Metro Trains Melbourne Pty Ltd v Australian Rail, Tram and Bus Industry Union [2019] FWC 893

[2]Metro Trains Melbourne Pty Ltd v Australian Rail, Tram and Bus Industry Union [2019] FWC 893 | Case summary | Zoe

[7]

[4] On 21 March 2018, the Company met with the RTBU in relation to the introduction of the Mernda Depot meal facility. This was followed by formal notification on 4 April 2018.

[5] On 2 May 2018, the Company appeared before Commissioner Gregory in relation to a dispute regarding the introduction of a temporary meal facility on the Metro Network (Caulfield). The Company agreed to pay an allowance to the drivers for the temporary period of time that this meal room would be in use. The Company submit that they made it clear that this outcome would not set a precedent for the introduction of future meal locations. On 5 June 2018, the Company wrote to the RTBU reiterating this.

[6] On 27 July 2018, the Company again formally advised the RTBU of its intention to utilise Mernda as a meal facility. On 30 July 2018, the Company again consulted with the RTBU regarding the introduction of the new Depot location and took a representative of the RTBU on a planning walk through of the facilities at Mernda.

[7] On 24 August 2018, the RTBU verbally advised the Company that a dispute would be forthcoming as Mernda was not defined as a meal location at clause 18 of Schedule 1 of the Agreement. On 24 August 2018, the Company received a Notice of Dispute from the RTBU in relation to Mernda as a proposed meal facility. On 1 October 2018, a meeting was held with the Company and the RTBU in an attempt to resolve the matter. A proposal was put formally to the RTBU in respect to the use of the facility on an interim basis, with the commitment to review the 'Meal Locations' clause throughout the course of Agreement bargaining and convert the location to a permanent one via an updated Agreement and, until that time, the meal location would be recognised as being 'Interim' in nature. The RTBU were asked to respond by close of business Thursday 4 October to advise if they accept the proposal to resolve the dispute. The Company did not receive a response.

[8] This application was lodged with the FWC on 10 October 2018 and the matter was listed for a conference before me on 15 October 2018 in an attempt to resolve the dispute. The conference failed to resolve the dispute. The Company sought at this time that the matter be arbitrated.

[9] The matter was listed for Mention before me on 24 October 2018. Ms Dawson-Field was granted permission to appear for the RTBU as I was satisfied that granting permission would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter.

[10] At the Mention, the parties agreed that the question to be resolved in order to resolve the dispute is as follows:

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[18] The Company filed written submissions on 7 September 2018.

[19] The Company submit that due to the inclusion of a number of facilitative clauses contained in the Agreement, not only is the Company able to include new meal locations on the suburban network, but that the Agreement encourages it.

[20] The Company refer to and rely on clause 1.8 of the Agreement which outlines the provision of a Project Facilitation Payment (PF Payment) payable in the event of certain Company and Government initiatives to acknowledge the anticipated impact of the project and to compensate for disruption experienced due to changes in work practices such as roster changes and changes to work locations. The construction of the PF Payment clause aimed to capture a level of co-operation between the parties that would be sustained for the life of the Agreement. The PF Payment was paid "in good faith" in June 2016 to recognise that some, but not all of the initiatives listed at clause 1.8 had been met, including the "Homesafe/Night Network" initiative. The Company refer to clause 1.8.2 (a) of the Agreement and submit that the addition of a new meal location on the suburban network constitutes such a "workplace arrangement." Therefore, the Company assert that all employees are obliged to support the inclusion of Mernda as a new meal location. Further, the Company submit that the fact that the PF Payment was made prior to the expiration of the Agreement and completion of all initiatives detailed at clause 1.8 did not absolve the parties to the Agreement of their commitments to support the Company or Government initiatives listed at clause 1.8. At the time the Agreement was reached, parties were aware that Government projects were to be ongoing for the life of the Agreement and beyond. Therefore, the Company submit that the parties are under an obligation to provide a level of support for altered or new work practices as a result of the changes contemplated in the Agreement.

[21] The Company also rely on clause 2.24 of the Agreement which is titled "Amenities." This clause details the minimum standards for existing and new meal facilities. The Company submit that it is evident that clause 2.24 does not exclude Drivers and that the introduction of an additional meal location is permissible as long as the standard of amenities to be used complies with what is set out at clause 2.24 of the Agreement. The Company draw attention to the final sentence of clause 2.24 as being of particular significance as it specifically refers to the requirements of new meal facilities (emphasis added). The Company submit that this line clearly anticipates that new meal facilities may be established throughout the life of the Agreement and Mernda is an example of this. The Company submit that an opposing interpretation would provide a somewhat absurd outcome whereby clause 2.24 would be unable to be affected in the manner clearly contemplated.

[22] The Company also refer to clause 9 of Schedule 1 of the Agreement in support of its preferred interpretation. This clause details all the known Depots, however expressly contemplates at sub-clause (c), the "consideration" of altered or additional depots arising out of Government initiatives or timetable changes. The Company submit that the inclusion of Mernda and various other stations triggered a major timetable change which resulted in Mernda being considered a new depot where drivers will be allocated to. The Company further submit that this result is supported by the terms of the Agreement, as clause 9 of Schedule 1, which highlight Government initiatives which may "necessitate" additional Depots.[2]

[23] The Company submit that clause 18 of Schedule 1 of the Agreement details all meal locations that were known at the time the Agreement was made, as well as lists some foreshadowed locations. The Company submit that the locations listed at clause 18 are not 'agreed locations' as they were not negotiated during bargaining for the Agreement. They are simply known meal locations and listing them in the Agreement does not prevent the inclusion, addition or removal of meal locations.

[24] The Company submit that the provisions of the Agreement do not prevent the Company from introducing a new meal location as long as the location complies with the amenities required by clause 2.24 of the Agreement. On a plain reading of the Agreement, the intention of the 3% PF Payment was to facilitate changes in work practices which capture the inclusion of new meal locations. The Company submit that the clauses relating to altered work arrangements cannot be read in isolation and must be read in conjunction, with the PF Payment underpinning approaches to changes in work practices.

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[27] The RTBU submit that clause 18 of Schedule 1 identifies 26 existing meal locations and a further six intended meal locations. The RTBU submit that parties agreed on a degree of flexibility due to anticipated change during the life of the Agreement, which was captured by identifying the six "intended meal locations." Mernda is not identified as either an existing or intended meal location. Therefore, the RTBU submit that the Company's proposal to introduce Mernda as a new meal location equates to making a new industrial claim which contravenes clause 1.5 of the Agreement.

[28] The RTBU submit that the other provisions of the Agreement on which the Company rely (notably, clauses 1.8 and 2.24) do not, on proper interpretation permit them to introduce Mernda as a new meal location. It is argued that on the disputed issue, the specific provisions as to meal locations must be given greater weight than the general provisions as to supporting the implementation of Government initiatives and the PF Payment. It is said that clause 1.8 operates at a high level of generality, setting out "high level initiatives,"[5] whereas the meal location clause at clause 18 of Schedule 1 is said to be "highly specific." On that basis, it is submitted that where the Agreement makes a very specific provision as to meal locations and intended meal locations as at clause 18 of Schedule 1 then that specific provision ousts the general provisions of clause 1.8.

[29] The RTBU agree with the submissions of the Company that clause 2.24 anticipates the introduction of "new meal facilities," however point out that this interpretation is harmonious with the RTBU interpretation of clause 18 of Schedule 1 as it includes a list of "intended meal locations," which would require the minimum required standard of facilities set out in clause 2.24. In any case, the RTBU also submit that clause 2.24 is aimed at amenities standards and is a different subject matter from intended meal locations.

[30] The RTBU also rely on the terms of the predecessor agreement, the Metro Trains Melbourne Pty Ltd Rail Operations Enterprise Agreement 2012-2015 (the 2012 Agreement), as a surrounding circumstance which was known to both parties at the time the Agreement was made. In particular, that the 2012 Agreement at clause 13 (a) of Schedule 1 which deals with "meal locations" included the words "other locations may be identified and developed as new timetables are proposed". As an "analogue provision" is absent from the current Agreement, it is argued that that the current provision affords less flexibility as to the introduction of new meal locations.

[31] The RTBU also rely on the post Agreement conduct of the Company in making the PF Payment required by the terms of clause 1.8, and in doing so advising employees by letter that "all that needed to be done had been done" for the payment to be made. It is argued that this action of making the payment meant that clause 1.8 had no work to do as to the introduction of new meal locations and that the applicant, "...now seeks to revive that clause as a source of power to introduce a new meal location."[6]

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[32] In addition to the submissions filed by the RTBU, a witness statement of Mr Jim Chrysostomou has been provided. Mr Chrysostomou is the current Assistant Secretary of the Victorian Locomotive Division of the RTBU.

[33] Mr Chrysostomou's witness statement provides some context as to the background and ramifications of the dispute at hand. At Metro, drivers must have breaks between the third and fifth hour of the shift. The break inclusive of travelling to meal room, preparing meals and clean-up, is either 46 or 49 minutes depending on location. Mr Chrysostomou draws on his own experience and asserts that drivers prefer to have meals at a location where they have the ability to purchase food, undertake errands, go shopping or meet someone during their break. Most drivers use their meal break to tend to personal matters rather than eating in the meal room. Mr Chrysostomou says that drivers have advised him that they do not wish to have their meal break at Mernda as there is nowhere to purchase a meal. The station is in a remote location, surrounded by paddocks, with the closest shop being a Coles Express which he claims is a ten minute walk along a major highway, which may be dangerous if drivers had to walk there at night.

[34] Mr Chrysostomou also provides some background in relation to the PF Payment. On 26 May 2016, the Company circulated a memorandum to all staff stating that the requirements of the 3% PF Payment had been made because "all the requirements had been met." Mr Chrysostomou states that the Company only made the payment after all the initiatives found at clause 1.8.1 of the Agreement had been fulfilled. His view is that since the PF Payment has been made, the obligations under that clause have been discharged and cannot not be relied upon for the purposes of further initiatives.

[35] Mr Chrysostomou also refers to the Company's submissions of 7 September 2018, in which it was stated that the meal locations found at clause 18 of Schedule 1 of the Agreement were not subject to negotiation. Mr Chrysostomou refutes this assertion as it "does not reflect the history of negotiating between the parties. Mr Chrysostomou states this has always been "an issue of discussion"[7] and was included in both the current and previous Agreements.

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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 and 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:

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[39] The construction of an enterprise agreement begins with a consideration of the ordinary meaning of the relevant words. This is a dispute about the right of the Company to introduce a new meal location. Clause 18 of Schedule 1 of the Agreement is the only clause in the Agreement that deals directly with meal locations. Schedule 1 is headed "Drivers Rostering, Training and Work Practice Changes." Clause 18 of Schedule 1 is headed "Meal Locations" and lists 26 meal locations from (a) to (z). There is then a further sub-clause (aa) which has the sub-heading "intended meal locations" and under that heading, six further locations are listed. Other than providing a list of meal locations and intended meal locations, clause 18 of Schedule 1 provides no other indication as to the purpose of the list. In contrast, for example, clause 9 of Schedule 1 headed "Depots," provides a list of other intended locations "where it is agreed employees can commence/ cease duty at their allocated location." Clause 18 of Schedule 1 is devoid of any such text. Considering the text of clause 18 of Schedule 1 in its own right, it is no more than a record or list of the meal locations that existed at the time the Agreement was made. Similarly, the list of intended meal locations is no more than a list of locations where the parties recorded their intention to create a meal location. The definition of "intend" is "to have in mind something to be done or brought about."[11] Importantly, there is nothing in the text of clause 18 of Schedule 1 that provides any sort of prohibition on the introduction of a meal location at any other location beyond those listed in clause 18. It is not apparent and nor was I taken to any other part of the Agreement that deals specifically with meal locations.

[40] The concern that arises from this construction is that it begs the question, what work does the clause have to do? In the Berri decision [at 44], the Bench said that there was "considerable force in the Appellant's contention that, as a general principle, all words in an enterprise agreement must prima facie be given some meaning and effect."[12] The inclusion of the list of meal locations and intended meal locations at clause 18 of Schedule 1 should not then, using the language in Berri, be regarded as "superfluous or insignificant."[13] Taking this into account, the effect of including the list is to oblige the parties to take meal breaks at the meal locations listed. Put another way, it would be inconsistent with the terms of clause 18 of Schedule 1 for the Company to declare that a particular meal location listed is no longer to be a meal location. Clause 18 of Schedule 1 also records an intention to provide meal locations at various new locations, though no time frame for doing so is provided. It would be straining the words in the clause 18 of Schedule 1 to give them a meaning or effect that prohibits new (previously unlisted) meal locations being created.

[41] The required standard of meal facilities is dealt with in the main body of the Agreement at clause 2.24. This clause is headed "Amenities." It sets out the equipment and facilities that must be supplied, including a microwave, toaster, ice machine, toilets etc. It also provides that "new meal facilities" are subject to installation of all of the listed items above, and must be divided from toilet and work area" (emphasis added). To that extent, it is clear that the clause contemplates there may be new meal facilities introduced during the life of the Agreement. However, a new meal facility is not the same as a new meal location. To make the point, it may be for example that the Company might renovate and alter the facilities at an existing meal location listed in clause 18 of Schedule 1. In these circumstances, there would be a new meal facility in a meal location which would not be a new meal location. Of course, it may also be that a new meal facility could be built in a new meal location. It is also possible that a new meal location might have an existing meal facility that is put in to use. In those circumstances, the meal facility would not be a new meal facility. Essentially, clause 2.24 does nothing more that prescribe what infrastructure is to be included in a new meal facility, whether it be in an existing meal location or a new meal location, including but not limited to the list of "intended" meal locations. To the extent that the clause contemplates the building of new meal facilities (which may or may not be at a new meal location) it is consistent with the submission of the Company that the clause anticipates that new facilities may be established throughout the life of the Agreement and that Mernda, the particular location that is the catalyst for this dispute, would be one such facility. However, I do not agree with the submission of the Company that clause 2.24 would have no work to do if it were otherwise, for the reasons set out above. In any case, it is apparent that the terms of clause 2.24 deal with "meal facilities" as opposed to "meal locations" and confirms that the creation of new meal facilities have clearly been contemplated by the parties when making the agreement. For the reasons set out above, this does not provide confirmation that the parties were contemplating new meal facilities in new meal locations. However, nor does it lend support to an interpretation that the terms of the Agreement prohibit new meal locations, beyond those in the list of intended locations in clause 18 of Schedule 1.

[42] Clause 1.8 provides further relevant context. Clause 1.8 is in the main body of the Agreement and sets out the terms for provision of a payment to employees (the PF Payment). The PF Payment is to be made, "In consideration for the commitments made at 1.8.1 (a) (b) and (c) by the employees and the unions" and is to be paid after the successful "commencement of the HomeSafe/Night Network Trial" and "full implementation" of other matters set out in clause 1.8.2 . The Company and Government initiatives particularly relevant to this dispute are "Rail Construction and Renewals Projects." These are defined as "... being any rail construction and removals project, including the Level Crossing removals project announced by the Victorian Government. (emphasis added)

[43] Further, clause 1.8.2 (a) states that "Meeting the above initiatives may include supporting the implementation of new rosters or workplace arrangements, including workplace location (both temporary and permanent) to support any of the above." As set out earlier, this particular dispute arose as a result of the Company advising the RTBU of its intention to utilise Mernda as a meal facility. Mernda train station is a new station which was established as part of the extension of the South Morang Line. Clause 1.8.1 (c) makes clear that it captures any rail construction and renewal project. It is apparent the South Morang extension and creation of Mernda station is a Rail Construction Project as contemplated in clause 1.8.1. It follows that the parties are obligated by the terms of clause 1.8.2 (a) to support Mernda as a new meal location as it is clearly a new workplace arrangement or location that supports the South Morang extension.

[44] It is clear the language of the Agreement, having regard to its context and purpose, is to commit the parties to support changes to workplace arrangements including workplace location to support the initiatives in clause 1.8.1. Considering clause 1.8 and clause 18 of Schedule 1 together, and having regard to the consideration above, it is certainly clear that the Company has the right to introduce a new meal location where it is associated with supporting a Rail Construction Project. The South Morang extension and creation of Mernda railway station is such a project.

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[49] The RTBU draw attention to the fact that the payment specified in clause 1.8 was made on 16 June 2016 prior to the completion to the South Morang rail extension of which Mernda is a part. When the payment was made, a letter was sent to staff advising that "all the requirements that are necessary for the 3% project facilitation payment to be made have now been completed."[17]

[50] The RTBU argue that all of the matters identified at Schedules 1, items 1, 2 and 5 "have transpired within the EA's currency."[18] The fact that the PF Payment has been made, the RTBU argue, "suggests that clause 1.8 had no work to do as to the introduction of new meal locations" and that what the Company is now doing is seeking to "revive" that clause as a source of power to introduce a new meal location.[19] This argument relies on the fact that the Company had made the PF Payment prior to the South Morang project being completed.

[51] I do not accept this proposition. The PF Payment is to be made, according to clause 1.8, is "In consideration for the commitments..." reflected in sub-clauses (a), (b) and (c) of clause 1.8.1, following the successful completion of the "HomeSafe/ Night Network" travel, implementation of efficiencies and associated rosters including the separation of the network into three operating groups, the decentralisation of FSS and the implementation of "New Rules" associated with certain "Weekly Master Rosters" and day of "Day of Operations" shift management. It is clear the payment is associated with the completion of these matters as well as for the commitments made to (a), (b) and (c). It follows that, even if the RTBU is right that the obligation to do some things came to an end when the payment was made, the payment was not linked to the completion of Rail Construction and Renewal Projects. This is not the case for (a) and (b), which require "successful commencement" and "full implementation." It follows that, at the very least, the commitment of the parties (which includes the Union and employees (see clause 1.2) is to support the Rail Construction and Renewals Projects including new workplace arrangements and locations throughout the life of the Agreement irrespective of when the payment was made. This interpretation is reinforced when one considers the terms of clause 1.8.3: "To avoid doubt, the Agreement confirms the· agreement of the Parties to the implementation of HomeSafe/Night Network and Operating Groups, and the PF Payment is only payable for meeting all of the initiatives in clause 1.8.2." In any case, there is no basis to read the first sentence of clause 1.8.2 of the Agreement as providing as anything other than an ongoing commitment to support the initiatives in 1.8.1 (a) (b) and (c) by the employees and the unions, including the obligations in 1.8.2 (a), irrespective of when the PF Payment is made.

[52] Further, there is no basis to find that the fact that the PF Payment has been made demonstrates some "meeting of the minds" as to the meaning of the Agreement as it pertains to the introduction of meal locations outside those listed in clause 1.8.[20] The view of the RTBU that the payment having been made changes the obligations of the parties under the terms of the Agreement is clearly not one shared by the Company.

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[53] The evidence of Mr Chrysostomou is that the time allowances for meals and walking time are set out in clause 30 (d) of the Agreement and that there are different times prescribed for each meal location. However, it is apparent that this is not accurate. South Morang and Calder Park do not have associated time allowances at clause30 (d), nor do three of the intended meal locations, Williamstown, South Kensington and Flemington. Thus, it is apparent that the parties have not seen it as necessary to have all listed meal locations listed in clause 18 of Schedule 1 to have an associated time allowance allocated and included in the Agreement. A new meal location introduced without such times provided for in the Agreement would not be a new or unique outcome.

[54] Mr Chrysostomou's evidence is that the claim of the Company that meal locations were "not negotiated" is incorrect and does not reflect the history of negotiating between the parties. Mr. Chrysostomou refers to the 2012 Agreement which included clause 13 in Schedule 2 titled "Meal Locations." Unlike the current clause, there is a sub-heading of "Agreed Meal Locations" with a list of 11 locations. There is then a list of 13 locations under the heading "Intended Meal Locations." At sub-clause (c) other agreed meal locations are listed for drivers rostered for maintenance or wash requirements. At sub-clause (d), Special Events, occupation or line closure permit the use of alternative locations subject to consultation with the RTBU. Sub-clause (e) provides "other locations may be identified as developed as new timetables are proposed."

[55] The RTBU submit that an "analogue provision" equivalent to clause 13 (e) of the 2012 Agreement is absent from the current Agreement.[21] It is submitted that clause 13 (e) of the 2012 Agreement "afforded greater flexibility as to the introduction of new meal locations." I do not agree. Firstly, it provides a right to "identify and develop." This falls short of the language in (d), which permits locations to be "utilised subject to consultation with RTBU." In contrast, the current Agreement provides no prohibition on the introduction of new meal locations and indeed, in the case of a project such as the South Morang extension, expressly permits it to occur.

[56] While it was not referred to in the submissions of either party to these proceedings the terms of clause 1.6 of the Agreement provides further context and purpose of the Agreement. It is in the following terms:

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[57] It is apparent that the Agreement provides a list of meal locations and intended meal locations. The list provides no further indication as to its purpose and includes no text indicating in any way that meal locations can only be provided at those locations listed. The work the list has to do is to provide a record of the actual meal locations and intended meal locations at the time the Agreement was made. The clause provides an obligation on the parties to establish or maintain meal locations consistent with the list throughout the life of the Agreement. A plain reading of the terms of clause 18 of Schedule 1 does not support the position of the RTBU that it acts as a barrier to the introduction of a new meal location.

[58] Considering the text of the Agreement as a whole, this interpretation does not change. The operation of clause 1.8 makes clear that new workplace arrangements including new workplace locations are to be supported by the parties as part of their commitments to support the implementation of Company and Government initiatives. The introduction of a new meal location would be such a new workplace arrangement or workplace location. The language of the Agreement, having regard to its context and purpose is to support these new arrangements where they are associated with the implementation of Company and Government initiatives as described above. The South Morang rail extension and new station at Mernda is such an initiative. Considering these provisions, it is apparent that the Agreement does not prohibit the introduction of new meal locations. Indeed, when the introduction of a new meal location is associated with a Company and Government initiatives, the parties have agreed to support such a change as an express term of the Agreement. This interpretation is further reinforced by the terms of clause 1.6 (c) which reflects that an aim of the parties in making the Agreement to, among other things embrace change. The No Extra Claims commitment that forms part of the Agreement does not alter this interpretation of the terms of the Agreement.

[59] In consideration of the support of the parties for Company and Government initiatives, the Company committed to make a 3% payment. For the reasons set out above, I do not accept the fact that this payment has been made has altered the obligations of the parties to continue to support the implementation of new workplace arrangements or workplace locations.

[60] While the Agreement has a plain meaning, I have nevertheless considered the evidence of Mr. Chrysostomou in construing the terms of the Agreement. Mr Chrysostomou's evidence is that the list was "negotiated."[23] Mr. Chrysostomou has a view about what the outcome of the negotiation was. However, 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.[24] A reasonable person would not understand, from the language the parties have used, that the Agreement prohibits the establishment of new meal locations. The evidence of Mr. Chrysostomou reflects his subjective intention as to what the Agreement means as opposed to providing any objective facts, nor does the consideration of the terms of the predecessor Agreement support the RTBU interpretation.

At a glance

Court

Decision date

Source

Judgment (147 paragraphs)

Metro Trains Melbourne Pty Ltd v Australian Rail, Tram and Bus Industry Union [2019] FWC 893 (12 February 2019)

Parties

Legislation Cited (3)