| FWCFB 2667|
|FAIR WORK COMMISSION|
Aurizon Operations Limited T/A Aurizon
Fair Work Act 2009
s.604 - Appeal of decisions
VICE PRESIDENT CATANZARITI
MELBOURNE, 23 MAY 2017
Appeal against decision  FWC 955 of Commissioner Spencer at Brisbane on 20 February 2017 in matter number C2015/7015.
 On 20 February 2017, Commissioner Spencer issued a Decision, 1 in which she made findings regarding four agreed questions for determination. Firstly, the Commissioner found that the additional competencies that Freight Operators (“Shunters”) at the Pring depot were being trained in did not fall within the scope of the “role for which they are employed” for the purposes of clause 29.4 of the Aurizon Train Crew and Transport Operations Enterprise Agreement 2015 (“the Agreement”). Secondly, the Commissioner found that employees of Aurizon Operations Limited T/A Aurizon (“the Appellant”) should not be compensated for the relevant tasks at the rate equivalent of a Traincrew Support employee for the period that they carried our these tasks. Thirdly, the Commissioner found that the employees should not be compensated for the period of time they perform the relevant tasks based on the work value of those tasks as this was not pursued by the Australian, Rail, Tram and Bus Industry Union (“the Respondent”) at first instance. Fourthly, the Commissioner found that Freight Operators who have been trained and carried out these tasks should not be back-paid for the period of time they have been carrying out such tasks.
 On 9 March 2017, the Appellant lodged a Notice of Appeal, appealing the Decision of Commissioner Spencer. We heard the appeal on 15 May 2017 and reserved our Decision. At the hearing, Mr D. Williams, solicitor, sought permission to appear for the Appellant and Mr M. Diamond appeared for the Respondent. Given the complexity of the matter and having regard to section 596 of the Act, permission was granted to the Appellant to be represented.
The Decision at First Instance
 The Commissioner noted there was disparity between the parties as to whether these proposed additional duties were addressed in the negotiations of the Agreement as falling within the classification structure and the intent of clause 29.
 The Commissioner noted that the Appellant stated the classification tasks and the clauses of the Agreement allow them to direct the employees to perform those duties. The Respondent stated there was no clear indication from the negotiations that the application of the new Agreement was going to be used in this way, to assign these additional duties, within the current pay range. In this regard, the Commissioner relied on Australasian Meat Industry Employees Union v Golden Cockerel 2 (“Golden Cockerel”) in finding there was ambiguity as to whether the clauses relevant to these duties and the existing remuneration allowed the Appellant to direct employees to undertake these new tasks.
 The Commissioner outlined that the parties agreed on the following four questions for arbitration:
1. Do the additional competencies that the Freight Operators at the Pring depot, are being trained in, fall within the scope of the “role for which they are employed” for the purposes of clause 29.4 of the Agreement?
2. If question 1 is answered in the negative, should they be compensated for the relevant tasks at the rate equivalent of a Traincrew Support employee for the period of time that they are carrying out these tasks? (Clauses 35.4 – 35.8 “Higher Grade Allowance” apply.)
3. If question 2 is answered in the negative, should they be compensated for the period of time they are performing the relevant tasks based on the work value of those tasks?
4. Should the Freight Operators who have been trained and carrying out these tasks be back-paid for the period of time that they have been carrying them out?
 The Commissioner answered each of these questions in the negative. Therefore, the Commissioner held that the claimed remuneration of the Higher Grade Allowance was not applicable to the subset of duties sought to be undertaken. Further, the Commissioner found that the extra duties the Freight Operators were being directed to perform by the Appellant did not fall within their classification and, therefore, the direction was not in accordance with the applicable Agreement provisions.
 At the heart of the appeal is whether the Commissioner correctly applied and construed the clauses 29 and 42 of the Agreement in determining whether the additional duties were to be undertaken by employees of the Appellant with no additional payment.
 The Appellant outlined four main grounds of appeal, which we summarise as follows.
 Firstly, the Appellant contended that the first question before the Commissioner should have been answered in the affirmative. In particular, the Appellant submitted that there is no dispute that clause 29.1 of the Agreement allows the Appellant to direct employees to carry out duties that are “reasonably within the limits of the employee's skill, assessed competencies and training.” Further, the Appellant asserted that it was not suggested in the Decision (or the evidence considered by the Commissioner) that the relevant employees, with appropriate training as contemplated by clause 29, could not carry out the additional tasks required of them. To the contrary, the evidence was that the employees did not object to carrying out the tasks, but wanted more money to do so. As such, the Appellant posited that the additional tasks are consistent with, and/or incidental or peripheral to, the non-exhaustive list of tasks and activities of an Operations Employee Level 4 as set out in clause 42 of the Agreement.
 Secondly, the Appellant contended that, notwithstanding in the absence of an express right of appeal to the Full Bench in clause 7 of the Agreement, the appeal is within jurisdiction.
 Thirdly, the Appellant contended that it is in the public interest to grant permission to appeal because:
(a) The Decision concerns the proper construction of the Agreement and has the capacity to significantly affect how the Appellant manages its operations and the composition of the Appellant's workforce.
(b) The Decision and Order have resulted in an outcome which is inconsistent with the Agreement, and was, therefore, beyond the jurisdiction of the Commission having regard to the injunction in section 739(5) of the Act. It would normally be in the public interest for permission to be given to correct a jurisdictional error.
 Further, that the Appellant asserted that the Decision reflects an unsatisfactory and erroneous resolution of the dispute between the parties and, therefore, it is appropriate for a Full Bench to grant permission so that the Commissioner's decision can be reviewed.
 Fourthly, the Appellant contended the Decision is inconsistent with clause 29.1 of the Agreement read in conjunction with the classification structure contained in clause 42 of the Agreement. The Appellant submitted that the Commissioner fell into error in the discharge of her function under clause 7. In this regard, the Appellant asserted that clause 7 did not authorise the arbitration of new allowances for an employee who had not been reclassified and who was not temporarily acting in a higher classification. Nor did it authorise the arbitration of de facto demarcations within the workforce, particularly when any such demarcation had been so comprehensively eliminated by clause 29. Rather, the Appellant posited that the Commissioner was required to determine whether the flexibility which the Appellant had secured via clause 29 of the Agreement entitled it (with reasonable training) to require its Level 4 Freight Operators to undertake the identified additional tasks within their normal working day and at their normal place of work. The Appellant contended that the Commissioner was distracted into error by an erroneous finding that the Agreement was ambiguous, and that the ambiguity needed to be resolved by reference to extrinsic evidence. In this regard, the Appellant submitted that there is no ambiguity in the wording of the Agreement. Therefore, the Appellant posited that the Commissioner fell into error by concluding that these tasks were not part of the role for which they are employed. Further, the Appellant contended that Commissioner erred at ,  and  of her Decision.
 For the above reasons, the Appellant submitted that Commissioner Spencer’s Decision should be quashed and the answers in relation to the abovementioned questions should be answered as follows:
2. Not applicable;
3. Not applicable; and
4. Not applicable.
 The Respondent contended the Appellant’s assertion that the Decision must be correct, as a jurisdictional prerequisite, is misplaced. In this regard, the Respondent submitted that it is wrong to say that if an arbitrated decision is legally wrong (which the Respondent maintains the Decision was not), then the Decision is “contrary to the Agreement” and therefore jurisdictionally incompetent. 3 The Respondent asserted that the Agreement does not raise any ambiguity. However, in the alternative, if the Commission finds that the Agreement’s terms are ambiguous, the provisions should be construed in accordance with principles that are well established.4 In this regard, the Respondent posited that, even if the Commission were to find ambiguity in the relevant provisions, the answers provided by the Commissioner would remain unchanged.
 The Respondent contended that the Appellant’s ability to require employees to undergo training does not extend beyond “the role for which they are employed”. In determining whether the additional tasks the Appellant sought to train the Freight Operators falls within the “role for which they are employed”, the Respondent submitted that the Commission should look to the classifications in 42.1 of the Agreement. In this regard, the Respondent asserted that additional tasks must be “consistent with the position of Freight Operator Level 4 in a rail yard.” The Respondent posited that, as the additional tasks are performed on a train and not “in a rail yard”, such tasks fall outside the Level 4 classification. As such, the Respondent contended that this prohibits the Appellant from training employees in these tasks and directing them to perform such tasks.
 Moreover, the Respondent asserted that employees’ duties under clause 29.1 are limited to duties that are within “the employee’s skill, assessed competencies and training”. If the Commission finds that the additional tasks are not within “the role for which they employed”, the Respondent contended that the Appellant is prohibited from directing employees to train in those tasks pursuant to clause 29.4.
 The Respondent also contended that, having concluded that the additional tasks do not fall in the Level 4 classification and do not form part of the role, the Commissioner made no error in recommending that “a separate allowance could be formulated by the Parties to be applicable to the period when the work is undertaken”.
 For the above reasons, the Respondent contended the Commissioner’s answers to the four questions were correct. Further, the Respondent asserted that the appeal has no merit and permission to appeal should be refused.
Consideration – Permission to Appeal
 The Commission will grant permission to appeal only if it is in the public interest to do so. 5 The test of assessing whether a matter is in the public interest is discretionary and involves a broad value judgement.6 In GlaxoSmithKline Australia Pty Ltd v Colin Makin,7 the Full Bench summarised the test for determining the public interest as follows:
“ Appeals have lain on the ground that it is in the public interest that leave should be granted in the predecessors to the Act for decades. It has not been considered useful or appropriate to define the concept in other than the most general terms and we do not intend to do so. The expression ‘in the public interest’, when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only by the objects of the legislation in question. [Comalco v O’Connor (1995) 131 AR 657 at p.681 per Wilcox CJ & Keely J, citing O’Sullivan v Farrer (1989) 168 CLR 210]
 Although the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters, it seems to us that none of those elements is present in this case.”
 Alternately, the second ground for granting permission to appeal is that the decision is attended with sufficient doubt to warrant its reconsideration or that substantial injustice may result if leave is refused. 8
 In determining whether permission to appeal should be granted we have reviewed and considered all material filed by the parties including all submissions, correspondence and relevant authorities.
 We now turn to consider whether permission to appeal should be granted.
 Clause 29 of the Agreement provides as follows:
“29. EMPLOYEES TO COMPLY WITH REASONABLE DIRECTION
29.1. An employee will carry out such duties as are reasonably within the limits of the employee's skill, assessed competencies and training.
29.2. The Company may direct an employee to carry out such duties and use such tools and equipment as may be required, provided that the employee has been properly trained in the use of such tools and equipment (where relevant).
29.3. Any direction issued by the Company pursuant to the above subclauses will be consistent with the Company’s responsibilities to provide a safe and healthy workplace.
29.4. An employee will participate in training provided by the employer as required to perform the role for which they are employed.
29.5. If given reasonable training, it is a requirement of employees to:
29.5.1. acquire the competency required to perform the role for which they are employed; and
29.5.2. utilise all competencies, once acquired, relevant to perform the functions associated with the role for which they are employed provided the Company has provided reasonable opportunity to for (sic) the employee to acquire the competency prior to any performance management arising from the failure to acquire or utilise a competency. Nothing in this clause prevents an employee from expressing an interest in, or participation in training, and/or work experience for the purpose of gaining skills and competencies outside the scope of their current role.
29.6. Approval for such participation will be determined by the Company on the basis of merit.
29.7. Voluntary participation in training and/or work experience for the purpose of gaining skills and competencies outside the scope of their current role will not entitle an employee to a higher grade allowance.”
 We note that clause 42 of the Agreement outlines the tasks and functions of various classifications of employees in the Transport Operations Stream, in particular, those of Level 4 operations employees.
 The four grounds of appeal asserted by the Appellant essentially relate to one central issue. That is, whether the additional competencies for which Freight Operators are being trained fall within the scope of the “role for which they are employed” for the purposes of clause 29.4 of the Agreement. In this regard, the Appellant contended that the Commissioner erred in finding that such competencies did not fall within the scope of the “role for which they are employed”. We do not agree with this submission.
 The Commissioner had regard to the context and purpose of the Agreement by referring to clauses 29 and 42 of the Agreement in her Decision. In considering the context and purpose of the Agreement, the Commissioner noted that the additional tasks Freight Operators are being asked to perform as outlined in the statement of agreed facts are:
a) Walk the train;
b) Access the locomotive;
c) Open locomotive switch board close two switches (battery and fire screen);
d) Walk to cab (1 metre);
e) Operate two toggle switches (engine run and control/fuel pump);
f) Return to switch board push engine pre lube button wait 30 seconds;
g) Push button start (locomotive will start);
h) Return to cab and sit in driver’s seat;
i) Wait for fire screens to boot up (computer screens);
j) Follow on screen commands (lead locomotive would mean approximately pushing 8 prompts on fire screen to link all locomotives. Remote locomotives a few less prompts);
k) Once linked push tile prompt on fire screen to commence auto test for locomotives and train brakes. If test fails (unlikely) notify Yard Coordinator who will call Loco maintenance staff to attend;
l) Walk to back of cab wall and push park brake button on/off to test (1 metre);
m) Select a direction with reverser apply and release brake, results confirmed with other team members in remote locomotives; and
n) To shut down reverse steps g & e.
 Noting the above additional tasks in relation to which she undertook an inspection, the Commissioner held at  of her Decision that:
“The relevant training modules for these additional Shunters duties fall within the trading modules (sic) for the higher classification of train drivers. The employer relies on clause 29.4 to direct them to undertake these additional duties. However in contrast to the clause, these duties are not within the classification/job for which the Shunters were employed.”
 The Commissioner provided her reasoning for this conclusion at  of her Decision and found at  of her Decision that the change in wording of the Agreement was “not sufficient to justify the incorporation of these additional duties, for no extra remuneration.” In reaching this finding, the Commissioner adopted an orthodox approach in construing the context and purpose of the Agreement. Thus, we are not satisfied that the Commissioner erred in relation to this part of the Decision.
 Further, the Appellant contended that the Commissioner erred by finding that the Agreement was ambiguous by having regard to Golden Cockerel. We do not agree with this submission. The Commissioner had regard to the principles elicited in Golden Cockerel in relation to construing the Agreement at paragraph  of her Decision. In applying those principles, the Commissioner undertook an orthodox approach and we are not satisfied that the Commissioner’s application was disharmonious when compared with other decisions dealing with similar matters. Therefore, we are not satisfied the Commissioner erred in this regard.
 The Commissioner had considered the context and purpose of the Agreement and, in doing so, undertook an orthodox approach. Thus, we are not satisfied that the Commissioner erred in reaching her conclusion that the additional competencies required of Freight Operators by the Appellant did not fall within the scope of the “role for which they are employed” for the purposes of clause 29.4 of the Agreement. Nor are we satisfied that the Commissioner erred in relation to the three other agreed questions before her.
 We are also not satisfied that there is an arguable case of error in relation to any other ground of appeal asserted by the Appellant. Further, we have considered whether this appeal attracts the public interest, and we are not satisfied that:
(a) There is a diversity of decisions at first instance so that guidance from an appellate body is required of this kind;
(b) The appeal raises issues of importance and/or general application;
(c) The Decision at first instance manifests an injustice, or the result is counter intuitive; or
(d) The legal principles applied by the Commissioner were disharmonious when compared with other decisions dealing with similar matters.
 For the reasons set out above, we are not satisfied that it would be in the public interest to grant permission to appeal.
 Permission to appeal is refused.
D. Williams, solicitor, for the Appellant.
M. Diamond for the Respondent.
Melbourne via video link to Brisbane:
1  FWC 955.
2  FWCB 7447.
3 Linfox Australia Pty Ltd v Transport Workers Union of Australia (2013) 213 FCR 479, ; Endeavour Energy v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (2016) 244 FCR 178, ; Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v ALS Industrial Australia Pty Ltd (2015) 235 FCR 305, .
4  FWCB 7447.
5 Fair Work Act 2009 (Cth) s 604(2).
6 Esso Australia Pty Ltd v AMWU; CEPU; AWU  FWCFB 210, .
7  FWAFB 5343, .
8 Esso Australia Pty Ltd v AMWU; CEPU; AWU  FWCFB 210, .
Printed by authority of the Commonwealth Government Printer
<Price code C, PR592936>