Appeal against a decision of the Commission in Matter No. APPL 36 of 2014 given on 22 April 2015

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2015 WAIRC 00828

DELIVERED : THURSDAY, 27 AUGUST 2015

FILE NO : FBA 3 OF 2015

Appellant

AND

Public Transport Authority of Western Australia

Respondent

ON APPEAL FROM:

Jurisdiction : Western Australian Industrial Relations Commission

Coram : Commissioner S J Kenner

Citation : [2015] WAIRC 00329; (2015) 95 WAIG 548

File No : APPL 36 of 2014

CatchWords : Industrial Law (WA) - Speaking to the minutes of an order - Principles considered - Amendment made to proposed order

Result : Appeal upheld, decision varied

Representation:

Counsel:

Appellant : Mr C Fogliani

Respondent : Mr R Farrell

Solicitors:

Appellant : W G McNally Jones Staff Lawyers

Case(s) referred to in reasons:

Palermo v Rosenthal [2010] WAIRC 00242; (2010) 90 WAIG 371

Supplementary Reasons for Decision

FULL BENCH:

1         The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch (the union) sought a speaking to the minute of proposed order on the grounds that order 2(6) of the minute will insert new obligations into the terms of the Public Transport Authority (Transperth Train Operations Rail Car Drivers) Industrial Agreement 2013 (the agreement) which are not currently provided for in the agreement.  Proposed paragraph 2(6) of the order provides:

2. The decision be varied by deleting paragraph (6) and paragraph (7) of the decision and substituting:

(6) THAT when a railcar driver takes a week of annual leave in a fortnightly cycle, to accrue four credit hours towards credit days in that fortnightly cycle they must work 42 hours in the other week to make up their standard hours of 80 hours of full-time employment.

2         The union argues that in [11] of the reasons for decision issued on 12 August 2015 of Smith AP and Scott ASC (with whom Harrison C agreed), it was accepted that the Public Transport Authority of Western Australia (the PTA) guarantees each full-time employee at least 80 hours of work per fortnight (subject to an exception):  [2015] WAIRC 00797.  It says implicit in this reasoning is that the guarantee of 80 hours per fortnight is an enforceable entitlement for each rail car driver.  The union then argues that when regard is had to the express terms of paragraph 2(6) of the minute, it follows that if a rail car driver takes a week of annual leave in a fortnightly cycle they will not be entitled to accrue four hours' credit time if the PTA is unable to provide 42 hours in the other week.  It says the purpose of cl 3.1.1 and cl 3.1.2 of the agreement is to provide a guaranteed entitlement to 80 hours of work per fortnight and to be paid 76 hours at normal rate and be credited with four hours of credit time.

3         For these reasons, the union seeks the following amendment to paragraph 2(6) as follows:

(6) THAT when a railcar driver takes a week of annual leave in a fortnightly cycle, they are entitled to work 42 hours in the other week to make up their standard of 80 hours of full-time employment. In any fortnight where a railcar driver is available to work their standard hours, they are entitled to be paid at base rate for 76 hours and to accrue 4 credit hours towards credit days.

4         It is argued by the PTA that the minute of proposed order gives full and proper effect to the reasons for decision of the Full Bench.  In particular, it points out that the union conceded in argument before the Full Bench that the question that should have been put for answer by the union in the application was:

When a rail car driver takes a week of annual leave in a fortnightly cycle, what total number of hours in the following week are they required to work to make up their standard hours?

5         The PTA also argues that the reasons for decision of the Full Bench does not deal with the 'guarantee' of hours that is provided for in the agreement where a rail car driver is not available or rostered to work the full 80 hours in a fortnight.

6         At the hearing of the speaking to the minute of proposed order Mr Farrell, on behalf of the PTA, put a submission to the Full Bench that it is unusual for a rail car driver to be rostered 42 hours following the taking of a week of annual leave.  Members of the Full Bench were surprised by this submission as it was an agreed fact before the Commission at first instance and before the Full Bench that there is a practice of the PTA to roster a rail car driver to work for 42 hours in the second week in a fortnightly cycle after the rail car driver takes a week's annual leave in the preceding week; and for the PTA to pay the rail car driver an additional two hours' pay at their base rate with two hours being accumulated towards credit days.  These facts are set out at [3] of the joint reasons for decision of Smith AP and Scott ASC.  Any other rostering practices were not raised in any material way in these proceedings.

7         The only issues directly raised in these proceedings related to the taking of one week's annual leave in one week of a fortnightly cycle of full-time work, the number of standard hours in that fortnight and number of credit hours when that occurred.  Any issue as to what the terms of the agreement required if in the event that the PTA was unable to provide 42 hours of work in the second week was not the subject of any meaningful submission by either party that required an interpretation of the terms of the agreement in respect of such an issue at first instance, or by the Full Bench.

Conclusion

8         The purpose of the speaking to the minutes of an order was reviewed by the Full Bench in Palermo v Rosenthal [2010] WAIRC 00242; (2010) 90 WAIG 371.  In that matter the Full Bench stated [59]:

The purpose of speaking to the minutes of an order was considered by the Full Bench in Steele v Clarke (2003) 84 WAIG 17. President Sharkey with whom Coleman CC and Gregor C observed that the purpose of a speaking to the minutes is entirely limited and that the process exists pursuant to s 35 of the Act to enable the parties to put to the Commission matters directed to ensuring that the orders do issue to properly reflect the Commission's decision and reasons therefor [62]. The purpose of a speaking to the minutes is not to address why the reasons for decision are wrong but simply to consider whether the orders set out in the minutes of proposed orders reflect what the Commission says it will order in the reasons for decision. Historically the purpose of a speaking to the minutes was to give parties to a matter an opportunity to point out any provisions of an award that may have been unworkable in some way to render the award or order less perfect than the Commission intended to be: Sheahan v State School Teachers Union of WA (Inc) (1989) 69 WAIG 3267; Tan v Paris and Christie Kafetzis t/as Gabriel's Café.

9         Having heard both the parties in this matter the Full Bench informed the parties that it would issue an order containing paragraph 2(6) in the following terms:

2. The decision be varied by deleting paragraph (6) and paragraph (7) of the decision and substituting:

(6) THAT when a railcar driver takes a week of annual leave in a fortnightly cycle, to accrue four credit hours towards credit days in that fortnightly cycle 42 hours shall be worked in accordance with cl 3.1.2 of the agreement in the other week to make up their standard hours of 80 hours of full-time employment.

10      The reason why the Full Bench found this amendment was necessary was that it is clear from the reasons for decision issued on 12 August 2015 that paragraph (6) should not be open to be construed to affect the interpretation of cl 3.6.1 of the agreement.  The terms of cl 3.6.1 provide that (subject to a limitation, which is not material to this appeal), there is an obligation on the PTA to provide 80 hours' work a fortnight to each full-time rail car driver.  In [50](b) of the reasons for decision of Smith AP and Scott ASC it was observed that the rostered hours of a rail car driver can vary in each week of a fortnightly cycle to make up the 80 standard hours.  It was then stated:

Whether an employee would be rostered to work such shifts would depend upon the operational requirements of the PTA.

11      To ensure that the requirements of cl 3.6.1 of the agreement are not affected by the terms of the order, the words 'they must work' have been deleted from paragraph 2(6) and the words 'shall be worked in accordance with cl 3.1.2 of the agreement' added to reflect the requirement in cl 3.1.2 that a 76 hour fortnight 'shall be worked' as an 80 hour fortnight.

12      If a dispute arises between the union and the PTA in relation to contingencies that arise in the PTA's rostering practices, make up pay (including any issue as to any practice or requirement to pay) and the effect of the 'guarantee' of 80 hours' work that arises from cl 3.6 of the agreement, this is a matter that should be dealt with by the parties through its dispute resolution procedures, and if not resolved, is a matter that can be the subject of a separate application before the Commission.