WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2017 WAIRC 00177

DELIVERED : friday, 24 March 2017

FILE NO. : APPL 11 OF 2017

Applicant

AND

Australian Rail, Tram and Bus Industry Union of Employees, Western Australian Branch

Respondent

CatchWords : Application for true interpretation and variation of clause of industrial agreement - Respondent applied for dismissal pursuant to section 27 (1)(a) Industrial Relations Act 1979 - Respondent's application dismissed - Clause relates to temporary transfer allowance - Principles of interpretation of industrial instruments discussed and applied - Clause found to be unambiguous - Declaration made - No variation ordered

Legislation :  Industrial Relations Act 1979

  Industrial Relations Commission Regulations 2005     

Result : Declaration made

Representation:

Counsel:

Applicant : Mr D Anderson

Respondent : Mr C Fogliani

Solicitors:

Applicant : State Solicitor’s Office

Respondent : W.G. McNally Jones Staff Lawyers

Case referred to in reasons:

Ambatielos v Anton Jurgens Margarine Works [1922] 2 KB 185

Public Transport Authority of Western Australia v Australian Rail, Tram and Bus Industry Union of Employees, Western Australian Branch [2017] WAIRC 00173

Cases also cited:

Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241

Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99

Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority of Western Australia (2014) 94 WAIG 787

City of Wanneroo v Holmes (1989) 30 IR 362

Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337

Director General, Department of Education v United Voice WA [2013] WASCA 287

Health Services Union of Western Australia (Union of Workers) v The Director General of Health (2013) 93 WAIG 1

Kucks v CSR Ltd (1996) 66 IR 182

McCourt v Cranston [2012] WASCA 60

McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423

Merchant Service Guild of Australasia v Commonwealth Steamship Owners' Association [No 1] (1920) 28 CLR 278

Osland v Secretary, Department of Justice [2008] HCA 37

O'Sullivan v Farrer (1989) 168 CLR 210

Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451

Re Harrison; Ex parte Hames [2015] WASC 247

Re Newton-Tighe and Department of Employment, Education and Training (1996) 42 ALD 147

Robe River Iron Associates v Amalgamated Metal Workers and Shipwrights Union of Western Australia (1987) 67 WAIG 1097

The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority of Western Australia (2015) 95 WAIG 1503

Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165

Water Conservation and Irrigation Commission (N.S.W.) v. Browning (1947) 74 CLR 492

Reasons for Decision

1         The system within the public metropolitan rail system operated by the applicant is that railcar drivers report to work at what is called their “home depot.”  There are three such depots being the Claisebrook Depot, the Mandurah Depot and the Nowergup Depot.

2         On some occasions railcar drivers are required by the applicant to begin their day’s work at a depot other than their home depot.  Railcar drivers might be required to report for work at a “foreign depot” for training or, in a rare case, to cover a shortfall of railcar drivers at the foreign depot.

3         Pursuant to clause 5.2.1(a) of the Public Transport Authority/ARTBIU (Transperth Train Operations Rail Car Drivers) Industrial Agreement 2016, where this occurs, and the distance between the railcar driver’s usual place of residence and the foreign depot is greater than the distance between the railcar driver’s usual place of residence and their home depot, an allowance is payable per kilometre “in both directions calculated on the extra distance the employee is required to travel.”

4         Under clause 5.2.1(b) of the Public Transport Authority/ARTBIU (Transperth Train Operations Rail Car Drivers) Industrial Agreement 2016 there are two methods of calculation of the quantum available.

5         Clause 5.2.1(b) provides as follows:

b)  The allowance payable per kilometre will be:

(i) $1.72 where the Depot Manager of the employee's home depot is satisfied that the employee is not reasonably able to use public transport to travel to and from the other depot; and otherwise

(ii) Half the figure nominated in paragraph (i) of this subclause where the Depot Manager of the employee's home depot is satisfied that the employee is reasonably able to use public transport to travel to and from the other depot.

6         The applicant says that in the assessment required of a depot manager under clause 5.2.1(b) the location the railcar driver travels to and from should be the railcar driver’s home depot.

7         The respondent says that in the assessment required by a depot manager under clause 5.2.1(b) the location the railcar driver travels to and from should be the railcar driver’s usual place of residence.

8         As I understand the applicant’s argument it is said that the depot manager must be able to identify a location from which to assess an employee’s ability to use public transport to get to and from the foreign depot and it is convenient that that location be the home depot.

9         The depot manager will be familiar with the services from the home depot and will not have to undertake a detailed assessment of other public transport services that may be available to the railcar driver.

10      It is said to be not inconvenient to a railcar driver, and a sensible interpretation, because the railcar driver would, in the normal event, be presenting for work at the home depot anyway.

11      Additionally, it is said that it is the custom and practice within the applicant’s operations for depot managers to assess an employee’s ability to use public transport from the home depot as the most appropriate factor in the required assessment.

12      The applicant says that the result of the respondent’s contended interpretation would be “commercially nonsensical”.  This submission relates to the cost it sees associated with the respondent’s interpretation.

13      The applicant says that to avoid those nonsensical outcomes it could direct the railcar drivers to report for work at the home depot on a day when they will be required at a foreign depot and only at that stage undertake the relevant assessment (with such an assessment invariably resulting in the application of clause 5.2.1(b)(ii) rather than clause 5.2.1(b)(i)). 

14      The interpretation for which it contends, the applicant says, will avoid the need for this.

15      The applicant also says that the respondent’s interpretation would be absurd because it would have the effect that clause 5.2.1(b)(ii) would rarely, if ever, have work to do because public transport will not present at the door of a railcar driver’s usual place of residence.

16      The respondent says there is no reason why the location in issue in clause 5.2.1(b) should be the railcar driver’s home depot given that there is no need, when a railcar driver is reporting for work at a foreign depot, for the railcar driver to attend their home depot.

17      The respondent says, essentially, that, in the circumstances in which clause 5.2.1(b) will apply, it makes more sense to consider the usual place of residence to be the location.  This is because the relevant circumstance is that the railcar driver is required only to travel from their usual place of residence to a foreign depot (and back) on such days and the home depot does not come into the equation.  The respondent says that other than for consideration of whether clause 5.2.1 is triggered the home depot is irrelevant to clause 5.2.1 (and therefore to the operation of clause 5.2.1(b)).

18      The respondent draws support from clause 5.2.1(a) including as a factor in the assessment required by the subclauses a railcar driver’s “usual place of residence” and that the clause is intended to be beneficial to railcar drivers.

19      The parties seemed to agree with each other that clause 5.2.1(b) was ambiguous and the applicant called a witness, Mr Mark Wirski (the Acting Assistant Operations Manager Transperth Train Operations Division holding the substantive position of Depot Manager, Nowergup), who was cross-examined by the respondent, and tendered some documents into evidence.

20      Before turning to the interpretation of clause 5.2.1(b) I need to deal with the respondent’s application that I dismiss the application under sections 27(1)(a)(ii) and (iv) Industrial Relations Act 1979 on the basis that the proceedings are not necessary or desirable in the public interest and the application is an abuse of process.

21      That application is made against a background that there are proceedings before the Industrial Magistrate’s Court (which have not yet been heard) dealing with a dispute which is on all fours with the dispute before me, including that the “Facts Giving Rise to the Application” (which the applicant is obliged to provide under regulation 52(1)(b) Industrial Relations Commission Regulations 2005) are the facts that will be considered by the Industrial Magistrate’s Court.

22      Section 46(3) Industrial Relations Act 1979 is a complete answer to the respondent’s application.

23      Parliament has decided that, insofar as the interpretation of awards (as defined by section 46(5) Industrial Relations Act 1979) is concerned, what the Western Australian Industrial Relations Commission says goes.

24      Some of the reasons why Parliament has so provided may be:

(1)   the Western Australian Industrial Relations Commission is a specialist tribunal and has better knowledge of practical considerations and industrial realities affecting the parties before it than a court may do;

(2)   the Western Australian Industrial Relations Commission is charged with declaring the “true” interpretation of awards;

(3)   the Western Australian Industrial Relations Commission may play an inquisitorial role if it chooses to do so; and

(4)   the Western Australian Industrial Relations Commission is not bound by the rules of evidence.

25      The Western Australian Industrial Relations Commission is, Parliament evidently considers, best placed to get to the bottom of what parties meant by words included in relevant industrial instruments.

26      It can hardly be undesirable or an abuse of process for the Western Australian Industrial Relations Commission to play the role Parliament has given it even, or perhaps especially, when it is known that its decision will impact on extant proceedings elsewhere. 

27      I consider I am providing the assistance to the Industrial Magistrate’s Court which Parliament says I might rather than inappropriately cutting across that Court’s jurisdiction.  Accordingly, I dismiss the respondent’s application.

28      In relation to the matter of interpretation the first question is whether the text reveals the intention of the parties or whether the text is ambiguous and regard ought to be had to the evidence of surrounding circumstances.

29      In Public Transport Authority of Western Australia v Australian Rail, Tram and Bus Industry Union of Employees, Western Australian Branch [2017] WAIRC 00173 I made various comments on this matter and I ask that those comments be incorporated when reading this decision.

30      I quoted a passage from Ambatielos v Anton Jurgens Margarine Works [1922] 2 KB 185 at 196 in that decision.

31      I reproduce the passage here including a further sentence as follows:

“[I]t is very difficult indeed to say what is ambiguous and what is not, and I do not think any test can be applied except that of the person who is dealing with it. If it does not seem ambiguous to him I am afraid he can only say ‘It may seem ambiguous to others, but it does not to me’.”

32      Here clause 5.2.1(b) may seem ambiguous to others, including the parties, but it does not to me.

33      Clause 5.2.1 only arises for consideration “when an employee is required to commence and conclude a shift at a metropolitan depot other than the home depot to which the employee is stationed.”

34      The circumstance triggering consideration is one where a railcar driver is starting work at a foreign depot.

35      Unless the clause directs attention to the home depot in some way there is no need, in that circumstance, to bring the home depot into calculations; the person is not starting work there, the person is starting work at the foreign depot.

36      Clause 5.2.1(a) does bring the home depot into calculations but only in the limited way there provided; that is, as a factor in the calculation to assess whether an allowance is payable.

37      Even then the allowance is said under clause 5.2.1(a) to be calculated on “the extra distance the employee is required to travel” and whether there is an “extra distance” is to be determined by comparing the distance between the railcar driver’s usual place of residence and the home depot and the distance between railcar driver’s usual place of residence and the foreign depot.

38      Clause 5.2.1(a) therefore invites a comparison which assumes that there will be travel from a railcar driver’s usual place of residence to a foreign depot.

39      This confirms in my mind that journeys from a railcar driver’s usual place of residence to the foreign depot and back are what the clause is about and that, unless there is some contrary indication, these are the relevant locations.

40      When I turn to clause 5.2.1(b) I find, against the background that the railcar driver will be starting work at a foreign depot, that there is no need whatever, to understand the subclause and how it operates, to, as a matter of course, think about the home depot as a relevant location. 

41      To the extent the reader needs to think about the home depot that is done in considering whether, under clause 5.2.1(a), any allowance is payable at all.

42      While the depot manager of the railcar driver’s home depot may be the person charged with the assessment under clause 5.2.1(b) that does not inform my understanding of the locations to be used in the assessment. Someone has to do the assessment and it might as well be the railcar driver’s depot manager.

43      I am informed in my understanding of the locations to be used in the assessment by the simple fact that where the consideration of the clause is triggered it is because the person is “commencing” and “concluding” a shift at a foreign depot.

44      Railcar drivers will in the expected event go from their usual place of residence to the foreign depot and back for the commencement of, and at the conclusion of, their working day.

45      They are the locations which are travelled to and from and accordingly it is those locations which are, in my view, evidently to be considered under clause 5.2.1(b).

46      Although I have not needed to refer to the evidence of surrounding circumstances because I find no ambiguity in clause 5.2.1(b), if I had done so I would only have been reinforced in my view. 

47      At least one clear effect of Mr Wirski’s evidence was that the home depot is not always, or even as a rule of thumb, considered to be a relevant location under clause 5.2.1(b). 

48      Mr Wirski gave evidence that if a railcar driver would have to backtrack from their usual place of residence to their home depot in terms of their journey to the foreign depot the applicant abandons use of the home depot as a relevant location for clause 5.2.1(b), even on its own interpretation of the clause. 

49      I say nothing about the evidence other than that the applicant itself obviously does not consider that the home depot is fixed as a location for the purposes of clause 5.2.1(b).

50      That evidence would not mean, of course, that it necessarily follows that a railcar driver’s usual place of residence ought be fixed as a location but I find, for the reasons given above, that on an ordinary reading of clause 5.2.1(b), in light of the opening words of clause 5.2.1, it should be so fixed.

51      Whether an employee is reasonably able to use public transport to travel to and from his or her usual place of residence to a foreign depot will only be able to be decided on a case by case basis.

52      What is reasonable will depend on the circumstances.  My comments following may assist but they can only be meant as rough guide with the answer depending on the circumstances of the particular case under consideration.

53      If a bus does not stop at the door of a railcar driver’s usual place of residence this does not mean he or she is not reasonably able to use public transport to get to and from the foreign depot.  A railcar driver would, in the ordinary event, be reasonably able to use public transport where access to it is reasonably proximate to his or her usual place of residence.

54      Simply because a railcar driver would have to backtrack to their home depot to get to a foreign depot by train does not mean he or she is not reasonably able to use public transport to get to a foreign depot.  There may be a bus stop within walking distance which takes the railcar driver to a train station from which the foreign depot may be reached before the railcar driver’s start time.

55      I do not think short car journeys to park and ride facilities, or a person being dropped off at public transport, necessarily rule out a finding that a person is reasonably able to use public transport, especially if this is something a railcar driver ordinarily does to attend their home depot.  In ordinary language a person will say they get to work on public transport even if they have been dropped off, or driven a short distance, to access it.

56      To give an example I would not imagine that it would be reasonable, without more, in terms of the quantum of the allowance paid, for a railcar driver who normally drives to his or her home depot for work to drive past his or her home depot, where a train is waiting or coming which would get him or her to the foreign depot on time, on his or her way to a foreign depot.

57      But I do not wish to decide specific factual circumstances and do not intend to do so, they being obviously multitudinous.  I do say however that the so called absurdities the applicant points to if the respondent’s interpretation is correct will not necessarily arise.

58      I cannot find the financial implications of my decision are so great as to render it nonsensical. Given that the financial outcomes will depend on circumstances it is hard to say what they will be.  In any event it must be recognised that requiring a person to report for work at a different place to that they normally attend is evidently accepted by the industrial agreement to be a burden upon the railcar driver, although, of course, one that should be alleviated by appropriate compensation and not windfall gain.

59      This leaves for consideration only what “pubic transport” means in clause 5.2.1(b).

60      The respondent makes an argument here which relates to a particular circumstance affecting Nowergup Depot, which may be a foreign depot for the purposes of clause 5.2.1(b).

61      That circumstance is that only railcar drivers can embark and disembark at Nowergup Depot and other passengers, while physically able to do so, are not permitted to embark and disembark there.

62      Trains run through Nowergup Depot on their way to Butler Train Station.

63      The respondent says in its outline of submissions, at [18], that I should interpret public transport to mean “transport (such as buses and trains) which is available to the public and which travel on fixed routes” and, at [19], that given the facts (being those I have set out above) “it is not possible to use public transport to get to the Public Transport Authority’s Nowergup Depot…because there are no transport services that are available to the public that go to the Nowergup Depot.”

64      I find that “public transport” means “public transport” admitting that I find it difficult to improve on the term by elaboration and I find that it includes trains operated by the applicant which run through Nowergup Depot. I find that railcar drivers who use such trains to get to Nowergup Depot use public transport to do so.

65      For the respondent’s interpretation to succeed I would essentially have to ignore everything that has ever been decided in relation to the correct interpretation of industrial instruments and accept, as having an important role in the arena, the dark arts of sophistry.

66      The questions asked of me in the Notice of Application may be usefully answered by me in light of my above reasons as follows:

(1)   Not as a rule but circumstances may arise where that is appropriate depending on the facts;

(2)   Yes.

67      I declare that the true interpretation of clause 5.2.1(b) is as follows:

That in considering whether an employee is reasonably able to use public transport to travel to and from a depot other than the employee’s home depot under clause 5.2.1(b) the depot manager of the employee’s home depot shall consider as the relevant locations the employee’s usual place of residence and the other depot.

68      I do not consider, in light of the reasons for decision, that there is a need to vary the clause.

69      If either party wishes me to act under section 46(2) Industrial Relations Act 1979 they should inform my chambers.