Fair Work Commission|2025-10-23|Before: Commissioner P

Australian Rail, Tram and Bus Industry Union v Sydney Trains [2025] FWC 3065 (23 October 2025)

The attached document replaces the document previously issued with the above code on 14 October 2025.

The name of the Respondent in the title of the decision has been amended and minor typographical amendments have been made to paragraphs [25], [28], [45], [54], and [80].

s.739 - Dispute resolution

Dispute about a matter arising under the enterprise agreement

[1] This decision concerns an application by the Australian Rail, Tram and Bus Industry Union (ARTBIU) pursuant to s.739 of the Fair Work Act 2009 (FW Act) in respect of a dispute with Sydney Trains (Sydney Trains).

[2] The dispute relates to the Workplace Training and Assessment Allowance (WTA Allowance) in Schedule 6B of the Sydney Trains and NSW TrainLink Enterprise Agreement 2022 (Agreement).

[3] The ARTBIU contends that employees engaged as Standards Officers are entitled to be paid the WTA Allowance as they perform training and assessing duties as part of their usual duties.

[4] Sydney Trains contends that the WTA Allowance is an incentive and reward payable to employees who perform workplace training and assessment duties when those duties are not otherwise part of their usual duties.

[5] Clause 8 of the Agreement sets out the dispute settlement procedure and, following compliance with Steps 1-3 set out in clause 8.6, provides that the dispute (if unresolved) may be referred to the Fair Work Commission (Commission) under Step 4.

[6] Step 4 authorises the Commission to resolve disputes that fall within the scope of clause 8.2 by conciliation, and if conciliation is unsuccessful, by arbitration. The dispute was unable to be resolved by conciliation and proceeded to arbitration. There is no dispute between the parties as to jurisdiction, and I am satisfied on the materials before the Commission that I have jurisdiction to arbitrate the dispute.[1]

[7] In programming the matter for arbitration, the parties settled on the following question to be determined:

Are Standards Officers entitled to the allowance at Item 35 in Schedule 6B of the Sydney Trains and NSW TrainLink Enterprise Agreement 2022?

[8] The matter was heard on 18 February 2025. Witness statements were tendered from the following persons, who each gave evidence at the hearing:

Mr Trent Eldridge, employed by Sydney Trains in the role of Standards Officer and the ARTBIU Delegate (Exhibit A1 and Exhibit A2);

Mr Ryan Smith, employed by Sydney Trains in the role of Standards Officer (Exhibit A3);

Ms Amanda Perkins, employed by the ARTBIU in the role of Organiser (Salaried and Admin Division) (Exhibit A4);

Mr Allan Foster, employed by Sydney Trains in the role of Employee Relations Manager (Exhibit R1);

Mr Mario Chalouhi, employed by Sydney Trains in the role of Manager, Standards Competency Officer Team (Exhibit R2); and

Mr Michael Murray, employed by Transport for NSW in the role of Senior Remuneration Partner (Exhibit R3).

[9] The following documents were admitted into evidence:

The Rail Corporation New South Wales, Rail Infrastructure Corporation and the State Rail Authority Of New South Wales Enterprise Agreement 2005 (2005 Agreement) (Exhibit R4).

[10] The Agreement was approved on 10 February 2023 and commenced operation on 17 February 2023.[2] The Agreement replaced the Sydney Trains Enterprise Agreement 2018.

[11] The relevant provisions of the Agreement are set out in Section 6 of the Agreement as follows:

This Section 6 applies to Employees whose positions fall within the classifications in Schedule 6A The provisions of this Section are principally derived from the Railways Professional Officers Award 2002, the Salaried Officers (Railways - New South Wales) Award 2002, and the Senior Officers Rail, Bus and Ferries New South Wales Award 2002.

This division applies to all Employees as set out in Schedule 6A.

166 RATES OF PAY, ALLOWANCES AND EXPENSES - GENERAL

166.1 The current rates of pay are set out in Schedule 6A.

166.2 Allowances and expenses are contained in Schedule 6B.

Travelling and Incidental Expenses General - Other Allowances

Item 35 Workplace Training and Assessment (per hr) [2022] $4.97 [2023] $5.12.

[12] In 2008, Mr Eldridge was employed by RailCorp (and later transferred to Sydney Trains) as a Train Driver, before being appointed to the role of Standards Officer in 2018. Mr Eldridge stated that Standards Officers undertake various workplace training and assessing functions including competency training and safety refresher training. Mr Eldridge stated that Standards Officers are required to hold a certification in training and assessment. Mr Eldridge attached a copy of the position description for a Standards Officer which sets out the key accountabilities as follows:

Undertake Competency Assessments for train crew, station staff and other Rail Safety Workers as required to support line manager requirements and NSW Trains assuring the ongoing competence of staff.

Provide expertise and advice for technical and Rail Safety incidents.

Monitor compliance with minimum operating standards, network rules and procedures with prescribed training provisions from the Train Operations Manual, RailSafe Training Standards and Interstate Network Requirements applicable to the rail safety work to be performed as specified across a designated region of NSW Trains. Keep abreast of regulatory changes within a complex operating environment.

Work cooperatively within a team, exchange information and assist other team members to achieve team objectives and work outcomes.

Comply with the System Requirement, Safety Responsibilities, Authorities and Accountabilities within the Safety Management System. Undertake the role of Authorised Person which includes directing staff and contractors to undergo drug and alcohol testing under the Rail safety National Law.

Promote and adhere to the Public Sector Values of Integrity, Trust, Service and Accountability, and the organisation's Code of Conduct and manage business processes to ensure the proactive identification of risk and there view and improvement of systems designed to minimise or eliminate fraud and corruption.

Promote and advocate contemporary safety practices to enable industry best practice is implemented across NSW Trains. Consistently deliver improvements and efficiencies and set a platform for increased commerciality.

[13] In 2022, Mr Eldridge was appointed to the role of ARTBIU Delegate. Mr Eldridge stated that after being appointed to that role, he carefully read the Agreement so that he could properly assist ATRBIU members with any potential enquiries.

[14] Mr Eldridge stated that upon reviewing the Agreement he noted the WTA Allowance at Item 35 of Schedule 6B.

[15] On 30 September 2023, Mr Eldridge submitted a timesheet which claimed the WTA Allowance. Mr Eldridge stated that he claimed the WTA Allowance because he was performing training and assessing duties.

[16] Mr Eldridge did not receive payment of the WTA Allowance in that pay period. This prompted Mr Eldridge to send an enquiry to a Team Leader within Sydney Trains' Payroll Team on 4 October 2023. Mr Eldridge's enquiry was subsequently referred to the SSO Payroll Corporate Services, who advised Mr Eldrdige that the WTA Allowance had not been paid due to an oversight and that he will receive payment in the next pay period.

[17] Mr Eldridge stated that he told all other Standards Officers how to claim the WTA Allowance and that from October 2023 to 31 March 2024 the WTA Allowance was claimed by the Standards Officers without issue. Mr Eldridge stated that on each occasion he submitted his timesheet, his immediate manager, Mr Adam Anderson countersigned the timesheet authorising the payment.

[18] Mr Eldridge stated that he spoke to Mr Anderson about claiming the WTA Allowance but cannot recall what was said beyond him telling Mr Anderson that he was claiming the WTA Allowance.

[19] In February 2024, Mr Eldridge spoke to Ms Perkins about seeking backpay for the WTA Allowance for the period prior to October 2023.

[20] On 26 March 2024, Mr Eldridge was advised by Sydney Trains that the payment of the WTA Allowance will cease as Standards Officers receive a salary which remunerates them for their training and assessment functions and therefore they are not eligible for the WTA allowance.

[21] Mr Smith was employed as a Train Driver in May 2017 and was appointed to the role of Standards Officer in April 2018.

[22] Mr Smith stated that Standards Officers are required to have attained certificate IV in training and assessment and undertake training of employees in relation to relevant rules and procedures, course codes and safe working conditions. Mr Smith stated that he believed Standards Officers were entitled to claim the WTA Allowance because they are qualified to provide training and assessment, undertake training and assessment duties as part of their role, and have claimed other allowances that are set out in Schedule 6B of the Agreement.

[23] Mr Smith stated that he started claiming the WTA Allowance on his timesheet in October 2023. Mr Smith stated that there were approximately 11 Standards Officers who claimed and were paid the WTA Allowance.

[24] Mr Smith stated that in February 2024, he and Mr Eldridge spoke to Ms Perkins about the issue of back pay of the WTA Allowance for training and assessment duties undertaken prior to October 2023. Mr Smith stated that shortly after raising the issue of back pay, he was advised that Standards Officers are not eligible for the WTA Allowance, as it only applies to employees who do not have training and assessment duties in their position description, but perform those duties on an ad hoc basis.

[25] Mr Smith stated he believes Standards Officers were deemed ineligible because the issue of back pay was raised. Mr Smith also stated that he was concerned that training and assessing duties are being performed by persons who have not attained a certificate IV in training and assessment.

[26] Ms Perkins is employed by the ARTBIU in the role of Organiser (Salaried and Admin Division). As part of her role, Ms Perkins organises salaried and administrative staff at Sydney Trains and NSW Trains, including Standards Officers.

[27] Ms Perkins stated that she was aware that a number of Standards Officers claimed and were paid the WTA Allowance for a period of approximately 6 months from October 2023 to March 2024.

[28] Ms Perkins stated that in February 2024, and in response to ARTBIU members raising issue of back pay of the WTA Allowance for training and assessment duties undertaken prior to October 2023, she had informal discussions with Ms Jasmin Streimer, the Director of Service Delivery, NSW Trainlink regarding the issue of back pay of the WTA Allowance. Ms Perkins and Ms Streimer also exchanged the following correspondence:

On 15 February 2024, Ms Perkins sent correspondence to Ms Streimer stating:

Please find attached the list of Standards Officers and their length of service for the purpose of calculating back pay.

This is in relation to the Training and Assessment Allowance.

On 29 February 2024, Ms Perkins sent correspondence to Ms Streimer stating:

I sent the requested length of service for the standards officers some time ago.

On 29 February 2024, Ms Streimer sent correspondence to Ms Perkins stating:

I am awaiting feedback from IR. I chased it again today to determine progress and will be in touch.

On 19 March 2024, Ms Perkins sent correspondence to Ms Streimer stating:

We really need to action the back pay for Standards Officers.

I am going to write formally today giving the business 7days otherwise it will need to be handed over to our legals.

[29] Ms Perkins stated that in their discussions, Ms Streimer did not confirm or dispute the eligibility of the Standards Officers to receive payment of the WTA Allowance.

[30] Mr Foster commenced employment with Sydney Trains in 2016.

[31] Mr Foster stated that he undertook a review of Sydney Trains' records regarding the payment of the WTA Allowance. Mr Foster stated that since 2020, employees in the following roles have received payment of the WTA Allowance: Rail Maintainers, Shunters, Mechanics, Customer Service Attendants, Incident Managers, Drivers, and Guards.

[32] Mr Foster stated that none of those roles have workplace training and assessment duties within the position description. Mr Foster further stated that driver trainers and guard trainers do not receive payment of the WTA Allowance.

[33] Mr Chalouhi commenced employment with RailCorp in 2003 as a trainee driver. After driving trains for approximately 6 years, Mr Chalouhi was appointed to the role of Operations Standards Manager in 2009, before being appointed to the role of Senior Operations Standards Manager in 2011.

[34] Mr Chalouhi stated that following the transfer to RailCorp's functions to Sydney Trains and NSW Trainlink in 2013, the roles of Senior Operations Standards Manager and Operations Standards Manager were made redundant, and the roles of Standards Officer and Standards Competency Officers were created. In his current role, Mr Chalouhi manages the Standards Competency Officer Team. Mr Chalouhi stated that it is a core function of a Standards Competency Officer to conduct training and assessment.

[35] Mr Chalouhi stated that it is his understanding that Standards Officers and Standards Competency Officers are not entitled to be paid the WTA Allowance.

[36] Mr Murray stated that he has been employed as a Senior Remuneration Partner at Sydney Trains since September 2019.

[37] Mr Murray stated he had reviewed the position description for Standards Officers and stated that the key accountabilities are listed in order of importance.

[38] Mr Murray stated that Sydney Trains uses the Mercer Process to grade positions under the Agreement. Mr Murray stated that the role of Standards Officer was last evaluated in 2018 and scored 326 points aligning to the RC5 classification under the Agreement. Mr Murray stated that if the training and assessment functions of a Standards Officer were removed, it would lower the points score to 295, aligning it with the RC4 classification under the Agreement.

[39] The ARTBIU submitted that the matter before Commission involves the interpretation of the Agreement in circumstances where ambiguity exists in that there is an allowance in a schedule of the Agreement and there is no text as to how the allowance applies.

[40] The ARTBIU submitted that the matter was analogous to the circumstances that arose in "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Berri Pty Ltd[3] (Berri) in two ways. First, the ARTBIU submitted that there is an allowance in the Agreement and no explanation as to how it applies. Second, the decision in Berri outlines the applicable principles for interpreting an enterprise agreement.

[41] The ARTBIU submitted that in this case the WTA Allowance was paid over a period of 6 months with management involvement and cannot be described as mere inadvertence. The ARTBIU submitted that the duration over which the payment was made without complaint is post-agreement conduct demonstrative of a common understanding between the parties.

[42] The ARTBIU submitted that the Commission should draw an inference from the failure of Sydney Trains to lead evidence from Mr Anderson. The ARTBIU submitted that Ms Streimer did not dispute the eligibility of Standards Officers to be paid the WTA Allowance and the only issue in dispute related to back-pay.

[43] The ARTBIU submitted that on Sydney Trains' interpretation, the only employees who would receive the WTA Allowance under Schedule 6B are customer service attendants. The ARTBIU submitted that the principles set out in Berri make clear that the interpretation of an enterprise agreement begins with the ordinary meaning of the words and that it is not for a party to invent how a clause without any guidance should be interpreted.

[44] The ARTBIU submitted that the ordinary meaning of the words "Workplace Training and Assessment (per hr)" suggest the allowance exists to provide an hourly based payment for time spent training and assessing.

[45] The ARTBIU submitted that interpretation advanced by Sydney Trains was invented in response to the query regarding back-pay and Sydney Trains has not explained why particular rules apply to the WTA Allowance but do not apply to other allowances in Schedule 6B claimed by the Standards Officers.

[46] The ARTBIU submitted that issue can be resolved in favour of the Standards Officers having regard to the post-agreement conduct of the parties.

[47] Sydney Trains submitted that the WTA Allowance is payable to employees who perform workplace training and assessment duties despite that not being an ordinary part of their job. Sydney Trains submitted that Standards Officers are not entitled to the WTA Allowance because workplace training and assessment is an ordinary and dominant part of their role.

[48] Sydney Trains agreed with the ARTBIU that the entitlement to the WTA Allowance is ambiguous and submitted that without any text beyond a line item in a table in Schedule 6B, custom and other context is relevant to determine the correct application of the WTA Allowance.

[49] Sydney Trains submitted that since at least 2005, it has not paid the WTA Allowance to Standards Officers, the only exception being the period from October 2023 to March 2024. Sydney Trains submitted that the payment over this period occurred because it was sought through direct contact with a payroll officer rather than discussing the matter with management. Sydney Trains submitted that Mr Anderson's signing of the timesheets authorising payment of the WTA Allowance, and the payroll officer's processing of the payment, were erroneous and that once the issue was raised with the appropriate persons at Sydney Trains, payment of the WTA Allowance ceased. Sydney Trains submitted that Mr Anderson is the immediate line manager of the Standards Officers and that his interpretation of the Agreement would not be of any assistance to the Commission and therefore, no inference should be drawn from his absence.

[50] Sydney Trains submitted that under the 2005 Agreement there was no driver trainer or guard trainer classifications and that driver training and guard training was undertaken by drivers and guards who were paid the WTA Allowance for the time they spent training other employees. Sydney Trains submitted that employees classified as Station Ops CSA Coaches and Salespersons Coaches received an allowance for delivering coaching, not workplace assessment and training.

[51] Sydney Trains submitted that under the Mercer Process, the Standards Officers have been graded and receive a salary component for workplace training and assessment as it is a major, if not the dominant, component of their role.

[52] Sydney Trains submitted that the context points to the WTA Allowance applying to, or being an entitlement of, employees in roles who do not ordinarily perform training and assessing duties.

[53] Sydney Trains submitted the claiming of the WTA Allowance by the Standards Officers was an "opportunistic" claim that slipped by the relevant persons at Sydney Trains who knew the proper application and intention of the WTA Allowance.

[54] Sydney Trains submitted that the answer to the agreed question should be: no.

[55] Notwithstanding Mr Eldridge could not recall the detail of his conversations with Mr Anderson, the ARTBIU pressed its submission that the Commission should draw an inference from Mr Anderson's absence.

[56] The ARTBIU disagreed with Sydney Trains' characterisation of the "error" and submitted that management was involved in authorising the timesheets and therefore it was not merely a payroll error.

[57] The ARTBIU disagreed with Sydney Trains' interpretation of the 2005 Agreement and submitted that employees classified as Stations Ops CSA Coaches and Salespersons Coaches received the WTA Allowance albeit at a different hourly rate to Crewing Trainers and Operations Trainers. Furthermore, the ARTBIU submitted the role of Standards Officers did not exist in 2005.

[58] The ARTBIU submitted that Mr Murray's evidence regarding the Mercer Process should be given limited weight because it is not supported by the underpinning modelling for the scores.

[59] Finally, the ARTBIU submitted that when considering the ordinary meaning of the words "Workplace Training and Assessment" it is an allowance for people who train and assess.

[60] The issue in this matter concerns whether Standards Officers are entitled to the WTA Allowance as set out at Item 35 of Schedule 6B of the Agreement. The resolution of this issue necessarily involves determining the proper construction of the Agreement.

[61] The principles governing the interpretation of enterprise agreements are well established. In Berri, a Full Bench of the Commission set out the approach that the Commission should take to the construction of enterprise agreements as follows:

The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from: (i) the text of the agreement viewed as a whole; (ii) the disputed provision's place and arrangement in the agreement; (iii) the legislative context under which the agreement was made and in which it operates.

The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.

The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.

The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.

The FW Act does not speak in terms of the 'parties' to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are 'covered by' such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement 'with the employees who are employed at the time the agreement is made and who will be covered by the agreement'. Section 182(1) provides that an agreement is 'made' if the employees to be covered by the agreement 'have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement'. This is so because an enterprise agreement is 'made' when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.

Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.

In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.

Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.

If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.

If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.

The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.

Evidence of objective background facts will include: (i) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement; (ii) notorious facts of which knowledge is to be presumed; and (iii) evidence of matters in common contemplation and constituting a common assumption.

The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.

Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties' intention or purpose was.

In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.

[62] In Workpac Pty Ltd v Skene[4], the Full Court of the Federal Court succinctly restated the principles as follows:

"The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context. The interpretation "...turns on the language of the particular agreement, understood in the light of its industrial context and purpose ...". The words are not to be interpreted in a vacuum divorced from industrial realities; 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. 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."

[63] These principles were repeated by the Full Court of the Federal Court of Australia in James Cook University v Ridd[5], as follows:

(i) The starting point is the ordinary meaning of the words, read as a whole and in context.

(ii) A purposive approach is preferred to a narrow or pedantic approach - the framers of such documents were likely to be of a "practical bent of mind". The interpretation "turns upon the language of the particular agreement, understood in the light of its industrial context and purpose".

(iii) Context is not confined to the words of the instrument surrounding the expression to be construed. It may extend to "... the entire document of which it is a part, or to other documents with which there is an association".

(iv) Context may include "... ideas that gave rise to an expression in a document from which it has been taken".

(v) Recourse may be had to the history of a particular clause "Where the circumstances allow the court to conclude that a clause in an award is the product of a history, out of which it grew to be adopted in its present form...".

(vi) A generous construction is preferred over a strictly literal approach, but "Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties".

(vii) Words are not to be interpreted in a vacuum divorced from industrial realities but in the light of the customs and working conditions of the particular industry.

[64] In subsequent decisions, the Commission has applied the principles as set out by the Full Court.[6] As observed by Anderson DP in United Workers' Union v Blowflex Mouldings Pty Ltd T/A Bega Dairy and Drinks[7], those principles largely reflect the principles summarised by the Full Bench in Berri.

[65] As set out earlier, the only textual reference to the WTA Allowance in the Agreement is the amount per hour set out at Item 35 in Schedule 6B which states:

Item 35 Workplace Training and Assessment (per hr) [2022] $4.97 [2023] $5.12.

[66] The Agreement does not otherwise contain any text regarding the eligibility or entitlement for an employee to be paid the WTA Allowance.

[67] In construing the Agreement, the starting point is to consider the ordinary meaning of the words in the context of which they appear, and whether the Agreement has a plain meaning or if it is ambiguous or susceptible of more than one meaning. There was no dispute between the parties, and I agree, that the Agreement is ambiguous in relation to the eligibility or entitlement to the WTA Allowance.

[68] The ARTBIU submits that the ambiguity can be resolved by reference to the post-agreement conduct of the parties - specifically the payment of the WTA Allowance to the Standards Officers over the period between October 2023 to March 2024.

[69] In Berri, the Full Bench stated that "the admissibility of post-contractual conduct as an aid to the construction of a contract is a somewhat vexed issue, in respect of which no clear line of authority has emerged."[8] The Full Bench then set out the following analysis of relevant authorities:

[102] Some early High Court authority permitted the admissibility of post-contractual conduct as an aid to construction. But obiter in more recent High Court judgements tends to support the view that such evidence is inadmissible.

[103] Further, in Agricultural and Rural Finance Pty Ltd v Gardiner, a majority of the High Court adopted the 'general principle' that 'it is not legitimate to use as an aid to the construction of [a] contract anything which the parties said or did after it was made'. Of course, the expression 'general principle' is itself somewhat ambiguous, as Campbell JA observed in Franklins Pty Ltd v Metcash Trading Ltd (Metcash):

'It might mean that it is a principle that applies in all cases, or that it is a principle that usually applies, though perhaps being subject to exceptions.'

[104] As Allsop P observed in Metcash (at [6]), 'much ink has been spilt over the last 30 years on this topic'. There is a daunting array of intermediate appellate court judgements on the admissibility of post contractual conduct, but no clear consensus appears to have emerged.

[105] The judgement of Santow J in Spunwill Pty Ltd v BAB Pty Ltd gave detailed consideration to whether subsequent conduct may be used as an aid to construction. Spunwill is a significant first instance judgement that has been considered, and cited with approval, in some of the intermediate appellate court judgements which have dealt with this issue. After considering the relevant authorities, Santow J concluded that the use of subsequent conduct as an aid to the construction of a contract:

'... will be legitimate under the objective theory of contract in the limited circumstances where conduct evidences a clear and mutual subjective intention as to what the contract originally meant.'

[106] In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But, consistent with the view expressed by Santow J in Spunwill, the post-contractual conduct must be such as to found a common understanding - a settled interpretation accepted by the parties.

[107] We also note that in Spunwill Santow J observed that in deciding on the weight to be given to extrinsic evidence of post contractual conduct as part of the surrounding circumstances, it was useful to refer to the following passage from the judgment of Lambert JA in the Canadian case of Re Canadian National Railways and Canadian Pacific Ltd :

'In the case of evidence of subsequent conduct the evidence is likely to be most cogent where the parties to the agreement are individuals, the acts considered are the acts of both parties, the acts can relate only to the agreement, the acts are intentional and the acts are consistent only with one of the alternative interpretations. Where the parties to the agreement are corporations and the acts are the acts of employees of the corporations, then evidence of subsequent conduct is much less likely to carry weight. In no case is it necessary that weight be given to evidence of subsequent conduct.'

[108] In the present case, one of the parties to the 2014 Agreement is a corporation and, further, the post-agreement conduct amounted to little more than the absence of a complaint about the non-payment of a laundry allowance. Such evidence is insufficient to establish a common understanding. As Gray J observed in ALHMWU v Prestige Property Services Pty Ltd:

'Care must be taken ... to distinguish a common understanding from common inadvertence ... In order to have an understanding, it is necessary that there be a meeting of minds, a consensus. There can be no meeting of minds, no consensus, if no one has thought about the issue.'

[70] In Sheehan v Theiss Pty Ltd[9], Colvin J stated that an enterprise agreement:

...is not to be construed by reference to the conduct of parties subsequent to its approval. This position has been adopted in respect of industrial awards: City of Wanneroo v Holmes [1989] FCA 553 at 36 (French J) (a decision quoted with approval in the context of industrial awards in the recent decision of Skene as applied in Hay Point Services). It is a position that applies to commercial instruments because they take their meaning at the time they were made, not as adjusted by subsequent conduct. The same can be said of industrial agreements. Therefore, it is not legitimate to use anything the parties said or did after the agreement was made as an aid to construction: Agricultural and Rural Finance Pty Ltd v Gardiner [2008] HCA 57; (2008) 238 CLR 570 at [35].

[71] An appeal from his Honour's judgment was dismissed by the Full Court.[10] However, the reasons of the Full Court do not cast any doubt on the observations of Colvin J.

[72] In Australian Workers' Union v Orica Australia Pty Ltd,[11] a Full Bench of the Commission set out the following analysis of authorities relevant to the issue of post-agreement conduct:[12]

...despite the suggestion in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union' known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited that post agreement conduct may, in particular circumstances, be admissible as part of the surrounding circumstances to establish a common understanding of the parties, for the following reasons, we do not consider that evidence of post agreement conduct is admissible for that purpose.

• As stated by the Full Court in Toyota Motor Corporation Australia Ltd v Marmara, an enterprise agreement is an agreement in name only and it obtains statutory force upon approval by the Commission. There is a real difficulty in seeking to assign post agreement conduct of persons covered by the agreement to "parties" since enterprise agreements are not made by parties but rather are made when one or more employers asks employees to vote to approve a proposed agreement and a majority of employees of a voting cohort of employees, vote to approve it. All the more so when persons now covered were not or might not have been employed when the agreement was made or as here where the conduct (or a large part of it) on which reliance was placed was conduct of the AWU which, as already noted was not a party.

• More relevant, is that in Berri it was evident the Full Bench relied on the judgment in Spunwill Pty Ltd v BAB Pty Ltd in order to formulate the principle set out at [114, 15] of that decision. However, the NSW Court of Appeal in Magill v National Australia Bank Limited expressly rejected the approach to post contractual conduct adopted in Spunwill and preferred the view of Bryson J in Sportsvision Australia Pty Limited v Tallglen Pty Limited. In Magill, the Court of Appeal considered the reasoning of Lord Reid in James Miller & Partners Limited v Whitworth Street Estates (Manchester) Limited to be "unanswerable". In Miller His Lordship said:

"I must say that I had thought that it is now well settled that it is not legitimate to use as an aid in the construction of the contract anything which the parties said or did after it was made. Otherwise one might have the result that a contract meant one thing the day it was signed, but by reason of subsequent events meant something different a month or year later."

• Magill was not brought to the attention of the Full Bench in Berri. Magill is in our view a correct statement of the law. Moreover, a focus on the text of the instrument made rather than the manner in which the parties actually conducted themselves in their relationship after it was made was also at the heart of the judgment of the plurality in ZG Operations Australia Pty Ltd v Jamsek.

[73] It is apparent from the above analysis that the general rule is that post-agreement conduct is not admissible. However, in Australian Rail, Tram and Bus Industry Union v Qube Logistics (Rail) Pty Ltd[13], Flick J observed that there are exceptions to the general rule:

One exception to the general rule is thus where the post-contractual "conduct evidences a clear and mutual subjective intention as to what the contract originally meant"; another exception is that post-agreement conduct may be admissible "as part of the surrounding circumstances" if it provides evidence of "mutual subjective intention".[14]

[74] In Australian Rail, Tram and Bus Industry Union v KDR Victoria Pty Ltd t/a Yarra Trams[15], Wheelahan J observed that although reference to post-contractual conduct as an aid to construction is no longer accepted as a general principle of contractual interpretation, the way in which industrial parties conduct themselves under successive industrial instruments remains a permissible aid to the construction of a successor instrument in an appropriate case, but caution should be exercised.[16] His Honour cited a series of decisions of Gray J and stated:[17]

...The reasons for caution before regard may be had to a suggested common understanding commence from the premise that it is the instrument itself that is to be construed, and any recourse to industrial practices said to amount to a common understanding are no more than part of the context in which the text of the instrument is to be construed. Industrial practices do not take the place of the terms of the instrument. There is also the need to maintain coherence with other principles, including that: (1) usually, recourse to extrinsic matters cannot displace the clear meaning of text; (2) the subjective understanding of individuals is rarely relevant to objective meaning; (3) this is also the case in relation to collective agreements where surrounding circumstances might have to rise to the level of being notorious or known by those intended to be bound by the instrument (Sheehan v Thiess Pty Ltd at [22] (Colvin J)); and (4) parties cannot by words or conduct contract out of, or waive the terms of an enterprise agreement, which has statutory force: Josephson v Walker [1914] HCA 68; (1914) 18 CLR 691 at 700 (Isaacs J); Metropolitan Health Service Board v Australian Nursing Federation [2000] FCA 784; 99 FCR 95 at [17]-[25] (French J); Textile, Clothing and Footwear Union of Australia v Givoni Pty Ltd [2002] FCA 1406; 121 IR 250 at [25]-[35] (Goldberg J); ACE Insurance Ltd v Trifunovski [2011] FCA 1204; 200 FCR 532 at [135]-[142] (Perram J); Fair Work Ombudsman v Foot and Thai Massage Pty Ltd (in liq) (No 4) [2021] FCA 1242 at [892] (Katzmann J).

[75] In the matter before me, the ARTBIU submits that the involvement of management in authorising the payments and the duration over which they were made is post-agreement conduct demonstrative of a common understanding between the parties. Having regard to the above authorities, the conduct must evidence a clear and mutual subjective intention as to what the Agreement originally means or, if part of the surrounding circumstances, evidence of mutual subjective intention. For the following reasons, I do not accept that the post-agreement conduct falls within the scope of either of the exceptions.

[76] The evidence of Mr Eldridge was that he was reviewing the Agreement and noticed the WTA Allowance and submitted a claim and was paid. He subsequently informed the other Standards Officers and they each received payment for a period of approximately 6 months. The 'involvement of management' referred to by the ARTBIU was Mr Anderson, the immediate line manager for the Standards Officers who signed the timesheets authorising payment of the WTA Allowance. Mr Eldridge's discovery and subsequently claiming of the WTA Allowance was simply based on the name of the allowance and that Standards Officers undertake training and assessing duties. Beyond that Mr Eldridge did not know whether the WTA Allowance applied to Standards Officers. Although he was unable to recall the details of any of his discussions with Mr Anderson about the eligibility of the WTA Allowance, Mr Eldridge was firm in his evidence that if Mr Anderson considered it did not apply to the Standards Officers, Mr Anderson would have told him. Mr Eldridge stated that in those circumstances he would not have claimed the WTA Allowance.[18]

[77] I also do not accept that the interactions between Ms Perkins and Ms Streimer rise to the level of evidence of mutual subjective intention. The evidence goes no further than Ms Perkins raising the issue with Ms Streimer and Ms Streimer escalating the issue internally which resulted in the cessation of the payment of the WTA Allowance. Ms Perkin's evidence was that at no stage did Ms Streimer agree or disagree with the ARTBIU's interpretation as to whether the Standards Officers were eligible for the WTA Allowance. Ms Streimer simply referred the ARTBIU's request for back-pay to "IR".

[78] Once the relevant persons within Sydney Trains became aware that the Standards Officers were claiming payment of the WTA Allowance the payments ceased.

[79] The evidence set out above falls significantly short of conduct evidencing a clear and mutual subjective intention of what the Agreement means. Furthermore, and as stated in the judgment of Lambert JA in the Canadian case of Re Canadian National Railways and Canadian Pacific Ltd, where the subsequent conduct is the acts of employees of a corporation, the conduct is much less likely to carry weight.[19] Although Sydney Trains submits that it has not paid the WTA Allowance to Standards Officers since at least 2005, I have placed limited weight on that submission noting that to the extent that is conduct by the employer over successive instruments, there is limited evidence supporting that submission, and the terms of the successive instruments are not in evidence.

[80] Even if I am wrong on the issue of post-agreement conduct, the practice of the parties cannot take the place of the text of the instrument. Evidence of the surrounding circumstances or post-agreement conduct that falls within the exceptions identified in Spunwill is an aid to the interpretation of an agreement and cannot be used to rewrite the provisions of an agreement. As the principles make clear, the interpretation of an agreement turns on the language of the agreement. In this case, there is simply no text that sets out the eligibility criteria to receive payment of the WTA Allowance and the evidence of the surrounding circumstances does not rise to the level of being notorious or known by those intended to be bound by the instrument, and does not establish that there was a meeting of the minds or consensus.

[81] A number of witnesses gave evidence as to their subjective understanding. However, the subjective understanding of individuals is rarely relevant to the objective meaning and I have placed no weight on that evidence. For the same reason, I decline to draw any inference in relation to the failure by Sydney Trains to call Mr Anderson to give evidence. The timesheets signed by Mr Anderson speak for themselves, and any evidence of his subjective understanding of the eligibility or entitlement to receive payment of the WTA Allowance is not relevant.

[82] The ARTBIU submits that Standards Officers have claimed other allowances under Schedule 6B and that supports a construction that the WTA Allowance applies to any persons undertaking training and assessing duties. I do not accept that submission. The eligibility or entitlement to receive payment of an allowance under an enterprise agreement or modern award can be triggered under a multitude of circumstances and turns on the relevant provisions of the instrument. That an employee is entitled to receive payment of one allowance under a schedule in an enterprise agreement or modern award, has no bearing upon whether the same employee is entitled to receive payment of a different allowance under the same schedule, merely because the two allowances appear in the same schedule.

[83] The ARTBIU also submits the WTA Allowance must have some work to do and that the name suggests the allowance exists to provide an hourly based payment for time spent training and assessing. However, the starting point is to determine whether the Agreement has a plain meaning or if it is ambiguous or susceptible of more than one meaning and, the task is always one of interpreting the agreement produced by the parties. In this case, the Commission is being asked to ascribe the eligibility or entitlement criteria to an allowance in the absence of any words other than the name of the WTA Allowance.

[84] In the absence of any provisions setting out the eligibility or entitlement to the WTA Allowance, the Standards Officers are not entitled to receive the allowance.

[85] In conclusion, the answer to the agreed question for arbitration is:

Are Standards Officers entitled to the allowance at Item 35 in Schedule 6B of the Sydney Trains and NSW TrainLink Enterprise Agreement 2022?

Ms J Cooper for the Australian Rail, Tram and Bus Industry Union.

[1] See also clauses 6.1 and 8.11 of the Sydney Trains and NSW TrainLink Enterprise Agreement 2025.

[2] Application by Sydney Trains [2023] FWCA 423 at [10].

[6] See for example _Australian Workers Union v Orica Australia Pty Ltd (_Orica) [2022] FWCFB 90; Fresh Food Management Services Pty Ltd [2023] FWCFB 97; Sydney International Container Terminal Pty Limited t/a Hutchinson Ports v CFMMEU [2023] FWCFB 87.

[10] Theiss Pty Ltd v Sheehan [2020] FCAFC 198.

[14] Ibid at [33] citing Spunwill Pty Ltd v BAB Pty Ltd (1994) 36 NSWLR 290.

Printed by authority of the Commonwealth Government Printer

Interpretation Act 1901

Australian Rail, Tram and Bus Industry Union v Sydney Trains [2025] FWC 3065

At a glance

Court

Decision date

Before

Source

Judgment (186 paragraphs)

Australian Rail, Tram and Bus Industry Union v Sydney Trains [2025] FWC 3065 (23 October 2025)

Parties

Legislation Cited (2)

Cases Cited (3)