Federal Court of Australia
NSW Trains v Australian Rail, Tram and Bus Industry Union [2021] FCA 883
ORDERS
Applicant | ||
AND: | AUSTRALIAN RAIL, TRAM AND BUS INDUSTRY UNION First Respondent PAUL DORNAN Second Respondent EDWARD DUNGER Third Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The Amended Originating Application filed on 2 June 2021 is dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
FLICK J:
1 The Applicant in the present proceeding is NSW Trains. It is a corporation constituted under s 37(1) of the Transport Administration Act 1988 (NSW).
2 The First Respondent is the Australian Rail, Tram and Bus Industry Union (the “Union”), and is a registered organisation under the Fair Work Act 2009 (Cth) (the “Fair Work Act”). It is entitled to represent the industrial interests of railway employees employed by NSW Trains, including train drivers and guards. The Second Respondent, Mr Paul Dornan, is employed as a driver by NSW Trains. The Third Respondent, Mr Edward Dunger, is employed as a guard by NSW Trains. Although they are named as individual Respondents, together they are representative of the drivers and guards employed by NSW Trains.
3 NSW Trains is in the course of introducing a new fleet of electric passenger trains, known as the Mariyung Fleet. Albeit not referred to in the evidence, the word “Mariyung” is drawn from the language of the Darug nation meaning “Emu”. The people of the Darug nation are the traditional custodians of what is now Sydney.
4 This new fleet of trains is planned to replace the existing fleet of trains, known as V-sets, OSCars and Tangaras. Before the Mariyung Fleet can be introduced it must receive accreditation pursuant to s 62 of the Rail Safety National Law (NSW), which is applied and modified as a law of New South Wales by the Rail Safety (Adoption of National Law) Act 2012 (NSW). Such accreditation has not as yet been obtained, although it is anticipated that NSW Trains will receive final accreditation sometime in July 2021. A Draft Revised Notice of Accreditation was issued on 30 June 2021 and was accepted by NSW Trains later on the same day, a date very proximate to the commencement of the present hearing. After the hearing of this matter the parties advised that a final Notice of Accreditation was issued on 29 July 2021. NSW Trains is now accredited to operate the Mariyung Fleet on the Sydney to Newcastle-Central Coast network. In future it is anticipated that accreditation will also be sought for the Sydney to Blue Mountains network and the Sydney to Wollongong network.
5 Train drivers and guards are covered by the NSW Trains Enterprise Agreement 2018 (the “2018 Agreement”). That Agreement contains a number of classifications for the employees of NSW Trains, including that of a driver and guard. But the Agreement does not go beyond those classifications to specify the class of trains being operated. The “nominal expiry date” of the Agreement has come and gone, that date being 1 May 2021.
6 Of present relevance is the fact that, after consultation between NSW Trains and the Union and its members, NSW Trains issued a publication on 28 November 2019 titled: Your Guide to the New Intercity Fleet. That was, as the Respondents would have it, a unilateral announcement on the part of NSW Trains as to how it was proposing to operate its Mariyung Fleet. Disputes followed. At least some of the issues which have arisen in respect to the new Fleet, it should be noted at the outset, have previously been the subject of a decision of the Full Bench of the Fair Work Commission on 2 March 2021: Re Australian Rail, Tram and Bus Industry Union v NSW Trains [2021] FWCFB 1113.
7 In very summary form, in issue is the ability of NSW Trains to give directions to its drivers and guards in respect to the Mariyung Fleet. NSW Trains contends that:
it can unilaterally give such directions to its drivers and guards,
because (inter alia),
any argument that the giving of such directions would constitute the making of “extra claims” – which is otherwise prohibited by cl 13.1(b) of the 2018 Agreement – is to be rejected.
In its submission, any such argument is to be rejected because:
the giving of the directions to its drivers and guards would not constitute an “extra claim” within the meaning of and for the purposes of cl 13.1(b).
NSW Trains contends in the alternative that:
the operation of cl 13 has come to an end.
NSW Trains further contends that, even if it is found that cl 13 continues to have legal force and that NSW Trains’ proposed directions to drivers and guards constitute “extra claims”:
cl 13.1(b) is invalid by reason of inconsistency with Part 2-4 of the Fair Work Act.
A number of subsidiary, but important, contentions are also in need of resolution.
8 Not surprisingly, the Respondents take a fundamentally different approach and (again in very summary form) contend that:
the directions proposed to be given by NSW Trains to its drivers and guards would constitute the making of an “extra claim” and that, in any event, that issue has been resolved by the decision of the Fair Work Commission;
cl 13.1(b) of the 2018 Agreement has not come to an end, notwithstanding the passage of the “nominal expiry date”; and
any declaratory relief should be refused for a variety of reasons.
9 In resolving these competing contentions it is necessary to set forth:
the background to the proceeding, including the process of accreditation being pursued by NSW Trains and the directions it proposes to give to its drivers and guards;
the form of declaratory relief sought; and
the centrally relevant terms of the 2018 Agreement.
It is thereafter necessary to resolve the questions as to whether:
cl 13.1(b) of the 2018 Agreement has in fact come to an end;
the directions proposed to be given by NSW Trains to its drivers and guards would constitute the making of an “extra claim”, together with the question as to whether, in that respect, NSW Trains is bound by the March 2021 decision of the Full Bench of the Fair Work Commission, and whether cl 13.1(b) is of “no legal effect” by reason of Part 2-4 of the Fair Work Act; and
any declaratory relief should be granted.
Each of these issues should be separately addressed.
10 These are the issues which emerged from the Amended Originating Application filed on 2 June 2021 pursuant to leave to amend then being granted. Leave to further amend was sought during the course of final submissions. The application to further amend was sought to be characterised by NSW Trains as a clarification of – and a narrowing of – the issues to be resolved. The application for leave to amend at such a late stage in the proceeding was opposed and leave was refused. The further amendments had the potential to recast the issues to be resolved and the potential to necessitate the calling of further evidence. A refusal of leave, on the other hand, did not occasion prejudice to NSW Trains as the issues it sought to have resolved, and indeed more, were already raised by the form of its June 2021 Amended Originating Application.
11 It may be noted at the outset, and by way of summary, that it has been concluded that NSW Trains has failed to make out any claim for declaratory relief. The proceeding should thus be dismissed.
THE BACKGROUND
12 The background to the present dispute is sufficiently addressed by an outline of:
the accreditation process being pursued by NSW Trains;
the relevant safety legislation applicable to the operations of NSW Trains;
the operational instructions proposed to be given by NSW Trains to its drivers and guards;
the contracts of employment of Mr Dornan and Mr Dunger;
the form of declaratory relief sought, that declaratory relief including declarations that the giving of those operational instructions would be “lawful and reasonable” directions; and
the terms of the 2018 Agreement and the well-accepted principles as to the manner in which enterprise agreements are to be construed.
The accreditation process
13 The accreditation process is addressed by Messrs Matthew Coates and Oliver Coovre. Mr Coates is the Director of Safety and Standards at Sydney Trains; Mr Coovre is the Senior Program Manager-Mariyung, at NSW Trains. Both prepared affidavits for the purposes of the present proceeding.
14 The process of accreditation, it would appear, has been long on-going.
15 Mr Coates states that the Office of the National Safety Regulator (the “Safety Regulator”) “is responsible for administering and enforcing the terms of the Rail Safety National Law as implemented in each State and Territory”. According to Mr Coates, the Safety Regulator “does not give a conclusive statement of what it considers to be or not be safe” but does require that it be “satisfied that the rail transport operator has effectively considered and addressed with appropriate controls the risks associated with its operations”. An accreditation once obtained may be varied on application. The Safety Regulator also undertakes “an ongoing process of assessment to ensure that the rail operator is complying with the terms of its” Safety Management System.
16 Mr Coovre states that a part of the accreditation regime requires NSW Trains to have a Safety Management System. Since 2016, NSW Trains has met regularly with the Safety Regulator “to discuss a wide variety of topics including the key changes for operations and management of safety risks, driver workload, CCTV assurance, zig zag tunnels, single person operations, management of software changes, the Applicant’s safety change management program and program updates generally”.
17 As at November 2019 when NSW Trains published its Guide to the New Intercity Fleet, the Guide provided in respect to drivers (in part) as follows:
The Guide went on to further provide:
It will be noted that, in respect to drivers, it was then being proposed that there would be a “new classification” but that drivers would retain their existing “crew conditions, including allowances.” In respect to guards, the Guide provided (again in part) as follows:
18 The Application for variation of accreditation was forwarded by NSW Trains to the Safety Regulator in November 2019. That Application foreshadowed the intention of NSW Trains to operate the new Mariyung Fleet on what it described as “the Central Coast and Newcastle, Blue Mountains and South Coast lines.” It is Mr Coovre who provides an update on the application to vary the existing accreditation. It was in May 2020 that a draft Safety Assurance Report was provided to the Safety Regulator. In December 2020 an updated final version of the Safety Assurance Report was provided. The Draft Revised Notice of Accreditation was issued on 30 June 2021. As advised in the covering email, the Safety Regulator proposed “one new restriction relating to the area in which Mariyung can operate passenger revenue services; and one new condition relating to the requirement for the Guard/Customer Service Guard to monitor PTI at station departure.” Notwithstanding the opportunity to make further “written submissions” in response to the draft within 28 days, it was later on the same day on 30 June 2021 that NSW Trains forwarded its response to the draft forwarded to them hours earlier. The response was that “NSW Trains agrees to the proposed amendments (namely one new restriction, one new condition and the cancellation of the existing restriction on automatic train protection) outlined in the draft notice of accreditation…”.
19 The final Notice of Accreditation, as issued on 29 July 2021, was substantially the same as that provided in the Draft. Schedule 3 to the final Notice provides as follows:
The implementation and compliance with the “Waterfall Inquiry Recommendations”, it will be noted, was a condition to which the existing accreditation and the proposed variation of accreditation is subject. Schedule 3 continued on to show the variation proposed in respect to the new accreditation and the “restriction” and the new “condition”, as follows:
The “appropriately competent person” referred to in the proposed new condition was accepted by NSW Trains as only capable of being a reference to a guard.
The legislative background – health and safety
20 The safety legislation of relevance to the operation of NSW Trains, and the duties of both NSW Trains as an employer and the duties of its employees, are to be relevantly found in:
the Rail Safety National Law (NSW) (the “Rail Safety Law”); and
the Work Health and Safety Act 2011 (NSW) (the “Work Health and Safety Act”).
It is necessary to provide a brief outline of some of the provisions in both Acts.
21 If reference is made initially to the Rail Safety Law, s 3 sets forth the “purpose, objects and guiding principles of Law”, the main purpose being “to provide for safe railway operations in Australia” (s 3(1)). The objects include the making of provision for a “national system of rail safety” and the carrying out of railway operations in a safe manner (s 3(2)). The objects also include making provision for “continuous improvement of the safe carrying out of railway operations” and promoting “public confidence in the safety of transport of persons or freight by rail”. It is s 12 which establishes the Safety Regulator and s 13 which sets forth its functions and objectives. The Safety Regulator must discharge of its functions in an independent manner free of Ministerial direction (s 14), and its functions include (s 13):
administering, auditing and reviewing the accreditation regime relating to rail safety;
working with rail transport operators, workers and others involved to improve rail safety nationally; and
monitoring, investigating and enforcing compliance with the Rail Safety Law.
It is also the Rail Safety Law which requires a “rail transport operator”, such as NSW Trains, to be accredited (s 62) and which provides for the procedure for gaining accreditation (s 64).
22 The Work Health and Safety Act finds its origins in a commitment in 2008 on the part of the Council of Australian Governments to the harmonisation of work health and safety throughout Australia. A national review developed a model work health and safety law. This model law has been implemented by the Commonwealth, the Australian Capital Territory, New South Wales, the Northern Territory, Queensland, South Australia and Tasmania.
23 If reference is had to the provisions of the Work Health and Safety Act, NSW Trains accepts that it is a “person conducting a business or undertaking” within the meaning of and for the purposes of s 5 of that Act and, accordingly, that it is bound by the provisions of that Act. Its employed drivers and guards, it is further accepted, are “workers” for the purposes of s 7 of that Act. Part 2 of the Act sets out “Health and safety duties”. Section 17 provides for the management of risks as follows:
Management of risks
A duty imposed on a person to ensure health and safety requires the person:
(a) to eliminate risks to health and safety, so far as is reasonably practicable; and
(b) if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable.
Section 19(1) places upon the “person conducting a business”, in this case NSW Trains, a “primary duty of care”, to ensure “so far as is reasonably practicable, the health and safety of …workers…” In commenting upon the phrase “reasonably practicable” in the identical Northern Territory model Act, Edelman J in Work Health Authority v Outback Ballooning Pty Ltd [2019] HCA 2, (2019) 266 CLR 428 (“Outback Ballooning”) at 493 observed:
[162] Although the requirement of reasonable practicability in s 19(2) is formulated in similar terms to a standard of care in the tort of negligence, it is a higher duty than the common law. An attempt to draw elements from the common law tort is “not … helpful”.
(footnotes omitted)
And, without limiting that expression of the duty imposed, s 19(3) provides instances of the duty, including to “ensure, so far as is reasonably practicable: (a) the provision and maintenance of a work environment without risks to health and safety; and (b) the provision and maintenance of safe plant and structures; and (c) the provision and maintenance of safe systems of work…” In commenting upon s 19(2), Edelman J in Outback Ballooning further observed (at 493 to 494):
[163] Section 19(2) is part of a strict liability duty to “ensure” a result. The offence is based upon risk, not outcome. Hence, no individual rights need be violated before the duty is breached. The duty is a general one concerned with regulating safety in the workplace. That general regulation is consistent with the 1972 recommendations of the committee chaired by Lord Robens ([United Kingdom, Safety and Health at Work: Report of the Committee 1970-72 (1972) Cmnd 5034, p 8 [30]]) to move away from a “haphazard mass of ill-assorted and intricate detail partly as a result of concentration upon one particular type of target”. The WHS Act, and s 19 in particular, thus follows the recommended model of imposing general duties, supported by regulations and codes of practice, requiring employers to participate in the making and monitoring of arrangements for health and safety in the workplace.
[164] As s 19(2) and other general duties in the WHS Act are designed to ensure safety, the s 19(2) duty is designed to be supplemented by regulations made by the Administrator under s 276. …
(some footnotes omitted)
In further commenting upon the Robens Report, Neave JA in R v Irvine [2009] VSCA 239, (2009) 25 VR 75 at 92 said:
[94] The Robens Report advocated greater reliance on self-regulation by employers and workers jointly, backed up by an effective inspectorate. It remarked that the lengthy process of investigating breaches, warnings, institution of criminal proceedings conviction and the ultimate fine was not a very effective way of preventing health and safety breaches and that criminal prosecutions should be reserved for breaches that were flagrant and wilful. …
[95] …The Robens Report emphasised the importance of employee involvement in improving work safety, but did not discuss whether employees should be held criminally liable for breach of occupational health and safety standards.
Further “duties” are imposed by ss 20 and 21 of the Work Health and Safety Act.
24 In addition to imposing duties on those “conducting a business”, the Act also imposes duties upon the “workers”’, employees such as train drivers and guards in the present case: s 28. Those duties include taking reasonable care for their own safety; taking reasonable care not to adversely affect the health and safety of other persons; and a duty to co-operate with any reasonable policy or procedure of the person conducting the business.
25 The Work Health and Safety Act also imposes upon those conducting a business a duty to consult with workers in respect to matters “relating to work health and safety”: s 47. The Act also provides for the election of a worker as a “health and safety representative” (s 50) and for the determination of “work groups” (s 51). Eligibility for a worker to be elected as a “health and safety representative” for a “work group” is dependent upon the worker being a member of that “work group”: s 60. Powers and functions are conferred by the Act upon a “health and safety representative”: s 68.
26 The Act also provides in Division 5 to Part 5 for the resolution of health and safety issues. Section 85 within Division 6 to Part 5 confers upon a health and safety representative a power to direct the cessation of unsafe work. Section 90 within Division 7 provides a health and safety representative the power to issue a “provisional improvement notice”.
The Operational Instructions
27 The Originating Application as initially filed sought a great number of declarations and did so by reference to a number of Annexures. As amended, the Amended Originating Application filed on 2 June 2021 confined the declaratory relief to 8 declarations and did so by reference to a single Annexure, the content of that Annexure being described as “the operational features of the Mariyung Fleet”.
28 The Amended Originating Application thus sought (by way of example) a declaration that by seeking to implement and implementing “the operational features of the Mariyung Fleet described in Annexure A, the Applicant will not thereby be making a claim falling within the description ‘no extra claims for any changes in remuneration or conditions of employment’ for the purposes of clause 13.1(b) of the Enterprise Agreement.”
29 There were initially a number of variations to Annexure A which NSW Trains prepared, being Annexures B to D. Annexure B involved giving the guard giving the driver an “all right” bell signal that the train is in a position to move. Annexure C contemplated there being a guard on-board during “empty car running”. Annexure D involved an adjusted procedure where “the guard will give the driver an ‘all right’ bell to signal that the guard is in position…” has observed the CCTV monitors to ensure customers have finished boarding and alighting and that “…it is safe to close the customer doors.”
30 It is nevertheless sufficient for present purposes, and given that the amendment effected the removal of the other Annexures, to address Annexure A to the Amended Originating Application, which provides as follows (without alteration):
ANNEXURE A
There is no change to the classification and pay rates in the NSW Trains Enterprise Agreement 2018 for the Applicant’s intercity drivers and guards.
The Mariyung fleet is operated in accordance with Operator Instruction Manual (OIM) that was consulted from 2019 to 2021 with the amendment that references to “Customer Service Guard” or “CSG” will be replaced by “Guard”.
The key features of platform activities during revenue service on the Mariyung fleet Is summarised below:
1. On approach to a platform (approximately 250 metres out from station) the CCTV in the guard’s cab automatically switches to external view to display the bodyside of the train on the platform side.
2. As the train approaches station, the guard may observe the platform using CCTV while velocity interlocking on crew cab door is active (i.e. crew cab door will not open while train is moving).
3. CCTV activates in the driver’s cab when the train is stopped and the passenger doors are ASDO-enabled. Train arrives at station (the front of train is positioned on the platform, the guard cab may be off the platform at some short platforms).
4. Driver releases/opens passenger doors.
5. During dwell time at the platform, CCTV showing the bodyside of the train on the platform is on for both driver and guard.
6. During dwell time, the guard may observe the customers boarding and alighting from the train. Where required, guards provide face-to-face customer service, including boarding assistance or perform other platform tasks.
7. During dwell time at platform, the driver may choose to observe the platform train interface (PTI) using CCTV.
8. After completing any required platform activities, the guard sits at the crew workstation and closes the crew cab door.
9. The driver prepares for departure by checking the signal in advance shows a proceed indication, it is time to depart, and that the guard has cut in the guard controls and closed the guard crew cab door.
10. The driver uses CCTV to monitor the platform, checking the customers have finished boarding and alighting and boarding assistance tasks have been completed. When the driver assesses it is safe to do so he or she closes customer doors.
11. Driver performs final PTI safety check using CCTV once all doors are closed and takes power.
12. Guard monitors CCTV and watches PTI until whole train is clear of platform. If a hazard is detected, the guard may apply the emergency brake using master controller or emergency brake tap, or give the driver the STOP IMMEDIATELY bell signal.
Other key operational features of the fleet are:
1. Mariyung train and track infrastructure configuration will remain as currently engineered.
2. Traction and velocity interlocking remain in place on crew cab doors.
3. CCTV to be used in to monitor customer boarding and alighting and for train dispatch.
4. There will be no guard onboard during empty car running (i.e. when the driver drives an empty train to or from a passenger platform and a stabling yard, between stabling yards and between other locations as required).
5. In-cab camera will be operational.
6. Customer Help Point calls go to the Network Services Coordination Centre (NSCC) in the first instance with the driver and guard playing key roles in the triaged response to the call.
7. Driver will undertake train preparation and stabling procedures.
Note
Nothing in this annexure is intended to apply or have the effect that any new train crew recruits into the role of guard will be employed with changed pay and conditions.
31 The affidavit of Mr Peters refers to this Annexure as containing a summary of the “key aspects of the Applicant’s preferred method of operation and [being] consistent with the tasks and duties” earlier described in his affidavit. However it be described, Annexure A is based upon the Mariyung Operator Instruction Manual (“Operator Manual”). It is that Manual which more fully sets forth the duties of train drivers and guards. Thus, for example, point 7 of Annexure A is based upon cl 3.6.3.1 of the Operator Manual. Part 3.6.2 of the Manual addresses the situation where a train is arriving at a platform. Part 3.6.3 addresses the situation when a train has arrived at the platform and is stationary. That Part relevantly provides as follows:
3.6.3 Train standing at a platform
While a train is standing at a platform, staff must perform the relevant:
• Driver tasks while train standing at a platform.
• CSG tasks while train is standing at a platform.
Where the dwell time exceeds the time required to carry out required platform activities, staff may take a short break or attend to personal tasks.
3.6.3.1 Driver tasks while standing at a platform
While the train is standing at the platform, Drivers must keep the master controller in MAX BRAKE and, if required, carry out the following activities:
• set the driver reminder appliance (DRA)
• release the passenger doors
• boarding assistance, if Station Staff and CSG are not available
• fault rectification
• train division and amalgamation
• termination checks.
3.6.3.2 CSG tasks while standing at a platform
Upon arrival at a platform, the CSG must check the platform for any customers requiring boarding assistance.
While the train is standing at the platform, CSGs carry out the following activities, as required:
• customer service
• boarding assistance, if Station Staff are not available
• fault rectification, under the direction of the Driver
• close open IEDR covers
• deal with lost property
• collect or distribute correspondence to Station Staff
• train division or amalgamation tasks
• termination checks.
32 Part 3.6.4 of that Manual sets forth in greater detail what is described as “Preparing train for departure”. Within that Part, cll 3.6.4.1 and 3.6.4.2 provide as follows:
3.6.4.1 Driver decision to depart
Before commencing the dispatch procedure, Drivers must check:
• that the signal ahead, if visible, shows a PROCEED indication
• that it is no more than 20 second until the scheduled departure time
• that the CSG, if required to carry out the CSG dispatch procedure, has cut in the CSG controls and closed the CBSD of the active CSG cab
• whether the driver reminder appliance (DRA) is set.
If the DRA is set, Drivers may carry out dispatch and proceed at caution. If any of the other conditions for departure are not met, the Driver must not commence the dispatch procedure.
3.6.4.2 CSG preparation for dispatch
If, while carrying out platform activities, the CSG observes any passenger behaviour or events that could prevent the train from being dispatched, they must communicate with the Driver that it is not safe for the train to depart.
When all platform activities are complete and it is safe for the train to depart, the CSG must:
• close the crew bodyside door (CBSD) in the active CSG cab
• sit at the crew workstation
• be ready to observe the CCTV monitor during train dispatch.
And point 11 of Annexure A has as its counterpart cl 3.7.2.1.1 of the Operator Manual which provides (in part) as follows:
3.7.2.1.1 Driver’s dispatch procedure for two-person operation
1. Prior to departure use CCTV to monitor the platform, checking that customers have finished boarding or alighting, and all boarding assistance tasks have been completed.
2. If a Station Staff handsignaller is present, check they are giving a RIGHT OF WAY handsignal.
3. When all customers are clear of the doors, press the DOORS CLOSE pushbutton and observe the CCTV monitor as the doors close.
4. Listen for the audible tone and check that the traction interlock (TI) light has extinguished, to confirm the doors are closed.
5. Complete a PTI safety check, systematically checking each external image on the crew workstation CCTV monitor, to ensure that:
a) nothing is caught in the doors
b) nobody is in contact with the train
c) Station Staff, if present, are not giving a STOP handsignal
d) the behaviour of people visible in CCTV images will not pose a risk when the train moves.
6. If concerned about the safety of customers on the platform or ahead of the train, you may choose to:
a) make an external PA announcement warning passengers before the train moves, or
b) tap the EXTEND tile on the CCTV monitor to keep it active following departure.
7. When it is safe to do so, move the train.
…
Point 12 of Annexure A has as its counterpart point 2 of cl 3.7.2.1.2 of the Operator Manual, which provides (in part) as follows:
3.7.2.1.2 CSG dispatch procedure
1. …
2. Watch the PTI on the CCTV monitor as the train departs, until the trailing car of the train has reached the departure end of the platform.
…
33 It may presently be noted that there are differences between Annexure A and the Operator Manual, including – and without being exhaustive – the following:
there is no reference in point 7 to Annexure A to the additional “tasks” which a train driver may be “required” to perform whilst a train is “standing at a platform” as referred to in cl 3.6.3.1 of the Operator Manual; and
there is no counterpart to the last three lines in cl 3.6.4.1 of the Operator Manual in Annexure A.
The contracts of employment
34 The Second and Third Respondents, being Mr Dornan employed as a train driver and Mr Dunger employed as a train guard, are said to be representative of the drivers and guards employed by NSW Trains.
35 Mr Dornan’s contract of employment is found in a letter dated 16 March 2007. That letter provides in relevant part as follows:
Your Role and Responsibilities
Your duties and responsibilities in the above position are set out in the attached Position Description.
Appointment to the Position
Your appointment will be dependent on successfully completing the training program and will not become formal until the statutory period for any reviews or appeals has elapsed and/or any reviews or appeals have been determined or withdrawn. You will receive written confirmation of the completion of this process.
…
Your conditions of employment will be in accordance with the relevant award and the RailCorp Enterprise Agreement, a copy of which can be obtained from your Human Resources department.
…
The reference to the RailCorp Enterprise Agreement, it was common ground, could now be taken as a reference to the 2018 Agreement. The “attached Position Description” to which the letter refers provides in relevant part as follows:
PRIMARY PURPOSE
• Drive trains safely and efficiently to destinations according to timetable and provide a transportation service to customers.
…
KEY ACCOUNTABILITIES
• …
• Perform all safeworking and operational procedures, either alone or in conjunction with the Guard where appropriate, that are necessary for safe and effective train operation and to meet safeworking requirements;
• …
CHALLENGES
Undergoing regular assessments and examinations in regard to Safeworking and Train Management;
• Constantly updating their knowledge of Safeworking procedures and Traction Manuals in a continually changing environment;
• Adapting readily to the driving requirements of a particular train, identifying whether it requires all or only some procedures to be performed;
• Mastering additional operational duties to ensure all aspects of train operation are conducted efficiently and safely;
• Understanding the strengths and weaknesses of new technology, and safety apparatus systems, so that they are used correctly and effectively;
• Working with the Guard to exchange information on either operational problems or customer service issues, such as a passenger urgently requiring medical attention; and,
• Where radios are in use, mastering the communications system in order to keep in touch with the Guard, Signallers and Network Control.
...
SELECTION CRITERIA
...
• Working knowledge of train management procedures, including train preparation and stabling and other requirements;
• Understanding of and ability to use new technology and systems, to carry out required procedures and activities effectively and efficiently;
• Problem solving and analysis skills for accurately and pro-actively identifying operational problems and determining the appropriate course of action;
• Well-developed interpersonal skills for effectively communicating with the Guard, Passengers, Network Control, Signal boxes, Defects, Rostering supervisor and other personnel as required;
• …
36 Mr Dunger’s contract of employment is found in a letter dated 13 October 2006 and provides in relevant part as follows:
Your Role and Responsibilities
Your duties and responsibilities in the above position are set out in the attached Position Description.
Appointment to the Position
Your appointment will be dependent upon successfully completing the training program and will not become formal until the statutory period for any reviews or appeals has elapsed and/or any reviews or appeals have been determined or withdrawn. You will receive written confirmation of the completion of this process.
…
Your conditions of employment will be in accordance with the relevant award and the Enterprise Agreement 2005, a copy of which can be obtained from your Human Resources department.
…
The “attached Position Description” to which this letter refers provides in relevant part as follows:
PRIMARY PURPOSE
• Provide effective, quality customer services to passengers travelling with NSW Trains to meet the information, safety and security needs of passengers and act as a deterrent to vandalism and fare evasion
• Perform various safeworking procedures, plus door operation, platform surveillance and fault management as required.
• Work in conjunction with the driver to ensure the safe operation of the train
KEY ACCOUNTABILITIES
• …
• Prepare and work the train in conjunction with the Train Driver to verify the operational safety of the train.
• Work in conjunction with the Train Driver in safe working and fault management of the train.
• Open the train doors when the train is standing at a platform so that passengers can safely alight or board the train.
• Visually check passengers alighting and boarding the train and make “Doors Closing, Please Stand Clear” announcements before closing the train doors and notifying the Train Driver that it is safe to leave the station.
• …
SELECTION CRITERIA
• …
• Understanding of and ability to use new technology and systems, particularly the communication system, to carry out required procedures and activities effectively and efficiently.
…
The Declaratory Relief sought
37 It is also desirable to set forth at the outset the terms in which declaratory relief is sought – it is the form of declaratory relief which (for example) identifies the claims made by NSW Trains in respect to clause 13.1(b) of the 2018 Agreement, and also its claims that the giving of directions to drivers and guards to work in accordance with the operational instructions would be “lawful and reasonable”.
38 The Amended Originating Application as filed on 2 June 2021 expresses the form in which declaratory relief is sought as follows:
1. A declaration that, upon the proper construction of clause 13.1(b) of the NSW Trains Enterprise Agreement 2018 (the Enterprise Agreement), by seeking to implement and implementing the operational features of the Mariyung Fleet described in Annexure A, the Applicant will not thereby be making a claim falling within the description “no extra claims for any changes in remuneration or conditions of employment” for the purposes of clause 13.1(b) of the Enterprise Agreement.
2. A declaration that, upon the proper construction of clause 13.1(b) of the Enterprise Agreement, by seeking to implement and implementing the operational features of the Mariyung Fleet described in Annexure A, the Applicant will not thereby be making a claim falling within the scope of clause 13.1(b) of the Enterprise Agreement, with the result that clauses 12.4 to 12.5 of the Enterprise Agreement are not engaged, and have no application.
3. A declaration that, upon the proper construction of clause 13.1(c) of the Enterprise Agreement, by seeking to implement and implementing the operational features of the Mariyung Fleet described in paragraph 30, the Applicant will not thereby impact upon the existing rates of pay and conditions of employment under the Enterprise Agreement of the train drivers and guards who will work on the Mariyung Fleet, including the Second Respondent and the Third Respondent, within the meaning of clause 13.1(c) of the Enterprise Agreement, with the result that clauses 12.4 to 12.5 of the Enterprise Agreement are not engaged, and have no application.
4. A declaration that:
(a) upon the accreditation by the Office of National Rail Safety Regulator of the Applicant in respect of the operation of the Mariyung Fleet in accordance with the operational features described in Annexure A, a direction by the Applicant to the Second Respondent to perform duties as a train driver on the Mariyung Fleet in accordance with those operational features is a lawful and reasonable direction, and the Second Respondent must follow that direction; and
(b) in the event that the Second Respondent fails or refuses to follow such a direction, the Second Respondent will have breached his contract of employment, and engaged in industrial action within the meaning of section 19(1)(b) of the Fair Work Act 2009 (Cth), unless one of the circumstances in section 19(2) applies.
5. A declaration that:
(a) upon the accreditation by the Office of National Rail Safety Regulator of the Applicant in respect of the operation of the Mariyung Fleet in accordance with the operational features described in Annexure A, a direction by the Applicant to the Third Respondent to perform duties as a guard on the Mariyung Fleet in accordance with those operational features is a lawful and reasonable direction, and the Third Respondent must follow that direction; and
(b) in the event that the Third Respondent fails or refuses to follow such a direction, the Third Respondent will have breached his contract of employment, and engaged in industrial action within the meaning of section 19(1)(b) of the Fair Work Act 2009 (Cth), unless one of the circumstances in section 19(2) applies.
6. In the alternative to orders 1, 2 and 3 above, a declaration that upon the proper construction of clause 13.1 of the Enterprise Agreement, by the Applicant making a claim seeking to implement and implementing the operational features of the Mariyung Fleet described in Annexure A is not a claim made within the “life” of the Enterprise Agreement, in that any such claim has been made by NSW Trains after the nominal expiry date of the Enterprise Agreement, and is not thereby prevented by clause 13.1 from implementing the operational features of the Mariyung Fleet set out in Annexure A.
7. In the alternative to order 6, clause 13.1 of the Enterprise Agreement is invalid and of no effect if and to the extent it purports to prevent or restrict the Applicant from making any new claims on or after the nominal expiry date specified in clause 6.1 (being 30 April 2021 or 1 May 2021), because it is contrary to, and seeks impermissibly to outflank, the statutory scheme of Part 2-4 Division 3 of the Fair Work Act 2009 (Cth) for the making of new claims by employers once an applicable enterprise agreement (such as the Enterprise Agreement) has passed its nominal expiry date.
8. A declaration that the whole of clause 12 of the Enterprise Agreement has no effect under section 253(1)(a) of the Fair Work Act 2009 (Cth) to the extent that it requires in principle agreement from the First Respondent or other relevant unions to implement changes described in clauses 12.1(a) and (b), because it is not a term about a permitted matter described in section 172(1) of the Fair Work Act 2009 (Cth).
The 2018 Agreement & principles of interpretation
39 The 2018 Agreement is a lengthy document of some 86 pages and comprising some 128 clauses.
40 The Agreement was approved by the Fair Work Commission on 24 April 2018: NSW Trains [2018] FWCA 2319. Paragraph [10] of the Commission’s decision states that in “accordance with subsection 54(1) of the Act it will operate from 1 May 2018. The nominal expiry date of the Agreement as specified in clause 6.1 of the Agreement, is 1 May 2021.”
41 Some of the provisions which assume relevance to one or other of the submissions advanced in the present proceeding include the following.
42 The Objectives of the Agreement are thus expressed as follows:
2. OBJECTIVES OF THE PARTIES TO THIS AGREEMENT
2.1. The following are the objectives of this Agreement. They form a guide for the parties should there be a dispute relating to the interpretation of a clause or clauses within this Agreement.
2.2. To provide a mechanism for ongoing change, where required, in order for the Employer to meet its strategic objectives of a safe, reliable, efficient, financially responsible and customer focused service.
2.3. To recognise safety as a fundamental contributor to successful operations and to ensure that employment conditions and practices provide a framework within which the Employer can achieve a safe environment.
2.4. To commit to reform, continuous improvement and to promote a culture of continuous improvement, benchmarking and learning.
…
43 Consistent with the approval of the Agreement by the Commission in April 2018, cl 6 is in the following terms:
6. NOMINAL TERM OF THIS AGREEMENT
6.1. This Agreement will come into effect 7 days after the Agreement is approved by the Fair Work Commission and will remain in force for three years.
There is no other clause which addresses the duration of the Agreement as a whole.
44 Clause 7 of the 2018 Agreement addresses the Consultative Process envisaged by the Agreement and provides (in part) as follows:
…
7.2. Issues subject to consultation
Issues subject to consultation may include, but are not limited to the following:
(a) changes in the composition, operation, location or size of the workforce, or in the duties and skills required; the elimination or reduction of job opportunities;
(b) alterations to hours of work;
(c) the restructuring of jobs and the consequent need for retraining, training, transfer, or secondment of Employees to other work;
(d) changes to classification structures or position descriptions applying to a job or jobs; and
(e) changes to the operational structure of the Employer.
7.3. Consultative Arrangements
The Employer will consult with Employees when there is a proposed change that will impact upon the working arrangements of the Employees. Consultation shall be conducted in good faith with reasonable time for the Employees, Union(s) and their members to respond to the proposed changes.
When a change is proposed that will impact upon the working arrangements of Employees, the Employer will communicate the proposed change to the affected Employees and Employee Representatives.
7.4. Unresolved matters
Where matters cannot be resolved through the consultative process the dispute will be dealt with in accordance with the Dispute Settlement Procedure at Clause 8 of this Agreement.
45 Clause 8 addresses the “Dispute Resolution Procedure” envisaged by the Agreement and provides in relevant part as follows:
8. DISPUTE SETTLEMENT PROCEDURE (DSP)
8.1. The purpose of this procedure is to ensure that disputes are resolved as quickly and as close to the source of the issue as possible. This procedure requires that there is a resolution to disputes and that while the procedure is being followed, work continues normally.
8.2. This procedure shall apply to any dispute that arises about the following:
(a) matters pertaining to the relationship between the Employer and the Employees (including workload matters);
(b) matters pertaining to the relationship between the Employer and the Employee organisation(s), which also pertain to the Agreement and/or the relationship between the Employer and Employees;
(c) deductions from wages for any purpose authorised by an Employee who will be covered by the Agreement;
(d) the National Employment Standards; and
(e) the operation and application of this Agreement.
…
8.4. Any dispute between the Employer and Employee(s) or the Employee’s Representative shall be resolved according to the following steps:
STEP 1: Where a dispute arises it shall be raised in the first instance by the Employee(s) or their Union delegate directly with the local supervisor/manager. The local supervisor/manager shall provide a written response to the Employee(s) or their Union delegate concerning the dispute within 48 hours advising them of the action being taken. The status quo before the emergence of the dispute shall continue whilst the dispute settlement procedure is being followed. For this purpose “status quo” means the work procedures and practices in place immediately prior to the change that gave rise to the dispute.
…
STEP 4: If the dispute remains unresolved any party may refer the matter to the Fair Work Commission for conciliation. If conciliation does not resolve the dispute the matter shall be arbitrated by the Fair Work Commission provided that arbitration is limited to disputes that involve matters listed in sub-clause 8.2 of this procedure.
…
46 Clause 12 of that Agreement provides in relevant part as follows:
12. FACILITATION OF CHANGES TO THE TERMS OF THIS AGREEMENT
The parties acknowledge that continuous improvement, the acceptance of ongoing change and commitment to safety are fundamental to the success of NSW Trains. Associated with NSW Trains’ continuous improvement program and commitment to best practice, changes in technology, organisational structures and work practices will occur. The following provisions will facilitate such changes to the operation of the terms of this Agreement as specified in this clause following a ballot of affected Employees who will share the benefits of agreed changes.
12.1. Train Crew
(a) Notwithstanding the other terms of this Agreement, prior to the nominal expiry date of this Agreement, the Australian Rail, Tram and Bus Industry Union and the Employer may agree in principle to implement changes for Train Crew (as defined in clause 100) (Affected Employees) to the operation of:
(i) clause 24;
(ii) clauses 99 to 128 of Section 4 and Schedules 4A and 4B inclusive; and
(iii) the conditions of employment (as defined in clause 13.1(d)) contained within the Drivers Rostering and Working Arrangements (including the Overtime Bonus) (DRWA), Guards Rostering and Working Arrangements (GRWA), Stable Rostering Code and Drivers Depot Transfers and Roster Placement Policy / Procedure.
(b) The changes may include changes to working arrangements, conditions and payments and will be compensated for by the epayment of additional remuneration.
(c) The additional remuneration for changes cited in 12.1(a) may include:
(i) an aggregate payment in lieu of currently specified payments;
(ii) compensation for changes or variations to the operation of clauses and/or conditions of employment; and/or
(iii) Payment in recognition of employee related cost savings delivered by changes or variations to the operation of clauses and/or conditions of employment.
(d) Where agreement in principle is reached with any classification of Affected Employees, e.g. Drivers or Guards, clause 12.5 will apply. Any clause of this Agreement or in the DRWA, GRWA, Stable Rostering Code and/or Drivers Depot Transfer and Roster Placement Policy/Procedure the operation of which is changed in accordance with this sub-clause or for which a payment is made in accordance witrh this sub-clause will cease to apply to Affected Employees upon commencement of an Agreement approved in accordance with sub-clause 12.5. Any additional remuneration will be paid to Affected Employees in accordance with clauses 12.5(f) and (g).
…
47 Clause 13 of that Agreement provides in relevant part as follows:
13. NO EXTRA CLAIMS OTHER THAN IN ACCORDANCE WITH THIS AGREEMENT
13.1 This clause is subject to the right to a variation of this Agreement in accordance with Part 2-4 Division 7 of the Fair Work Act 2009 (Cth). This Agreement covers the field. During the life of this Agreement the parties:
(a) will continue to recognise the Employer’s managerial prerogative to propose and implement change in compliance with this Agreement;
(b) except in accordance with the terms of Clause 12, shall make no extra claims for any changes in remuneration or conditions of employment;
(c) agree that where any change proposed in Clause 12 above impacts upon Employees’ existing rates of pay and/or conditions of employment under this Agreement, then it will not only be implemented in accordance with the consultation and voting process included in Clause 12 of this Agreement.;
(d) for Train Crew it is recognised that “conditions of employment” includes current:
…
48 The manner in which such provisions of an enterprise agreement and other industrial instruments are to be construed is well-settled. Thus, in an oft-cited summary of principles, Madgwick J in Kucks v CSR Ltd (1996) 66 IR 182 at 184 observed:
Legal principles
It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.
But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.
49 These observations were later cited with approval by Tracey J in Transport Workers’ Union of Australia v Linfox Australia Pty Ltd [2014] FCA 829, (2014) 318 ALR 54 at 58 (“TWU v Linfox”). His Honour there went on to further elaborate upon the principles of construing industrial instruments as follows (at 59):
[34] Guidance as to the construction of industrial instruments may also be obtained by reference to principles which courts apply to the construction of commercial contracts. Commercial contracts should, as Kirby J held in Pan Foods Company Importers & Distributors Pty Ltd v Australia and New Zealand Banking Group Ltd (2000) 170 ALR 579; [2020] HCA 20 at [24] “be construed practically, so as to give effect to their presumed commercial purposes and so as not to defeat the achievement of such purposes by an excessively narrow and artificially restricted construction.” An interpretation which accords with business common sense will be preferred to one which does not: see Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd (1968) 118 CLR 429 at 437.
In Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2016] FCA 1009, (2016) 262 IR 176 at 189 to 190 (“BHP Coal Pty Ltd”) Logan J endorsed these principles and continued:
[32] There was no dispute between the parties as to the general principles applicable to the construction of industrial awards and agreements. In Transport Workers’ Union of Australia v Linfox Australia Pty Ltd (2014) 318 ALR 54 (TWU v Linfox) at [29]-[41] Tracey J offered a comprehensive summary of those principles. I respectfully adopt that summary without separately reproducing it. It is a feature of the authorities discussed in that summary that it has been acknowledged that guidance as to the construction of industrial instruments may also be obtained by reference to principles which courts apply to the construction of commercial contracts.
[33] One such principle, and it is highlighted in the summary in TWU v Linfox, is that an interpretation which accords with business common sense will be preferred to one which does not: see Upper Hunter County District Council v Australian Chilling & Freezing Co Ltd (1968) 118 CLR 429 at 437. …
50 The provisions of an enterprise agreement are, moreover, to be construed by reference to the industrial context out of which they emerged and are not to be construed in a vacuum divorced from industrial realities: Workpac Pty Ltd v Skene [2018] FCAFC 131, (2018) 264 FCR 536. The Full Court there summarised the approach as follows (at 580):
[197] The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context: City of Wanneroo v Holmes (1989) 30 IR 362 (Holmes) at 378 (French J). The interpretation “turns on the language of the particular agreement, understood in the light of its industrial context and purpose”: Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 (Amcor) at [2] (Gleeson CJ and McHugh J). The words are not to be interpreted in a vacuum divorced from industrial realities (Holmes at 378); rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament (Holmes at 378-379, citing George A Bond & Company Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503 (Street J)). To similar effect, it has been said that the framers of such documents were likely of a “practical bent of mind” and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced: see Kucks v CSR Ltd (1996) 66 IR 182 at 184 (Madgwick J); Shop, Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [16] (Marshall, Tracey and Flick JJ); Amcor at [96] (Kirby J).
See also: National Tertiary Education Industry Union v University of Sydney [2020] FCA 1709 at [124], (2020) 302 IR 272 at 322 to 323 per Thawley J.
THE 2018 AGREEMENT – SECTION 54 & THE NOMINAL EXPIRY DATE
51 If the provisions of the 2018 Agreement be presently left to one side, s 54 of the Fair Work Act addresses “when an enterprise agreement is in operation”. That section provides as follows:
When an enterprise agreement is in operation
(1) An enterprise agreement approved by the FWC operates from:
(a) 7 days after the agreement is approved; or
(b) if a later day is specified in the agreement – that later day.
(2) An enterprise agreement ceases to operate on the earlier of the following days:
(a) the day on which a termination of the agreement comes into operation under section 224 or 227;
(b) the day on which section 58 first has the effect that there is no employee to whom the agreement applies.
The continued “operation” of an enterprise agreement after the expiration of its “nominal expiry date” was not put in dispute. Nor could it be. Section 224, for example, expressly identifies those circumstances in which the “termination” of an enterprise agreement comes into operation, namely if termination is approved under s 223. So, too, does s 227 expressly identify as the date of termination the date upon which an enterprise agreement is terminated under s 226. Both ss 223 and 226 refer to the need for the Fair Work Commission to consider the views of employees. Section 223(c) thus refers to the Commission being “satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination”. Section 226(b)(i) directs the Commission to a consideration as to whether “it is appropriate to terminate the agreement taking into account … the views of the employees…”
52 Section 54 should also be read together with s 52 of the Fair Work Act which provides (in relevant part) as follows:
When an enterprise agreement applies to an employer, employee or employee organisation
When an enterprise agreement applies to an employee, employer or organisation
(1) An enterprise agreement applies to an employee, employer or employee organisation if:
(a) the agreement is in operation; and
(b) the agreement covers the employee, employer or organisation; and
(c) no other provision of this Act provides, or has the effect, that the agreement does not apply to the employee, employer or organisation.
…
Read together, an enterprise agreement “applies to” an employee whilst it is “in operation”: National Tertiary Education Industry Union v Swinburne University of Technology [2014] FCA 606 at [18] per Mortimer J.
53 With reference to s 54 and the term “operates”, Kiefel CJ, Bell, Keane, Nettle, Gordon and Edelman JJ in ALDI Foods Pty Limited v Shop Distributive and Allied Employees Association [2017] HCA 53, (2017) 262 CLR 593 at 605 (“ALDI Foods”) have observed:
[34] An enterprise agreement comes into operation in the sense of creating rights and obligations between an employer and employees in relation to the work performed under it only after it has been approved by the Commission. After that time the agreement applies to the employers and employees who are covered by it. …
54 But for any provision in the 2018 Agreement, s 54 thus provides that it continues to “operate”. Section 54(2) is unequivocal in its terms as to when an enterprise agreement “ceases” – namely upon the happening of one or other of the events specified in s 54(2)(a) or (b), and neither of those events has happened in the present case.
55 Notwithstanding the terms of s 54, NSW Trains places at the forefront of its submissions its contention that cl 13 of the 2018 Agreement has come to an end. If this be correct, it would thereafter be unnecessary to resolve NSW Trains’ other submissions that:
the directions proposed to be given to its drivers and guards would not constitute the making of an “extra claim”; or
cl 13.1 is invalid or void because of inconsistency with or repugnancy with Part 2-4 of the Fair Work Act.
56 No party has sought to approach the Commission with a view to terminating the 2018 Agreement. NSW Trains is (presumably) firm in its commitment that it may give its proposed directions to its drivers and guards free from (for example) the operation of cl 13.1(b) of the 2018 Agreement and hence there being no necessity on its part to terminate that Agreement; the Respondents being equally firm in their commitment that the 2018 Agreement continues to relevantly place constraints upon the unilateral power sought to be exercised by NSW Trains. Whatever be the reasons motivating the parties to the present dispute, no application has been made to the Commission to terminate the existing Agreement.
57 Contrary to the submission of NSW Trains, it has been concluded that cl 13.1 of the 2018 Agreement has not come to an end. It has been concluded that, in accordance with s 54, that that clause continues to “operate”.
The life of this agreement v the nominal expiry date?
58 If the focus is turned to the provisions of the 2018 Agreement, there are a number of clauses which direct attention to those points of time at which the Agreement itself or provisions within the Agreement come to an end, namely:
cl 6.1 which specifies that the Agreement “will remain in force for three years” from 7 days after it was approved by the Commission on 24 April 2018;
cl 12.1(a), 12.2 and 12.3 which refer to “prior to the nominal expiry date of this Agreement”; and
cl 13.1 which refers to “[d]uring the life of this Agreement”.
Clause 12 addresses what is referred to as “Facilitation of Changes to the Terms of this Agreement”; cl 13 addresses what is referred to as “No Extra Claims Other Than in Accordance with this Agreement”.
59 The use of two different phrases in clauses 12 and 13 would, at least initially, suggest that each phrase has a separate and discrete meaning.
60 Clause 13.1(b) of the 2018 Agreement provides (albeit in part) that “[d]uring the life of this Agreement the parties … except in accordance with Clause 12, shall make no extra claims for any changes in remuneration or conditions of employment”.
61 On its proper construction, it is concluded that the 2018 Agreement and cl 13.1(b) continue to “operate” by reason of s 54 of the Fair Work Act. It continues to create “rights and obligations between an employer and employees…”: cf. ALDI Foods [2017] HCA 53 at [34], (2017) 262 CLR at 605. Unlike cl 12, which defines the ambit of its operation to a period “prior to the nominal expiry date” of the Agreement, the use of the different phrase in cl 13 manifests an intention that that clause continues to “operate” so long as the Agreement itself continues to “operate”. The “life of the Agreement” is a period fixed – not by reference to the nominal expiry date – but by reference to the period during which the Agreement “operates”.
62 To be distinguished, by reason of the terms of the agreement there in issue, is the decision in Toyota Motor Corporation Australia Ltd v Marmara [2014] FCAFC 84, (2014) 222 FCR 152 at 171. By reference to the terms of the agreement there in issue, Jessup, Tracey and Perram JJ concluded:
[58] Here we note what is common ground, namely, that the expression “the end of this agreement” in clause 4 of the Agreement is to be understood in the sense “the nominal expiry date of this agreement”. When the clause is so understood, it is correct, as Toyota stressed, that the operation of the prohibition in clause 4 is co-terminous with the period during which industrial action could not be taken in support of claims for the acceptance of the proposals for variation made by Toyota on 11 and 15 November 2013. By a combination of ss 19(1)(d) and (3) and 417(1) and (2) of the FW Act, Toyota could not, in November 2013, have prevented its employees from performing work under their contracts of employment without terminating those contracts. Further, any suggestion of dismissing or otherwise disadvantaging those employees on account of their refusal to accede to the proposals would seem to be ruled out by the provisions of Div 3 of Pt 3-1 of the FW Act. …
63 The phrase “[d]uring the life of this Agreement” as employed in cl 13.1 of the 2018 Agreement is construed to mean something other than “prior to the nominal expiry date of this Agreement”. The latter phrase is, with respect, unambiguous in its terms – the Agreement itself expressly specifies the “nominal expiry date”. In contrast to a date set by reference to the “nominal expiry date”, the phrase “[d]uring the life of this Agreement” lacks the same degree of certainty. But such limited uncertainty as remains does not strip it of meaning. Albeit unspecified by date, the 2018 Agreement continues to operate until it is terminated. To that extent, at least, there is certainty as to the duration of cl 13.1.
64 The two phrases in cll 12 and 13 manifest an intent on the part of the drafter of the Agreement to identify two separate dates. The very juxtaposition of cll 12 and 13 in consecutive provisions in the 2018 Agreement and the incorporation of cl 12 into the text of cl 13.1(b) only serve to underline the conclusion that the two different expressions of time have different, and intentionally different, meanings – one being “prior to the nominal expiry date” and the other being “during the life of this agreement”.
65 Ritual incantation as to “industrial or commercial sense” or the “presumed intention of the bargaining representatives” when negotiating the 2018 Agreement take the argument, with respect, little further. In the absence of other considerations, there is no more compelling reason to presume that the “intention” of the parties was as asserted by NSW Trains rather than such “intention” as could be distilled from the fact that a different phrase is employed in cl 12 from that in cl 13. It is reference to the terms actually employed in cll 12 and 13 which provides the sounder reason for rejecting the submission of NSW Trains, rather than reference to an ill-defined “presumed” intention.
66 So, too, with assertions as to what would make “industrial or commercial sense”. But reference to the purpose sought to be achieved by a particular provision may assist in making some assessment as to what would make “industrial or commercial sense”: e.g., Construction, Forestry, Mining and Energy Union v Hail Creek Coal Pty Ltd [2015] FCAFC 149. In departing from the assessment of the primary Judge as to what would make “industrial or commercial” sense, Jessup, Rangiah and White JJ there concluded:
[21] The primary Judge said that he was fortified in rejecting the construction promoted by the appellant “by reflecting upon whether that construction would make industrial or commercial sense”. After putting to one side, in effect, comparisons with other agreements in the mining industry proffered by the appellant, his Honour said that a construction of cl 13.7 that would give rise to an entitlement to take unlimited sick leave even a very limited time after the employee concerned had commenced his or her employment was not “a sensible industrial or commercial construction”. It escaped his Honour how, if such a construction were correct, a company director, faced with the responsibilities that fall on directors under the Corporations Act 2001 (Cth) (“the Corporations Act”), could ever make proper provision for sick leave contingencies in the relevant accounts. By contrast, if the entitlement were limited as proposed by the respondent, it was “readily possible to see how … prudent provision in corporate accounts could be made.”
Construing an industrial agreement in a manner which “accords with business common sense” is, it may be accepted, an established principle of construction: TWU v Linfox [2014] FCA 829 at [34], (2019) 318 ALR at 58 per Tracey J; BHP Coal Pty Ltd [2016] FCA 1009 at [32] to [33], (2016) 262 IR at 189-190 per Logan J.
67 In the present context, just as cl 7.4 of the 2018 Agreement contemplates that there may be “unresolved matters” which may need to be resolved by means of the cl 8 “Dispute Resolution Procedure”, it is not inconsistent with “industrial and commercial sense” to conclude that “extra claims” may be such a matter that remains “unresolved”. If anything, the “presumed intention” of the parties and “business common sense” are both consistent with a conclusion that those negotiating the 2018 Agreement were familiar with s 54 of the Fair Work Act.
CLAUSE 13 – EXTRA CLAIMS & INVALIDITY
68 The conclusion that the 2018 Agreement continues to “operate” – including the continued operation of cl 13 – necessarily requires a resolution of NSW Trains’ other submissions that:
the decision of the Fair Work Commission is no impediment to this Court now granting appropriate declaratory relief; and
the directions proposed to be given to its drivers and guards would not constitute the making of an “extra claim”.
And, even if these submissions be rejected, NSW Trains further submits that:
cl 13.1 is in any event invalid.
69 In respect to these issues, it has been concluded that:
NSW Trains is bound by the March 2021 decision of the Full Bench of the Fair Work Commission, and cannot now seek to re-litigate either the question as to whether it would be making “extra claims” upon its drivers and guards, or the question as to whether cl 13 is inconsistent with Part 2-4 of the Fair Work Act.
Even if it were permitted to do so, it has been further concluded that:
its proposed directions to drivers and guards would be the making of an “extra claim”; and
cl 13 is not invalid by reason of Part 2-4 of the Fair Work Act.
The decisions of the Fair Work Commission
70 Prior to the publication in November 2019 by NSW Trains of its Guide to the New Intercity Fleet, there were meetings between NSW Trains and the Union with a view to resolving the question as to whether it could give the proposed direction to its drivers and guards. Agreement was not reached.
71 In January 2020 the Union thus filed with the Fair Work Commission an Application for the Commission to deal with a dispute in accordance with a dispute settlement procedure. That Application identified the “dispute” (in relevant part) as follows:
2. About the dispute
2.1 What is the dispute about?
…
1. The dispute relates to the imminent introduction by NSW Trains of a new fleet of trains, described as the New Intercity Fleet. These trains will operate on current routes.
2. As part of the rollout, NSW Trains is purporting to introduce changes which will have significant effects on staff employed in Driver Thereafter and Guard classifications under the NSW Trains Enterprise Agreement 2018 (the Agreement), discussed in detail below.
3. On 28 November 2019, NSW Trains distributed a booklet to its employees announcing these changes entitled “Your Guide to the New Intercity Fleet” (NIF Booklet). A copy of the NIF Booklet is annexed and marked ‘A’.
4. NSW Trains has not consulted, and does not propose to consult, with staff or the ARTBIU about these proposed changes.
Changes affecting Drivers
5. In respect of affected drivers, NSW Trains proposes to:
a. create a new classification of ‘Intercity Specialist Driver’, which does not currently exist in the Agreement,
b. ‘reclassify’ staff employed in the classification of Driver Thereafter in Schedule 4A of the Agreement as ‘Intercity Specialist Drivers’,
c. pay persons classified as ‘Intercity Specialist Drivers’ 4% above the wage rates prescribed for the Driver Thereafter classification, and
d. require ‘Intercity Specialist Drivers’ to perform a range of additional duties, including those usually performed by Guards or Customer Service Attendants such as providing boarding assistance.
6. In addition, there will be changes to the Transfer and Roster Placement Policy.
7. The ARTIBU contends that the proposed changes:
a. inadequately remunerate Drivers for the value of the work proposed to be performed; and
b. include inappropriate job duties leading to an unsafe working environment.
Changes affecting Guards
8. In respect of affected Guards, it appears that NSW Trains proposes to:
a. no longer employ any person in the Guard classification in the New Intercity Fleet, leading to a number of Guard positions being redundant;
b. create a new classification of ‘Customer Service Guard’, which does not currently exist in the Agreement, which will:
i. have a pay rate of 12% less than the Guard classification,
ii. remove access to the Guard Rostering and Working Arrangements and kilometerage entitlements under the Agreement, and
iii. incorporate duties usually performed by Customer Service Guards;
c. give displaced staff employed as Guards the option of:
i. retraining and redeploying into the Customer Service Guard position, with their current conditions grandfathered until the expiry of the Agreement; or
ii. accepting ‘voluntary’ redundancy.
9. The ARTIBU contends that the proposed changes:
a. inadequately remunerate Guards for the value of the work proposed to be performed; and
b. include inappropriate job duties leading to an unsafe working environment.
…
72 A Deputy President of the Commission resolved that “dispute” in August 2020: Re Australian Rail, Tram and Bus Industry Union v NSW Trains [2020] FWC 4359. An application was then made for permission to appeal from that decision to the Full Bench of the Commission. The Full Bench published its reasons for decision in March 2021: Re Australian Rail, Tram and Bus Industry Union v NSW Trains [2021] FWCFB 1113.
73 As stated by the Full Bench, the Deputy President sought to resolve three questions, namely:
1. Does Clause 12 of the NSW Trains Enterprise Agreement 2018 prevent NSW Trains from implementing its proposals in respect to the New InterCity Fleet, unless there is an in-principle agreement with the Union?
2. Is NSW Trains’ proposal an extra claim not permitted by Clause 13?
3. Have the provisions of the Consultation Clause (Clause 7), requiring arbitration as to the merits of the proposal, been completed?
The Full Bench concluded that “permission” to appeal should be granted. The grounds of appeal, as summarised by the Full Bench, asserted that the Deputy President erred in:
a) his interpretation of clauses 12, 13 and 7;
b) finding, as a matter of fact, that the Change was not contemplated by cl.12;
c) finding, as a matter of fact, that the Change was not an extra claim within the meaning of cl.13;
d) finding, as a matter of fact, that NSW Trains had met the consultation obligations under the Agreement;
e) finding that the Change could be introduced while matters remained in dispute which had not been resolved in accordance with the dispute resolution process; and
f) otherwise that NSW Trains could introduce the Change.
Grounds (a) to (c), (e) and (f) were upheld and the decision of the Deputy President was quashed.
74 In concluding that NSW Trains was seeking to make “extra claims” upon its drivers and guards and in concluding that no issue of “repugnancy” arose by reason of the consultation process provided for in cl 12 of the 2018 Agreement, the Full Bench reasoned as follows:
[14] The approach of the Deputy President was to consider Clause 13 through the lens of Clause 12 and what he understood to be a submission advanced by the Respondent that Clause 12.5 of the Agreement was repugnant to the variation of Agreement provisions in Part 2-4- Division 7 of the Act.
[15] As to the issue of repugnancy, we observe that before us there was no dispute between the parties that because Clause 13.1 is subject to the right to a variation of the Agreement in accordance with Part 2-4, Division 7 of the Act, no issue of repugnancy arises. We agree and to the extent he found otherwise, the Deputy President erred.
[16] As to Clause 13, we note the Full Court of the Federal Court in Toyota Motor Corporation Australia Ltd v Marmara & Ors [(2014) 222 FCR 152] (Marmara) accepted the proposition that a no extra claims clause is fundamental in the context of an Agreement, in that it delivers stability and predictability in the matter of the terms and conditions of employment ((2014) 222 FCR at 174). The statement within Clause 13.1 of the Agreement that it covers the field indicates it is the intention of the parties that the terms of the Agreement comprehensively outline the terms and conditions of employment for its duration, with changes in remuneration or conditions of employment only permitted through the variation process in the Act or Clause 12. The language is broad and does not limit changes to those that might be made to the text or terms of the agreement.
[17] Section 4 of the Agreement applies to employees whose positions are covered under one of the classifications in Schedule 4A and Clause 124 in Section 4 states their rates of pay are also set out in Schedule 4A. Section 4 also contains the definition of “Train Crew”, which is defined as being “essential crew that are required to move a train and includes InterCity Drivers and Guards and Regional (Former CountryLink) Drivers”. Contained within Clause 12 is an acknowledgement that changes in technology, organisational structures and work practices will occur and the clause then provides:
“The following provisions will facilitate such changes to the operation of the terms of this Agreement as specified in this clause following a ballot of affected Employees who will share the benefits of agreed changes.”
[18] Clause 12.1(a) then provides for the Appellant and Respondent to agree in principle to implement changes for Train Crew to the operation of a range of terms and conditions, including Section 4 and Schedule 4A. As to what “the changes” may include is outlined in Clause 12.1(b), which outlines “changes to working arrangements, conditions and payments” and that the changes will be compensated for by the payment of additional remuneration. [19] We are satisfied that the Respondent proposes to change its organisational structure and some work practices with the introduction of the new classifications of Intercity Specialist Driver and Customer Service Guard. Doing so would change the operation of parts of Section 4 and Schedule 4A of the Agreement because the Respondent’s proposal would change the classification, working arrangements and payments of employees covered under Schedule 4A and their rate of pay. New Train Crew recruits into the role of Guard would be employed with changed pay and conditions. We are therefore satisfied that the changes proposed are extra claims and may only be implemented through the process outlined in Clause 12 or through a variation of the Agreement in accordance with Part 2-4, Division 7 of the Act. As such, we would uphold appeal grounds (a)-(c) insofar as they relate to clauses 12 and 13. [20] The consequence of our finding in relation to appeal grounds (a)-(c) that the changes proposed are extra claims and may only be implemented through the process outlined in Clause 12 or through a variation of the Agreement in accordance with Part 2-4, Division 7 of the Act is that appeal grounds (e) and (f) must also be upheld.
75 Following the decision of the Full Bench in March 2021, an offer was communicated to the Union on 23 April 2021 on the letterhead of Transport for NSW and the NSW Government. That letter of offer provided for a number of “commitments” being proffered by NSW Trains. That offer was met by a letter from the Union stating that it was “not in a position to provide [Transport for NSW] with an in-principle agreement for [its] offer…” and communicating in effect a counter proposal. A response was provided by way of email on 30 April 2021 stating that the Union’s “proposal [was] unacceptable”.
76 The proceeding in this Court was then commenced.
The binding nature of the decision of the Full Bench
77 Senior Counsel on behalf of the Respondents contends that the Commission in the present case “was acting as a private arbitrator under the dispute resolution provision of the Agreement” and that the “nature of a private arbitration process, particularly in the context of an arbitration conducted under a disputes provision of an enterprise agreement, is that the outcome is binding on the parties”.
78 It may be accepted that an arbitration of a dispute may preclude a party to that arbitration from later seeking judicial resolution of the same dispute.
79 In Energy Australia Yallourn Pty Ltd v Automotive, Food, Metal, Engineering, Printing and Kindred Industries Union [2018] FCAFC 146, (2018) 264 FCR 342 for example, the dispute settlement clause in that agreement provided in cl 28 that where the Commission had “issued a decision, determination or direction under this clause, it shall be final and binding on the Parties, subject to the appeal process in accordance with sub-clause 28.3.” In dismissing an appeal, Rares and Barker JJ concluded (at 364):
[92] The Commission had jurisdiction and the primary judge was correct to find that the Full Bench’s arbitral decision extinguished the controversy between Energy Australia, its employees and the five unions as to the dispute on the interpretation and application of cl 5.3 of the Yallourn agreement.
In a separate concurring judgment, Flick J likewise concluded (at 372 to 373):
[136] Energy Australia and the AMWU had agreed (for the purposes of the Agreement) to submit the matter in dispute between them to the “final and binding” determination of the Commission. It is difficult to see why such an agreement did not prevent the later institution of the present proceeding in this Court: cf Dobbs v National Bank of Australasia Ltd (1935) 53 CLR 643 at 652-653 per Rich, Dixon, Evatt and McTiernan JJ. Although the agreement between Energy Australia and the AMWU could not oust the jurisdiction of this Court, the agreement nevertheless “has legal significance in respect of the parties’ dispute and their rights and liabilities”: cf TCL Air Conditioner (Zhongshan) Company Ltd v Judges of the Federal Court of Australia (2013) 251 CLR 533 at [77] per Hayne, Crennan, Kiefel and Bell JJ.
[137] To now permit Energy Australia to seek a contrary decision to that given by the Full Bench in January 2017 would constitute an abuse of process. The primary Judge was correct in so concluding: [2017] FCA 1245 at [163].
80 The 2018 Agreement did not contain a provision whereby the parties agreed that the decision of the Commission would be “final and binding” on the parties.
81 But the absence of such words did not lead to any different conclusion in Linfox Australia Pty Ltd v Transport Workers’ Union of Australia [2013] FCA 659, (2013) 213 FCR 479 at 492 (“Linfox v TWU”). The enterprise agreement there in issue contained a clause (cl 22) which provided that “any dispute or grievance … shall be dealt with in the following manner…” The clause went on to provide that if the matter was not resolved in a conciliation process undertaken by Fair Work Australia, Fair Work Australia “may proceed to arbitrate the dispute and/or otherwise determine the rights and/or obligations of the parties…” Of this clause, Rares J concluded:
The binding nature of the Full Bench decision
[37] I also reject Linfox’s argument that the omission of the words “final and” before binding in cl 22.2 of the enterprise agreement indicated the parties agreed that the Full Bench decision was susceptible to judicial review. The whole purpose of the dispute resolution procedure that s 186(6) required to be provided under the Act was to resolve disputes. For a resolution of a dispute to be binding upon the parties consistently with the purposes of the Act, in my opinion, it must create a final determination of the parties’ dispute. Such a decision cannot conclusively determine the proper construction of the parties’ agreements because such a decision can only be performed conclusively by a Ch III court.
[38] But the parties consensually agreed that the private arbitrator, in the position of the Commission, or the Full Bench on appeal, had power to resolve their dispute by making a decision under clause 22.2. Such a decision was to have, in effect, the attributes of a private arbitral award. A long established incident of that process is that the arbitrator has power to decide finally all disputed questions of fact and law: Goode at 126; TCL at [92]. The arbitration would assist the parties to continue their relationship under their enterprise agreement with an outcome arrived at by the method of dispute resolution that they both had adopted, and which the Act contemplated they would have. The parties, for example, could have adopted a dispute resolution mechanism of simply allowing the Commission to resolve their disputes in accordance with its statutory functions, that is, not as a private arbitrator. But, the parties having chosen a method of resolution by private arbitration, the Court should be astute to uphold that bargain.
82 With reference to the facts of the present case, Step 4 of cl 8.4 of the 2018 Agreement records an agreement between NSW Trains and the Union and the employees of NSW Trains (cl 5) to have a dispute of the present kind “arbitrated by the Fair Work Commission.” The absence of words such as “final and binding”, as in Linfox v TWU, leads to no different conclusion in respect to the finality of a dispute which has been the subject of arbitration by the Commission.
83 So much, it is understood, was not put in issue by NSW Trains. Its position was that the “dispute” which was the subject of the August 2020 decision and the March 2021 decision of the Full Bench was the arbitration of a different “dispute” from the one now sought to be the subject of declaratory relief in the present proceeding.
84 On the case advanced on behalf of NSW Trains, a convenient starting point for the identification of the “dispute” was the Union’s own identification of the “dispute” as set forth in its January 2020 Application to the Commission. Emphasis was placed on behalf of NSW Trains upon the identification in that Application of the dispute as encompassing in the case of drivers (in points 5 (a) and (c)) the “new classification of ‘Intercity Specialist Driver’” and the pay for that position. In the case of guards, the Application identified (in points 8(a), (b) and (c)) the “dispute” as again going to the “new classification of ‘Customer Service Guard’” and remuneration.
85 Both the questions as to the classification of drivers and guards and their remuneration, NSW Trains repeatedly emphasised, formed no part of the regime it now sought to implement – it now being proposed that there would be no re-classification of positions and no difference in remuneration. The “dispute” now the subject of litigation was, so submitted NSW Trains, “materially different”.
86 In an attempt to summarise the differences, NSW Trains prepared the following table comparing the former proposals and that now being proposed:
NIF Proposal | Present Proposal |
A new classification of ‘Intercity Specialist Driver’ to be introduced on the New Intercity Fleet (NIF). | Existing classification of Driver is retained on the Mariyung Fleet. |
‘Intercity Specialist Drivers’ to be paid 4% more than the rate of pay for ‘Drivers’ in Schedule 4A of the Enterprise Agreement, upon attainment of the necessary competencies to work as an ‘Intercity Specialist Driver’, and when they operate their first NIF train. | Drivers on the Mariyung Fleet to be paid the rates in Schedule 4A of the Enterprise Agreement for the driver classification |
A new classification of ‘Customer Service Guard’ (CSG) to be introduced. | Guard classification to be retained. No CSG classification to be introduced. |
CSGs to be deployed on the NIF. | Guards to be deployed on the Mariyung Fleet. No staff employed as CSG’s on the Mariyung Fleet. |
The proposed CSG rate of pay would be below the rate for a Guard in Schedule 4A of the Enterprise Agreement, having regard to the different nature of the CSG role. Any existing Guard who is deployed to the role of CSG on the NIF will continue to receive their current conditions in the Enterprise Agreement, including their weekly rate of pay in Schedule 4A, until 30 June 2023. | Guards deployed on the Mariyung Fleet to be paid the rates in Schedule 4A of the Enterprise Agreement for the guard classification. |
‘New Train Crew recruits into the role of Guard would be employed with changed pay and conditions.’ … | This is expressly excluded from the proposal in Annexure A. |
The reference to “NIF” in this summary (i.e., the New Intercity Fleet) (and in other documents and evidence in the present proceeding) is a reference to what has now been referred to as the Mariyung Fleet.
87 This table, it is accepted, accurately reflects the differences between that which was before the Commission and that which is now before this Court. To these differences may be added the following:
the proposed method of operation now sought to be implemented by NSW Trains has as a focus of its methodology the proposal to issue instructions to drivers and guards to follow the guidelines set forth in Annexure A, there being no counterpart proposal when the matter was before the Commission.
88 The differences in the “classification” of the drivers and guards, together with the differences in the former proposed changes in pay or remuneration now being abandoned, are self-evidently differences which assume considerable – but not decisive – importance. The importance to be attached to the “classification” and remuneration of drivers and guards, it should be noted, is also the subject of particular attention in the reasons for decision of the Full Bench when it concluded that the facts gave rise to “extra claims” being made upon drivers and guards: [2021] FWCFB 1113 at [19].
89 But NSW Trains’ submission that the dispute is now “materially different” is, on balance, rejected.
90 The resolution of that submission, it must nevertheless be recognised, is not clear cut. The identification of the “dispute” which was the subject of decision by the Deputy President in August 2020 and the decision of the Full Bench in 2021 remains, with respect, uncertain.
91 If reference is had (at least initially) to the form of the January 2020 Application to the Commission, that Application not only sought to embrace within the “dispute” being referred to the Commission questions as to classification and pay or remuneration, but also a “dispute” extending to:
the requirement that drivers “perform a range of additional duties” (point 5(d)); and
“inappropriate job duties” in the case of guards (point 9(b)).
But it is apt to mislead to seek to identify the precise “dispute” that was resolved by the Commission by reference exclusively to the form of Application lodged with it at the outset of a proceeding. An Application to the Commission is not to be construed with the same rigour as a pleading in a superior court of law.
92 In identifying the subject matter of that which was in fact resolved by the Commission, reference may also be had to the submissions filed by the parties and to the evidence before the Commission.
93 The submissions filed on behalf of the Union tend to suggest that the ambit of the dispute sought to be arbitrated was confined to – or at least very much focussed upon – a dispute as to the classification of drivers and guards and their rates of remuneration. The submissions filed on behalf of the Union and dated 22 June 2020 thus contended as follows:
Background
1. NSW Trains is shortly about to roll out its new fleet of trains. These trains will operate on current routes and, it is presumed, replace older models.
2. NSW Trains is proposing to employ drivers and guards to operate these new trains in two classifications:
a. ‘Intercity Specialist Driver’, and
b. ‘Customer Service Guard’
neither of which are found in the NSW Trains Enterprise Agreement 2018 (the Agreement).
…
4. Relevantly to this dispute, the Agreement contains two classifications: Driver Thereafter and Guard.
5. As the ARTBIU understands matters, NSW Trains’ proposal is that current employees employed in the ‘Driver Thereafter’ classification will simply be reclassified as ‘Intercity Specialist Drivers’, although the scope and timing of this change is not clear. Drivers so reclassified will have to perform a range of new duties, largely tasks previously performed by guards or customer service attendants. In return, NSW Trains will pay them 4% above the Driver Thereafter rate prescribed by the Agreement.
6. Customer Service Guards, on the other hand, will be paid at least 12% less than the Guard Thereafter position, if not more, and will not receive the Guard Rostering and Working Arrangements (GRWA) and kilometerage payments prescribed by the Agreement. They will perform customer service functions currently performed by Customer Service Attendants Class 2. It is unclear how the functions will otherwise differ from the Guard role. Conditions will be grandfathered until the expiry of the Agreement.
7. Current Guards will, it appears, have the option to retrain as Customer Service Guards and take up these roles, apply for redeployment, or accept voluntary redundancy.
8. The Agreement contains, relevantly:
a. at cl.12, a process for implementing certain types of change affecting train crew, which has not been followed;
b. at cl.13, a no extra claims clause precluding the parties from making any claims for changed remuneration or conditions of employment, except ‘in accordance with cl.12’; and
c. at cl.7, a consultation process which permits, if disputes are unresolved, the Commission to arbitrate the merits of the matter.
9. The question for arbitration is:
Can NSW Trains introduce the new classifications (and related pay rates and associated changes to conditions of employment) of
a) Intercity Specialist Driver; or
b) Customer Service Guard?’
…
94 The submissions made to the Commission on behalf of NSW Trains were not in evidence in the proceeding in this Court but apparently sought to recast the questions to be resolved by the Commission. The Union opposed this approach and in submissions in reply filed on 16 July 2020 contended as follows:
Introduction
…
3. NSW Trains has determined that the NIF will require different crewing arrangements than the current fleet: drivers doing different work, and an amalgamation of roles currently performed by guards and customer service officers.
…
The question
8. NSW Trains has proposed two alternative questions for determination.
9. The Commission is not bound by the precise questions posed by either party; its duty is to identify the substantive issues in dispute. However, this does not mean that respondents are at large entitled to refine the dispute to their convenience; there is real risk in an approach which permits a non-notifying party to artificially narrow the issue by posing contrived questions which mistake or elide the core of the conflict.
…
The submissions in reply further contended:
The proposal is obviously a change
13. NSW Trains’ submission in respect of cl.12 is, in effect, that the proposal does not involve a change for Train Crew for the operation of any relevant clause.
14. This rests, it seems, entirely on the fact that NSW Trains has given a new name to the roles. It appears inarguable that if the proposal was to either:
a. increase the duties and correspondingly the remuneration of Drivers; or
b. alter the duties and reduce the pay and associated conditions of Guards,
without assigning the altered roles a new title, it would fall within the remit of cl.12. Given that, in respect of existing employees, this is in substance what will actually happen, it is difficult to see how the creation of a new job title avoids this.
…
An extra claim
17. The purpose of the no extra claims clause is, as NSW Trains correctly says at [22], is to ‘secure the outcome of the bargaining process’.
18. The outcome of the bargaining process was, inter alia, to secure a comprehensive classification structure, and related conditions, for train crew. Drivers and guards had the necessary ‘high level of certainty’ as to how they would be paid. NSW Trains’ proposal will, if not implemented through the precise mechanism for this kind of change, be able to unilaterally excise them from this regime. It could in theory do the same for any worker. This is at odds with the manifest, and conceded, purpose of cl.13.
19. A change to classifications – including by addition of new classifications – is a classical bargaining claim. It is in that sense similarly a classical extra claim, when pursued after a deal has been done. If it cannot be progressed through cl.12, cl.13 means it cannot be pursued at all.
…
95 If the analysis be paused at that point, the focus of the dispute sought to be resolved by the Union was the ability of NSW Trains to unilaterally introduce new classifications with new rates of remuneration. Central to that contention was the argument that NSW Trains was seeking to require its drivers to do “different work” and that was the making of an “extra claim” for the purposes of cl 13 of the Agreement.
96 If reference is made to the evidence before the Commission, a summary of that evidence was provided by the Deputy President in his August 2020 decision: [2020] FWC 4359 at [9] to [25]. In addition to that summary, the Respondents did tender in the current proceeding the Witness Statement prepared by Mr Peters and filed with the Commission. In that Statement, Mr Peters (at least) considered it to be of relevance to include not only an account of:
the technology being employed in the Mariyung Fleet; and
the new “operating model” and the differences to the existing fleet of NSW Trains
but also a fairly detailed account of:
the “changes to driver duties”; and
“the differences between the guard and CSG [Customer Service Guard] roles”.
From what can be gleaned from the reasons of the Deputy President, Mr Peters was cross-examined on questions of fact in apparently much the same manner as in the present proceeding.
97 If a broader view is taken of that which was before the Commission, and that which is now before this Court, there are some similarities and differences. Common to both disputes was a question of construction, namely:
the meaning to be given to the phrase “extra claims”.
No question arose before the Commission as to:
whether cl 13.1(b) of the 2018 Agreement remained in force – the decisions of the Deputy President and the Full Bench both preceding the nominal expiry date of that Agreement, assuming that date to be the relevant date.
Separate from such questions of construction, and in resolving the question as to whether NSW Trains was in fact making “extra claims” upon its drivers and guards, was necessarily a consideration of the following factual matters common to both disputes:
the Operator Instruction Manual remained the same; and
the operational features of the Mariyung Fleet remained the same.
98 Notwithstanding the fact that there were some differences between the “dispute” which was before the Commission and that which is now before this Court, it is respectfully concluded that the “dispute” before the Commission was in substance the same as that which is now sought to be re-litigated in this Court.
99 It is thus concluded, albeit with some considerable diffidence, that NSW Trains should not be permitted to re-litigate the issues as to whether it would be making “extra claims” upon its drivers and guards or the issue as to whether cl 13 is invalid by reason of it being “repugnant” to Part 2-4 Division 7 of the Fair Work Act. To permit it to do so would be to permit it to engage in an abuse of process: cf. SOS Nursing & Home Care Services Pty Ltd v Smith [2013] FCA 295 at [50] per Buchanan J. Although the question as to whether cl 13.1 was “repugnant” to Part 2-4 of the Fair Work Act was not raised as an “error” on the part of the Deputy President by Grounds (a) to (f), it was an issue that necessarily had to be resolved for the Full Bench to reach its decision as to the claims being “extra claims” within the meaning of that clause.
The making of extra claims?
100 The conclusion that NSW Trains should not now be permitted to re-litigate in this Court the issue as to whether it would be making “extra claims” upon its employees (or the issue as to whether cl 13 was rendered void by reason of Part 2-4) renders it unnecessary to consider whether the proposed directions to drivers and guards to act in accordance with the operational guidelines would be the making of “extra claims”.
101 But that conclusion is, it is frankly acknowledged, open to legitimate differences of opinion. It is thus prudent to note, albeit perhaps in less detail than may otherwise have been warranted, that the same conclusion would in any event have been reached as that reached by the Full Bench. It would have thus been concluded that such directions as are proposed to be given to the drivers and guards would involve the making of “extra claims”.
102 At the outset, it is necessary to give meaning to the phrase “extra claims”, a task which requires consideration of the origin and purpose of such clauses prohibiting the making of “extra claims” and the wording of the particular clause of the enterprise agreement being construed.
103 In the present proceeding, it is cl 13.1(b) of the 2018 Agreement which provides (albeit in relevant part) that “… the parties… except in accordance with the terms in Clause 12, shall make no extra claims for any changes in remuneration or conditions of employment”.
104 It would appear that “no extra claims” clauses emerged in the 1980’s. In explaining the origin and purpose of such provisions, the Full Bench of the Industrial Relations Commission in New South Wales in Crown Employee’s Salaries and Conditions Award [2008] NSWIRComm 209, (2008) 181 IR 245 at 249 (“Crown Employee’s Salaries”) said:
[15] We would observe that no extra claims undertakings were adopted in the early 1980s in the federal Metal Industry Award 1971, as a device to prevent further award, but particularly over award, claims being made for an agreed period. Such undertakings have become a standard feature of wage fixing arrangements both at the federal and State level, especially through the mechanism of wage fixing principles. Commendably, employees, unions and employers have regarded their commitments to make no extra claims during the life of an award or agreement as solemn undertakings and rarely have they been breached. The commitments have been regarded as morally, as well as legally binding.
[16] The purpose of no further claims commitments is to ensure certainty during the life of the relevant industrial instrument. That is to say, all matters agreed or arbitrated upon represented a settled arrangement for the term of the award or agreement. Depending on the terms of the commitment, employers could plan and act on the basis that during the life of the award or agreement, they would not incur any additional labour costs or industrial action in support of extra claims, nor would they be required to divert resources to dealing with such claims. Employees and their unions would not face claims to cut wages or alter to their detriment employment conditions prescribed by the award or agreement.
In Health Services Union v Director-General, NSW Department of Health [2010] NSWIRComm 42 at [43], (2010) 193 IR 359 at 373, the Industrial Relations Commission in New South Wales cited with approval the observations of the Commission in Crown Employee’s Salaries and went on to conclude that a proposal to increase fees paid by award-covered employees for private use of its motor vehicles was not the making of an “extra claim”. The Commission there further observed that it should adopt “a strict approach to the construction of the ‘no extra claims’ provision of industrial instruments”: [2010] NSWIRComm 42 at [40], (2010) 193 IR at 372.
105 If attention be confined for present purposes to the phrase “no extra claims”, it is considered that at least two things are well-established in respect to the term “claim”, namely:
the word “claim” is to be construed by reference to the industrial context in which it is employed and not by reference to its ordinary English meaning of an assertion of a right or entitlement to something;
and, so construed, the term:
embraces a claim by an employer or employee “designed to improve upon or advance their respective entitlements or interests” or (expressed differently) to “materially change the terms and conditions of employment…”
So much seems to follow from the decision at first instance (Marmara v Toyota Motor Corporation Australia Ltd [2013] FCA 1351 (“Toyota First Instance”)) and on appeal (Toyota Motor Corporation Australia Ltd v Marmara [2014] FCAFC 84, (2014) 222 FCR 152 (“Toyota Appeal”)) in the Toyota Motor Corporation litigation.
106 In issue in that litigation was cl 4 of the Toyota Motor Corporation of Australia (TCMA) Workplace Agreement (Altona) 2011. That clause provided in part as follows:
The parties agree they will not prior to the end of this agreement:
• make any further claims in relation to wages or any other terms and conditions of employment; and
• take any steps to terminate or replace this Agreement without the consent of the other parties.
At first instance, Bromberg J observed:
[52] In the context of the scheme for bargaining provided by the FW Act, where agreements are made in resolution of claims pursued through bargaining, a proposal by one party to vary the outcome arrived at in a way which advances its interests is apt to be regarded as a further claim. That is particularly so where the proposed variations are significant and suggest an attempt, as I consider is here the case, to strike a new bargain. Both the ordinary industrial meaning of “claim” and the scheme of the Agreement to which I have referred, are consistent with the construction of “further claims” in cl 4 as encompassing a proposal made by a party to the Agreement to materially change the terms and conditions of employment set out in the Agreement other than in a manner already provided for by the Agreement. Such a proposal is not merely a request or offer, it is also a “further claim” within the intended use of that expression in cl 4.
An appeal was allowed but not in any way as to affect the observations made as to the interpretation of the word “claim”: Toyota Appeal [2014] FCAFC 84 at [37], (2014) 222 FCR 152 at 166. Jessup, Tracey and Perram JJ referred with evident approval of the observations made by Bromberg J as to the meaning of the word “claim” (at [35]) and set out his Honour’s observations at [37] and continued (at 166 and 170):
[37] …For reasons which follow, we agree with this passage, and his Honour’s conclusion on this aspect of the case.
[38] The word “claim” is historically rooted in the Australian industrial relations vernacular because there was a need for there to be an “industrial dispute” – that is, a disagreement about industrial matters – before the Industrial Relations Commission … and its predecessors could make an award, or certify an agreement, pursuant to legislation which depended for its validity on s 51(xxxv) of the Constitution of the Commonwealth. The “log of claims” was the conventional means by which a party – commonly a union – addressed its demands to the other party. The rejection of those demands stood as prima facie evidence of disagreement, and therefore of a dispute in the constitutional and statutory senses. As Dixon J said as long ago as 1938, “[a] log is not an instrument with a prescribed legal effect. It is nothing but a catalogue of claims supposed to represent the real desires of actual people.”: R v Commonwealth Court of Conciliation and Arbitration; Ex parte Kirsch (1938) 60 CLR 507 at 538.
…
[56] This industrial relations history is sufficient to reject the contention by Toyota that the word “claim” in clause 4 of the Agreement was to be understood in the limited sense of an assertion of a right or entitlement, whether legal or moral.
107 It may also be accepted that the term “extra” in the phrase “extra claims” is employed “in the sense of being additional to the matters already provided for”: United Firefighters’ Union of Australia v Metropolitan Fire and Emergency Services Board [2013] FWCFB 2301 at [26], (2013) 233 IR 267 at 279 (“United Firefighters’ Union”). There “an issue [arose] concerning the capacity of the MFB to attract operational firefighter staff to work as instructors… and to retain them in such work. This attraction and retention problem was said to be caused by the fact that operational firefighters ordinarily undertake shift work and consequently receive additional remuneration by way of shift penalties, whereas the training positions … were day work positions which did not attract any such penalties”: [2013] FWCFB 2301 at [2], (2013) 233 IR at 271 to 272. In rejecting a submission that this dispute did not fall within cl 19 of the relevant agreement, namely the dispute resolution provision, the Full Bench of the Fair Work Commission concluded (at 278 to 279):
[25] Additionally, and in any event, clause 19.1.2 of the Agreement extends the application of the dispute resolution procedure to “all matters pertaining to the employment relationship, whether or not provision for any such matter is made in this agreement”. The MFB did not dispute that the establishment of an instructors’ stream was a matter pertaining to the employment relationship. However, the MFB submitted that arbitration of the instructors’ stream was not permissible under this provision because of the “no extra claims” provision in clause 23. Clause 23 of the Agreement provides:
23.1 There shall be no extra claims by either party.
[26] We do not accept this submission. Clause 72 contemplates that the parties would at least endeavour to establish an instructors’ stream. For the clause to be effective in respect of that contemplated endeavour, the parties must by necessary implication have been able to advance proposals concerning the instructors’ stream. For that reason, a proposal of that nature cannot properly be characterised as an “extra claim” for the purpose of clause 23, because it is not “extra” in the sense of being additional to the matters already provided for by the Agreement. For the same reason, to the extent that the Commissioner in his decisions and Order acted upon the proposals advanced by the UFU and the MFB in the arbitration, he cannot be said to have done anything contrary to clause 23 of the Agreement.
108 To be distinguished from “extra claims” is a direction by an employer that an employee perform other duties within the scope of their existing employment. In Melbourne Fire and Emergency Services Board v United Firefighters’ Union of Australia [2005] AIRC 204, the Industrial Relations Commission thus concluded:
[43] The essence of the appellant’s submission seems to be that the proposal amounted to an extra claim because of what the UFU described as the consequent potential increase in the workload of rostered firefighters at Fire Station No. 2. We are not persuaded that this is so.
[44] A no extra claims provision does not mean that employees cannot be directed to perform other duties within the scope of their employment. Such directions may entail an increase in workload but that does not, of itself, convert the direction into an extra claim.
109 There is nothing in the drafting of cl 13.1 of the 2018 Agreement which warrants it being construed in any manner departing from the guidance provided by these decisions.
Extra claims – drivers?
110 In resolving NSW Trains’ submission that the directions to its drivers would not constitute an “extra claim” – and hence fall foul of the prohibition in cl 13.1(b) against making “extra claims for any changes in … conditions of employment” – it is necessary at the outset to identify the “conditions of employment” and thereafter the “changes” sought to be implemented. The existing duties and responsibilities of drivers are to be found in both:
the terms and conditions of the contracts of employment; and
the terms of the 2018 Agreement.
The 2018 Agreement, like many awards and enterprise agreements, does not purport to “express completely, exhaustively or exclusively the law governing [the] contract between the parties”: cf. Ansett Transport Industries (Operations) Pty Ltd v Wardley (1980) 142 CLR 237 at 287 per Wilson J.
111 It is nevertheless the 2018 Agreement which provides the starting point for the NSW Trains submission. Clause 14.2 of that Agreement provides that NSW Trains is to initiate every appointment by a letter of offer “which shall cite this Agreement, and the applicable position description as the basis of the terms and conditions of employment.” And the March 2007 letter of offer to Mr Dornan provides that “[y]our conditions of employment will be in accordance with the relevant award and the RailCorp Enterprise Agreement”, that Agreement now being construed as a reference to the 2018 Agreement. The letter of offer in the present case and the 2018 Agreement are thus to be read together as the source of Mr Dornan’s “conditions of employment”. So much is a well-accepted and long-established manner of construing and applying the terms of an industrial agreement or award and the terms of a contract of employment: Amalgamated Collieries of W.A. Ltd v True (1938) 59 CLR 417 at 423. Latham CJ there concluded:
When any person is employed to do work to which an award applies, the parties are bound by a contract. Their legal relations are in part determined by the contract between them and in part by the award. The award governs their relations as to all matters with which it deals. … Thus, the award controls the relations of the parties as to all matters to which it applies.
But an award never deals with all the matters which affect the relations of any particular employer and any particular employee. The creation of the relation of employer and employee depends upon an agreement between them and not upon any award. Thus, the existence of the obligations under an award in relation to a particular employer and employee always depends on the existence of a contract between them. So, also, there are terms of their relationship which do not depend upon any award. For example, the employee must always obey the lawful orders of his employer, but awards do not commonly include a term to that effect. …
On the facts of the present case, the letter of offer to Mr Dornan also identified in the “Position Description” (which formed an attachment to the letter of offer) that the “primary purpose” in employing him was for him to “[d]rive trains safely and efficiently to destinations according to timetable and provide a transportation service to customers”. His rate of pay for performing that service was set out in Schedule 4A to the 2018 Agreement.
112 Both the terms of Mr Dornan’s contract, and the terms of the 2018 Agreement, make reference to what may compendiously be referred to as “new technology”. One of the “Challenges” set forth in the “Position Description” was thus the need to undergo “regular assessments and examinations in regard to Safeworking and Train Management” including “[u]nderstanding the strengths and weakness of new technology…” Similarly, the following provisions of the 2018 Agreement also underline the importance of embracing “new technology”, namely:
cl 2.2 and the objective of recognising “ongoing change”;
cl 7.2(a) and the inclusion in that provision, which goes to consultation, of the need to consult in respect to “changes in … the duties and skills required”;
cl 7.2(c) and the reference to the “need for retraining…”; and
cl 12 and the acknowledgment of the parties that NSW Trains has a “commitment to best practice [and] changes in technology…”.
113 In addition to such requirements or conditions as can be discerned from the contract of employment and the terms of the 2018 Agreement, there was evidence before this Court – as there was before the Commission – as to how the method of operation of the Mariyung Fleet would in fact effect changes to the tasks being undertaken by drivers and guards. Part of the evidence relied upon by NSW Trains comprised three affidavits sworn by its Director, Network Services (Mr George Peters). Mr Peters in his first affidavit accepts that its train drivers will “have some additional tasks and responsibilities when operating the Mariyung fleet”. Without canvassing each of the “most significant changes to driver duties on the Mariyung fleet”, these changes include (in very summary form) the following:
the driver will control the passenger doors and will release the passenger doors on arrival at a platform, and door control will no longer be the responsibility of the guard;
unlike in existing operations, the driver will have primary responsibility for the train departure process;
the driver will have accountability for train preparation prior to the train entering service on the network, that accountability extending to an external inspection of the train to ensure specified equipment meets minimum operating standards and raising any defects “in Archibus by using a mobile device or contacting the Asset Operations Coordinator”;
guards will no longer assist in train preparation activities;
the driver will have primary accountability for the safe operation of the train and will be able to delegate tasks to the guard;
in limited instances the driver will provide customer boarding assistance and will provide customer information;
reviewing and acknowledging transpositions will be a duty of a driver rather than shared accountability between driver and guard;
there will be greater use of technology, including CCTV to observe the platform train interface during the train departure process;
the driver will be responsible for stabling tasks, consisting primarily of a train walk-through in order to check for defects and “overcarries”; and
changes to “shore-based working relationships” replacing the support presently provided by Sydney Trains Mechanical Control with a new role of Asset Operations Coordinator.
114 These are the provisions of the contract of employment, the terms of the 2018 Agreement and the factual background against which the competing submissions as to “extra claims” are to be resolved.
115 Rejected at the outset is the submission advanced on behalf of NSW Trains that cl 13.1(b) is confined in its operation to a change in the terms and conditions of employment “set out in the Agreement”. That phrase is one not drawn from the terms of s 13.1(b) of the 2018 Agreement itself but one drawn from the following observations of the primary Judge as endorsed by the Full Court in Marmara Appeal [2014] FCAFC 84, (2014) 222 FCR 152 at 166, namely:
[37] As a matter of ordinary language we accept that a proposal which requires the addressee’s assent, such as an offer to buy a block of land, would not normally be regarded as a claim. However, as the primary Judge considered, to deal with the problem at this level of generality would be to ignore context, which is of paramount importance in this area of the law. His Honour said:
In the context of the scheme for bargaining provided by the FW Act, where agreements are made in resolution of claims pursued through bargaining, a proposal by one party to vary the outcome arrived at in a way which advances its interests is apt to be regarded as a further claim. That is particularly so where the proposed variations are significant and suggest an attempt, as I consider is here the case, to strike a new bargain. Both the ordinary industrial meaning of “claim” and the scheme of the Agreement to which I have referred, are consistent with the construction of “further claims” in cl 4 as encompassing a proposal made by a party to the Agreement to materially change the terms and conditions of employment set out in the Agreement other than in a manner already provided for by the Agreement. Such a proposal is not merely a request or offer, it is also a “further claim” within the intended use of that expression in cl 4.
For reasons which follow, we agree with this passage, and his Honour’s conclusion on this aspect of the case.
The “extra claims” clause in that case (cl 4), like cl 13.1(b) in the present case, did not contain the phrase “set out in the Agreement”. There is no reason to give cl 13.1(b) such a constrained meaning. Clause 13.1(b) simply refers to “changes in … conditions of employment”, be they conditions found in the contract of employment or the terms of the 2018 Agreement. Similarly rejected at the outset is the submission advanced on behalf of the Respondents that an “extra claim” is anything that alters “the existing state of affairs”. So expressed, such an approach would give to “extra claims” clauses an unwarranted width of application.
116 To confine the phrase “no extra claims for any changes in remuneration or conditions of employment” in cl 13.1(b) to changes “under the Agreement”, and not extending the phrase to those changes in conditions of employment set forth in the contract of employment, would be an interpretation equally capable of disrupting stability in the workforce as would not confining the phrase to only those changes to the Agreement. The confined interpretation sought to be given to cl 13.1(b), moreover, fails to take adequate account of the fact that the letter of offer to which cl 14.2 of the 2018 Agreement refers, and the Agreement itself, are to be read as a composite whole and not as separate and discrete sources of rights and obligations. Nor does the NSW Trains submission adequately explain why the phrase “conditions of employment” as referred to in cl 13.1(b) should not be given its normal meaning as referring to (at least) the “conditions of employment” as found in the contract of employment.
117 If cl 13.1(b) is not to be read in the confined manner contended for by NSW Trains, the task remains of determining whether what is now being asked of drivers, such as Mr Dornan, is the making of an “extra claim”. The resolution of that task necessitates two strands of reasoning.
118 First, to the extent that reliance is placed upon both the contractual terms of employment and the terms of the 2018 Agreement both envisaging the need for a driver to “drive trains safely and efficiently”, and the need to embrace what may compendiously be referred to as “new technology”, the evaluation of questions of fact and degree is necessarily involved. “New technology” may well assist in the discharge of existing duties; but there comes a point, with respect, that the “new technology” is such that the duty is so fundamentally changed – or “materially” changed – that it bears little resemblance to its heritage. Such is the present case. Even though the job classification of a train driver may remain the same, the train that drivers are now being asked to drive is essentially a “different beast”.
119 Second, and irrespective of the technology involved, the tasks of a train driver have fundamentally changed because drivers are now being called upon to discharge not merely the tasks formerly associated with the role of a train driver, but some of the tasks formerly associated with the role of a train guard.
120 The emphasis sought to be placed by NSW Trains upon the “primary purpose” of Mr Dornan’s employment, as set forth in the “Position Description” forming part of his contract of employment, is susceptible of leading to too narrow an inquiry as to what NSW Trains may ask of its drivers pursuant to the existing contracts of employment and the 2018 Agreement. The statement that the “primary purpose” of Mr Dornan’s employment is to “drive trains” may well be accepted and cannot be diminished in importance. But a characterisation of the tasks to be undertaken by Mr Dornan cannot begin and end with that statement. A characterisation of that which Mr Dornan was formerly being called upon to do when “driving trains”, and the tasks he will be called upon to perform when driving the Mariyung Fleet, necessarily also has to take into account the “nature of the work” being performed and the “circumstances” in which the work is performed: cf. National Union of Workers v Qantas Airways Ltd [2013] FCA 976, (2013) 216 FCR 1 at 19 to 20. There in issue was a question as to which of two enterprise agreements applied to freight handlers following a restructure by Qantas of its operations to combine the freight handling operation with the loading and unloading of freight onto and off its aircraft. In the course of resolving that question and in concluding that the relief sought by the union should not be granted, Cowdroy J reasoned as follows:
[92] In reaching the above conclusion, the Court has applied the test referred to in J Fenwick & Company Pty Ltd v Merchant Service Guild of Australia (1973) 150 CAR 99 at 101-102 where Ludeke J held:
To ascertain the course of the calling of particular employees, is not enough merely to make a quantitative assessment of the time spent in carrying out the various duties. In my opinion, not only should the nature of the work done by the class of employee be examined but it is equally relevant to consider the circumstances in which they are employed to do the work; if a worker is required by his employer to carry out diverse duties, the enquiry should be directed to ascertain the principal purpose for which the worker is employed.
[93] A similar test was adopted in Carpenter v Corona Manufacturing Pty Ltd (2002) 122 IR 387 by the Full Bench of the Australian Industrial Relations Commission at [9] as follows:
In our view, in determining whether or not a particular award applies to identified employment, more is required than a mere quantitative assessment of the time spent in carrying out various duties. An examination must be made of the nature of the work and the circumstances in which the employees employed to do the work with a view to ascertaining the principal purpose for which the employee is employed.
…
The same approach, it is respectfully considered, should be followed when considering whether the “primary purpose” of an employee’s job description remains the same both before and after a change is implemented.
121 It is concluded that these changes are “material changes” such as to fall within the phrase “extra claims”: Toyota First Instance [2013] FCA 1351 at [52]. To employ the language of Bromberg J in that case, NSW Trains is seeking “to strike a new bargain” with its drivers, the 2018 Agreement not contemplating that its drivers would be called upon to drive trains other than those in its existing fleet, together with possibly such “new technology” as may be implemented in respect to that fleet. NSW Trains is asking of its drivers in respect to the Mariyung Fleet to perform tasks “additional to the matters already provided for” in their existing duties: United Fire Fighters’ Union [2013] FWCFB 2301 at [26]. Even though part of the 2018 Agreement between NSW Trains and its drivers includes an agreement to embrace “new technology” and agreement to be retrained, the driving of the Mariyung Fleet – it is respectfully concluded – is a “material change” to the tasks already assumed by the drivers.
122 It is thus concluded that the tasks being asked of Mr Dornan and other drivers in a like position is the making of an “extra claim” within the meaning of and for the purposes of cl 13.1(b).
Extra claims – guards?
123 In resolving whether “extra claims” are being made in respect to guards, the same approach is pursued as has been applied in the resolution of the counterpart question as to drivers.
124 It is thus necessary to consider both:
the contractual terms upon which Mr Dunger was employed pursuant to the letter of offer made to him on 13 October 2006 and the attached “Position Description”; and
the terms of the 2018 Agreement.
125 Just as is the case with respect to drivers, cl 14.2 of the 2018 Agreement equally applies to guards as requiring NSW Trains to initiate every appointment by way of a letter of offer. And the letter of offer to Mr Dunger similarly provided that his “conditions of employment [would] be in accordance with the relevant award and the Enterprise Agreement 2005”, that Agreement now being construed as a reference to the 2018 Agreement. Mr Dunger’s contract of employment and the 2018 Agreement are thus to be construed together and together they provide the source of his “conditions of employment”.
126 As set forth in the “Position Description” attached to the letter of offer, the “primary purpose” of Mr Dunger’s employment is to “[p]rovide effective, quality customer services to passengers travelling with NSW Trains” and to “[p]erform various safeworking procedures, plus door operation, platform surveillance and fault management as required.” The “Selection Criteria” forming part of the “Position Description” include an “[u]nderstanding of and ability to use new technology and systems…”
127 The provisions of the 2018 Agreement directed to “new technology” apply equally to guards as to drivers.
128 Mr Peters in his first affidavit also identifies the tasks to be required of guards on the Mariyung Fleet. Unlike the language he uses to describe the “additional tasks and responsibilities” of drivers, Mr Peters when addressing the position of guards simply states that there “are differences in the duties required of guards in the Mariyung fleet compared to existing fleets”. Again, without being exhaustive, these differences include (in very summary form) the following:
guards will no longer have primary responsibility for monitoring the platform train interface and will not be required to operate doors or provide an “all right” bell signal to the driver;
a primary task of guards will be to traverse the train to provide customer service, provided it is practicable to do so;
unlike the existing system, guards will no longer be the first contact point for customer help point calls, those calls in future going to the Network Services Coordination Centre;
unlike the existing system where guards are responsible for conducting driver welfare checks following an operational incident, in future it will be the Network Services Coordination Centre which will conduct driver checks;
guards will no longer be able to override the Internal Emergency Door Release;
guards will no longer be required to assist in train preparation or stabling and will not have duties to perform when customers are not onboard; and
some of the existing tasks of a guard will in future be managed by technology, such as announcements which will in future be managed by train technology (so long as there is network coverage) and guards will not be required to manage certain alarms.
129 A conclusion that “extra claims” are being made upon guards is not, with respect, as self-evident as the like conclusion with respect to drivers. Unlike drivers, it is the case that the tasks to be performed by guards on the Mariyung Fleet are fewer than those presently being undertaken. The functions to be performed by guards on the Mariyung Fleet are nevertheless different from those now being undertaken. It is nevertheless concluded that the different functions to be undertaken by guards on the Mariyung Fleet are:
“additional to the matters already provided for” (cf. United Fire Fighters’ Union [2013] FWCFB 2301 at [26]); and that
the changed roles are “material changes” (cf. Toyota First Instance [2013] FCA 1351 at [52]).
A resolution of the question as to whether “extra claims” are being made is not to be arrived at exclusively by reference to whether “more is being asked” of guards, but also by reference to the nature of the new tasks guards will be required to undertake: cf. National Union of Workers v Qantas Airways Ltd [2013] FCA 976 at [92] to [93], (2013) 216 FCR 1 at 19 to 20.
130 As with the train drivers, it is thus similarly concluded that these changes in respect to train guards are “material changes” such as to fall within the phrase “extra claims”.
Invalidity – Part 2-4?
131 Presumably in anticipation of the prospect that it may be concluded that the directions proposed to be given to its drivers and guards do constitute the making of “extra claims” – either because the decision of the Full Bench precludes it from contending otherwise, or because this Court may separately reach the same conclusion – NSW Trains further submits that cl 13.1(b) is (in any event) invalid “to the extent that it purports to prevent or restrict NSW Trains from making extra claims in pursuit of an agreement (under Divisions 2, 3, 4 and 8 of Pt 2-4) after the nominal expiry date of the Enterprise Agreement.”
132 The question as to whether NSW Trains can pursue in this Court the present question as to whether cl 13.1 is invalid by reason of inconsistency with Part 2-4 has also been resolved, it has been concluded, by the decisions of the Fair Work Commission. To further pursue in this Court the question as to the validity of cl 13.1 is equally as much an abuse of process as is the further pursuit of the question as to whether “extra claims” are being made. But that conclusion is perhaps even more open to question than the conclusion that the Commission has resolved questions as to “extra claims” in respect to drivers and guards. Again, it is thus prudent to separately set forth brief reasons for concluding that cl 13.1 is not invalid.
133 Part 2-4 of the Fair Work Act is that Part which deals with enterprise agreements, including the variation and termination of such agreements.
134 In advancing its submission, NSW Trains places reliance upon the following observations of Jessup, Tracey and Perram JJ in the Toyota Appeal [2014] FCAFC 84, (2014) 222 FCR 152 at 182:
[97] An enterprise agreement made under Pt 2-4 of the FW Act is not, of course, a regulation. But, as stated above, it is something more than a mere agreement in the way of a contract. It is a specific instrument made only under the detailed regime for which Pt 2-4 provides and enforceable only as provided by the FW Act. To this extent, we consider that the general principle applicable to the invalidity of regulations on account of repugnancy with their authorising statute is relevant to the issue presently for resolution. At base, the question which arises under that issue is essentially one of the rule of law. Parliament having said that an enterprise agreement may be varied, and that the employer may put a request to its employees in that regard, a term of the agreement which states, or has the effect, that the employer may not so proceed must necessarily be inconsistent with or repugnant to the FW Act to that extent. Subject to his view as to the significance of Toyota’s ability to initiate, and to carry through, a variation of the Agreement by removing the no further claims provision itself, the primary Judge took that view of the matter, and we agree with him.
Their Honours continued (at 185 to 186):
[105] We also consider that the primary Judge’s conclusion that the no further claims term in cl 4 of the Agreement is valid to the extent that it imposes restrictions on (but does not wholly exclude) Toyota and its employees having access to the provisions of Subdiv A of Div 7 cannot stand alongside a line of cases which have struck down regulations which placed pre-conditions to, or qualifications upon, the exercise of rights granted or assumed by the relevant empowering statutes. The principle here, on a reading of the cases, is that the setting up of such a pre-condition or qualification gives rise to repugnancy no less than the imposition of a complete prohibition. This principle has to do with the quality of the inconsistency and is not, in our view, applicable only to statutes which use the “not inconsistent with” formula, the “necessary or convenient” formula, or both.
…
[108] Under a slightly different, but harmonious, line of authority, the no further claims term in clause 4 of the Agreement is to be regarded as repugnant to the FW Act because the Act itself has given detailed, and specific, attention to the matter of the conditions under which a variation to an enterprise agreement may be approved by the Commission. It is true, as the respondents stressed, that the making of such a variation is a much simpler undertaking than the making of an enterprise agreement in the first place. But there are many conditions specified nonetheless: see s 211. On any view, the legislature has given specific attention to the question of the conditions which should be so imposed, and to the discriminations appropriate to be made as between Divs 2, 3, 4 and 8, on the one hand, and Div 7, on the other hand. The situation is, in our view, one in which the approach articulated in Morton v Union Steamship ([(1951) 83 CLR 402] at 813) and Ex p Martin ([(1953) 89 CLR 381] at 406-407) should be taken.
135 The difficulty with reliance being placed upon these observations alone as a basis for asserting invalidity of cl 13.1(b) is that the above passages from the joint reasons cannot be divorced from the following conclusions of their Honours (at 186):
[111] This conclusion is based on the construction of clause 4 of the Agreement which we have favoured in the previous section of these reasons. Further, it is a conclusion which relates only to so much of the no further claims term as would stand in the way of Toyota and its employees taking advantage of the provisions of the FW Act that deal with the subject of the variation of an enterprise agreement. In other respects, there has been no challenge to the validity of that term, and nothing we have said should be understood as going beyond that context.
[112] There is a question whether a consequence of the conclusion we have reached is that the no further claims term in clause 4 should be construed in a way that confined its operation to the area where that operation would be a valid one. That would be consistent with the general principle of construction that it may be assumed that the makers of a statutory instrument intended to exercise their power validly, not invalidly. Imputing to the makers of the Agreement an understanding of the law as we have attempted to explain it in this part of our reasons, could they be taken, objectively, to have intended that the no further claims term would act as a prohibition upon the employer embarking upon a process which went no further than to make a request under s 208 or to distribute to the affected employees an explanatory statement in anticipation of such a request? In our view, construed in the light of what we take to be the correct resolution of the repugnancy point, the no further claims term in clause 4 should not be construed as involving such a prohibition.
So much follows from the earlier observations of their Honours (at 181):
[94] There does not appear to be any real doubt about the proposition that a subordinate instrument made pursuant to statutory power which is inconsistent with the Act under which it is made will be invalid and void to the extent of the inconsistency. …
As these passages make clear, a term of an enterprise agreement will only be invalid to the extent that it is inconsistent with the Fair Work Act. The decision is no authority for the proposition that a no further claims clause is always invalid as being inconsistent with the Fair Work Act.
136 In seeking to advance its submission as to the invalidity of cl 13.1(b), NSW Trains thus seizes upon the fact that cl 12.1(a) is expressed as applying to the prospect of an agreement being made to changes to the 2018 Agreement “prior to the nominal expiry date”. And the terms of cl 13.1(b) preclude an extra claim “except in accordance with the terms of Clause 12.” NSW Trains thus contends that cl 12 can only be invoked “prior to the nominal expiry date”. In respect to claims made after the nominal expiry date, NSW Trains thus contends that cl 13.1(b) “purports to exclude altogether any extra claims (other than for variation in accordance with Part 2-4, Division 7), which would in effect prevent NSW Trains or employees from pursuing claims in furtherance of their rights under Part 2-4, Division 3 of the FW Act”.
137 There are two reasons for rejecting an argument as to the invalidity of cl 13.1(b).
138 First, if questions as to when cl 12 can be invoked by left to one side, cl 13.1(b) cannot be construed as inconsistent with or repugnant to the Fair Work Act as cl 13.1 expressly states that it “is subject to the right to a variation … in accordance with Part 2-4 Division 7 of the Fair Work Act…”
139 Second, cll 12 and 13 recognise that a party to the 2018 Agreement may pursue extra claims as part of the bargaining process for a new agreement. And the parties have in fact been bargaining for a new agreement.
140 The argument advanced on behalf of NSW Trains that cl 13.1 is invalid as being inconsistent with Part 2-4 is thus rejected.
DECLARATORY RELIEF?
141 This Court unquestionably has jurisdiction to grant declaratory relief: Federal Court of Australia Act 1976 (Cth), s 21.
142 And the grant of declaratory relief, it is well accepted, is a discretionary power which it is not desirable to fetter by attempting to lay down rules as to its exercise: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 581 to 582 (“Ainsworth”). Mason CJ, Dawson, Toohey and Gaudron JJ there observed:
It is now accepted that superior courts have inherent power to grant declaratory relief. It is a discretionary power which “[i]t is neither possible nor desirable to fetter … by laying down rules as to the manner of its exercise”. However, it is confined by the considerations which mark out the boundaries of judicial power. Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. The person seeking relief must have “a real interest” … and relief will not be granted if the question “is purely hypothetical”, if relief is “claimed in relation to circumstances that [have] not occurred and might never happen” or if “the Court’s declaration will produce no foreseeable consequences for the parties”.
(footnotes omitted)
143 In Aussie Airlines Pty Ltd v Australian Airlines Inc (1996) 68 FCR 406 at 414 (“Aussie Airlines”), Lockhart J (with whom Spender and Cooper JJ agreed) summarised some further principles as to the standing of a party to seek declaratory relief and the manner of the exercise of the discretion as follows:
For a party to have sufficient standing to seek and obtain the grant of declaratory relief it must satisfy a number of tests which have been formulated by the courts, some in the alternative and some cumulative. I shall formulate them in summary form as follows:
• The proceeding must involve the determination of a question that is not abstract or hypothetical. There must be a real question involved, and the declaratory relief must be directed to the determination of legal controversies: Re Judiciary and Navigation Acts (1921) 29 CLR 257. The answer to the question must produce some real consequences for the parties.
• The applicant for declaratory relief will not have sufficient status if relief is “claimed in relation to circumstances that [have] not occurred and might never happen”: University of New South Wales v Moorhouse (1975) 133 CLR 1 at 10 per Gibbs J: or if the court’s declaration will produce no foreseeable consequences for the parties: Gardner v Dairy Industry Authority (NSW) (1977) 52 ALJR 180 per Mason J at 180 and at 189 per Aickin J.
• The party seeking declaratory relief must have a real interest to raise it: Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 at 437 per Gibbs J and Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [[1921] 2 AC 438] at 448 per Lord Dunedin.
• Generally there must be a proper contradictor: Russian Commercial and Industrial Bank at 448; and Ainsworth at 596 per Brennan J.
144 But, in order to have jurisdiction to grant declaratory relief, and as noted in Ainsworth, declaratory relief must be “directed to the determination of legal controversies and not to answering abstract or hypothetical questions…” Accordingly, as a general rule, “the power to make a declaration will not be exercised when the court is called upon to answer a question that is purely hypothetical”: The University of New South Wales v Moorhouse (1975) 133 CLR 1 at 10 per Gibbs J. Expressed differently, there must be a “matter” in need of resolution. Thus, in Truth about Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd [2000] HCA 11, (2000) 200 CLR 591 at 613 (“Truth about Motorways”), Gaudron J observed:
[52] There may be cases where a bare declaration that some legal requirement has been contravened will serve to redress some or all of the harm brought about by that contravention. Ainsworth v Criminal Justice Commission [(1992) 175 CLR 564] was such a case. But a declaration cannot be made if it “will produce no foreseeable consequences for the parties”. That is not simply a matter of discretion. Rather, a declaration that produces no foreseeable consequences is so divorced from the administration of the law as not to involve a matter for the purposes of Ch III of the Constitution. And as it is not a matter for those purposes, it cannot engage the judicial power of the Commonwealth. …
(some footnotes omitted)
Her Honour had previously observed (at 612):
[48] There is no matter within the constitutional meaning of that term unless there is a remedy available at the suit of the person instituting the proceedings in question. That follows from the essential features of “matter” identified in In re Judiciary and Navigation Acts. It was said in that case:
“there can be no matter ... unless there is some immediate right, duty or liability to be established by the determination of the Court. ... [And the legislature] cannot authorize [the] Court to make a declaration of the law divorced from any attempt to administer that law.”
[49] Absent the availability of relief related to the wrong which the plaintiff alleges, no immediate right, duty or liability is established by the Court's determination. Similarly, if there is no available remedy, there is no administration of the relevant law. Thus, as Gleeson CJ and McHugh J pointed out in Abebe v The Commonwealth [(1999) 197 CLR 510 at 526], “[i]f there is no legal remedy for a ‘wrong’, there can be no ‘matter’.”
Like reference may also be made to the observations of Lockhart J in Aussie Airlines to the need for declaratory relief to determine “a question that is not abstract or hypothetical”: Aussie Airlines (1996) 68 FCR 406 at 414.
145 If declaratory relief is granted, it is generally granted as final relief and must “state the rights of the parties with respect to a particular matter with precision, and in a binding way” – and so the terms of a declaration must be sufficiently certain as to resolve the question in issue: cf. Warramunda Village Inc v Pryde [2001] FCA 61 at [8], (2001) 105 FCR 437 at 440 per Gray, Branson and North JJ. And the grant of a declaration must serve some purpose or utility – it must produce some “foreseeable consequence for the parties”: Truth about Motorways [2000] HCA 11 at [52], (2000) 200 CLR at 613. See also: Mees v Roads Corp [2003] FCA 410 at [6] per Gray J. A declaration may be inappropriate where it resolves only part of a dispute between the parties: cf. National Australia Bank Ltd v Nautilus Insurance Pte Ltd [2019] FCA 899 at [2] per Allsop CJ.
146 It is a combination of the conclusions previously reached, and the application of these principles as to the circumstances in which declaratory relief may be granted, which dooms the claims made by NSW Trains to failure.
Discretion – the role of the Commission in resolving disputes, its expertise & cl 8
147 Irrespective of other considerations, it is also concluded that a sound basis upon which this Court could exercise its discretion to refuse declaratory relief is the role of the Fair Work Commission in the resolution of disputes, and specifically its potential role in resolving the present dispute. Although it has been concluded that declaratory relief should be refused on grounds largely divorced from any exercise of discretion, had questions of discretion arisen it would most probably have been concluded that declaratory relief – particularly in respect to Declarations 4 and 5 – would have been refused.
148 One of the factors relied upon in reaching that conclusion – but not a decisive factor – is that the Fair Work Commission is, it is respectfully considered, the more appropriate forum in which the fundamental issues which divide the parties should be resolved.
149 On the facts of the present case there has clearly been a history of consultations between the parties and a series of “unresolved matters”. Clearly enough, NSW Trains was not prepared to accept the March 2021 decision of the Full Bench.
150 The 2018 Agreement provides in clauses 7 and 8 for the manner in which “consultation” between the parties to the Agreement is to proceed and for the manner in which disputes are to be resolved. Clause 7.4, in particular, provides for the manner in which “unresolved matters” are to be “dealt with”, namely “in accordance with the Dispute Settlement Procedure at Clause 8 of this Agreement”. To the extent that competing submissions have been directed to whether the “status quo” is to be maintained, it has been concluded that cl 7.4 is unequivocal in its terms – if there is an “unresolved matter” that “matter” is to be resolved “in accordance with the Dispute Settlement Procedure at Clause 8.”
151 On any view of the facts, one of the central “matters” which remains unresolved is whether the manner in which NSW Trains is seeking to operate its Mariyung Fleet involves the making of “extra claims” upon its drivers and guards. That “matter”, so cl 7.4 provides, is to be resolved “in accordance with the Dispute Settlement Procedure at Clause 8” – not some part of cl 8, but cl 8 in its entirety. As Senior Counsel for NSW Trains points out, there is some tension necessarily involved in such an approach. The “status quo” provision is to be found in Step 1 of cl 8.4, and questions thereafter arise as to whether the Union has engaged cl 8 in accordance with the “following steps” as provided for in cl 8.4. Further questions arise as to the correct identification of the “dispute” to which cl 8 attaches.
152 Although it is accepted that there are legitimate questions as to how cl 7.4 and cl 8 are to be construed harmoniously, it has ultimately been concluded that there are “unresolved matters” for the purposes of cl 7.4 and that cl 8 is thereafter engaged in its entirety, including the preservation of the “status quo” as provided for in Step 1 of cl 8.4. To so approach the construction of these two clauses, it is considered, avoids a “narrow or pedantic approach”, gives effect to the objective intent of those who framed the Agreement (Kucks v CSR Ltd (1996) 66 IR at 184 per Madgwick J) and gives effect to the presumed commercial purposes (TWU v Linfox [2014] FCA 829 at [34], (2014) 318 ALR at 59 per Tracey J) of those two clauses.
153 No submission was advanced that cl 8 has ceased to “operate”, the 2018 Agreement itself continuing to “operate”. A principal submission relied upon by NSW Trains is that cl 8 either does not apply or “has no legal effect” to the extent that a dispute “pertains to safety”.
154 As to the submission that cl 8 does not apply, and contrary to the submissions advanced on behalf of NSW Trains, it is concluded that a dispute as to whether a direction may be given that the duties of drivers and guards are to be “perform[ed] … in accordance with those operational features” is a dispute falling within cl 8.2(a), namely a “dispute that arises about … matters pertaining to the relationship between the Employer and Employees (including workload matters)…”
155 The phrase “pertaining to the relationship between Employer and Employees” has as a counterpart the definition of “industrial matters” in s 4 of the now-repealed Conciliation and Arbitration Act 1904 (Cth). It was a definition closely aligned with the necessity of keeping that Act within the Constitutional head of power found in s 51(xxxv) of the Constitution. In explaining the content of that phrase as found in s 4, Latham CJ, Dixon, McTiernan, Williams, Webb and Fullagar JJ in The King v Kelly; Ex parte the State of Victoria (1950) 81 CLR 64 at 84 to 85 explained:
…We do not think that the subject matter (the closing of shops as distinct from the work of employees in shops) is a “matter pertaining to the relations of employers and employees.” The words “pertaining to” mean “belonging to” or “within the sphere of,” and the expression “the relations of employers and employees” must refer to the relation of an employer as employer with an employee as employee. The time at which a shopkeeper (who may or may not employ anybody) may open and close his shop is not a “matter” which belongs to or is within the sphere of the relation of that shopkeeper as employer with any person as employee. Nor is it, in our opinion, a matter affecting work done or to be done within the meaning of par. (a) of the definition. Trading hours of an employer are not the same subject as working hours of an employee, and a prescription of trading hours as distinct from working hours does not “affect or relate to work done or to be done.” Provisions with respect to trading hours may affect the turnover of shop-keepers who employ persons and so indirectly affect their ability to pay award rates, and this state of affairs may in turn affect the relations of those shopkeepers and their employees. But this is the most that can be said, and it is obviously not enough. It shows only the possibility of an indirect, consequential and remote effect upon the relations of the last-mentioned persons. All kinds of matters, e.g. supply and prices of raw material, the state of the money market, may affect the capacity of employers to pay wages at a certain standard. But these are not industrial matters within the definition contained in s. 4 of the Act. …In the case of Commonwealth legislation with respect to the same subject matter any such extension would seem inevitably to involve an excess of the power conferred by s. 51(xxxv.) of the Constitution. A matter does not become an “industrial matter” or the subject of an “industrial dispute” simply because it is a matter with respect to which persons who are employers and employees are disputing.
The meaning of the definition was returned to as follows by Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ in Re The Manufacturing Grocers’ Employees Federation of Australia; Ex parte the Australian Chamber of Manufactures (1986) 160 CLR 341 at 353 (“Manufacturing Grocers”):
The question whether the dispute is about an industrial matter arises, of course, because the legislative power of the Commonwealth is, under s. 51(xxxv) of the Constitution, confined to laws with respect to conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State. …
The words “pertaining to” in the definition of industrial matters mean “belonging to” or “within the sphere of” and the expression “the relations of employers and employees” refers to the relation of an employer as such with an employee as such: R v Kelly ; Ex parte State of Victoria [(1950) 81 CLR 64 at 84]; R v Commonwealth Industrial Court Judges; Ex parte Cocks [(1968) 121 CLR 313 at 318]. The matters which will answer that description have been dealt with from time to time and the propositions to be derived from the cases are collected by Mason J. in Federated Clerks’ Union (Aust.) v. Victorian Employers’ Federation [(1984) 154 CLR 472 at 488-489]. For present purposes, it is sufficient to say that a matter must be connected with the relationship between an employer in his capacity as an employer and an employee in his capacity as an employee in a way which is direct and not merely consequential for it to be an industrial matter capable of being the subject of an industrial dispute. …
The reason for the requirement that there to be a “direct” connection has long been explained as follows by O’Connor J in Clancy v Butchers’ Shop Employees Union (1904) 1 CLR 181 at 207:
…But once we begin to introduce and include in its scope matters indirectly affecting work in the industry, it becomes very difficult to draw any line so as to prevent the power of the Arbitration Court from being extended to the regulation and control of businesses and industries in every part. …
156 It is concluded that a direction to drivers and guards to operate the Mariyung Fleet in accordance with the operational guidelines is a matter “pertaining to the relationship” between NSW Trains and its drivers and guards. A direction as to how they are to perform duties and what their duties are to be is a matter “which is direct and not merely consequential” to the relationship: cf. Manufacturing Grocers (1986) 160 CLR at 353. A matter may “directly” relate to the relationship and “pertain” to that relationship even though (for example) it does not impact upon the rate of pay or entitlements of an employee. The term “pertain” has a width of application.
157 In seeking to resist that conclusion, Senior Counsel on behalf of NSW Trains contended in the alternative that:
such a direction as to the performance of duties is a “managerial decision” as opposed to one being “about … matters pertaining to the relationship between the Employer and Employees”; and/or
clause 8 has “no legal effect” by reason of s 29(2) of the Fair Work Act, when read together with ss 27(1)(c) and 27(2)(c) of that Act.
Both submissions are rejected.
158 As to the former, reliance is placed by NSW Trains upon the following observations of McHugh J in Electrolux Home Products Pty Limited v The Australian Workers’ Union [2004] HCA 40, (2004) 221 CLR 309 at 338-339:
[60] This Court has consistently held that the rejection of demands of an academic, political, social or managerial nature does not create a dispute about matters pertaining to the relationship between employer and employee. Neither does the rejection of a demand that the employer act as a financial agent for employees in their dealings with the union. The cases emphasise that “matters pertaining” to the relations of employers and employees must pertain to the relation of employees as such and employers as such, that is, employees in their capacity as employees, and employers in their capacity as employers. …
(citations omitted)
159 The difficulty with the submission is essentially that the proposed directions to NSW Trains’ drivers and guards necessarily requires that the drivers and guards perform different tasks and that they be re-trained (cf. United Firefighters’ Union [2013] FWCFB 2301 at [26]) so as to be capable of discharging their new duties in accordance with the operational instructions. Such directions are directions as to the manner in which duties are to be performed. It would be difficult, with respect, to envisage a direction more clearly going to a matter “pertaining to the relationship” between NSW Trains and the Second and Third Respondents.
160 An alternative route whereby the same conclusion can be reached, namely that cl 8 applies to the resolution of an “unresolved matter”, is to characterise the “unresolved matter” for the purposes of cl 8 as a “dispute [arising] about … the operation and application of this Agreement” within the meaning of cl 8.2(e) of the 2018 Agreement.
161 As to the submission relied upon by NSW Trains, namely that cl 8 “has no legal effect”, it is centrally relevant to note the terms of s 29 of the Fair Work Act which provides as follows:
Interaction of modern awards and enterprise agreements with State and Territory laws
(1) A modern award or enterprise agreement prevails over a law of a State or Territory, to the extent of any inconsistency.
(2) Despite subsection (1), a term of a modern award or enterprise agreement applies subject to the following:
(a) any law covered by subsection 27(1A);
(b) any law of a State or Territory so far as it is covered by paragraph 27(1)(b), (c) or (d).
(3) Despite subsection (2), a term of a modern award or enterprise agreement does not apply subject to a law of a State or Territory that is prescribed by the regulations as a law to which modern awards and enterprise agreements are not subject.
This provision, so runs the submission advanced on behalf of NSW Trains, must be read together with s 27(1)(c) and 27(2)(c), which provide as follows:
(1) Section 26 does not apply to a law of a State or Territory so far as:
…
(c) the law deals with any non-excluded matters; or
…
(2) The non-excluded matters are as follows:
…
(c) occupational health and safety;
…
Section 26(1) provides as follows:
Act excludes State or Territory industrial laws
(1) This Act is intended to apply to the exclusion of all State or Territory industrial laws so far as they would otherwise apply in relation to a national system employee or a national system employer.
162 The argument, apparently, is that there is an “inconsistency or incompatibility” between on the one hand:
cl 8 of the 2018 Agreement;
and, on the other hand:
provisions of the Work Health and Safety Act and/or the Rail Safety Law.
An “inconsistency” arises, so the submission runs, if the terms of an enterprise agreement diminish rights or obligations under a State or Territory law concerning occupational health and safety. By way of analogy, NSW Trains also calls in aid the analysis required under s 109 of the Constitution where there is said to be an inconsistency between a Commonwealth and State law.
163 If the analogy between “inconsistency” for the purposes of cl 8 of the 2018 Agreement and “inconsistency” for the purposes of s 109 of the Constitution be pursued a little further, a point may be reached where a person can comply with both sets of requirements. But there may nevertheless be an “inconsistency” for the purposes of s 109 of the Constitution even though it may be possible to obey both the State and Commonwealth laws: cf. Viskauskas v Niland (1983) 153 CLR 280 at 291 per Gibbs CJ, Mason, Murphy, Wilson and Brennan JJ; A. Raptis & Son v The State of South Australia (1977) 138 CLR 346 at 357 per Gibbs J. Whether there is such an “inconsistency” depends not solely on whether compliance with both laws is possible, but rather on whether the intention of the Federal statute was to “cover the subject matter and provide what the law upon it shall be”: Ex parte McLean (1930) 43 CLR 472 at 483. Justice Dixon (as his Honour then was) there explained the reason for that conclusion as follows:
When the Parliament of the Commonwealth and the Parliament of a State each legislate upon the same subject and prescribe what the rule of conduct shall be, they make laws which are inconsistent, notwithstanding that the rule of conduct is identical which each prescribes, and sec. 109 applies. That this is so is settled, at least when the sanctions they impose are diverse (Hume v. Palmer [(1926) 38 CLR 441]). But the reason is that, by prescribing the rule to be observed, the Federal Statute shows an intention to cover the subject matter and provide what the law upon it shall be. If it appeared that the Federal law was intended to be supplementary to or cumulative upon State law, then no inconsistency would be exhibited in imposing the same duties or in inflicting different penalties. The inconsistency does not lie in the mere coexistence of two laws which are susceptible of simultaneous obedience. It depends upon the intention of the paramount Legislature to express by its enactment, completely, exhaustively, or exclusively, what shall be the law governing the particular conduct or matter to which its attention is directed. When a Federal statute discloses such an intention, it is inconsistent with it for the law of a State to govern the same conduct or matter. …
164 The inconsistency between cl 8 of the 2018 Agreement and the Work Health and Safety Act arises, so the submission for NSW Trains contends, because:
cl 8 ultimately commits NSW Trains to an arbitrated decision – including a decision as to health and safety,
in circumstances where cl 8 is “inconsistent” with either:
the fact that the duties imposed upon NSW Trains (including the duty imposed by s 19 of the Work Health and Safety Act to “ensure, so far as is reasonably practicable, the health and safety of … workers…”) “cannot be transferred to another person” (s 14) – the compliance with the duties imposed by the Act not being able to be “transferred” by way of the agreement in cl 8 of the 2018 Agreement to the Commission, and any “contracting out” of any duty owed under the Act rendered “void” by reason of s 272 of the Work Health and Safety Act; and/or
the scheme imposed by the Work Health and Safety Act whereby disputes as to safety or concerns as to the proper discharge of duties by either NSW Trains or its employees are to be resolved by consultation (s 47) – that scheme also including the creation of work groups to facilitate the representation of workers (s 51) and the election of health and safety representatives (s 60) who have the power to direct that unsafe work cease (s 85) or issue provisional improvement notices (s 90).
Expressed differently, the contention is that cl 8 and the provision there made for the arbitration of a dispute leading to a decision binding on NSW Trains is inconsistent with either or both:
particular statutory provisions, namely ss 14 and 272 of the Work Health and Safety Act; and/or
the scheme whereby the Work Health and Safety Act provides for the resolution of disputes going to matters of safety.
165 The difficulty in the path of NSW Trains is that the submissions advanced on its behalf do not adequately take into account the difference in language between s 29(1) of the Fair Work Act – i.e., an enterprise agreement “prevails over a law of a State or Territory, to the extent of any inconsistency” – and s 29(2) – i.e., a term of an enterprise agreement “applies subject to the following…” And, even if there be an inconsistency, cl 8 would not be wholly invalid – it would only be invalid to the extent of the inconsistency.
166 The drafting style of s 29(1) invokes the analogy with s 109 of the Constitution, which provides that “[w]hen a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.” The drafting style of s 29(2) does not replicate the same language but, rather, employs the language of a term of an enterprise agreement applying “subject to” (for example) the Work Health and Safety Act.
167 The purpose of the phrase “subject to”, and the accepted meaning that it has in construing provisions of different legislation, is to denote that which is “dominant” in the event of a conflict or “collision” between the provisions: Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513 at 580 to 581. When considering the terms of ss 51 and 122 of the Constitution, McHugh J there observed:
The relationship between s 51(xxxi) and s 122 of the Constitution
In interpreting s 122 and its relationship with s 51 of the Constitution, the most striking feature of the relationship is that the powers conferred by s 51 are conferred “subject to this Constitution” while s 122 is unqualified by that expression. Thus the relationship between s 51 and s 122 is very different from the relationship between s 122 and s 90 or between s 122 and s 116 or s 118. The use of the expression “subject to this Constitution” does not itself mean that there is always conflict between s 51 and s 122. But it does mean that, where conflict exists, s 122 must prevail. As Megarry J pointed out in C & J Clark Ltd v Inland Revenue Commissioners [[1973] 1 WLR 905 at 911] “[w]here there is no clash, the phrase does nothing: if there is collision, the phrase shows what is to prevail”… In S v Marwane [(1982 (3) SA 717 (A)], the Appellate Division of the Supreme Court of South Africa had to construe the words “[s]ubject to the provisions of this Constitution”. Miller JA, giving judgment for the majority, said [at 747-748]:
“The purpose of the phrase ‘subject to’ in such a context is to establish what is dominant and what subordinate or subservient; that to which a provision is ‘subject’, is dominant – in case of conflict it prevails over that which is subject to it. Certainly, in the field of legislation, the phrase has this clear and accepted connotation. When the legislator wishes to convey that that which is now being enacted is not to prevail in circumstances where it conflicts, or is inconsistent or incompatible, with a specified other enactment, it very frequently, if not almost invariably, qualifies such enactment by the method of declaring it to be ‘subject to’ the other specified one.”
Although there were divisions on the Court as to the manner in which s 51(xxxi) and s 122 of the Constitution were to be construed, his Honour’s observations as to the meaning generally to be ascribed to the phrase “subject to” and his reliance upon the South African decision remain apposite.
168 That the same approach to the construction of the phrase “subject to” in s 29(2) of the Fair Work Act should prevail is supported by the following explanation as to its intended meaning in the Explanatory Memorandum, which provided as follows:
149. However, subclause 29(2) provides that a modern award or enterprise agreement is subject to any of the State or Territory laws that are saved by clause 27, as well as any State or Territory laws prescribed by the regulations. This means that a modern award or enterprise agreement cannot diminish, but may supplement, rights and obligations under these laws.
169 Section 29(1) should thus be construed as inviting an inquiry as to whether there is an “inconsistency” between an enterprise agreement and a law of a State or Territory; s 29(2) should be construed as providing – in the event of a conflict or “collision” between an enterprise agreement and a law of a State or territory – that the law of the State or Territory is the “dominant” provision and is the provision which “prevails”.
170 Approached in this manner, s 29(1) leads to the conclusion that the enterprise agreement “prevails” over (e.g.,) the Work Health and Safety Act, “subject to” any provision of the State Act “prevailing” in the event of a conflict or “collision” with the enterprise agreement.
171 Construed in this manner, there is no conflict or “collision” between cl 8 and any provision of the Work Health and Safety Act. The terms of the 2018 Agreement can be read consistently with the State legislation. Each of the two sources of rights and obligations can be read consistently with the other. And any arbitration of the dispute between NSW Trains and the Union would be an arbitration approached in that same manner. The analogy with s 109 of the Constitution is, to this extent, inapposite.
172 The same reasoning and the same conclusion is reached if, rather than by reference to the Work Health and Safety Act, reference is made to the Rail Safety Law.
173 The argument advanced on behalf of NSW Trains dependent upon s 29 and inconsistency or repugnancy is thus rejected.
The role of the Commission – Consultation v termination?
174 Having concluded that the issues dividing the parties are a dispute falling within cl 8.2(a) (or alternatively cl 8.2(e)) of the 2018 Agreement, a further but related conclusion is that the dispute is best resolved either by:
the dispute resolution procedure in respect to “unresolved matter” as contemplated by cl 7.4 and cl 8 of the 2018 Agreement; or
an application to terminate the 2018 Agreement, in accordance with s 225 of the Fair Work Act.
In the absence of (for example) the well-established right of an employer to give reasonable directions to employees with which they must comply, questions of discretion arise. Discretionary questions inevitably arise in circumstances where the existence or exercise of such a right is uncertain, and where an employer is seeking to unilaterally impose upon employees a result giving rise to legitimate questions as to whether the contractual duties are being “materially” changed.
175 Leaving aside any question as to whether the issues posed for resolution by (in particular) Declarations 1 and 2 can be resolved by this Court, or whether NSW Trains is now precluded from seeking such relief by reason of the March 2021 decision of the Full Bench of the Commission, questions as to the construction and application of terms of an enterprise agreement can be – and are frequently – resolved by this Court.
176 Without denying the ability – and appropriateness – of this Court to resolve (for example) questions of construction of an enterprise agreement or the application of the terms of an enterprise agreement to established facts, of relevance to the exercise of the discretion to grant declaratory relief is whether the issues to be resolved and associated questions of fairness as between the parties to a dispute can be best left to a decision-maker with specialised expertise, such as the Fair Work Commission.
177 If reference is had to cl 7.4 and cl 8 of the 2018 Agreement, the Commission may ultimately be called upon to arbitrate the dispute – if consultation fails. And if reference is made to an alternative course whereby NSW Trains (for example) seeks to terminate the 2018 Agreement pursuant to s 225 of the Fair Work Act, again the Commission is involved and may be called upon to make decisions as to what is “in the public interest” and the need to take into account “the views of the employees” (s 226).
178 Section 225 of the Fair Work Act, it should be noted, provides as follows:
Application for termination of an enterprise agreement after its nominal expiry date
If an enterprise agreement has passed its nominal expiry date, any of the following may apply to the FWC for the termination of the agreement:
(a) one or more of the employers covered by the agreement;
(b) an employee covered by the agreement;
(c) an employee organisation covered by the agreement.
And s 226 provides as follows:
When the FWC must terminate an enterprise agreement
If an application for the termination of an enterprise agreement is made under section 225, the FWC must terminate the agreement if:
(a) the FWC is satisfied that it is not contrary to the public interest to do so; and
(b) the FWC considers that it is appropriate to terminate the agreement taking into account all the circumstances including:
(i) the views of the employees, each employer, and each employee organisation (if any), covered by the agreement; and
(ii) the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them.
179 The power conferred by s 226, it will be noted, is one which calls for value judgments to be made by the Commission. And sometimes, as can well be expected, the Commission is called upon to make difficult decisions. Thus, in Re Aurizon Operations Ltd [2015] FWCFB 540, (2015) 249 IR 55 at 102 the Full Bench observed:
[140] The statute also mandates that on application by the person covered, an agreement that has passed its nominal expiry date must be terminated if the circumstances identified in s 226 exist. Productivity benefits might also be delivered by terminating an agreement that has passed its nominal expiry date. Such benefits might be delivered through a combination of both means.
[141] As we have already observed, s 226 forms part of a scheme in Pt 2-4 of the Act to which the object in s 171 is directed. Self evidently s 226 is then a part of a scheme of provisions through which the parliament intended that the object might be achieved. There is no basis for concluding, at a level of generality, that continuing the operation of an agreement that has passed its nominal expiry date (whether bargaining is continuing or not) will be any more an effective means by which the object in s 171 is to be achieved than terminating that agreement. Continuing the operation of an agreement that has passed its nominal expiry date may impede rather than enable an enterprise agreement to deliver productivity benefits at an enterprise level. It may also impede rather than promote good faith bargaining resulting in an agreement which delivers those benefits. The same may be true for the termination of the agreement. Ultimately, the circumstances will dictate the matter.
[142] In our view, to approach the construction of s 226 in the manner suggested in Tahmoor Coal [(2010) 204 IR 243], particularly at [55] results in a predisposition against the termination of an enterprise agreement that has passed its nominal expiry date. There is no indication in the section or elsewhere in the Act that this should be the case. Section 226 operates according to its terms. Its application is guided by the language and purpose of the provision by reference to the language and purpose of the Act as a whole so that the meaning and effect of the provision is properly understood.
[143] Further, there is nothing in the structure or content of the Act to suggest that its object (of providing a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians) is to be exclusively or primarily to be achieved by enterprise level collective bargaining.
180 Given that the operation of the Mariyung Fleet gives rise to considerations going beyond the interests of NSW Trains and its drivers and guards, namely the parties to the present proceeding, and may well extend to questions of public safety, the established role of the Fair Work Commission should not be underestimated. The statutory regime involving the Commission assessing competing interests manifests a legislative trust and confidence in the judgment of the Commission. Such trust and confidence is shared by this Court and, in an appropriate case, it may well be a proper exercise of the discretion of this Court to leave such value judgments – at least initially – to the Commission to resolve.
181 Although declaratory relief has largely been refused on bases other than discretion, had it been necessary to do so, it is respectfully concluded that a sound basis (albeit not a sole basis) for refusing any declaratory relief – including Declarations 1 and 2 but especially Declarations 4 and 5 – would have been the conclusion that the resolution of the issues dividing the parties is best left to be resolved by consultations between the parties and in the event that consultation fails (as it may well do), arbitration by the Commission. Although Declarations 1 and 2 are readily susceptible of resolution by the grant of appropriate declaratory relief, such relief would not have resolved the entirety of the dispute between the parties. And, on the view that has been taken of the decision of the Full Bench in March 2021, the questions raised by those two Declarations have already been resolved by the Commission.
182 In the interim, cl 7.4 of the 2018 Agreement requires NSW Trains to continue with the dispute resolution process set forth in cl 8.
183 Whether any application may ultimately be made for the termination of the 2018 Agreement is a matter of speculation, and the fate of any such application to be resolved by the Commission is a matter for it to determine on the facts and circumstances then presented.
Discretion – time?
184 A residual concern with the grant of declaratory relief is the relevant passage of time. It is a matter which was raised, albeit passingly, by Senior Counsel for the Respondents and, even then, more in the context of whether the proceeding warranted an expedited hearing rather than as a reason for refusing relief. But, having been raised, it should be briefly mentioned.
185 NSW Trains has been attempting to implement its plans in respect to the Mariyung Fleet since – at the very latest – August 2020, that being the date of the decision of the Deputy President of the Fair Work Commission. Irrespective of whether NSW Trains was bound by the decision of the Full Bench, further time expired between the decision of the Full Bench in March 2021 and the institution of the present proceeding by way of an Originating Application filed some two months later in May 2021. Speed in the resolution of its claims has not been a hallmark of the manner in which NSW Trains has conducted itself. Indeed, there was some reservation in granting NSW Trains an expedited hearing. But the issues in need of resolution, and the operational framework in which the Mariyung Fleet was to operate, combined to render it in the public interest to have that Fleet in operation (if possible) as soon as practicable.
186 Had declaratory relief been otherwise appropriate, the manner in which NSW Trains has conducted itself to-date could have assumed greater significance and could have been a discretionary factor to be weighed in the balance.
187 On balance, however, the time taken before August 2020 and the steps taken to resolve an impasse between the parties should not be held against NSW Trains.
188 Given the other reasons for refusing relief, the passage of time assumes only peripheral relevance. But it would not have warranted the refusal of declaratory relief should such relief have been otherwise appropriate.
Declarations 1, 2 & 3
189 Declarations 1 and 2 are directed to the question as to whether the implementation of the operational features of the Mariyung Fleet would fall within or be contrary to cl 13.1(b) of the 2018 Agreement.
190 Declaration 3 is directed to the question as to whether, upon the proper construction of cl 13.1(c) of the 2018 Agreement, the implementation of the operational features of the Mariyung Fleet would not be impacting upon the existing rates pay and conditions of employment of the drivers and guards.
191 Declarations 1 and 2 are refused.
192 It has been concluded that:
it would be an abuse of process to permit NSW Trains to further pursue in this Court a question as to whether the implementation of the operational features of the Mariyung Fleet described in Annexure A would be the making of “extra claims” within the meaning of cl 13.1(b), given the decisions of the Fair Work Commission in August 2020 and March 2021; and/or
the implementation of those operational features would in any event – and irrespective of the decision of the Full Bench of the Fair Work Commission – be the making of “extra claims” within the meaning of cl 13.1(b) of the 2018 Agreement.
193 If Declarations 1 and 2 are refused, there is little utility in granting Declaration 3.
194 Declarations 1, 2 and 3 are thus refused.
Declarations 4 & 5 – the changing regulatory framework & hypothetical questions?
195 A submission advanced on behalf of the Respondents which should be separately resolved in respect to Declarations 4 and 5 is whether in granting such relief the Court would be resolving a hypothetical question.
196 The potentially hypothetical nature of the relief arises (inter alia) from the fact that there is a very real – and not theoretical – possibility (if not probability) that:
the directions proposed to be given to drivers and guards; and
the Operator Instruction Manual upon which those directions are based,
are both susceptible to change and further amendment. A related difficulty arises from the fact that:
if questions of doubt or interpretation as to the meaning arise (as they may well do), the directions are to be construed by reference not merely to the terms of the directions themselves but by reference to the Manual which stands separate to the directions.
197 The hypothetical nature of a dispute may arise, it is respectfully concluded, not merely by reference to:
the facts upon which a dispute is founded, or an incomplete statement of those facts;
but also by reference to:
the regulatory framework which is to be applied to those facts.
Of present concern is whether that regulatory framework, as found in the directions proposed to be given, is so uncertain or lacking in finality as to render declaratory relief founded upon that framework hypothetical.
198 For present purposes, it may be assumed that the facts are as stated in Annexure A. Mr Peters in his evidence thus states that, subject to the outcome of the present proceeding, “the Applicant intends to operate the Mariyung fleet in accordance with the operational features set out in Annexure A”. It may thus be presently assumed that each of Declarations 4 and 5 are “based on facts” which could potentially attract declaratory relief. But whether those facts have been stated “with sufficient precision” is a question which should be addressed separately. Of present concern is the susceptibility of the directions and the Manual to change and further amendment or revision.
199 The Operator Instruction Manual and the proposed directions are in fact both susceptible of change – indeed, the written submissions filed on behalf of NSW Trains readily embrace the fact that the directions may be changed if improvements are found to be necessary or warranted. The susceptibility of the Manual to change was acknowledged by Mr Peters in his cross-examination as follows:
All right. And if, stepping away from that particular aspect, are we right in understanding that the Operator Instruction Manual is intended to be a document that would be subject of ongoing change as time goes on?––That is correct.
That is it’s not, I think you said “validated” at the moment?––Well parts of it are to be, are validated, that is correct.
Parts of it are not validated. Is that?––Well, the, the document is an all encompassing document that, that talks about not only the operating model but, but features of, of the train.
Yes. Sorry, I thought in answer to an earlier question I asked, you said that it wasn’t validated yet. Is that right? Did I mishear you?––Well, you didn’t mishear me. But the document itself is a living document that has further consultation to undertake.
That is, it’s not a finalised document as it stands. Is that right?––Correct.
The description “living document” is perhaps another way of saying “work in progress”. And, if the Manual changes, so too would the directions. The fact that the Manual was susceptible of change was not put in issue. The Principal Workplace Relations Manager for NSW Trains, Mr Robert Hutchinson, this stated in his affidavit that a “number of amendments to the published OIM are pending to reflect the replacement of the words ‘Customer Service Guard’ with ‘Guard’, the naming of the fleet, clarification of technical aspects of the procedures and to incorporate suggestions raised in the platform interface (PTI) risk workshops (e.g. techniques for drivers to use when checking the PTI on CCTV monitors) among other things”. As recently as 28 June 2021 there was an exchange outlining “procedures that will be the subject of consultation with the OIM Working Group”. And the written submissions filed on behalf of NSW Trains readily embrace the proposition that “[i]f it is thought that any aspect of that summary can be augmented in order to ensure that the intention of Annexure A is achieved, then that can be done.”
200 It is the very real prospect that the directions are subject to change which gives rise more to concern as to the utility in granting declaratory relief in a form tied inextricably to the existing Annexure A.
201 Even though it may be accepted that NSW Trains intends to implement Annexure A in the form in which it is presently drafted, a problem remains. And that problem centres upon the very real prospect that:
the resolution of any question that arises in the actual operation of the Mariyung Fleet may not be susceptible of answer by reference solely to the terms of the directions to be given to drivers and guards. If there remain to be determined facts in addition to the giving of the directions before a conclusion can be reached that the directions are lawful and reasonable, declaratory relief would either be hypothetical (because all of the facts are not known) or lacking in utility: e.g., Truth about Motorways [2000] HCA 11 at [52], (2000) 200 CLR at 613; and/or
the directions presently proposed to be given may well be changed, the Operator Instruction Manual upon which the directions are based being described by Mr Peters as a “living document”. Just as exchanges with Counsel may throw up suggested revisions that could be made to the existing proposed directions, the more likely scenario will be that experience as it unfolds in the actual operation of the Mariyung Fleet will also suggest to NSW Trains and to the Union and its members changes that can be made, hopefully with the concurrence of all involved.
202 Declarations 4 and 5 should be refused. By reason of the regulatory framework, the relief sought is either hypothetical or lacking in utility.
203 It is unnecessary to resolve the Respondents’ submission as to there being no “matter” before the Court.
Declarations 4 & 5 – an uncertain factual framework & hypothetical questions?
204 If attention is shifted from the uncertainty as to the regulatory framework and the form of directions proposed to be given to drivers and guards, and shifted to the factual foundation upon which declaratory relief is sought, a further and separate problem emerges. This separate problem also gives rise to a separate concern as to whether the declaratory relief sought would be the resolution of a hypothetical question.
205 Declarations 4 and 5 extend to declaratory relief that a failure on the part of drivers (Declaration 4(b)) and guards (Declaration 5(b)) to carry out their duties “in accordance with those operational features described in Annexure A” would constitute a breach of the contract of employment and would constitute engaging in industrial action within the meaning of s 19(1)(b) of the Fair Work Act. It may be noted that one of the amendments for which leave was refused on 7 July 2021 was the deletion of declaratory relief as to drivers and guards being in breach of their contracts of employment in the event of non-compliance with a direction. Although it matters not, had the amendment been granted it would have led to no different result.
206 Both the former submission as to Declarations 4 and 5 seeking the resolution of a hypothetical question by reason of the regulatory framework and the present submission founded upon the factual basis upon which such relief is sought obviously overlap. The greater the prospect that the form of relief exposes the need to consider material or information other than that exclusively set forth in Annexure A or further unstated facts, the more hypothetical any relief would become. Despite the overlap, the submissions have been resolved separately.
207 Section 19 relevantly provides, for the sake of completeness, as follows:
Meaning of industrial action
(1) Industrial action means action of any of the following kinds:
…
(b) a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee;
…
(2) However, industrial action does not include the following:
(a) action by employees that is authorised or agreed to by the employer of the employees;
(b) action by an employer that is authorised or agreed to by, or on behalf of, employees of the employer;
(c) action by an employee if:
(i) the action was based on a reasonable concern of the employee about an imminent risk to his or her health or safety; and
(ii) the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.
…
208 A refinement of the submission that declaratory relief is hypothetical by reason of the shifting and unstated factual foundation upon which such relief is sought is the Respondents’ submission that:
declaratory relief that the direction proposed to be given would be a “lawful and reasonable” direction,
is relief:
which requires a consideration of all of the facts and circumstances of a particular case and cannot be resolved at what the Respondents characterise as a “high level summary” of what drivers and guards will be required to do.
It has been concluded that this submission should be accepted. It is a submission which readily exposes the overlap between that founded upon the regulatory framework and the present submission directed to the facts.
209 Declarations 4 and 5 should not be made because:
the “operational features” in accordance with which the drivers and guards must comply, lest they be in breach of their contracts of employment and be at risk of engaging in “industrial action”, are (at best) an expression of duties and responsibilities at a level of generality which requires the exercise of real caution before concluding that any such direction would be “lawful and reasonable”.
This concern is only exacerbated by the fact that:
there is a question as to whether compliance with the proposed direction could place employees in a position of conflict with the need to comply with other legislation such as the Work Health and Safety Act.
It is the form in which the proposed direction is planned to be given, however, which is a principal matter of concern.
210 The “operational features described in Annexure A” and as relied upon as the basis for Declarations 4 and 5 are but a summary of the tasks entrusted to drivers and guards. Annexure A was accurately described by Mr Peters on behalf of NSW Trains as a “summary of key features of the platform activities that crew will perform …” One difficulty with Annexure A is it is just that, a summary. The greater detail as to the content of the tasks entrusted to drivers and guards is set forth in the Operator Instruction Manual. And there is a potential for uncertainty when the two are compared. Thus, for example, point 7 of Annexure A provides that a driver “may choose to observe the platform train interface … using CCTV”. But cl 3.6.3.1 of the Manual sets forth other tasks that a driver may be “required [to] carry out”, including the provision of boarding assistance. The permissive use of the term “may’ is not to be ignored. But there is at least a potential for train drivers to be confronted with a choice – should they “observe the platform train interface” or should they provide “boarding assistance” if required? There is the potential for a dispute or at least a question to arise as to whether they have “failed” to comply with point 7 of Annexure A if they carry out some other task that they may be “required” to undertake as set forth in the Manual. Similarly, there is room for uncertainty occasioned by the absence of any express reference to the mandatory prohibition imposed by cl 3.6.4.1 – “the Driver must not commence the dispatch procedure” – in points 10 and 11 of Annexure A. The reference in point 10 to when the “driver assesses it is safe to do so” may adequately address this latter uncertainty.
211 A separate but related concern with Annexure A is that it describes itself as providing “key features of platform activities”. Reservation may be expressed with any conclusion that that Annexure in fact identifies “key features”. But one example of the reason for reservation is provided by point 6 of Annexure A, namely the identification of a “key feature” of the tasks entrusted to a guard that they “may observe the customers boarding and alighting from the train.” There are potentially two difficulties with point 6, namely:
the fact that point 6 potentially misstates or fails to adequately outline the instructions given to guards by cl 3.6.4.2 of the Operator Instruction Manual – cl 3.6.4.2 expressing the task of the guard whilst the train is being prepared “for dispatch” in terms more of a duty to “communicate with the Driver that it is not safe for the train to depart” in the event that they observe “any passenger behaviour or events that could prevent the train from being dispatched”;
and/or – albeit a matter dividing the parties as to whether safety issues are adequately addressed:
point 6 being expressed in terms of permitting the guard of freedom to choose whether they observe or not, point 6 being expressed in terms of “the guard may observe” – there being much to be said for a finding that a “key feature” of the responsibility of a guard in advance of a train departing being a mandatory requirement that they “must” make an observation, and (if the opinion of Mr Clemens be accepted) that they “must” make that observation not by means of the Mariyung Fleet’s CCTV cameras, but by stepping outside the train and making an observation from the platform. Point 7, it may be noted, is expressed in terms of the “driver may choose to observe the platform train interface (PTI) using CCTV”.
Whichever view may ultimately prevail as to how an observation as to passenger behaviour is to be carried out, it would be disturbing to endorse an operating instruction which does not impose a mandatory requirement on anyone – be it the driver or the guard – to make observations as to passenger behaviour and the “platform train interface” during what is referred to as “dwell time”
212 Even though it may be possible to construe the summary in Annexure A consistently with the Operator Instruction Manual, the potential for uncertainty provides some basis for exercising the discretion to refuse to grant Declarations 4 and 5, at least in the terms in which those declarations are drafted. A driver or guard should not be placed in peril by a declaration, it is respectfully concluded, and should not be in a position of uncertainty as to how to proceed when carrying out their duties – they might be confronted with a choice of whether to, for example, assist in boarding or observe the platform interface, or a choice to exercise a discretion to proceed even though the Manual provides a prohibition on “commenc[ing] the dispatch procedure” in certain circumstances. The “wrong” choice would place a driver or guard in a position of having that “wrong” choice declared to be a breach of contract or engaging in industrial action. Left to one side, but a factor which would only give rise to further misgivings, is the fact that the Manual is – as described by Mr Peters on behalf of NSW Trains – a “living document” and one which calls for updating as experience on a new Fleet of trains evolves.
213 These difficulties with the form of Annexure A are, with respect, not adequately addressed by the written submissions of NSW Trains that:
“[t]he intention of Annexure A is that the OIM have primacy in accordance with its terms”; or
“[i]f it is thought that any aspect of that summary can be augmented in order to ensure that the intention of Annexure A is achieved, then that can be done.”
The only reference to the Manual is in the introductory words: “The Mariyung Fleet is operated in accordance with the Operator Instruction Manual…” There is no statement included in Annexure A that the Manual is the “primary” document or that the “summary” of the “key features” are to be read as “subject to” the Manual. Nor, given the deficiencies in the summary, would the mere addition of such words necessarily remedy the problem.
214 The generality of the tasks “summarised” in Annexure A and the binding nature of declaratory relief, with respect, only further exacerbates the separate concern that any conclusion as to whether (for example) a direction is “lawful and reasonable” is a question which cannot be answered by reference to the terms of the direction alone, and without a consideration of all of the relevant facts and circumstances.
215 Declarations 4(a) and 5(a) also give rise to a further separate problem. Both seek declaratory relief that a direction by NSW Trains to drivers and guards in the operational features described in Annexure A would be “a lawful and reasonable direction”.
216 As a starting point, it may be accepted that an employee is required to comply with a “lawful” direction of an employer: Adami v Maison de Luxe Ltd (1924) 35 CLR 143 at 151 (“Adami”). Isaacs ACJ there observed:
…It is no doubt a correct principle that, once the relation of employer and employee is established, obedience to lawful orders is, if not expressly, then impliedly, contemplated by the contract creating the relation, and mere disobedience of such orders is a breach of the bargain. …
A bookmaker who had been engaged to manage a hall, which was to be used for a dance on Saturday afternoons, was there held to have breached a term of his contract of employment in not attending because he wanted to be elsewhere. The question as to whether there had been “wilful disobedience” of a reasonable order, it was held, should not have been left for the jury to determine and the jury should have been directed to find for the employer. As to this question as to “wilful disobedience”, Isaacs ACJ had earlier observed (at 150-151):
How, then, does the matter stand upon principle? The word “wilfully” is a very inexact word, and its connotation depends largely upon the occasion of its use and upon its collocation. Translating it into “intentionally” does not help further than by eliminating the notion of moral obliquity. I cannot illustrate it better than by using the language of my brother Rich and myself in Gould v. Mount Oxide Mines Ltd. [(1916) 22 CLR 490 at 528-529], where we were dealing with the term “wilful default.” We said :- “‘Wilful default’ is a term which, like most other terms, must depend for its precise connotation on the subject matter and the context. It does not connote dishonesty. Here it means – a course of conduct consciously pursued in circumstances which would indicate to a reasonable man who considered the matter that the duty he has undertaken to the company is not being performed with due care for its interests.” That was our view in 1916…
See also: Rankin v Marine Power International Pty Ltd [2001] VSC 150 at [311] to [312], (2001) 107 IR 117 at 149 per Gillard J.
217 And it may equally be accepted that a direction must be “reasonable”: The King v Darling Island Stevedoring Co Ltd; Ex parte Halliday (1938) 60 CLR 601 at 621 to 622 (“Darling Island Stevedoring”). Justice Dixon (as his Honour then was), whom it may be noted had previously appeared as Counsel for the unsuccessful bookmaker in Adami, there expressed the requirement to comply with a “command” of an employer as follows:
…If a command relates to the subject matter of the employment and involves no illegality, the obligation of the servant to obey it depends at common law upon its being reasonable. In other words, the lawful commands of an employer which an employee must obey are those which fall within the scope of the contract of service and are reasonable. …
His Honour, however, importantly immediately thereafter went on to further observe (at 622):
…Accordingly, when the award was framed, the expression “reasonable instructions” was adopted in describing the employees’ duty to obey. But what is reasonable is not to be determined, so to speak, in vacuo. The nature of the employment, the established usages affecting it, the common practices which exist and the general provisions of the instrument, in this case an award, governing the relationship, supply considerations by which the determination of what is reasonable must be controlled. When an employee objects that an order, if fulfilled, would expose him to risk, he must establish a case of substantial danger outside the contemplation of the contract of service …
There in issue was a question as to whether the employees had committed a breach of a term of an award by refusing to carry out an instruction to place 35 lead bars in a sling. The employees wanted to load only 30 lead bars at a time and thereby “have a longer rest before being required to work again when the trolley returned with the empty sling”. In emphasising the potential factual nature of the inquiry required to determine whether the instruction was “reasonable”, Latham CJ (whom it may also be noted was opposing counsel in Adami), observed (at 609):
If an employee bound by the award is prosecuted for refusing to obey a reasonable instruction as to the quantity or weight of cargo to be placed in slings, it is for the court to determine, upon proper evidence, whether the instruction was reasonable or not. If the only challenge to the reasonableness of the instruction were that obedience to the instruction would have involved an undue strain and the board of reference had not decided that question, it would be necessary to consider whether, upon the true interpretation of the award, it was intended that all such questions of undue strain should be investigated by the board and not by any court. …
A little later, the Chief Justice further observed (at 612):
It might well be that in some cases other questions than that of undue strain would arise which would affect the reasonableness of an instruction. There are all kinds of matters (time, place and other circumstances) which, as well as questions of undue strain, might affect the reasonableness of an instruction. All these matters are left to be determined by the magistrate upon such evidence as the parties may properly submit.
On the facts of that case, a board of reference had made a finding and that finding bound the parties. The observations of Dixon J and the proposition that a determination could not be made as to the reasonableness of a direction “in vacuo” have been cited with approval by Rangiah J in James Cook University v Ridd [2020] FCAFC 123 at [284], (2020) 278 FCR 566 at 625. See also: Harrison v P & T Tube Mills Pty Ltd [2009] FCA 220 at [279], (2009) 181 IR 162 at 231 to 232 per Dowsett J; Patrick Stevedoring Pty Ltd v Chasser [2011] VSC 597 at [73], (2011) 215 IR 411 at 436 to 437 per Osborn J. See also: Golding, Terms implied by law into employment contracts: Are they necessary? (2015) 28 AJLL 113 at 116 and 127.
218 As these decisions make readily apparent, however, a conclusion that conduct is “lawful” is a conclusion which can only be made by reference to “the subject matter and the context” (cf. Adami) and one which cannot be made “in vacuo” (Darling Island Stevedoring).
219 In the present context, although a direction “to perform duties … in accordance with those operational features” may well be in many circumstances a “lawful and reasonable direction”, in different circumstances it may well be neither “lawful” nor “reasonable”. A declaration having the universal blessing of this Court that in all circumstances, irrespective of context, such a direction would be “lawful and reasonable” is one which the Court should not make either because of the form in which the declaratory relief is sought or (alternatively) as a matter of discretion. Declarations 4 and 5, moreover, are not subject to any qualifications – that is, any directions in accordance with Annexure A would be “lawful and reasonable”. It is uncertain whether the effect of granting the declaratory relief sought would be that the directions would remain “lawful and reasonable” even if, for example, a health and safety representative were to direct that the work required by those directions was unsafe and to cease pursuant to s 85 of the Work Health and Safety Act, or were to issue a provisional improvement notice pursuant to s 90.
220 Some reservation is also expressed in granting declaratory relief in a form expressed as a composite expression, namely, that a particular direction to an employee is “lawful and reasonable”. It may be doubted whether the term “reasonable” adds anything but potential confusion to the term “lawful”. As expressed by the Full Court (Bromberg, Katzmann and O’Callaghan JJ) in One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union [2018] FCAFC 77, (2018) 262 FCR 527 at 564:
[187] …[T]he duty of the employee at common law is to obey lawful orders. The “standard or test” by which the common law determines whether the order is lawful is one of reasonableness: R v Darling Island Stevedoring & Lighterage Company Ltd; Ex parte Halliday and Sullivan (1938) 60 CLR 601 at 621. Dixon J explained at 621-622:
If a command relates to the subject matter of the employment and involves no illegality, the obligation of the servant to obey it depends at common law upon its being reasonable. In other words, the lawful commands of an employer which an employee must obey are those which fall within the scope of the contract of service and are reasonable.
[188] As Finn J observed in McManus v Scott-Charlton (1996) 70 FCR 16 at 21:
The need for some such limitation is patent: employment does not entail the total subordination of an employee’s autonomy to the commands of the employer. …
But this reservation has played little part in refusing to grant Declarations 4(a) and 5(a) – the reservation could have been readily addressed, had a conclusion been reached to otherwise grant declaratory relief, to grant relief simply in terms of a “lawful” direction.
221 Declarations 4 and 5 should be refused on the further basis that the factual foundation upon which such declaratory relief is sought is too uncertain or lacking in finality. Any relief would be either hypothetical or lacking in utility.
222 Both Declarations 4 and 5 should be refused.
Declarations 6 & 7
223 Declaration 6 seeks a declaration that upon the proper construction of cl 13.1 of the 2018 Agreement the implementation of the operational features of the Mariyung Fleet would not be a claim “made within the ‘life’ of the Enterprise Agreement…”
224 It has been concluded that cl 13.1 has not ceased to “operate” upon the passing of the “nominal expiry date” but continues by reason of s 54 of the Fair Work Act.
225 Declaration 6 is thus refused.
226 Declaration 7 is a declaration sought in the alternative to Declaration 6. Declaration 7 seeks a declaration that cl 13.1 “is invalid and of no effect if and to the extent it purports to prevent or restrict the Applicant from making any new claims on or after the nominal expiry date”. The argument as to the invalidity of cl 13.1 has been rejected.
227 Declaration 7 is thus rejected.
Declaration 8
228 Declaration 8 seeks declaratory relief to the effect that “the whole of clause 12 … has no effect under section 253(1)(a) of the Fair Work Act …”
229 Section 253 of the Fair Work Act provides as follows:
253 Terms of an enterprise agreement that are of no effect
(1) A term of an enterprise agreement has no effect to the extent that:
(a) it is not a term about a permitted matter; or
(b) it is an unlawful term; or
(c) it is a designated outworker term.
(2) However, if an enterprise agreement includes a term that has no effect because of subsection (1), or section 56 or 326, the inclusion of the term does not prevent the agreement from being an enterprise agreement.
230 The fundamental difficulty with granting declaratory relief as to the effect of cl 12 is that the “nominal expiry date” has passed and so, in accordance with cl 12.1(a), its operation has come to an end.
Concerns as to safety – the expert report & an overview of the findings that would have been made
231 Given the conclusion that no declaratory relief should be granted, it is unnecessary to make any findings of fact in respect to whether:
directions to operate the Mariyung Fleet in accordance with the “operational instructions” would give rise to legitimate questions of safety;
and/or, even if there were legitimate concerns as to safety whether:
those concerns could or should legitimately be left for resolution pursuant to the provisions of the Work Health and Safety Act.
232 It may nevertheless be prudent to indicate (at least in outline) the findings of fact that would have been made had it been necessary to do so.
233 Questions as to the safety of the Mariyung Fleet were primarily addressed on the part of NSW Trains by the evidence of:
Mr Peters.
Questions as to safety were raised on behalf of the Respondents:
primarily by way of an expert report prepared by Mr Clemens;
and to a lesser extent:
the evidence of Mr Dornan.
234 It is unnecessary to resolve the competing views as to safety advanced on behalf of the parties. Nor would it be prudent to attempt to form any view as to whether the implementation by drivers and guards of the “operational features” set forth in Annexure A would be an objectively safe method of operation or whether a “safer” method of operation could be devised, even assuming this Court either had the expertise to do so or was in possession of all the relevant facts to even venture upon the task of attempting to do so. But, it is understood that NSW Trains is not averse to suggestions as to how it can improve upon the method which it is proposing.
235 The competing views as to safety have been viewed through the prism simply of whether a direction to drivers and guards would be a “lawful and reasonable” direction.
236 Viewed from that perspective, it may be acknowledged at the outset that the expertise of Mr Clemens was not put in issue. He has for over 25 years been “involved in rolling stock design and repair, rail safety and rail operations including the conversion of the Melbourne suburban fleet operations to Driver Only operations and daily operations of the NSW Intercity trains then known as CityRail.” He led the investigation into the Glenbrook accident and assisted the Commissioner of the Waterfall Inquiry for three years. He is clearly an experienced person with a long association with rail safety.
237 The Executive Summary to his Report dated 22 June 2021 provides (in part) as follows:
I was asked my opinion and conclusion relating to 4 items in the letter of instructions:
a) Is the Operating Model safe?
In my opinion the proposed operating model is not capable of being conducted in a safe SFAIRP manner.
The assessment of the operating model when considered with the hazard assessments in this report demonstrates that the current procedures are much better developed to address the hazards at the PTI especially when combined with the ASDO and sensitive door edge improvements on the new train.
The substantial latent hazards introduced by the OIM procedures, and the use of the CCTV are not addressed.
b) Is the Operating Model as safe as the current procedure?
The operating model is not as safe SFAIRP as the current procedure. Current procedures for Guards produce a safer SFAIRP outcome when combined with ASDO and Sensitive door edges than the Mariyung Operating Model.
The limitations of the CCTV technology have not been adequately documented, assessed, and tested to demonstrate that those limitations will provide a fit-for-purpose replacement to the eyes and ears of the Guard and RoW staff.
The Mariyung Operating model worsens the latent hazards of the current operating model. Namely, the Guards difficulty in viewing the individual doors of each saloon and the platform gap where a person may have fallen.
c) How does the Operating Model compare with the industry norms?
The Mariyung operating model does not address Good Practice in the industry for similar InterCity operations with comparable hazards and risk tolerability. In this matter I considered what Good Practice means and took it to be:
Any of the practices, procedures, and equipment which in the exercise of reasonable judgment by an accredited Railway Transport Organisation with all its resources; in light of the facts known, or which should have been known, would have been expected to accomplish the desired result consistent with reliability and safety.
…
d) What circumstances and factors may expose safety issues with the Operating Model?
The circumstances that may expose the vulnerabilities and shortcomings of the operating model are the normal everyday occurrences on an InterCity railway of normal weather patterns obscuring the cameras, Sun glare as well as low contrast of passenger clothing against station backgrounds in all weathers and lighting. In addition the procedure reinforces an expected outcome bias by narrowing the field of view by angle of view and the removal of sound cues currently available. Consequently the driver will not become “suspicious” as expressed in the NIF assessment because they will not have the cues.
238 This summary, it is respectfully considered, provides an accurate account of the views held by Mr Clemens. Although his expertise was not challenged by NSW Trains, the basis upon which he expressed these views was very much open to comment. In particular, NSW Trains submitted that his evidence and the views expressed should be approached with a degree of reservation given the fact that:
he has a limited knowledge of the Mariyung Fleet and its proposed operation, having seen trains in that Fleet in operation only on three occasions; and
he was not given a complete copy of the Operator Instruction Manual.
Such reasons for reservation are accepted.
239 Mr Dornan is a train driver employed by NSW Trains and a health and safety representative for the purposes of the Work Health and Safety Act. In very summary form, Mr Dornan was critical of the safety of the Mariyung Fleet. Essentially his assessment focussed upon what he described as the “inherent weaknesses associated with the CCTV technology”. At its core, those “inherent weaknesses” centred upon the greater assurance of safety provided by the existing ability of drivers and (particularly) guards when trains were at platforms to:
observe; and
hear
that which was happening. These powers of observation and hearing were not, according to Mr Dornan, merely an adherence by him to the system that he knew and a manifestation of a general opposition to “new technology”.
240 The persuasive strength of the evidence adduced from Mr Dornan was to be found in his experience as both a guard and thereafter a train driver. He was first employed by the predecessor to NSW Trains as a guard in 2004 and after about 12 months thereafter as a train driver. He is presently allocated to a home depot in Wollongong and, accordingly, will most probably not be a driver who would be operating the Mariyung Fleet on the Sydney to Newcastle route. To do so, he would need to undertake about two weeks of training to familiarise himself with that route – but there is no proposal that he would be redeployed to do so.
241 Mr Dornan’s experience as a train driver and a person with “hands on” experience with the driving of trains is not to be summarily discounted. His assessment, in particular, as to “weaknesses” in CCTV technology due to “mild environmental or poor weather factors”, cannot be discounted.
242 That which tells against an unquestioning acceptance of his assessment of the “inherent weaknesses” in the new Mariyung technology and its use of CCTV technology, however, includes such factors as:
the fact that Mr Dornan, like Mr Clemens, has also only been an observer on a Mariyung train on two occasions whilst that train has been trialled in New South Wales; and
the fact that on those two occasions, the train pulled up at two or three stations but on no occasioned opened the doors.
In addition, there are also such factors as:
the failure on Mr Dornan’s part to adequately explain why the “inherent weakness” occasioned by (for example) “large crowds at a station” was not answered by the fact that on each carriage there were two cameras – one facing backwards; the other forwards. The ability of the train driver to direct attention to a particular camera image and enhance that image, it could have been thought, would go a long way towards better visibility rather than reduced visibility; and
the generality with which Mr Dornan’s views were expressed – e.g., the assessment that “vegetation” may affect visibility without any particular instance or platform where that would be exposed as a difficulty or a “weakness” that could not readily be rectified.
There was, moreover:
evidence that some of the difficulties envisaged, such a lighting and vegetation occasioning poor visibility, have already been acknowledged and addressed by NSW Trains.
243 Also telling against a too ready acceptance of the criticisms made by NSW Trains in respect to the evidence of Mr Clemens and Mr Dornan is a video of the Mariyung train in operation provided with Mr Peters’ final affidavit. Although confined to a single trip, a viewing of that video assists in an evaluation of the concerns expressed by Mr Clemens and Mr Dornan. Although the potential for weaknesses in the CCTV coverage cannot be ignored, those deficiencies were not self-evident from the video. On the video, for example, there were no difficulties exposed by reason of the coverage of the CCTV cameras and the platform and no difficulty exposed in observing “gaps” between the carriage of the train and the platform. But the video, on the other hand, did not address the concerns expressed by Mr Clemens and Mr Dornan that could emerge when doors were open and shut with passengers on a platform.
244 It suffices for present purposes to note that Mr Peters adopted a very different approach. Mr Peters, for example, takes issue with Mr Clemens’ assertion that “the Mariyung operating method increases the likelihood of a passenger falling undetected between the train and the platform before a train departs the station … and increases the risk of a trespasser being struck by a train due to the ‘conflict [for the driver] in the proposed operating procedures’…” Mr Peters maintains that these views “are based on a number of misunderstandings, mistaken points of fact and incorrect assertions…” Elsewhere, Mr Peters asserts that “Mr Clemens mistakes several points of fact” and “makes omissions or demonstrates a misunderstanding about a number of matters”.
245 Based upon the evidence of Mr Clemens and Mr Dornan, it is nevertheless found as a fact that the reliance placed by the Mariyung Fleet upon CCTV technology has the potential to expose weaknesses in that Fleet’s methods of operation. Those potential weaknesses are only further potentially compounded by the lack of reliance intended to be placed upon the former functions performed by guards. But no finding can be made that the proposed method of operation in respect to the Mariyung Fleet and its reliance upon CCTV technology would be unsafe. No finding as to safety or lack of safety is called for by any of the parties to the present proceeding. And it is no part of the function of this Court to even venture into an assessment as to the safety or comparative safety of the Mariyung Fleet compared to the existing fleet of trains being operated by NSW Trains.
246 It is sufficient to conclude that the potential weaknesses in the Mariyung Fleet’s methods of operation preclude any finding that compliance by NSW Trains’ drivers and guards with the proposed operational instructions would in all circumstances be compliance with a “lawful and reasonable” direction. Those potential weaknesses, it is concluded, cannot be summarily dismissed. The reservations held as to the potential for weaknesses to be exposed by the reliance upon CCTV technology, together with the fact that that technology may very much be dependent upon (for example) “environmental or poor weather factors” tell against the exercise of any discretion to grant Declarations 4 and 5.
CONCLUSIONS
247 It is has thus been concluded that:
Clause 12 of the 2018 Agreement has come to an end, that clause being expressed to “Changes to the Terms of this Agreement” made “prior to the nominal expiry date of this Agreement” – that date being 1 May 2021; and
Clause 13 of the 2018 Agreement has not come to an end and continues to “operate” by reason of s 54 of the Fair Work Act – clause 13, unlike cl 12, being expressed in terms of “during the life of this Agreement”.
It has also been concluded that:
cl 8 of the 2018 Agreement continues to operate;
and that:
the direction proposed to be given by NSW Trains to “implement … the operational features of the Mariyung Fleet described in Annexure A” is not a “managerial decision”, but rather a matter “pertaining to the relationship between the Employer and Employees” within the meaning of cl 8.2(a) or, alternatively, a “dispute that arises about … the operation and application of this Agreement” within the meaning of cl 8.2(e); and
clause 8 is not a provision which has “no legal effect” by reason of s 29(2) of the Fair Work Act, when read together with ss 27(1)(c) and 27(2)(c) of that Act.
248 It has further been concluded that NSW Trains should not be permitted to re-litigate the decision of the Full Bench of the Fair Work Commission that:
the instructions proposed to be given to train drivers and guards is the making of an “extra claim” within the meaning of cl 13 of the 2018 Agreement; or
clause 13.1 is not invalid by reason of Part 2-4 of the Fair Work Act.
Irrespective of the decision of the Full Bench, it has nevertheless been separately concluded that:
the proposed instructions to be given to the train drivers and guards would be the making of an “extra claim” within the meaning of cl 13,
and that:
there is no inconsistency between cl 13.1 and Part 2-4 of the Fair Work Act.
249 The conclusions as to the correct construction and application of the terms of the 2018 Agreement, together with a consideration as to the terms of the instructions sought to be given to drivers and guards, has led to the conclusion that none of the declaratory relief sought should be granted.
250 Declarations 4 and 5 should be refused as seeking either hypothetical relief or relief which is lacking in any real utility. A recurring concern has been whether:
either the proposed directions or the facts are sufficiently certain or sufficiently complete as to provide an appropriate foundation for the grant of declaratory relief which would adequately resolve the factual issues dividing the parties.
A further concern, albeit not a decisive consideration, is whether:
the matters which divide the parties are best resolved in the Fair Work Commission.
If the conclusion as to cl 7.4 be correct such that the “unresolved matters” which continue to divide the parties are to be resolved – as that clause directs – “in accordance with the Dispute Settlement Procedure at Clause 8”, it is the Commission which is entrusted with the tasks of conciliation and arbitration. If NSW Trains no longer wishes to be bound by the terms of the 2018 Agreement which remain in operation, it may approach the Commission and seek a termination of that Agreement. If that be the route which is ultimately pursued, the Commission can then take into account, not only the interests of the parties to the present dispute, but wider considerations as to the public interest. Given that the proposed instructions “materially change” the tasks presently entrusted to drivers and guards, and that those changes give rise to legitimate questions of public safety, a broader approach to the resolution of the present dispute may be warranted than is afforded by a judicial resolution of the issues posed by the declaratory relief as now sought by NSW Trains. Irrespective of whether the report of Mr Clemens prevails or the views of Mr Peters, what does remain is the need for an independent body to resolve such questions of safety as legitimately remain outstanding.
251 It follows that the Amended Originating Application should be dismissed. No declaratory relief should be granted.
THE ORDER OF THE COURT IS:
1. The Amended Originating Application filed on 2 June 2021 is dismissed.
I certify that the preceding two hundred and fifty-one (251) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Flick. |
Associate:
