected by the privilege when it forms part of a settlement agreement, which by its nature must be capable of disclosure.40 On this basis, it is submitted that the without prejudice correspondence should be admitted as it falls with an exemption to the general rule in s.131(1) of the Evidence Act.41
[35] The RTBU submitted that Sydney Trains’ submissions that the interpretation of the words “All paid leave” within the without prejudice correspondence should be confined to mean ‘out of course annual leave’ were misguided. According to the RTBU, the words “All paid leave” should be given their natural meaning, in accordance with the usual principles of interpretation. 42
[36] Further, it was submitted not to be uncommon for settlements in an industrial relations context to go beyond the scope of the dispute to mitigate against future disputes arising from slightly different facts. Accordingly, the nature of the dispute giving rise to a settlement should not be used to limit the effect of the settlement reached. 43
[37] The RTBU stated that its interpretation of the without prejudice correspondence is consistent with the approach taken by Sydney Trains to OTB calculations following the 2019 OTB Agreement, where all other types of special leave were included for the purpose of calculating the OTB, despite all other types of special leave not being specifically referenced in the DRWA or without prejudice correspondence. 44
[38] In the event that it is decided that the 2019 OTB Agreement is industrially and legally unenforceable, the RTBU stated that the 2019 OTB Agreement presents an insurmountable estoppel that would prevent either party from deviating from the agreed position. 45
Ambiguity
[39] The RTBU submitted that if it was found to be incorrect in its primary position, that clause 3.9.4 of the DRWA was ambiguous on a plain reading, and the 2019 OTB Agreement resolves this ambiguity. 46
[40] The RTBU submitted that clause 3.9.4 of the DRWA was ambiguous as it was unclear whether the list of days recognised for the purpose of the OTB payment was exhaustive. Further, the clause was ambiguous as it was unclear what was meant from the term ‘all subject time’. 47
[41] The RTBU submitted that regard may be had to evidence of surrounding circumstances and context, where ambiguity exits, to aid in the interpretation of clause 3.9.4 of the DRWA. 48 The 2019 OTB Agreement was said to be evidence of surrounding circumstances.
[42] The existence of the 2019 OTB Agreement demonstrated that clause 3.9.4 of the DRWA was ambiguous as it was made to assist in interpretation of the clause. 49
[43] The 2019 OTB Agreement was said to be admissible as evidence as it was a later agreed interpretation which demonstrated the common intention of the parties and could be used to resolve the ambiguity. 50
Sydney Trains’ Evidence and Submissions
Evidence of Martin Bollmann
[44] Mr Bollmann is currently the Business Readiness & Project Delivery Lead with Sydney Trains. Prior to this, he was Head of Crew Day of Operations and has been employed by Sydney Trains and its predecessors for 38 years.51
[45] Mr Bollmann provided a witness statement and was subject to cross-examination.52 Mr Bollmann’s evidence was that Drivers and Sydney Trains have entered into an agreement called the Drivers Roster and Working Arrangements (DRWA). 53 Mr Bollmann stated that there had not been any changes to the DRWA and that the process outlined in clause 12 - Facilitation of Changes to the Terms of this Agreement of the Enterprise Agreement must be followed to make changes.54
[46] Mr Bollmann outlined that the OTB provisions in the DRWA originated in the early 2000s in response to issues of labour shortages post the Sydney Olympic Games. Mr Bollmann said that the purpose of the OTB was to provide a monetary incentive to Drivers who were available to attend work and be ‘on roster’ even if on certain forms of leave or approved absence, and to subsequently disincentivise excessive absenteeism through sick leave which is not counted for the purposes of the OTB.55 Mr Bollmann stated that, in the early 2000s, Sydney Trains and the RTBU had lengthy discussions about what forms of leave should be included in the calculation of the OTB which shaped the provisions of clause 3.9.4 of the DRWA. Mr Bollmann’s understanding was that the list in clause 3.9.4 of the DRWA was exhaustive.56
[47] It was Mr Bollmann’s evidence that the 2019 OTB Agreement resolved a dispute which did not extend beyond the parameters of the application of the OTB to missed shifts arising from ‘out of course, or unplanned annual leave’.57 In accordance with the 2019 OTB Agreement, from March 2019 onwards, all shifts missed during periods of out of course or unplanned annual leave were recognised for the purposes of the OTB.58
[48] It was Mr Bollmann’s evidence that the NSW Government’s grant of Special Covid Leave was not previously contemplated in any industrial instruments which apply to Drivers, including the Enterprise Agreement, and was not an entitlement which existed prior to the Circular issuing.59
[49] Mr Bollmann said that in terms of Sydney Trains’ payroll functions, Special Covid Leave was treated as a new separate and distinct category of leave as it is not captured by the Enterprise Agreement.60 Mr Bollmann added that when a Driver takes special leave as defined in clause 28.8 of the Enterprise Agreement, those shifts are not eligible for the OTB as special leave is not listed in clause 3.9.4 of the DRWA.61
[50] It was Mr Bollmann’s evidence that since the introduction of Special Covid Leave in July 2021, there had been 700 instances of Special Covid Leave and all shifts missed as Special Covid Leave have not been recognised towards the calculation of the OTB.62 Mr Bollmann submitted that this was because:
(a) A Driver who takes Special Covid Leave is not “on roster” in accordance with the requirements of clause 3.9.4 of the DRWA; and
(b) Special Covid Leave is not a form of leave contemplated or expressly listed in clause 3.9.4(a) of the DRWA; and
(c) Special Covid Leave is an additional benefit provided by the government Circular which post-dated the 2018 Agreement and the DRWA.63
[51] In Mr Bollmann’s view, being ‘on roster’ means that a Driver is able to be rostered for shifts. A Driver remains ‘on roster’ when utilising certain leave types and absence types as they are still able to be recalled from leave (such as annual leave) because they are fit for work.
[52] Being ‘off roster’ is when an absence has been allocated to a Driver and their roster is no longer current and/or they are not able to attend for work. Mr Bollmann said that sometimes an ‘off roster’ Driver will be temporary allocated a relief line, but this is not necessarily the case.
[53] Mr Bollmann listed the types of paid leave when the ‘on roster’ status applies:
a) Special leave
b) Sick leave
c) Sickness in family leave
d) Carers’ leave
e) Critical incident leave
f) Annual leave
g) Public holidays64
[54] It was Mr Bollmann’s evidence that there are three main categories of absence which means a Driver is ‘off roster’. He said these are:
a) For discipline or duty of care reasons;
b) For known medical conditions or failing a periodic medical; or
c) For safety breaches (including return to work after an incident).65
[55] Mr Bollmann submitted that when a Driver takes Special Covid Leave, the Driver is ‘off roster’ because, unlike some of the other paid leave entitlements, the Driver is completely unavailable and cannot be rostered for shifts.66
Sydney Trains’ Submissions
[56] Sydney Trains contended that the OTB was introduced in the year 2000 to incentivise attendance and availability in the lead up to the Sydney Olympic Games. 67
[57] Sydney Trains submitted that the pre-condition for the OTB at clause 3.9.4 of the DRWA requires that the relevant Driver be ‘on roster’. 68 Whether a Driver is considered to be ‘on roster’ was said to be an operational fact and that Drivers on Special Covid Leave are not ‘on roster’ as they cannot be recalled for work, and as such have not met the relevant pre-condition for the application of OTB.69
[58] It was submitted that its correspondence of 1 March 2019 and the accompanying without prejudice correspondence could not form part of the question to be arbitrated by the Commission as it could not be admitted into evidence. The 2019 OTB Agreement resolved a prior OTB dispute in 2019 and was limited to the issue of annual leave, and was not incorporated into the Enterprise Agreement. Sydney Trains submitted that the question for arbitration should read:
“In the proper application of the Sydney Trains Enterprise Agreement 2018 and Drivers Rostering and Working Arrangements, do shifts missed due to Pandemic Leave as provided by the NSW Government Circular c2021-14 count towards the “19 of 28 requirement” for Overtime Bonus calculations?” 70
[59] It was argued that the without prejudice correspondence forming the 2019 OTB Agreement should not be admitted or considered by the Commission. It was acknowledged that the Commission is not bound by the rules of evidence, but nonetheless should be informed by the usual rules in relation to the admissibility of evidence and referred to in ss.131 and 134 of the Evidence Act 1995 (Cth), as well as public policy considerations. 71 Sydney Trains submitted that the RTBU’s attempted use of the without prejudice correspondence was out of context, and was in relation to a different dispute, and did not constitute an exceptional case which may allow the admission of without prejudice material.72
[60] Sydney Trains submitted that its amended question should be answered in the negative because:
a) the plain and ordinary meaning of clause 3.9.4(b) of the DRWA does not cover Special Covid Leave
and/or
b) even if the without prejudice correspondence is admitted and considered relevant by the Commission, the reference to ‘All paid leave’ refers to forms of paid leave particularised in the DRWA; and not Special Covid Leave which post-dates the DRWA and could not have possibly been contemplated by the parties at the time of the 2019 Dispute;
and/or in the further alternative
c) Drivers are not ‘on roster’ during Special Covid Leave, and therefore such leave is not recognised for the purposes of calculating the OTB. 73
[61] If the Commission determined that the without prejudice correspondence was admissible, it was submitted that it has little relevance to the current dispute. 74
[62] The without prejudice correspondence was limited to the issues in dispute between the parties at the time, being the issue of shifts missed whilst on unplanned or out of course annual leave, and whether those shifts ought to count towards the 19 in 28 day OTB requirement. 75
[63] Sydney Trains contended that it was undisputed that the 2019 OTB Dispute related to a different form of leave than the current dispute and referred to Ms Bonelli’s statement. 76
[64] Sydney Trains submitted that the only sensible and logical interpretation of the phrase “All paid leave …” in its without prejudice correspondence is that it includes out of course annual leave when calculating the OTB, along with the other forms of leave referenced in clause 3.9.4 of the DRWA. 77
[65] Sydney Trains argued that this conclusion was supported by the RTBU’s own correspondence, which stated that “the agreed outcomes do not change any condition of employment but reflect the proper interpretation/application of the respective condition/s of employment contained within the DRWA”. 78
[66] Sydney Trains submitted that if the term “All paid leave” meant that forms of leave not specified in clause 3.9.4(b) to (l), including Special Covid Leave not yet in the contemplation of the parties, would count for the purposes of the OTB, this would be a change to the DRWA and subject to approval via the process described in clause 12 - Facilitation of Changes to the Terms of this Agreement of the Enterprise Agreement. 79
[67] As the without prejudice correspondence post-dated the DRWA its terms cannot give any indication of the common intention of the parties when resolving the 2019 OTB dispute. 80
Clause 3.9.4 of the DRWA
[68] Sydney Trains submitted that the plain and ordinary language of the list in clause 3.9.4 of the DRWA, outlining the types of leave which attract the OTB, indicates that it is an exhaustive list. The fact that not all forms of paid leave are included in the list was said to be intentional. For example, paid sick, parental, carers’, and special leave are not included. 81
[69] Sydney Trains did not accept that clause 3.9.4 of the DRWA was ambiguous as it had a plain meaning, 82 leaving no room for unlisted, alternative forms of leave to be included when calculating the OTB.83 Sydney Trains submitted that a reasonable person having regard to the language used by the parties to express their agreement at the relevant time would not understand that Special Covid Leave, or any future form of discretionary leave was to be captured by clause 3.9.4 of the DRWA, particularly where Special Covid Leave did not exist at the time.84 There was no extrinsic material in evidence which would establish a contrary common intention of the parties regarding clause 3.9.4 of the DRWA.85
[70] Even if ambiguity existed, there was no basis to suggest that Special Covid Leave could have been in contemplation when clause 3.9.4 of the DRWA was constructed. 86
[71] Sydney Trains submitted that the RTBU’s attempt to “shoehorn” Special Covid Leave into the provisions of clause 28.8 of the Enterprise Agreement and characterise it as a form of special leave is not possible, as clause 28.2 of the Enterprise Agreement provides an exhaustive list. 87
[72] Even if clause 28.8 was not exhaustive and allowed the inclusion of an entitlement not in the contemplation of the parties at the time of the Enterprise Agreement, special leave is not listed in clause 3.9.4 (b)-(l) of the DRWA. 88
Consideration
[73] Sections 738 and 739 of the FW Act authorise the Commission to arbitrate a dispute in accordance with a term of a dispute settlement procedure of an enterprise agreement. This dispute is brought before the Commission as the Enterprise Agreement contains at clause 8 - Dispute Settlement Procedure, a process for the Commission to conciliate and arbitrate unresolved disputes.
[74] The question posed by the RTBU for determination by the Commission is in the following terms:
“In the proper application of the Sydney Trains Enterprise Agreement 2018, Drivers Rostering and Working Arrangements, and 2019 OTB Agreement, do rostered shifts missed due to Paid Special Leave as provided by NSW Govt Circular c2021-14 count towards the “19 of 28 requirement” for Overtime Bonus calculations?”89
[75] The 2019 OTB Agreement and reliance on it was the prime focus of the RTBU’s submissions.
[76] In addressing the RTBU’s question to be answered, Sydney Trains has disputed that there can be any reference to the 2019 OTB Agreement as the document was marked “Without Prejudice”, is not incorporated into the Enterprise Agreement and should not be admitted into evidence.
[77] The approach of Sydney Trains to the question to be answered raised the preliminary matter as to whether evidence of an agreement between the parties reached in March/April 2019 (2019 OTB Agreement) was admissible, and in particular whether its without prejudice correspondence to the RTBU dated 1 March 2019 was admissible.
[78] Sydney Trains submitted that the 2019 OTB Agreement correspondence reflected its position regarding a dispute with the RTBU on the application of the OTB for out of course annual leave and public holidays only and nothing further.
[79] The Commission determined during the proceedings that the 2019 OTB Agreement was able to form part of the RTBU’s evidence and it was admitted as an attachment to the witness statement of Ms Bonelli.90
[80] In accepting the 2019 OTB Agreement as part of the RTBU’s evidence, the Commission notes the general proposition that documents regarding settlement negotiations are not normally admissible for use by a party in any later proceedings.91 However in this matter, it appears that the without prejudice correspondence was the final agreed position adopted by the parties and said to be the proper interpretation of subclause 3.9.4 of the DRWA which did not bestow any additional benefit on employees.92 As the disputed document reflected the final agreement between the parties and was not stated to be a compromise by either party, the Commission formed the view that the without prejudice correspondence was admissible.
[81] In interpreting an enterprise agreement it is instructive to refer to the case law on this subject.
[82] In 2006, French J, (as he then was) although dealing with an industrial award, stated in City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (City of Wanneroo) that:
“The construction of an award, like that of a statute, begins with a consideration of the ordinary meaning of its words. As with the task of statutory construction regard must be paid to the context and purpose of the provision or expression being construed. Context may appear from the text of the instrument taken as a whole, its arrangement and the place in it of the provision under construction. It is not confined to the words of the relevant Act or instrument surrounding the expression to be construed. It may extend to ‘...the entire document of which it is a part or to other documents with which there is an association’. It may also include ‘... ideas that gave rise to an expression in a document from which it has been taken’ - Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518 (Burchett J); Australian Municipal, Clerical and Services union v Treasurer of the Commonwealth of Australia (1998) 80 IR 345 (Marshall J).” 93
[83] In 2014, a Full Bench of the Commission in Australasian Meat Industry Employees Union v Golden Cockerel Pty Limited94 expressed the view that although dealing with the construction of an award ‘the same principles are apt to apply to the interpretation of enterprise agreements’ as expressed by French J in the City of Wanneroo as extracted above.95
[84] In 2017, a Full Bench of the Commission in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (known as the Australian Manufacturers Workers Union (AMWU) v Berri Pty Ltd96 (Berri) made the following observations in relation to interpreting enterprise agreements including that:
“[41] The construction of an enterprise agreement, like that of a statute or a contract, begins with a consideration of the ordinary meaning of the relevant words. The disputed words must be construed in the context of the agreement as a whole. The process of interpretative analysis focusses upon the language of the agreement itself. In Amcor Limited v CFMEU,97 (Amcor) Gleeson CJ and McHugh J described the process in the following terms: ‘[t]he resolution of the issue turns upon the language of the particular agreement, understood in the light of its industrial context and purpose ...’.98 Or, as Kirby J put it in the same case, ‘[i]nterpretation is always a text-based activity’.”99
[85] The Full Bench in Berri went on to set out a number of principles relevant to the task of construing an enterprise agreement.
[86] In 2018, the Federal Court in WorkPac Pty Ltd v Skene100 provided the following summary of the approach to the interpretation of an enterprise agreement:
“[197] The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context. The interpretation “… turns on the language of the particular agreement, understood in the light of its industrial context and purpose …”. The words are not to be interpreted in a vacuum divorced from industrial realities; 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. 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.”
(References omitted)
[87] In 2022, the principles applicable to the interpretation of an enterprise agreement as were stated by a Federal Full Court majority in James Cook University v Ridd 101 in 2020, were summarised by a Full Bench of the Commission in AMA (Victoria) Ltd and Australian Salaried Medical Officers Federation v The Royal Women's Hospital102 in the following manner:
“(1) The starting point is the ordinary meaning of the words, read as a whole and in context.
(2) A purposive approach is preferred to a narrow or pedantic approach - the framers of such documents were likely to be of a practical bent of mind. The interpretation turns upon the language of the particular agreement, understood in the light of its industrial context and purpose.
(3) Context is not confined to the words of the instrument surrounding the expression to be construed. It may extend to the entire document of which it is a part, or to other documents with which there is an association.
(4) Context may include ideas that gave rise to an expression in a document from which it has been taken.
(5) Recourse may be had to the history of a particular clause where the circumstances allow the court to conclude that a clause in an award is the product of a history, out of which it grew to be adopted in its present form.
(6) A generous construction is preferred over a strictly literal approach but agreements should make sense according to the basic conventions of the English language.
(7) Words are not to be interpreted in a vacuum divorced from industrial realities but in the light of the customs and working conditions of the particular industry.”
[88] As the references set out above to decisions of the Federal Court and this Commission indicate, the exercise of interpreting an enterprise agreement is reasonably well settled. In short, the Commission is required to ascertain the objective intention of the enterprise agreement’s wording having regard to its language and terms when read as a whole and having regard to its context and purpose.
[89] In examining the question posed by the RTBU it is first necessary to address the relevant wording of the DRWA.103
[90] The DRWA while contained in the Enterprise Agreement forms part of the Enterprise Agreement through the reference at 12.1 - Train Crew of the Enterprise Agreement. In particular, clause 12.1(a) of the Enterprise Agreement refers to the operation of the DRWA (including the overtime bonus). The DRWA is also incorporated into the Enterprise Agreement by virtue of s.180(2) of the FW Act.
[91] The DRWA states that it is compiled for the information of RailCorp’s CityRail Drivers, which informs them of their rostering and working conditions.
[92] Clause 3.9 - Overtime Bonus of the DRWA provides for the payment of an OTB for Drivers working beyond 19 days in a 28 day period. At subclause 3.9.4, the days recognised as counting towards calculating the OTB are listed. The list includes days that are not actually worked by an employee.
[93] Clause 3.9.4 of the DRWA states as follows:
3.9.4 RailCorp recognises the following days for the overtime bonus payment, while the driver is on roster:
3.9.4(a) All subject time
3.9.4(b) Annual leave, public holidays and non-proclaimed holidays cleared with annual leave
3.9.4(c) Long service leave
3.9.4(d) RailCorp training
3.9.4(e) PMEs (new medicals included) 3.8.4(f) RailCorp requested meeting
3.9.4(g) Special trauma leave (fatality incidents)
3.9.4(h) All paid court days including civil and TAB (except as a defendant)
3.9.4(i) Jury duty
3.9.4(j) Stable Rostering Code claim sheets
3.9.4(k) Not required on public holidays and picnic days when otherwise would have been rostered. (To be clearly identified on the timesheet as not required, if shown as BO, RDO or left blank the day will not be counted towards the bonus.)
3.9.4(l) Paid special Union Leave/TUTA leave, except where the driver attends on a book off day.
(My underline)
[94] The clause as expressed, only has application in relation to the OTB while a Driver is ‘on roster’. The RTBU has submitted that a Driver who is on paid Special Covid Leave as granted by the Department of Premier and Cabinet in its Circular to Departments, Agencies, State owned Corporations and Statutory Authorities and others of 16 July 2021 is ‘on roster’.
[95] Sydney Trains dispute this and maintain that a Driver who is on paid Special Covid Leave arising from the entitlement granted by the Department of Premier and Cabinet in its Circular is not ‘on roster’.
[96] The government Circular granting up to 20 days paid Special Covid Leave states that it is an entitlement for employees who ‘are unable to work’.
[97] The meaning of ‘on roster’ is not defined in the Enterprise Agreement or the DRWA. Although, at sub clause 3.5.1 of the DRWA reference is made to “Resumption on roster from a driver resuming work … ” 104.
[98] The RTBU submits that ‘on roster’ refers to the status of a Driver before taking leave. Ms Bonelli’s evidence was that a Driver is ‘on roster’ when they are allocated a line of work on a depot’s rosters, meaning they at least know the days they will be working and required to perform, or be available to perform, train driving work.105 A document titled Suburban Drivers Roster was tendered to support the RTBU’s position.
[99] Mr Bollmann’s evidence was that being ‘on roster’ means that a Driver is able to be rostered for shifts including certain leave types and absences where a Driver remains ‘on roster’ as they are still able to be recalled from leave because they are fit for work.106 Mr Bollmann stated that a Driver is ‘off roster’ when on Special Covid Leave as they cannot be rostered for shifts.107
[100] Mr Bollmann’s evidence provided examples of being ‘on roster’ while being on leave,108 some of which were not easy to rationalise.109
[101] Adopting a practical and ordinary meaning to interpret the words ‘on roster’ makes it difficult to conclude that an employee unavailable to work while on Special Covid Leave is ‘on roster’.
[102] Although at the same time, it is difficult to identify any difference between being on sick or carers’ leave where an employee is also not ordinarily available to work, as being ‘on roster’ as submitted by Mr Bollmann. Special Covid Leave does not fit into Mr Bollmann’s three main categories of absence for a driver being ‘off roster’, which were said to be:
• Disciplinary or duty of care reasons
• Known medical conditions or failing a periodic medical
• Safety breaches110
[103] As the Commission can see no logical reason to distinguish Special Covid Leave from a number of other forms of paid leave where an employee cannot work and is considered by the employer (and the RTBU) to be ‘on roster’, the Commission accepts for the purposes of clause 3.9.4 of the DRWA that an employee remains ‘on roster’ whilst on Special Covid Leave.
[104] This then leaves the balance of clause 3.9.4 to be considered. Clause 3.9.4(a) to (l) of the DRWA contains a list of the recognised days included for the calculation of the OTB. Special Covid Leave is not listed, which is in keeping with such leave not being a consideration at the time of the DRWA Final Consolidated Version of October 2009, which was tendered in evidence. 111
[105] It is noted that clause 3.9.4 of the DRWA limits the type of leave which may be included for the purposes of the OTB calculation. It does not list all forms of paid leave; for example sick, parental, carers and special leave are not included.
[106] As Special Covid Leave is not listed, days taken by an employee as Special Covid Leave could not under the Enterprise Agreement (incorporating the DRWA) be a recognised period for the purposes of calculating the OTB.
[107] However, the RTBU submits that the listed days at clause 3.9.4(a) – (l) of the DRWA is not an exhaustive list but is a minimum for what is to be recognised as days counted towards the OTB calculation.112 On a plain reading of clause 3.9.4, which commences with ‘RailCorp113 recognises the following days…’, this submission cannot be accepted. There are no words to suggest that the list of days which then follows is anything other than the entire prescribed entitlement. The Commission accepts the submission of Sydney Trains that the listed days and time at clause 3.9.4(a) to (l) is an exhaustive list 114 and cannot be described as being a minimum.
[108] As there is no direct reference to any form of special leave (other than Trade Union Training Leave) in clause 3.9.4 of the DRWA, it is necessary to examine whether the 2019 OTB Agreement provides support for the RTBU’s position.
[109] The RTBU has submitted that the 2019 OTB Agreement covers the current dispute and binds Sydney Trains. This position is based on the argument that the reference to ‘All paid leave’ in Sydney Trains’ without prejudice correspondence to resolve the 2019 OTB Dispute must include ‘Special Leave’ (which Special Covid Leave is said to be), as it is not a listed exception in the correspondence.
[110] The RTBU submitted that while not separately stipulated, Special Covid Leave falls under the Enterprise Agreement’s Special Leave provision at clause 28.8 which is defined to include paid leave ‘not catered for by other forms of leave’. 115
[111] It must be accepted that with Covid-19 not being a known phenomenon at the time of the 2019 OTB Dispute and the government Circular not in existence, Special Covid Leave could not have been specifically referenced in any documentation at the time of the making of the Enterprise Agreement.
[112] Clause 28.8 - Special Leave of the Enterprise Agreement is described as “paid leave which enables employees to participate in community activities or deal with public emergencies. It covers special situations not catered for by other forms of leave”. The specific occasions are listed under various headings in the clause. Special Covid Leave or anything similar does not appear in the list.
[113] While the clause states that it covers special situations not catered for by other forms of leave, those situations are then listed, it does not provide for additional unknown leave categories to be added. There is no ability to add to the specified forms of special leave set out in clause 28.8 of the Enterprise Agreement on the basis that Special Covid Leave relates to a situation not catered for elsewhere in the Enterprise Agreement.
[114] The Commission accepts that the 2019 OTB Agreement between the parties is binding on Sydney Trains, however, it can only bind the parties in respect of its terms. The 2019 OTB Agreement as put by Sydney Trains in its without prejudice correspondence, is stated as dealing with the following issue:
Issue 2 – Application of overtime bonus for out of course annual leave and public holidays
[115] It is further stated that:
“Further prospective acceptance of this application is not to be used as precedence for other issues contained within the Drivers Rostering and Working Arrangements or the Sydney Trains Enterprise Agreement 2018”.
[116] The written response from the RTBU of 17 April 2019 116 states:
“That the agreed outcomes do not change any condition of employment but do reflect the proper interpretation/application of the respective condition/s of employment contained within the DRWA …”
[117] In the Commission’s view, the 2019 OTB Agreement cannot now be extrapolated to include a then unknown situation by presuming that the reference to ‘All paid leave’ includes Special Covid Leave. Sydney Trains in March 2019 was responding to a single issue dispute, being the application of the OTB for out of course annual leave and public holidays, while stating in its response it is not to be used as a precedent for other issues contained within the DRWA or the Enterprise Agreement.
[118] The issue to be resolved did not extend beyond the subject matter of the 2019 OTB Dispute. Had the issue of special leave and in particular Special Covid Leave been able to be raised at the time, the response of Sydney Trains may have been to exclude Special Covid Leave for the purposes of the OTB calculation as it did for ‘sick leave, carers leave and alternate leave used for the purposes of an absence due to illness or carers responsibilities’, which is the position it now holds. In any event it is not possible to speculate beyond what was agreed at the time.
[119] The Enterprise Agreement itself does not provide the entitlement sought by the RTBU, nor, in the view of the Commission, does the incorporated DRWA, as it provides a complete list of the days which are recognised to be included for the OTB calculation.
[120] Further the without prejudice correspondence of 1 March 2019 reference to ‘All paid leave’ cannot be taken to be acceptance of a further category of ‘special leave’ being included in the OTB calculations as it was not raised by the RTBU at the time and therefore not a matter in dispute. The 2019 OTB Dispute was limited to out of course annual leave and public holidays. No issue of estoppel can arise where Sydney Trains’ previous representations are unrelated to and not in conflict with its present position with respect to Special Covid Leave.
[121] Ultimately, the Commission must consider the wording of the Enterprise Agreement and any incorporated material. The entitlement to Special Covid Leave is not drawn from the Enterprise Agreement or the DRWA but mandated through a government circular. As such, Sydney Trains is not granting Special Covid Leave as a form of special leave under the Enterprise Agreement. 117
[122] As an alternate submission, the RTBU (while not a point made in its initial Form F10 application) stated in their submissions that clause 3.9.4 of the DRWA is ambiguous as it is not apparent whether the list of days recognised is exhaustive, and that it is not clear what the term ‘all subject time’ means and whether it includes special leave. 118 The Commission was not presented with any detailed submissions that the meaning of ‘All subject time’ at 3.9.4(a) of the DRWA was ambiguous, nor was the point agitated during the hearing.
[123] The Commission has held above, that clause 3.9.4 of the DRWA specifically lists the days which are recognised for the purpose of the OTB payment in a manner that provides no scope for additional days to be included, it is clear and unambiguous. 119. There is therefore no requirement to have regard to any extraneous material to aid in the interpretation of the clause.
[124] Based on the above conclusions, the Commission makes the following determination in resolution of the dispute:
In accordance with the Sydney Trains Enterprise Agreement 2018, and the incorporated Drivers Rostering and Working Arrangements (DRWA), rostered shifts missed due to Special Covid Leave as provided by NSW Govt Circular c2021-14 do not count towards the “19 of 28 requirement” for the Overtime Bonus calculations as stipulated at 3.9 of the DRWA.
DEPUTY PRESIDENT
Appearances:
P. Matthews – RTBU Legal Officer – on behalf of the Australian Rail, Tram and Bus Industry Union
A. DeBoos - Solicitor Kingston Reid – on behalf of Sydney Trains
Hearing details:
2022
12 January (via Microsoft Teams)
Printed by authority of the Commonwealth Government Printer
<PR737404>
1 Form F10 of 11 October 2021
2 Being 3 years from the date of approval as per s.6.1 of the Enterprise Agreement, although the approval decision states 1 May 2021
3 The DRWA Is incorporated into the Sydney Trains Enterprise Agreement 2018 at cl 12.1(a)(iii) and 13.1(d).
4 Email from RTBU of 8 November 2021
5 RTBU’s Outline of Submissions of 30 November 2021 at [8]
6 NSW Government Circular c2021-14 Employment Arrangements during COVID-19
7 Ibid
8 Witness Statement of Giovanna Bonelli of 29 November 2021
9 Ibid at [3-4]
10 Ibid at [7]
11 Ibid at [5]
12 Ibid at [6]
13 Ibid at [8-9]
14 Ibid at [11]
15 Ibid at [12]
16 Ibid at [13-15]
17 Ibid at [16-18]
18 Ibid at [20]
19 Ibid at [21]
20 Ibid at [24-26]
21 Ibid at Annexure GB6
22 Ibid at Annexure GB7 and Annexure GB8
23 Ibid at [29]
24 Ibid at [32-33]
25 Ibid at [34-40], Annexure GB-13
26 RTBU’s Outline of Submissions of 30 November 2021 at [2]
27 Ibid at [3], Sydney Trains Enterprise Agreement 2018, cl 112
28 RTBU’s Outline of Submissions of 30 November 2021 at [5]
29 Ibid at [10]
30 Ibid at [10-14]
31 Ibid at [33-34], Sydney Trains Enterprise Agreement 2018, cl 28.8
32 RBTU’s Outline of Submissions of 30 November 2021 at [34]
33 Ibid at [43]
34 Ibid at [58]
35 Ibid at [47], and Witness Statement of Giovanna Bonelli of 29 November 2021 at [14-15]
36 RBTU’s Outline of Submissions of 30 November 2021 at [49]
37 RTBU’s Submissions in Reply of 3 January 2022 at [2]
38 Ibid at [3]
39 Ibid at [5]
40 Ibid at [6].For example, see: Volunteer Fire Brigades Vic Inc v CFA (No 3) [2016] VSC 621 at [4]; Beling v McLeay as VLSC [2021] VSCA 256, at [134].
41 RTBU’s Submissions in Reply of 3 January 2022 at [9]
42 Ibid at [10]
43 Ibid at [11]
44 Ibid at [12]
45 Ibid at [20]
46 RTBU’s Outline of Submissions of 30 November 2021 at [65]
47 Ibid at [67]
48 Ibid at [24] and [66]; AMWU v Berri Pty Ltd [2017] FWCFB 3005 at [114.8]
49 RTBU’s Outline of Submissions of 30 November 2021 at [68]
50 Ibid at [69]
51 Witness Statement of Martin Bollmann of 20 December 2021 at [1.3]
52 Ibid
53 Ibid at [2.3]
54 Ibid at [2.5]
55 Ibid at [3.1]
56 Ibid at [3.2]
57 Ibid at [4.3]; The Commission notes that the without prejudice correspondence also refers to annual leave and public holidays
58 Ibid at [4.4]
59 Ibid at [5.5]
60 Ibid at [5.6]
61 Ibid at [5.7]
62 Ibid at [6.1-6.2]
63 Ibid at [6.2]
64 Ibid at [7.4]
65 Ibid at [7.5]
66 Ibid at [7.7]
67 Sydney Trains’ Outline of Submissions of 20 December 2021 at [5.4]
68 Ibid at [7.1]
69 Ibid at [7.2]
70 Ibid at [1.3-1.4]
71 As articulated by Mansfield J in Silver Fox Co Pty Ltd v Lenards Pty Ltd (No 3) [2004] FCA 1570
72 Sydney Trains’ Outline of Submissions of 20 December 2021 at [3.1-3.2], [3.4-3.7], [3.9]
73 Ibid at [1.5]
74 Ibid at [4.7]
75 Ibid at [4.2]
76 Ibid at [4.2-4.3]; Witness Statement of Giovanna Bonelli of 29 November 2021 at [18], [20-25], Annexure GB-3 – Annexure GB-8
77 Sydney Trains’ Outline of Submissions of 20 December 2021 at [4.4 – 4.5]
78 Ibid at [4.6]; Witness Statement of Giovanna Bonelli of 29 November 2021 at Annexure GB-8
79 Ibid at [4.6]
80 Ibid at [4.7]
81 Ibid at [5.6-5.7]
82 Ibid at [5.12]
83 Ibid at [5.7-5.8]
84 Ibid at [5.11]
85 Ibid at [5.10]
86 Ibid at [5.11]
87 Ibid at [6.1-6.2]
88 Ibid at [6.4]
89 Email from the RTBU of 8 November 2021
90 Witness Statement of Giovanna Bonelli of 29 November 2021 at Annexure GB7
91 See Gina Resul v Fantastic Lights [2015] FWC 624 at [11] and Re Department for Education and Children’s Services Enterprise Agreement 1996 (1998) 80 IR 294 at [308]-[309]
92 Witness Statement of Giovanna Bonelli of 29 November 2021 at Annexure GB8
93 [2006] FCA 813 at [53]
95 Ibid at [21]
98 Ibid at [2]
99 Ibid at [67]
101 [2020] FCAFC 123 at [65] per Griffiths and SC Derrington JJ
102 [2022] FWCFB 7 at [29]
103 Witness Statement of Giovanna Bonelli of 29 November 2021 at Annexure GB2
104 My underline
105 Witness Statement of Giovanna Bonelli of 29 November 2021 at [13]
106 Witness Statement of Martin Bollmann of 20 December 2021 at [7.2]
107 Ibid at [7.7]
108 Ibid at [7.4]
109 Ibid. Sick and carer’s leave were two examples in this category.
110 Witness Statement of Martin Bollmann of 20 December 2021 at [7.5]
111 Witness Statement of Giovanna Bonelli of 29 November 2021 at Annexure GB2
112 RTBU’s Outline of Submissions dated 30 November 2021 at [62]
113 It is understood that RailCorp was a previous manager of train services now undertaken by Sydney Trains
114 Sydney Trains’ Outline of Submissions of 20 December 2021 at at [5.9]
115 RTBU’s Outline of Submissions of 30 November 2021 at [33]
116 Although referring to Sydney Trains correspondence of 4 March 2019 it is accepted by the parties that it is the RTBU’s response to the 1 March 2019 without prejudice correspondence
117 It is difficult to see how a failure to pay Special Covid Leave would be a breach of the Enterprise Agreement
118 RTBU’s Outline of Submissions of 30 November 2021 at [64]
119 Bianco Walling Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2020] FCAFC 50 at [67]