Fair Work Act 2009

s.739 - Dispute resolution

Australian Municipal, Administrative, Clerical and Services Union; Australian Rail, Tram and Bus Industry Union

Alleged dispute about any matters arising under the enterprise agreement - facilitative clause - multi board safe working allowance - dispute arbitrated

• [1] On 28 May 2025, the Australian Municipal, Administrative, Clerical and Services Union (the ASU) filed an application pursuant under s.739 of the Fair Work Act 2009 (the Act) seeking to resolve a dispute with Queensland Rail Transit Authority (Queensland Rail or Queensland Rail).

• [2] The dispute relates to the multi board safe working allowance under clause 77 of the Queensland Rail Train Control Enterprise Agreement 2023 (the Agreement). Clause 77 is a facilitative provision. It allows the parties to agree on a method of implementing a multi board safe working allowance. It provides that the parties will form a working party with delegates from management, the ASU and the Australian Rail, Tram and Bus Industry Union (RTBU) to agree on the best method of implementing "system of financial recognition for employees who are qualified and competent on multiple boards for each control centre." Implementation of the system is "by mutual agreement". Where the parties cannot agree on a system of implementation, clause 77 grants the Commission power to arbitrate.

• [3] I conducted a conference to attempt to resolve the dispute on 10 June 2025. The RTBU requested to be joined as a party to the dispute. This request was not opposed by the ASU or Queensland Rail. I exercised my discretion under s.586(a) of the Act to include the RTBU as a party to the dispute. Given clause 77 contemplates that the RTBU representatives are part of the "parties" who must agree on the implementation of the allowance, I am satisfied it is appropriate for the RTBU to be a party in this matter.

• [4] Following the conciliation conference, I issued directions and listed the matter for arbitration. The matter was heard on 22 October and 23 October 2025 in Brisbane.

• [5] Clause 77 is slightly unusual as it provides a direct power of arbitration in subclause 77.1.4, rather than relying on the dispute resolution procedure in clause 23 of the Agreement.

• [6] The Commission's power of arbitration under clause 77 is premised on the parties not being able to reach mutual agreement on implementation. In this matter, as will be seen later, it is more accurate to say that the parties cannot agree on what has been agreed. However, I am satisfied that for the purposes of clause 77 "mutual agreement" on the necessary details for implementation has not been agreed thus far.

• [7] I am satisfied that the parties have taken steps to resolve the dispute at a workplace level prior to bringing the claim to the Commission. I am satisfied that I have jurisdiction to arbitrate the dispute. To the extent it is necessary to rely on the dispute resolution procedure, I am satisfied that that procedure has been exhausted by the ASU prior to bringing this dispute.

• [8] The parties presented the questions to be determined before me as follows:

1. Was there an agreement between the ASU and the RTBU (together, the Unions) and Queensland Rail during negotiations for the Queensland Rail Train Control Enterprise Agreement 2023 (the Agreement), on the monetary value for the multi board safe working allowance in the three Train Control Centres - RMC, RC1 and Townsville?

1. Was there an agreement between the Unions and Queensland Rail regarding how the multi board safe working allowance would be implemented in RC1 and Townsville?

1. Where there is no mutual agreement of the parties on the allowance, what should the outcome on the following matters be:

a) The monetary value of the multi board safe working allowance in the three Train Control Centres - RMC, RC1 and Townsville;

b) The number of boards to trigger the multi board safe working allowance in

the three Train Control Centres - RMC, RC1 and Townsville; and

77.1.1 A working party of one delegate from each union from each Train Control Centre (RMC, RC1 and Townsville) and three management representatives will be formed for each of the three Train Control Centres.

77.1.2 Within 24 months of the approval of the agreement, the working party for each centre will commence a joint union-management review to agree on the best method of implementing a system of financial recognition for employees who are qualified and competent on multiple boards for each control centre. Qualified being defined as having been trained signed off on the relevant board. Competent being familiarised on the relevant board within the past six months.

77.1.3 Any implementation would be via mutual agreement of the parties.

77.1.4 Where mutual agreement of the parties cannot be achieved, either party may refer the matter to the Fair Work Commission who will arbitrate the outcome.

• [10] It is not contested that "each union" in clause 77.1.1 is a reference to the unions covered under the Agreement. That is, the ASU and RTBU.

• [11] The relevant employees in this matter work in Queensland Rail Control Rooms. As controllers, the employees operate "boards" which represent a geographical portion of the train network. The role of the controller is to ensure that trains can move safely and efficiently through the network and to ensure that track workers can access the rail corridors.[1]

• [12] Boards are rated with levels of complexity. The boards are classified from TC1 to TC5, with TC5 being rated as the most complex. Each board is different and 'idiosyncratic'[2]. The parties suggested many reasons why some boards may be more complex than others (even between boards that have the same rating). It was suggested that boards covering large geographic areas are more complex.[3] It was also suggested that the boards covering a smaller area, in the Brisbane CBD for example, are more complex as they may have more connections as well as track alterations and closures.[4] Further it was suggested that the variety of safe working systems for different control centres in place create complexity.[5]

• [13] There are three control centres being the Rail Management Centre (RMC), Rail Centre 1 (RC1) and Townsville. The RC1 controls the southwestern Queensland corridor, Townsville controls the regional northern Queensland corridor; and the RMC controls the southeast Queensland Network.[6] Each control centre has a different number of boards and different safe working systems which apply. The RMC has ten boards, the RC1 has four boards and Townsville has seven boards. [7]

• [14] The boards in the control centres are classified as well as the individual controllers. The controllers are remunerated according to the rating of the boards they work and also according to which boards they are "linked" to work. A "link" is a cyclical roster that the employee works. When a controller "owns" a link then they get paid at that classification rate, even if they work a lower-rated board. But if they worked a higher-rated board, they would get paid at that rate. The progression through classifications was helpfully explained by Mr Nick Bailey in evidence as follows:

So when you enter the room, you come through as a TC1 out of the training school. When you go into sign off on your first control board, generally a TC3 or a TC4, you become a TC2 controller, and that becomes your base rate of pay. When you work a TC4 board you get paid the TC4 rate. If you work at TC3 you get paid that rate. As time goes you progress to become what would be called a linked worker, but you become a permanent schedule on one of those sections. So you might become a TC3 linked worker, then that becomes your base rate. If you were a TC - you get a - then eventually you would go to a TC4 linked worker where that would become your base rate, would be TC4 regardless if you worked that board or lower.[8]

• [15] The parties commenced negotiations for the Agreement on 14 March 2023.[9]

• [16] The RTBU's log of claims for bargaining included a reference to a proposed Multi-Board Safe Working Allowance.[10] The idea for the Multi-Board Safe Working Allowance came from Mr Richard Donkin, RTBU Delegate. Mr Donkin explained the rationale for this allowance as follows:

So I developed the idea for a "Multi-Board allowance" as a claim for the Townsville Control Centre to incentivise more staff to learn more than just the minimum number of control boards, while providing recognition and a sense of security for Senior Train Controllers who were feeling like they were taking all the risks in the workplace but were being punished with less leave, a greater mental workload, and no additional pay.

• [17] The parties attended a s.240 conference in the Commission with Commissioner Spencer on 10 July 2023 to resolve a number of outstanding issues in dispute. At the time, threats of protected industrial action had been made by the unions which, according to Queensland Rail, had the potential to lead to "significant ramification in terms of rail service disruption"[11]. The relevant attendees for the RTBU, who also provided evidence in this hearing, were Mr Sean Clinton and Mr Richard Donkin. For the ASU, Mr Joshua Kearney and Mr Phillip Cooke. The primary representative for Queensland Rail on this point was Mr Michael Reeves. Other attendees for Queensland Rail included Mr Dion Matley and Mr Dean Kelly.

• [18] Three of the union witnesses, including Mr Kearney, Mr Clinton and Mr Donkin, allege that Mr Reeves said during the s.240 conference, in response to a proposal from Mr Clinton of an allowance in the amount of $0.98 and $1.98, "We can live with that". The evidence surrounding that alleged conversation is considered in greater detail below.

• [19] At the end of that conference, the parties exchanged emails indicating they had reached in-principle agreement. A Heads of Agreement was drawn up which was agreed to by Queensland Rail and the Union. The document is headed with "WITHOUT PREJUDICE - SUBJECT TO FORMAL APPROVAL PROCESSES". Relevantly for present purposes, that document states:

A working party of one delegate from each union from each Train Control Centre (RMC, RC1 Townsville) and three management representatives will be formed for each of the three Train Control Centres. Within 24 months of the approval of the agreement, the working party for each centre will commence a joint union-management review to agree on the best method of implementing a system of financial recognition for employees who are qualified and competent on multiple boards for each control centre.

Qualified being defined as having been trained signed off on the relevant board.

Competent being familiarised on the relevant board within the past six months.

Any implementation would be via mutual agreement of the parties.

Where mutual agreement of the parties cannot be achieved, either party may refer the

matter to the Fair Work Commission who will arbitrate the outcome.

• [20] This is the same wording which was eventually reproduced in clause 77 of the Agreement.

• [21] After the Agreement was approved, the parties commenced their working party meetings. The ASU provided minutes of meetings held on 27 May 2024, 3 June 2024 and 10 July 2024. The unions contend that the hourly figures for the allowance were raised in the working party meetings and were not objected to by Queensland Rail, at least in respect of RC1 and RMC.[12]

Was an agreement reached on the monetary value of the allowance?

• [22] According to the union, the matter is not a dispute about whether a term should be implied into the agreement to reflect an alleged agreement reached during bargaining.[13] Rather, they argue that an agreement was reached for the monetary value of the multi board allowance, which is collateral to the enterprise agreement. As an agreement was already reached, they argument that the implementation of the allowance should reflect that agreement.

• [23] I note the unions argue in the alternative that if the Commission does not find there was a binding agreement reached during bargaining, they argue that an agreement was made on 9 May 2024 and formalised on 12 September 2024 for the RC1 and for the Townsville working party, a verbal agreement was reached in January 2025. I will consider this in the alternative below.

Taking all of the evidence outlined above into account, the Applicant first relies on the

contemporaneous evidence of Mr Kearney from the negotiations. He recalls Mr Clinton of the RTBU putting forward the figures of $0.98 and $1.89 per hour during facilitated bargaining and Mr Reeves of Queensland Rail responding with words to the effect of "yes, we can live with that." This is direct evidence of agreement. A specific proposal was put by one bargaining party and expressly accepted by the other, in the presence of the Commission.

• [25] In reply submissions, it was argued that the alleged agreement reached during bargaining on 10 July 2023 was a collateral contract or "something akin to one". The unions note that there was notified protected industrial action at the time of the bargaining conference. They argue that the withdrawal of that notice forms consideration for an agreement. This is quite a creative argument.

• [26] Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd [2016] HCA 26 was referred to by the ASU at [242]:

"For a statement to form the basis of a collateral contract, the statement must be "promissory and not merely representational". A statement will be promissory if it was "reasonably considered" by the person to whom it was made as "intended" to be a contractual promise. It must also be shown that the person to whom the statement was made "intended" to accept the statement as a contractual promise. The relevant "intention" of the parties is to be judged objectively, that is, "deduced from the totality of the evidence", by reference to what a reasonable person in the position of the parties would have understood. And as with any contractual promise, the statement must be sufficiently certain."

Preliminary issue - whether evidence from bargaining negotiations should be excluded?

• [27] Queensland Rail suggested that the evidence from the s.240 bargaining conference should be excluded on the basis that the discussions were without prejudice. Ordinarily, evidence of discussions in bargaining negotiations would not be considered when determining a dispute about an enterprise agreement.

• [28] However, here, the essence of the dispute relates to whether an agreement was reached in bargaining which applies for the purposes of clause 77. It is therefore necessary for the Commission to examine the evidence of what was said in those negotiations to determine whether an agreement was reached. I agree with the unions that the evidence from the s.240 conference should not be excluded.

Was an agreement reached on the monetary value of the allowance in bargaining?

• [29] I need not repeat in full the elements of a contractual agreement, which are well known. I have some reservations about whether the principles relating to collateral agreements can, or should, apply in relation to an enterprise agreement. A single-enterprise agreement is made between an employer and employees when a majority of employees vote to approve the agreement (s.182 of the Act). If there is a secret collateral agreement, which the employees have no knowledge of, that has the potential to mean employees are not informed of the true terms of the Agreement. Nevertheless, despite my reservations, I have considered the collateral agreement argument below.

• [30] While the unions are correct in stating that, in general, an agreement does not have to be in writing, I note there are evidentiary difficulties in proving an oral agreement. I consider the comments made by Justice Hammerschlag in John Holland Pty Limited v Kellogg Brown & Root Pty Ltd [2015] NSWSC 45 at [94]-[95] are apt:

Where a party seeks to rely upon spoken words as a foundation for a cause of action, including a cause of action based on a contract, the conversation must be proved to the reasonable satisfaction of the court which means that the court must feel an actual persuasion of its occurrence or its existence. Moreover, in the case of contract, the court must be persuaded that any consensus reached was capable of forming a binding contract and was intended by the parties to be legally binding. In the absence of some reliable contemporaneous record or other satisfactory corroboration, a party may face serious difficulties of proof. Such reasonable satisfaction is not a state of mind that is obtained or established independently of the nature and consequences of the fact or facts to be proved. The seriousness of an allegation made, inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question of whether the issue has been proved to the reasonable satisfaction of the court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony, or indirect inferences: see Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 362; Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712; Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517 at 521; Watson v Foxman [1995] NSWCA 497; (1995) 49 NSWLR 315 at 319.

The sensation of feeling an actual persuasion, after a contest, that an event has happened or that something exists is one which is well known and recognised by experienced trial judges for what it is.

• [31] I observe that none of the witnesses appeared to be evasive or deliberately honest. I cannot accept the argument that seemed to be put forward in the hearing that if three of the union's witnesses recall Mr Reeves saying, "We can live with that", then he must be lying when he denies saying that. It is not that simple.

• [32] I note the alleged agreement in this matter was said to have occurred some two years and four months prior to the hearing in this matter. In the intervening period since bargaining, the witnesses have thought about what they recall being said in bargaining and have discussed the matter with others. There is a potential for reconstructive memory.

• [33] I adopt the comments of Chief Justice McLelland in Watson v Foxman [1995] NSWCA 497; (1995) 49 NSWLR 315 at 319:

...Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.

• [34] It serves the purposes of the ASU and RTBU witnesses to recall Mr Reeves saying "we can live with that" just as it serves the purposes of Queensland Rail for Mr Reeves to claim he never said that.

• [35] Generally, I am much more willing to accept the evidence of those who accept the limits of their memory, as opposed to witnesses who recall in minute detail conversations from years prior to the hearing. Of the union witnesses who gave evidence of the discussions in bargaining, I find Mr Cooke and Mr Kearney the most believable. Mr Kearney recalls Mr Reeves saying those words, Mr Cooke does not.

• [36] Mr Reeves is forthright in denying that he ever said "we can live with that" in relation to the proposed monetary figures for the allowance. Mr Matley and Mr Kelly also deny hearing Mr Reeves say that. I consider those witnesses to be believable.

• [37] Further, I consider that Queensland Rail raised cogent arguments surrounding the implausibility of Mr Reeves making such a comment and then not committing the agreement to writing. Mr Reeves notes in his witness statement:

I find it remarkable that if the union witnesses believed that agreement on the monetary component had been reached, the unions would not have sought for this to be contained in the agreed words for the Heads of Agreement or EA itself, or in any way committed to writing between the parties. The unions had experienced industrial relations practitioners present, including the Secretary of The Services Union, who, in my experience, are meticulous with detail. For such an important detail to not be put to writing in any way is not plausible in my opinion. I am myself an experienced industrial

relations practitioner with nearly 25 years' experience. Certainly, if I had considered such agreement had been reached, I would have run this to ground with my superiors and drafted this into the wording of both the Heads of Agreement and EA itself. This did not occur because no such agreement existed.

• [38] Of course, an agreement can be made orally, but as I have explained above, the fallibility of human memory leads the courts, and the Commission, to prefer documentary evidence in cases such as this where the dispute is raised some time after the alleged conversation occurred.

• [39] In my experience, once an in-principle agreement is reached in a s.240 bargaining conference, it is standard practice for that agreement to be recorded in writing (either by the Commission issuing a recommendation or by the parties exchanging a Heads of Agreement document). In this matter, I find it implausible for an agreement reached on the monetary value of the allowance to not be recorded in writing. The composition of the working party, which is outlined in detail in the Heads of Agreement, is an insignificant detail by comparison. The key part of any bargaining negotiation is usually the money.

• [40] In the email exchange on 10 July 2023, when Queensland Rail shared a draft of a Heads of Agreement with the unions, there was no mention of the monetary value of the allowance. Demonstrating the meticulousness of the ASU mentioned by Mr Reeves, the ASU Secretary replied shortly after Queensland Rail sent the Heads of Agreement asking that "emergency" be corrected to "emergent" for a different clause unrelated to this dispute. There was no mention of the monetary figure for the allowance in the email trail. The ASU and RTBU confirmed in writing that the terms were agreed in-principle.

• [41] I understand the Unions are not arguing that the agreement forms an implied term of the Enterprise Agreement, rather they are arguing it is a collateral agreement. However, if you follow that argument, it means that the parties understood the figures had been agreed in bargaining, but, for some reason, chose not to include the terms of that Agreement in the Enterprise Agreement, where it would have the statutory force. With respect, that does not make sense.

• [42] Further, if the unions were concerned that the proposed agreement put to employees did not represent the whole of their in-principle agreement, they could have had a "vote no" campaign.

• [43] My findings on the evidence are as follows. I am not convinced that the evidence proves that an oral agreement was reached during bargaining. It is possible that Mr Reeves did say "we can live with that" at some point in bargaining, but I doubt he said it in relation to the proposed monetary allowance. I am not convinced that the evidence is sufficient to prove the monetary allowance was agreed bargaining in circumstances where that argument hinges on one sentence alleged to have been stated over two years ago. The witness evidence is naturally imprecise. There is no corroborating documentary evidence from the time. I would expect such a detail to be included in the Heads of Agreement following the negotiations.

• [44] In the alternative, even if I accepted that Mr Reeves did use the words, "yes, we can live with that", which constituted acceptance of an offer, the agreement was not binding and was expressly subject to formal approval. It was clearly stated in the Heads of Agreement that the document was subject to formal approval. Queensland Rail is an entity which is owned by the Queensland State Government. As such, Mr Matley is required to seek approval from the Queensland Government before including payments in a negotiated outcome.[14] Mr Matley stated that he did not do costings for the multi board allowance, with the figures of $0.98 and 1.89 as he did not know that agreement had been reached. In fact, Mr Matley gave evidence during the hearing that the first time he had heard of those figures was this year.[15]

• [45] I find that no agreement was reached in bargaining on the monetary value of the allowance.

• [46] The unions refer to the subsequent conduct of Queensland Rail management following bargaining in working party meetings for RMC and RC1 as evidencing that agreement had been reached on the monetary value of the allowance. The ASU argued:

The absence of objection demonstrates acceptance of the figures, or at least acquiescence to them as the agreed baseline.[16]

• [47] The issue is whether Queensland Rail conducted themselves in a way that indicated that they believed they were already bound by an agreement. The unions refer to Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523. That case is applicable only by analogy. I note in that case, Justice McHugh stated the general position at 535:

...Convenience, and especially commercial convenience, has given rise to the rule that the acceptance of the offer should be communicated to the offeror. After a reasonable period has elapsed, silence is seen as a rejection and not an acceptance of the offer. Nevertheless, communication of acceptance is not always necessary. The offeror will be bound if he dispenses with the need to communicate the acceptance of his offer: Carlill v Carbolic Smoke Ball Co [1893] 1 QB 256 at 269. However, an offeror cannot erect a contract between himself and the offeree by the device of stating that unless he hears from the offeree he will consider the offeree bound. He cannot assert that he will regard silence as acceptance: Felthouse v Bindley [1862] EngR 931; (1862) 11 CB (NS) 869 at 875; 142 ER 1037 at 1040 and Fairline Shipping Corporation v Adamson [1975] QB 180 at 189. The common law's concern with the protection of freedom is opposed to the notion that a person must take action to reject an uninvited offer or be bound by contractual obligations.

• [48] His Honour then stated the exception to the rule, which the unions rely upon:

The ultimate issue is whether a reasonable bystander would regard the conduct of the offeree, including his silence, as signalling to the offeror that his offer has been accepted... The case is not so much one of acceptance by silence as one of taking the benefit of an offer with knowledge of its terms and knowledge of the offeror's reliance on payment being made in return for his work.

• [49] The fact that the Rail Management entertained the figures put forward by the unions during the working parties does not necessarily mean that they believed they were already bound by those figures. The fact of whether Queensland Rail agreed must be judged objectively, noting that silence does not necessarily equal acceptance.

• [50] Mr Kearney, ASU delegate, gave evidence that he believed the monetary figures had been agreed. This was because there was no debate on the monetary value of the allowance when it was brought up in working group.[17] Further, Mr Kearney stated that it was agreed in a meeting on 9 May 2024 that the allowance would be split over two tiers of two and four boards.[18] On 12 September 2024, a Memorandum document was circulated by the RC1 Working Group. That document states:

The Brisbane working party agreed that the multi-Board Allowances within the centre should be a tiered structure, aligning to the number of boards within the centre.

This will support greater roster flexibility with staff encouraged to work all boards within the RC1 Train Control Centre.[19]

• [51] The document does not mention the hourly figures, nor does it mention the number of boards for each tier.

• [52] Mr Chris Hempstead is one of the witnesses for Queensland Rail who was present for the working group discussions for RC1. Mr Hempstead stated that the finance matters were outside of his remit.[20] Those matters were within the remit of Ms Tammy Phelan. Mr Hempstead stated that a split of two and four boards had been agreed by the time the memorandum was signed.[21] Mr Hempstead stated in cross-examination:

Yes. His recollection, though, is that the figures were discussed?‑‑‑Yep.

And there was no objection to them?‑‑‑Yeah, the figures might have been raised. I didn't object to them because of the fact that I wasn't there, I wasn't privy, but I didn't agree to them. I didn't object to them, I didn't agree to them. They were mentioned. I've heard these figures, but, as I've said, they're outside the scope of my remit, but I wasn't privy to those discussions.

• [53] I do not accept that Mr Kearney's evidence proves that Queensland Rail had agreed on the monetary value of the allowance. An agreement requires a sense of obligation. Merely failing to object out of hand to the union's suggestion of the monetary is not the same as actually agreeing. Additionally, the memorandum provided by the union does not corroborate Mr Kearney's evidence at all. It has little to no detail. It essentially states that the parties agreed on a tiered structure. That is all.

• [54] Mr Cooke recalls that the figures were discussed in early meetings of the working party and were not objected to.[22] Again, there is an issue regarding whether mere silence can amount to an implied acceptance or "acquiescence". Mr Cooke gave evidence that the primary issue during the working party was around the number of boards required to trigger the allowance.[23]

• [55] Mr Clinton's evidence is that he does not recall Queensland Rail denying that the figures had been agreed.[24] He stated that Queensland Rail later "reneged" on the agreement in early 2025.[25]

• [56] Mr Cooke and Mr Clinton were present for a meeting of the RMC Multi Board Safeworking allowance working party on 27 May 2024.

There will be 2 tiers for the allowance across the three centres. The allowance is payable on any shift worked at the rate of per hour (whole or part), per shift for all TC2 and above classifications under the Train Control Agreement.

Since the enterprise agreement's approval all allowances under the Train Control EA have increase in alignment to the wages increase of the first year at a rate of 10% followed by a further rate increase of 4.5%

Once implemented these allowances will be subjected to any wage increases in the future.

• First Tier $1.12 per hour per shift ($0.98+10%+4.5%)
• Second Tier $2.17 per hour per shift (1.89+10%+4.5%)

• [58] It is clear that the figures of $0.98 and $1.89 were discussed. However, it does not state that the figures were agreed. In cross-examination, it was asked why Queensland Rail would put the dollar figures in the meeting minutes if they do not intend to be bound by them.[26] However, meeting minutes are not a contract. They are merely a record of what was discussed.

• [59] Meeting minutes were also provided for a meeting held on 10 July 2024, stating:

Updates on other centres. Other centres moving at a far slower pace than RMC.

Proposal to negotiate an acceptable outcome at a local level with each centre and their relevant manager, resulting in three appendices for any Multi board working allowance relevant to each control centre.

Proposal for appendices to be sent to Senior Manager for comment.

• [60] It was suggested that as the meeting minutes for the meeting were agreed, that means the content of the proposal as to the amount of the allowance was agreed. That is not the ordinarily understood meaning of what agreeing to meeting minutes entails. It is an agreement that the minutes are an accurate representation of the meeting, rather than an agreement to the content. I note the final action item states that the appendices will be sent to senior management.

• [61] I am not satisfied that there was an agreement to the monetary value of the allowance in the meetings for the RMC. Putting the evidence at its highest, Queensland Rail did not object to the figures put forward by the union and the discussion was recorded in meeting minutes. Failing to object is quite different to agreeing. Viewed objectively, it does not reach the level of implied acceptance.

• [62] Mr Bailey was present for the Townsville working party meetings. Initially the arrangement which was proposed in Townsville was a three tier system at $0.50, $1.20 and $1.50 for 3, 5 and 7 boards, respectively.[27] However, in January 2025, the position changed. Mr Bailey stated:

At that meeting, the idea of moving to a two-tier system based on five (5) and seven (7) boards was floated for RMC and Townsville, along with monetary figures that aligned with the dollar values that were apparently discussed during the EBA negotiations. I cannot confirm whether these figures were discussed during the EBA negotiations, only that this was mentioned during the meeting in January 2025. I cannot recall any management representatives pushing back on these figures during the meeting...

As for the financial figures, following the meeting of January 2025, it was my understanding that these would be the figures discussed during the negotiations.[28]

• [63] It is somewhat unconvincing for the unions to argue that the same figures were agreed all the way along, when the evidence of Mr Bailey is that the initial proposal in Townsville was for entirely different monetary amounts. Why would a proposal for different monetary figures be made if an amount had already been agreed? In January 2025, it was then apparently remembered that during bargaining discussions, the figures of $0.98 and $1.89 were apparently agreed. I note this is around the time the dispute resolution process commenced with the employer.

• [64] I find that there was no agreement as to the amount of the allowance in the Townsville working group. Again, I have difficulties with the submission that "not pushing back" amounts to acceptance.

Was there an agreement between the Unions and Queensland Rail regarding how the multi board safe working allowance would be implemented in RC1 and Townsville?

• [65] In relation to RC1, I note that Mr Hempstead gave evidence that he believed the splits between the boards of 2 and 4 had been agreed. This is consistent with the evidence of Mr Kearney a 2 and 4 board split had been agreed by 12 September 2024. The memorandum notes that a tiered structure had been agreed to, but does not state the levels of the tiers. However, there is corroboration between Mr Kearney and Mr Hempstead which suggests they had a common understanding that the number of boards had been agreed. It seems the split of two and four boards was agreed between the members of the working party. Mr Hempstead stated under cross-examination by Mr Ellis:

At the time the RC1 memorandum was signed, can you tell us what split of boards had been agreed to?‑‑‑Two and four.

You, earlier in your opening evidence, commented that Ms Phelan was aware of this arrangement?‑‑‑Yes, she was, yes, yep.

What information did you convey to Ms Phelan about the outcome after you sent her (audio malfunction)?‑‑‑Just the board split. I had been very consistent from the outset that money and finance and all that were things that were outside of my remit, but that's what I went in there to - well, that's what we spoke about and that's what I conveyed to Tammy.[29]

• [66] Queensland Rail argues that any such agreement was subject to the approval of Ms Phelan, which was not provided.[30] However, I do note that the wording of clause 77 appears to state that it is the members of the working party who must agree on the best method of implementation. I cannot accept Queensland Rail's argument that local level discussions cannot give rise to agreement:

Queensland Rail also maintains that, consistent with the principle that nothing is agreed until all matters are agreed, any local-level discussions or understandings, including those involving Ms Tsiavis, could not give rise to a concluded or implementable agreement. The allowance proposal was always subject to senior Queensland Rail leadership approval, and without that approval, no agreement could be made.[31]

• [67] I, however, agree with Queensland Rail that the "full details" of the allowance, as it related to RC1, had not been agreed to. The split between the boards of two and four had been agreed, but not the other necessary details for implementation.

• [68] As stated above, I cannot accept any argument that failing to oppose a proposal is an acceptance of that proposal. Unlike for RC1, there is no documentary evidence to indicate that the parties agreed on anything.

• [69] Further, I cannot accept that a failure by Queensland Rail to call the relevant manager for Townsville, Ms Tsiavis should mean that I can accept the union's position. Even if I were inclined to make a Jones v Dunkel [1959] HCA 8 inference, which I am not on the evidence before me, a Jones v Dunkel inference means that the Commission infers that the evidence of the witness who did not attend would not have assisted Queensland Rail. It does not go further than that in assisting the unions in proving a positive case that Queensland Rail had agreed on the details of implementation.

• [70] The final question for determination is:

3. Where there is no mutual agreement of the parties on the allowance, what should the outcome on the following matters be:

a) The monetary value of the multi board safe working allowance in the three Train Control Centres - RMC, RC1 and Townsville;

b) The number of boards to trigger the multi board safe working allowance in

the three Train Control Centres - RMC, RC1 and Townsville; and

• [71] Comparable allowance mentioned by the ASU include electrical trade qualification allowances.[32] For example, the ASU point to a recent 7% pay increase for employees with electrical trade qualifications under a Queensland Rail agreement. Additionally, other Queensland Government owned organisations pay "attraction/retention" allowances for employees with technical skills. The ASU also points to allowances for air traffic controllers employed by AirServices Australia as a comparable benchmark:

Airservices Australia, a federal Government Owned Corporation, which employs air traffic controllers provides its employees, under the Airservices Australia (Air Traffic

Control and Supporting Air Traffic Services) Enterprise Agreement 2024-2027 (AG2024/2680), a multi-skill allowance - which has three tiers: $100 ($1.38 per hour), $150 ($2.08 per hour), $200 ($2.77 per hour) which are paid fortnightly (these controllers work a 72 hour fortnight). This allowance provides the best available comparison - air traffic controllers, like train controllers, perform high-stakes, safety critical work that requires sustained concentration, fast decision-making, and coordination across complex systems. The multi-skill allowance appears to recognise this and compensates air traffic controllers accordingly.[33]

• [72] The ASU proposes that the allowance should be indexed. As to the split between the tiers of boards, the ASU proposes a 2 / 4 / 6 split. They argue that a three-tier model would work at both RMC and Townsville and would encourage controllers to maintain competency in multiple boards. They note that this approach would not have its full effect in RC1 as the third tier would not apply due to the limited number of boards, but could apply in the future. The monetary value for the third tier would be an amount set by the Commission.

• [73] Mr Donkin gave evidence that the hourly figures of $1.89 and $0.98 arose during a break in discussion. Originally, the unions had pressed for an allowance in the form of $10 and $20 per shift.[34] They brainstormed different amounts and allowances. According to Mr Donkin, the value of the allowance was set so that it was meaningful enough for it to

"incentivise people that put themselves above what was required".[35]

• [74] The RTBU have reinforced their commitment to the structure and payments as outlined in the application in the strong belief that this had been agreed by Queensland Rail. The RTBU is seeking for the allowance to be $0.89 for Tier 1 and $1.89 for Tier 2 with the number of board competence to be 5 boards and 7 boards respectively for the RMC and Townville control centres.

• [75] Queensland Rail fundamentally disputes the matters that the unions contend are driving forces behind the proposal for an allowance. The union points to safety and members dropping boards as primary reasons why the allowance is necessary. Queensland Rail, by contrast, argues that they have had no issue with choices employees are making to drop boards and have been able to provide sufficient trained controllers to operate the network.

• [76] Queensland Rail explained the classification structure and career progression as follows:

1. Trainee Network Control Officer (TNCO)
   1. Completes the 17-week training school.
   2. Gains competency in Freight (MFF) operations and the Assistant role.
   3. Upon successful completion, the PN is upgraded to Train Controller Level 1 (TC1).

1. Train Controller Level 1 (TC1)
   1. Fully qualified in Freight operations and the Assistant role.
   2. Entry-level controller role following training completion.

1. Train Controller Level 2 (TC2)
   1. Recently qualified controller, competent on their first UTC board (generally UTC 1 or UTC 9 less complex boards).
   2. Must achieve this within 12 months of graduating training school.
   3. Non-link owner (for reference, a link is a guaranteed position in a rotating roster that defines your shift pattern and ensures consistent scheduling).

1. Train Controller Level 4 Assistant (TC4)
   1. Link owner.
   2. Positions are filled when a permanent link becomes available.

1. Train Controller Level 5 (TC5)
   1. Permanent link owner with long-term roster allocation.
   2. Represents an advanced controller role with higher stability.

1. Train Controller Leader (TCL)
   1. Leadership role with oversight responsibilities.
   2. Day of Operations Coordinator (DOC).
   3. Oversees daily operational outcomes and provides higher-level coordination.

• [77] Queensland Rail argues that progression through multiple boards occurs through career development which meets current operational requirements. They argue there is no need for additional financial incentives to facilitate movement and progression by employees. There is a classification structure in the Agreement which means, on average, the new starter will achieve the requisite competence for qualification of one board within 12 months. Following this, the employee will move through to completing qualifications for new boards approximately every twelve to eighteen months.

• [78] Queensland Rail sees little value in an allowance when they have enough qualified train controllers at present and the development of employees through the existing process will continue to provide enough train controllers for the foreseeable future.

• [79] Whilst indicating that there is no value to them Queensland Rail does propose an allowance on the following basis:

• [80] Queensland Rail proposes a set of figures based upon the Electrical Licence Allowance of $72.67 per fortnight (which equates to $0.96 per ordinary hour). This is paid to employees who hold an electrical licence. This rate has used for the proposed Tier 2 level. A justification for using this rate is that to qualify through Tier 1 and to achieve Tier 2 requires a similar timeframe for the achievement of an electrical licence.

• [81] Queensland Rail notes that Queensland Rail Train Controllers are among the highest-paid employees in the rail industry. To that end, Queensland Rail provided in their closing submission, following a request from myself for competitive data:

• [82] This evidence supports Queensland Rail's contention that these employees are the top earners in a comparison to other states. I note that the figures do not provide details for allowances and penalty loadings. It is a base rate comparison only. However, Queensland Rail notes that they have not been able to identify any allowance based upon competencies with multiple boards in other states.

• [83] In simple terms, the two rates proposed for RMC and Townsville are $0.49 and $0.99 with the RMC and Townsville having Tier 1 set at competency in 5 boards and Tier 2 set at competency in 7 boards. For RC1, which only has 4 boards, the rate is proposed at $0.29 for Tier 1 and $0.57 for Tier 2 and the number of boards proposed are 3 and 4 Boards respectively.

• [84] Queensland Rails states that their proposal seeks to provide an equitable distribution across the locations based on complexity and number of boards.

• [85] Queensland Rails claims the RMC proposal of the RTBU has a cost differential of $181,397.69 annually in comparison to the QR proposal and the ASU's cost differential is $541,206.32 annually. Queensland Rail reinforces the allowance does not provide any operational or service delivery benefit. They say that qualification and competency on boards are already incentivised through providing more opportunities as board competencies are obtained.

• [86] I note Queensland Rail also provided some guidelines as to how the allowance should be managed.[36]
  1. Definition of Control Board: an employee that is tasked with facilitating the movement of rail traffic and executing associated safe-working duties applicable on permanent / ongoing UTC boards and not duplicated territories (e.g. the boards listed in these submissions).

1. Eligibility criteria extends to TCS and TCT positions.

1. Queensland Rail will determine the numbers of Train Controllers required to be competent and qualified on each board.

1. Eligibility for receipt of the allowance will be implemented as follows:

1. Upon implementation of the multiboard safe-working allowance, the business will identify employees for eligibility.

1. Thereafter, where any employee considers that they meet eligibility for the allowance, it is their responsibility to apply for such allowance by notifying in writing their leader who will assess and approve. If approved, the payment of the allowance will apply from the date the employee applied.

1. The business will periodically review eligibility for the allowance and if it considers an employee is no longer entitled to the allowance, such employee will be notified in writing. The cessation of payment of such allowance will take effect from the date of notification.

1. The timing of implementation of the multiboard safe-working allowance to be from the date of the decision for this arbitration.

1. Should there be changes across the centres, including additional boards or a reduction in boards, the threshold for the tiers will be:

i. RMC - Tier 1 - 50% of applicable boards; Tier 2 - 70% of applicable boards;

ii. Regional centres - Tier 1 - 70% of applicable boards; Tier 2 - 100% of applicable boards

• [87] I accept that the starting point for the determination of the rates should be aligned to the Electrical Licence Allowance. There is no justification for the figures of $0.98 and $1.89. By contrast, the electrical licence allowance as a benchmark makes sense as to progress from Tier 1 to Tier 2 requires a similar length of time as obtaining the licence. It is on this basis that I find that this will be the anchor for the allowance.

• [88] Now, turning to the question of the number of boards for each Tier, this necessarily imposes some difficulties, as each location a different number of boards.

• [89] The number of boards should be set at a rate which motivates employees to maintain and improve their skills, rather than paying a majority of employees for work they already do. I find Queensland Rail's submissions persuasive as a methodology of finding an equitable outcome in terms of complexity of boards and the number and type of boards found across the different locations. It proposes the RMC as a Tier 1 set at 5 Boards and Tier 2 as 7 Boards. This results in 68% of controllers in the RMC qualifying for the Tier 1 allowance.[37]

• [90] A two-tier structure is more easily managed. A three-tier system would involve some more issues translating across each of the locations. The two-level system them can be more easily scaled across Queensland Rail's business. Queensland Rail proposes that the number of boards in Regional Centres should be over 70% of boards for Tier 1 and 100% for Tier 2. I adopt this approach so that the allowance can motivate employees to increase their competencies in boards in across the centres. However, in relation to RC1, my view is that the split of two and four boards should be applied as agreed by the representatives in the working party. If RC1 acquires a fifth board, the split should be 3 and 5, to align better with the proportionate and equitable approach suggested by Queensland Rail.

• [91] I adopt the figure proposed by Queensland Rail of $0.99, which is based on the electrical licence allowance. I adopt that figure for the Tier 2 allowance. For RC1, Queensland Rail proposes a proportional rate for each level of $0.29 for Tier 1 and $0.59 for Tier 2. This is on the basis that RC1 has only 4 boards. The allowance is pro-rated for the number of boards. However, given I have determined that the Tier 1 should be set at 2 boards, then, in line with the proportionate methodology, the allowance for Tier 1 in RC1 should be 2/5th of $0.49, or $0.20. While this is a lower amount, more employees will receive the allowance.

• [92] I disagree with Queensland Rails' submission that the allowance should be limited to ordinary hours worked. The use of the competency on multiple boards is not limited to ordinary hours and so I determine that the allowance will be on all hours worked which includes overtime. To be clear, it is not to be multiplied by shift or overtime penalties, it is a flat rate paid for all hours worked.

• [93] Further, I note the parties agree on the method of determining eligibility proposed by Queensland Rail.[38] I propose that Queensland Rail's submission at paragraph [86] above be adopted as they provide a means of implementing and maintaining the allowance into the future. Those guidelines should reduce disagreements on how the allowance is applied.

• [94] As the parties enter bargaining for the new agreement, they may wish to re-negotiate details of the allowance set out above. I would recommend the parties do not include a facilitative provision such as this one in the next agreement.

• [95] I find that the answers to the questions posed for arbitration are:

1. Was there an agreement between the ASU and the RTBU (together, the Unions) and Queensland Rail during negotiations for the Queensland Rail Train Control Enterprise Agreement 2023 (the Agreement), on the monetary value for the multi board safe working allowance in the three Train Control Centres - RMC, RC1 and Townsville?

1. Was there an agreement between the Unions and Queensland Rail regarding how the multi board safe working allowance would be implemented in RC1 and Townsville?

There was no agreement in Townsville. For RC1, the working party agreed on a two-tiered structure of two and four boards.

1. Where there is no mutual agreement of the parties on the allowance, what should the outcome on the following matters be:

a) The monetary value of the multi board safe working allowance in the three Train Control Centres - RMC, RC1 and Townsville;

b) The number of boards to trigger the multi board safe working allowance in

the three Train Control Centres - RMC, RC1 and Townsville; and

b) Any other matters relevant to implementation.

The allowance should apply to all hours worked, including overtime. The other details of implementation are as per Queensland Rail's implementation guidelines.

[5] Witness Statement of Tammy Phelan [45]

[10] Richard Donkin Witness Statement RD2

[11] Dion Matley Witness Statement [5]

[14] Dion Matley Witness Statement [12]

[17] Joshua Kearney Witness Statement [28].

[24] Sean Clinton Witness Statement [100].

[27] Nick Bailey Witness Statement [21].

[30] Queensland Rail Closing Submissions [34]

[32] Union joint reply submissions [107]-[108]

[33] Joint union closing submissions [109]

[36] Queensland Rail Submissions [34]

[38] ASU submissions [39]; Transcript PN77

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