Rail Commissioner v Craig Rogers [2021] FWCFB 371

For the Suburban Train Driver classifications, this is the aggregate wage + an average of overtime worked. For the other Rail Operations workgroups, this is the

Rail Commissioner v Craig Rogers [2021] FWCFB 371 | Case summary | Zoe

[61]

[25] The Commissioner found that a revised enterprise agreement containing the Rail Commissioner's proposed RRR Schedule derived from the Weekly Paid Agreement was put to a ballot of employees and that, for the purpose of the vote, the Rail Commissioner provided an "Agreement Explained" document to employees.[13] The Commissioner set out an extract from this document concerning the RRR Schedule, which included:

"This clause is different from the 2011 Agreement, in which it was titled 'No Forced Redundancy'. This clause now specifies that there will be no forced redundancies up to and including 1 January 2018, and that from 2 January 2018, ongoing employees who are declared excess will be subject to Schedule 5, which forms part of this Agreement."; and

• "If an employee has received written advice of being declared an excess employee and has not accepted a VSP they will become a redeployee. They will also be assigned a case manager who will create a redeployment plan. During the redeployment process the applicable case managers/agency representatives will genuinely seek to identify an alternative role or placement in the public sector (including with reasonable training). At any time while an employee is a redeployee, they may give notice that they wish to accept a VSP."[14]

[26] The Commissioner also found that the Government of South Australia had provided a "formal information poster" which relevantly stated: "Job protection: one suitable job offer guaranteed under RRR"; and "Retention of no forced redundancy till 1 January 2018".[15] Employees approved the proposed new agreement containing the revised RRR Schedule by a large margin,[16] and thus the 2016 Agreement was made.

[27] The Commissioner next dealt with the outsourcing process, and made the following findings:

• In May 2019, the Rail Commissioner was informed that the South Australian Cabinet had made a decision that rail operations would be outsourced to a private sector provider to be selected through a tender process, and that the Rail Commissioner's role would be to help implement the decision including by helping prepare and evaluate the tender process, with a view to the final decision on the awarding on any contract to be made by Cabinet.[17]

• No formal direction was made to this effect (under the RCA Act).[18]

• The contract was awarded to Keolis Downer by a decision of the Cabinet in September 2020.[19]

• On 18 September 2020, two service contracts were simultaneously executed: a contract between Keolis Downer and the Rail Commissioner to provide rail operations and a service contract between the Minister for Infrastructure and Transport and the Rail Commissioner. The contract is between Keolis Downer and the Rail Commissioner because the Rail Commissioner is responsible to the Minister for oversight of rail operations under s 7 of the RCA Act.[20]

[28] The Commissioner also referred to the negotiations for and making of the 2020 Agreement, which contains a RRR Schedule in the same terms as the 2016 Agreement.[21]

[29] The Commissioner then turned to the issues for determination. The Commissioner summarised the legal principles concerning the extent to which the evidence of the negotiations for the 2016 Agreement and other contextual matters could be taken into account in construing the agreement.[22] The Commissioner then addressed the two questions set out in paragraph [6] above. In relation to the first of these questions, the Commissioner concluded that there would likely be, under the procedure provided for by the RRR Schedule, "a period between the time that the normal work of the employees ceases due to the outsourcing and any declaration of employees being excess to enable the necessary parts of the above procedure to be undertaken by the Rail Commissioner before the declarations are made."[23] In relation to the second question, the Commissioner found that once an employee ceases normal work due to outsourcing and the process contemplated by the RRR Schedule is being undertaken, the employee is to be paid the relevant weekly rate specified in the 2016 Agreement plus any additional amounts to which they may become entitled under the terms of the agreement.[24]

[30] The Commissioner then addressed the three issues the subject of this appeal which are identified in paragraph [1] of this decision. In relation to the first issue, the Commissioner referred to the aggregate wage provisions applicable to train driver classifications in Schedule 7 and said:

[80]

[35] The Rail Commissioner's notice of appeal was filed on 8 December 2020, five days after the 2016 Agreement ceased to have effect. The notice of appeal stated five grounds of appeal as follows:

The Commissioner erred in finding at [128] of the Decision that the phrase 'level of remuneration' in clause 4.2.1(b) of the RRR Schedule includes aggregate wage rates.

The Commissioner erred in finding at [131] of the Decision that clause 4.6.1(b) of the RRR Schedule applied in circumstances where the Commissioner had accepted at [77] of the Decision that the South Australian Cabinet had made the decision to outsource in May 2019.

In the alternative to Ground 2 above, if clause 4.6.1(b) is enlivened on the basis that the Rail Commissioner made a 'decision to outsource', the Commissioner erred in finding at [138] of the Decision that the redeployment process for employees who were declared excess as a result of that decision to outsource could only conclude (with a redundancy rather than a VSP) if the conditions in clause 4.6.1(b) were met.

The Commissioner erred in finding at [139] of the Decision that clauses 4.6.1(b) and 4.6.1(d) of the RRR Schedule are mutually exclusive.

The Commissioner erred at [140] of the Decision in failing to give sufficient weight to the objective intention that the no forced redundancy policy referred to in the Enterprise Agreement was only to apply for a set period and the clear implication that after that time employees could be subject to a forced redundancy.

[36] In regards to the grant of permission to appeal, the notice of appeal contended that:

The appeal raises interpretation questions which may have broader application across a number of Federal and South Australian Enterprise Agreements.

The appeal raises issues not previously considered by a Full Bench.

The Decision is sufficiently doubtful to warrant reconsideration by the Full Bench.

If leave is refused, this may result in substantial injustice for the Appellant and inequity amongst its employees.

An arguable case of appealable error is demonstrated.

Alternatively to the matters set out above, permission to appeal is not required, as the Commission will be exercising the powers conferred upon it by clause 23 of the Agreement, by way of a private arbitration: DP World Brisbane Pty Ltd v Maritime Union of Australia [2013] FWCFB 8557; (2013) 237 IR 180; AMWU v Silcar [2011] FWAFB 2555. However the Rail Commissioner notes the recent Full Bench decision of Simplot Australia Pty Ltd v AMWU [2020] FWCFC 5054 may have application.

[37] The notice of appeal sought that the appeal be dealt with on an expedited basis for the following reasons:

On 31 January 2021 a private sector operator, Keolis Downer, will take over management of the Adelaide metropolitan rail network from the Rail Commissioner.

Keolis Downer are currently in the process of offering employees covered by the Enterprise Agreement roles within its organisation.

If employees do not accept these roles, their current roles with the Rail Commissioner will no longer be required after 31 January 2021.

As a result, these employees and the Rail Commissioner will commence the processes set out in the RRR schedule.

The appeal relates to the correct interpretation and application of the RRR Schedule in relation to matters which are critically important to both the employees covered by the Enterprise Agreement and the Rail Commissioner namely the level of remuneration employees may be entitled to and how the redeployment process under the RRR Schedule can end.

The matters raised in the appeal should, in fairness to all parties covered by the Enterprise Agreement, be determined prior to 31 January 2021. This will allow employees to make a fully informed decision about whether to accept a job offer with Keolis Downer or remain with the Rail Commissioner. It will also enable the Rail Commissioner to determine how to manage employees who are declared excess following 31 January 2021.

[81]

[38] The Rail Commissioner's primary position was that permission to appeal under s 604 of the FW Act is not required because clause 23.11 of the 2016 Agreement gives the parties a private right of appeal against a decision made by a member of the Commission. In this respect, it relied on the previous decisions of the Commission in AMWU v Silcar Pty Ltd[28] and Shop, Distributive and Allied Employees Association (Queensland Branch) Union of Employees v Woolworths Limited T/A Woolworths[29] in which dispute resolution clauses in similar terms had been held to create an independent right of appeal for which permission to appeal is not required. The Rail Commissioner noted the Full Bench decision in Simplot Australia Pty Ltd v AMWU[30] (Simplot), in which it was determined that the Commission had no jurisdiction to deal with a dispute under an enterprise agreement that has ceased to operate, but submitted that the position here was distinguishable because the 2016 Agreement was still in operation at the time of the Decision and thus its appeal right should continue. In the alternative, the Rail Commissioner submitted that permission to appeal should be granted, and relied upon the grounds of appeal stated in its notice of appeal set out above. In response to the issue of whether the grant of permission to appeal would have any utility in light of the cessation of the operation of the 2016 Agreement, the Rail Commissioner undertook that, should permission to appeal be granted, the outcome determined in the appeal decision would be applied by the Rail Commissioner in respect of the future application of the identical RRR provisions of the 2020 Agreement.[31]

[39] The Rail Commissioner's first appeal ground is concerned with the first issue identified in paragraph [1] of this decision. In respect of the expression "level of remuneration" in clause 4.2.1(b), the Rail Commissioner submitted that it has a plain meaning discernible from the provisions of the 2016 Agreement, and that evidence of surrounding circumstances was not required or admissible in order to construe it. It was submitted that:

clause 4.2.1(b) of the RRR Schedule does not refer simply to remuneration, but to the "level of remuneration", with level meaning "a position on a scale of amount, quantity, extent, or quality" (as defined by the Oxford Dictionary);

the 2016 Agreement uses the expression "remuneration level" in clause 21.1.3 and in Schedule 3, and it refers to the salaries payable to an employee in Schedules 1 and 3;

considered in the context of the 2016 Agreement, the terms "level of remuneration" and "remuneration level" are synonymous;

where entitlements beyond the remuneration level apply in the 2016 Agreement, various other terms are deployed such as aggregate wage, penalties and overtime, but these terms are not referred to in clause 4.2.1(b);

there was no evidence of an objective common intention applying to the term "level of remuneration";

the aggregate wage for train drivers is paid in lieu of penalties, allowances and annual leave loading, and is not a wage level or a level of remuneration but rather "the outcome of a method of calculation dependent upon a number of variable criteria";

the fact that the Commissioner's conclusion at paragraph [126] of the decision meant (as he recognised) that train drivers will receive preferential treatment over other classifications under clause 4.2.1(b) of the RRR Schedule demonstrates his conclusion at paragraph [128] is flawed;

it is also illogical that while an employee is a redeployee, they are only entitled to their relevant weekly wage and not their aggregate wage, but that a higher rate of pay would then have to apply in order to conclude the redeployment process;

it is evident that clause 4.2.1 requires, when an alternative role is offered, that a "like with like" comparison of the two roles be made at that time, but it would be practically impossible to do this other than by comparing one base rate against another; and

a train driver's aggregate wage is based on particular rosters being worked at particular times, and it cannot practically be used as a comparator against another position which may have different hours or attract different penalties or allowances.

[40] In regards to the second appeal ground, which relates to the second issue, the Rail Commissioner submitted that the evidence of the Deputy Rail Commissioner, Ms Anne Alford, made it clear that the decision to outsource, and the selection of the successful tenderer, were made by the South Australian Cabinet, not the Rail Commissioner. This evidence was accepted by the Commissioner in paragraph [77] of the decision. Therefore these decisions could not, it was submitted, enliven clause 4.6.1(b). Under the RCA Act, the Rail Commissioner is a body corporate and a distinct statutory authority, and the references to the Rail Commissioner in the 2016 Agreement cannot be taken to be a reference to any other entity or person such as the Crown. The Rail Commissioner therefore submitted that the Commissioner erred in finding that clause 4.6.1(b) had any application to the current outsourcing to Keolis Downer. This was, it was submitted, a conclusion able to be reached on the plain meaning of clause 4.6.1(b), and it was not permissible to take into account evidence of surrounding circumstances and context to assign any different meaning to the provision.

[41] The Rail Commissioner's grounds 3, 4 and 5 all relate to the third issue earlier identified. These grounds are advanced in the alternative to ground 2 - that is, on the assumption that clause 4.6.1(b) is capable of application to the current outsourcing exercise. It was submitted that clause 4.6.1(d) applies to employees other than those referred to in clause 4.6.1(b) and provides in effect that a redeployee can be made redundant after the 12-month process prescribed in clause 4.3 of the RRR Schedule has been completed (provided that no exceptional circumstances arise). In order for clause 4.6.1(b) to apply, it was submitted that four criteria must be met, namely:

[93]

[46] In respect of the first issue, it was submitted that the evidence demonstrated that the maintenance of the aggregate wage for train drivers was a subject matter of the negotiations for the 2016 Agreement, and the Rail Commissioner now sought to "suddenly change the balance by completely ruling out a portion of the agreement and the entitlement of the train drivers involved". Mr Rogers said that clause 4.2 is dedicated to the premise that the new job is suitable employment, and in that respect its function is to ensure that the new job offered to the train driver does not involve a cut in pay and conditions to the pre-redeployment wage, which is the aggregate wage. The outcome sought by the Rail Commissioner would have the Full Bench re-write the 2016 Agreement and exclude train drivers from the benefit of the aggregate wage. The meaning of the word "remuneration" is clearly based, it was submitted, upon payments to train drivers.

[47] In relation to the second issue, Mr Rogers submitted that the evidence of Ms Alford was that it was necessary for the Rail Commissioner to enter into a contract to enable the outsourcing decided by the Minister, and that by operationalising the Cabinet decision the Rail Commissioner was "complicit in that decision". Mr Rogers also submitted that it could also be argued that the Rail Commissioner had granted the Cabinet/Minister "apparent authority" to make the decision to outsource on his behalf. Further, Mr Rogers submitted, to accept that the Rail Commissioner must independently make an outsourcing decision would make a nonsense of clause 4.6.1(b), since it would mean that once a train driver was made excess, they could decline not one, but any number, of "suitable ongoing permanent job offers" and still remain on the payroll. Mr Rogers also referred to the Objectives of the RRR Schedule, which do not require a separate decision by the Rail Commissioner regarding outsourcing or privatisation.

[48] In relation to the third issue, the position of Mr Rogers was the subject of a degree of confusion and lack of coherence. He initially submitted (both orally and in writing) that paragraph (c) of the relief sought by the Rail Commissioner in the appeal (set out in paragraph [44] of this decision above) was no different to the determination made by the Commissioner in the decision. The consequence of this position, as was pointed out to Mr Rogers' counsel at the hearing, was that it was not necessary for any employee to whom clause 4.6.1(b) applied to be offered a suitable alternative position before they could be made compulsorily redundant, provided that 12 months had passed and this was not extended because of exceptional circumstances.[34] Mr Rogers' counsel initially affirmed this position.[35] He also said that Mr Rogers agreed with the Rail Commissioner's construction of clause 4.6.1(b).[36] However, when counsel's attention was drawn to paragraph [138] of the decision, counsel sought further instructions and eventually appeared to adopt the position that it was necessary, in respect of any employee covered by clause 4.6.1(b), for there to be an offer and rejection of suitable alternative employment before the employee could be made redundant.[37] No submissions of substance were advanced in support of this revised position.

[94]

[49] The RTBU sought, and was granted, leave to makes submissions in the appeal. In relation to the first issue, the RBTU submitted that the Commissioner erred in his construction of the expression "level of remuneration" in that he excluded "any (other) allowances, specific shift or disability payments, penalties or overtime payments". In this connection, it submitted that on the ordinary meaning of the word "remuneration", it includes the "reward" or "pay" they received prior to being a redeployee, inclusive of all entitlements. This is fortified, it was submitted, by the evident purpose of the provision, which is to provide a protection for employees against a loss of income as a result of redeployment, and it was unlikely that a requirement that employees be provided a "level of remuneration [that] is not less" than their current remuneration could have been intended to result in employees ending up with lower wages. In the alternative, the RBTU submitted that the Commissioner correctly determined that the expression "level of remuneration" was directed to the expressly enumerated rates of pay applicable to particular classification levels. It is submitted that such an interpretation is supported by:

the express description of the rates of pay pertaining to classification levels as "remuneration levels" (see clause 21.1.3); and

the absence of any alternative methodology for calculation, nor for example, the prescription of a period over which an average level of remuneration would be calculated.

[50] In response to the Rail Commissioner's submissions regarding the first issue, the RTBU submitted that suburban train drivers receive a "rolled up rate" instead of a "base rate" and that this is received in lieu of other amounts. The RTBU further submitted that the base rate is never the "level of remuneration... that the employee was earning prior to becoming a redeployee". The RTBU submitted that the Rail Commissioner's submissions misunderstood the comparison required by clause 4.2.1(b), which mandates a process tailored towards the circumstances of the individual employee (including hours of work, classification, particular skills and experience etc) and that "it is no less practical, and no less a requirement, that the level of remuneration - assessed as at the time of redeployment - of the individual worker be taken into account".

[51] In relation to the second issue, the RTBU submitted that the circumstances surrounding the making of the 2016 Agreement, namely the highly anticipated potential privatisation of the network and the practical entanglement of the Rail Commissioner and the Government, make it clear that the reference to a decision by the Rail Commissioner is ambiguous. Only on the most narrow and pedantic reading of the 2016 Agreement, it was submitted, could the circumstances of the current dispute be construed as falling outside the terms of clause 4.6.1(b), and such a construction would ignore the industrial realities and practical purpose of the provision and rob employees of the very redundancy protections that secured the passage of the 2016 Agreement.

[52] The RTBU submitted that the task before the Commission is not to resolve fundamental questions about the juristic identity of the Crown as a matter of constitutional law, but rather to determine whether the instant circumstances were within what was contemplated by the words "a decision of the Rail Commissioner to privatise" etc. It is not to the point that the Ms Alford subjectively characterised the decision to outsource as a decision of the Cabinet, albeit implemented with the full cooperation of the Rail Commissioner. The question, it was submitted, is whether these were the circumstances contemplated by the subclause. The RTBU said that it was clearly within the contemplation of the parties that these provisions would operate with respect to privatisation, whatever infelicities of expression might have been adopted, and it is highly unlikely that the parties intended to make a distinction between the different statutory means by which a privatisation might be affected. Further, it was submitted, the construction advanced by the Rail Commissioner would confine the operation of clause 4.6.1(b) to a decision by the Rail Commissioner to make a decision of their own initiative to privatise the rail network, which would be an unlikely and absurd result. In any event, the RTBU submitted, the Rail Commissioner's involvement in the privatisation process, including the preparation and evaluation of the tender process, the taking of all necessary steps to appoint the new contractor, and the entry into the contracts with the private operator constituted decisions to privatise the operations.

[53] The RTBU submitted in relation to the third issue that the Commissioner's conclusion was undoubtedly correct and accorded with the ordinary meaning of the words of clause 4.6.1, considered in their context, because:

Clause 4.6.1(b) is a provision directed towards privatisation. Clause 4.6.1(d) expressly does not have application to employees affected by privatisation. It provides that it has application "for employees other than those in 4.6.1(b)". These clear, unambiguous words are dispositive.

Clause 4.6.1 commands that "the redeployment process will end only when the following criteria has been satisfied". These words make clear that the obligations are cumulative, subject to their own terms.

Clause 4.6.1(b) is a specific provision directed towards privatisation. The specific provisions predominate over the general provisions: generalia specialibus non derogant.

As the Commissioner noted at [138] of the decision, were it otherwise subclause 4.6.1(b) would be redundant, because redeployment could otherwise conclude in the ordinary course. In this way, as the Commissioner correctly concluded, such a construction is "much more consistent" with a sensible construction of clause 4.6.1 as a whole, allowing the provision to cohere as a whole.

It is consistent with the broader objective industrial context, including the advice that "one suitable job offer" was guaranteed.

[96]

[54] We accept at the outset the contention of the Rail Commissioner that clause 23.11 provides, in plain words, for an independent right of appeal. The provision is expressed in the same terms as the agreement provisions which were determined in AMWU v Silcar Pty Ltd[38] and Shop, Distributive and Allied Employees Association (Queensland Branch) Union of Employees v Woolworths Limited T/A Woolworths[39] to confer a right of appeal for which permission to appeal is not required. We reject the submission of Mr Rogers that the recent Full Bench decision in AGL Loy Yang in some sense superseded these earlier decisions. The Full Bench in the AGL Loy Yang decision found that, on the proper construction of the dispute resolution procedure in the enterprise agreement in question, no independent right of appeal was conferred.[40] AGL Loy Yang does not stand for any broader proposition that a dispute resolution procedure in an enterprise agreement cannot confer an independent right of appeal against the decision of a single member of the Commission exercising arbitration powers under that procedure.

[55] However, as earlier explained, this appeal was lodged after the 2016 Agreement ceased to have effect. The Rail Commissioner properly acknowledged the Full Bench decision in Simplot,[41] in which it was determined that the Commission does not have the jurisdiction under s 739 of the FW Act (or any other provision of the FW Act) to exercise private arbitration powers conferred on the Commission by the dispute resolution procedure in an enterprise agreement once that agreement has ceased to operate. The application of Simplot would suggest that the right of appeal conferred by clause 23.11 of the 2016 Agreement became incapable of being exercised after the 2016 Agreement ceased to operate on 3 December 2020.

[56] The Rail Commissioner did not advance any submission that Simplot was wrongly decided so, in the circumstances, we think Simplot should be applied to this appeal. The Rail Commissioner submitted that Simplot was distinguishable because, in this case, the decision the subject of the appeal was delivered before the Agreement ceased to operate. However, it was not articulated why this makes a difference in terms of the Commission's power. Clause 23.11 ceased to confer a right of appeal upon the Rail Commissioner on and from 3 December 2020 because s 51(2) of the FW Act provides that an enterprise agreement does not give a person an entitlement unless the agreement applies to the person, and s 52(1)(a) provides that an agreement only applies to an employer, employee or employee organisation if the agreement is in operation. That the decision which is sought to be appealed was made before 3 December 2020 does not alter this position. It might be arguable that if the Rail Commissioner had lodged the appeal before 3 December 2020, at a time when there was still an entitlement to do so, then jurisdiction would vest in the Commission to hear and determine the appeal at that point. But that is not the situation here and, accordingly, no further consideration of this point is necessary.

[57] It does not follow however, as submitted by Mr Rogers, that by reason of the above the appeal must simply be dismissed. It remains necessary to consider whether an appeal can be brought pursuant to the statutory appeal facility in s 604 of the FW Act. Section 604(1) provides that a party aggrieved by a "decision" made (relevantly) by a single member of the Commission may, with permission, appeal that decision. Section 598(1) provides that a decision of the Commission includes "...any decision of the FWC however described...", and goes on to provide that, for the avoidance of doubt, a reference to a decision of the Commission does not include the outcome of a process carried out in accordance with s 595(2). Section 595(2) is concerned with the Commission's power to deal with a dispute other than by arbitration, such as by mediation, conciliation, expressing an opinion or making a recommendation. Significantly, a decision made pursuant to s 595(3), which is concerned with the Commission's power to arbitrate a dispute where expressly authorised to do so under another provision of the FW Act (which would clearly include s 739), is not excluded from the definition of a "decision" in s 598. There can therefore be no doubt that the Commissioner's decision is of a type to which s 604 on its face applies, and neither Mr Rogers nor the RTBU contended otherwise. Rule 56(2) requires that a s 604 notice of appeal be lodged within 21 days of the decision being appealed (unless an extension is granted), and the Rail Commissioner's appeal was lodged within that time period.

[58] Access to s 604 is not expressly excluded by any provision of the 2016 Agreement, and it was not contended by Mr Rogers that it was implicitly excluded. Parties who choose to go to arbitration with the Commission take that body as they find it, with knowledge of the structure of the Commission and of the appellate function performed by the Full Bench; accordingly, if parties intend that there be no appeal pursuant to s 604, they need to say so.[42] Mr Rogers might have argued, but did not, that because "the Full Bench's powers on appeal will reflect the fact that the appeal is from a consent arbitration and is, itself, in the nature of an arbitration",[43] the decision in Simplot would suggest that access to s 604 is also precluded once an agreement ceases to operate. In the absence of such an argument being advanced, we do not propose to consider it. We will therefore proceed on the basis that the Rail Commissioner may appeal the decision with permission pursuant to s 604. We note that if we are wrong about this, the conclusion we have ultimately reached in this appeal means that this will not be a material matter.

[59] Should permission to appeal be granted? The subject matter of the dispute underlying these proceedings, which relates to the privatisation of the Adelaide rail network and the redeployment or redundancy of affected employees, is plainly a matter of considerable importance. However, the dispute concerns events which will occur in the future - that is, the relevant aspects of the redeployment process will only be applied to those employees who do not, by 31 January 2021, receive and accept offers of employment with Keolis Downer. Those future events will be subject to the provisions of the 2020 Agreement, not the 2016 Agreement. Because the Commissioner's decision was made arising from a private arbitration of a dispute under clause 23 of the 2016 Agreement, it cannot bind the parties in respect of the 2020 Agreement notwithstanding that the relevant provisions of the 2020 Agreement are the same as the 2016 Agreement. Clause 23.11 of the 2016 Agreement, which provides that an arbitral decision made pursuant to the dispute procedures is binding on the parties (subject to the right of appeal), is itself of no force and effect, and imposes no obligation on the parties, from 3 December 2020 by virtue of s 51 of the FW Act.

[60] That would normally be a powerful consideration weighing against the grant of permission to appeal, since an appeal decision to quash, affirm or vary a decision which no longer has binding effect would be lacking in legal utility. However, as earlier stated, the Rail Commissioner has undertaken to follow the outcome of this appeal in respect of the application of the identical provisions of the 2020 Agreement to the redeployment process. This means that, in a practical sense, an appeal decision in this matter would resolve the dispute between the parties. On that basis, we are persuaded to grant permission to appeal.

[61] We reject the submission of Mr Rogers that this appeal is one which challenges a discretionary decision such as to make applicable the appellate principles stated in House v The King.[44] It is the "correctness standard" rather than the "discretionary standard"[45] which applies to this appeal, because it is concerned with the proper construction of the provisions of an enterprise agreement.[46] The discretionary standard only arises where the decision under appeal involves "evaluative conclusions in respect of which the applicable legal criteria [permit] of some latitude of choice or margin of appreciation such as to admit of a range of legally permissible outcomes".[47] That a "unique outcome" is required in an arbitral decision made under s 739 of the FW Act concerning the construction of the terms of an enterprise agreement which applies to the parties is amply confirmed by s 739(5), which has the relevant effect of prohibiting the Commission from making a decision that is inconsistent with the agreement. Accordingly, our duty in determining this appeal is to substitute our own conclusions concerning the proper construction of the relevant provisions of the 2016 Agreement if we disagree with those of the Commissioner.

[62] We observe that Mr Rogers' submission that the Commissioner's "consideration of the evidence ... should be preferred" on appeal in accordance with the principles stated in Abalos v The Australian Postal Commission[48] is not pertinent because the Rail Commissioner's decision does not challenge any of the Commissioner's findings of fact but, to the contrary, relies upon them.

[63] Finally, we note that it is common ground that the Commissioner correctly identified the relevant leading authorities and principles as to the interpretation of enterprise agreements at paragraphs [40] to [47] of the decision. It is not necessary in the circumstances to re-state those principles, which are well-established, beyond emphasising the proposition that regard may be had to the context of surrounding circumstances in order to identify as well as to resolve ambiguity.

[97]

[64] The submissions of the Rail Commissioner (as well as those of Mr Rogers and the RTBU) as to the first issue focus on the expression "level of remuneration" in clause 4.2.1(b) as being determinative of the question as to whether the aggregate wage of train drivers is to be taken into account for the purpose of assessing whether any alternative role should be offered to such an employee during the redeployment process is "suitable". We consider this focus to be misplaced. The sentence which comprises clause 4.2.1 as a whole has as its subject "An ongoing permanent role in any agency in the Public Sector" - that is, an alternative role which might be identified for a redeployee. Paragraphs (a)-(f) contain the conditions that must be satisfied in order for the subject alternative role to meet the criterion of being "considered suitable for the purpose of redeployment" (subject to the employee agreeing otherwise). Read in the context of the sentence as a whole, it is clear that the words with which paragraph (b) begins - "The level of remuneration" - are referable to the subject alternative role under consideration, not the redeployee's role prior to being declared excess. The level of remuneration of the subject alternative role is, under the condition established by paragraph (b), required to be "not less than what the employee was earning prior to becoming a redeployee". The underlined words establish the point of comparison referable to the previous position of the train driver. Thus the proper question is, does the aggregate wage of a train driver declared to be excess form part of "what the employee was earning prior to becoming a redeployee"?

[65] We consider that the answer to that question is, plainly, "yes". The relevant ordinary meaning of the verb "earn" is "to gain by labour or service".[49] The ordinary meaning of the related noun "earnings" is "money earned; wages; profits".[50] Applying this ordinary meaning, any monetary pay received by a train driver prior to becoming a redeployee is part of "what the employee was earning prior to becoming a redeployee". This necessarily includes the aggregate pay received by the train driver pursuant to Schedules 1 and 7 of the 2016 Agreement.

[66] We accept the Rail Commissioner's submission that clause 4.2.1 contemplates a "like with like" comparison, meaning that the "level of remuneration" of the subject alternative position must be a broadly equivalent concept to "what the employee was earning prior to becoming a redeployee". However, this contextual consideration does not cause us to apply other than the ordinary meaning we have identified. The ordinary meaning of the word "remuneration" is broad. In Australian Education Union v State of Victoria (Department of Education and Early Childhood Development),[51] the Federal Court (Bromberg J) said:

[100]

[67] The broad concept of "remuneration" would, in the case of train drivers covered by the 2016 Agreement, clearly encompass their aggregate wage - that is, the payment for their services rendered. The Rail Commissioner submitted, and we accept, that the ordinary meaning of "level" is "a position on a scale of amount, quantity, extent, or quality". We do not consider that there is anything in the ordinary meaning of "level" which, when used in the composite expression "level of remuneration", would operate to narrow the conception of "remuneration". Thus, we consider, clause 4.2.1(b) posits a comparison between the relative quantum of reward of the subject alternative position and the monetary earnings of the employee prior to becoming a redeployee. It may be observed that although the matters to be compared are broadly equivalent, they are not precisely like with like. Thus, because "remuneration" is inclusive of non-monetary rewards, the total benefits of a subject alternative position may be taken into account in considering whether its level of remuneration is not less than what the redeployee previously earnt.

[68] For the following reasons, we reject the Rail Commissioner's submission that, considered in the context of the 2016 Agreement as a whole, "level of remuneration" is a term of art referring to the base weekly wages prescribed in Schedules 1 and 3 of the 2016 Agreement and that, accordingly, a train driver's aggregate wage is not to be taken into account under clause 4.2.1 of the RRR Schedule. First, as earlier explained, the submission focuses upon the wrong expression in clause 4.2.1.

[69] Second, the historical context of the manner in which the 2016 Agreement was developed demonstrates that it is not likely that there was any deliberate alignment of terminology between the RRR Schedule and the rest of the 2016 Agreement. As found by the Commissioner in the decision, and not contested in this appeal, the RRR Schedule was lifted from Appendix 1 of the Weekly Paid Agreement (subject to, as discussed below in relation to the second issue, some adjustments).[52] Clause 4.2.1 of the RRR Schedule in the 2016 Agreement is drafted in precisely the same terms as its equivalent in the Weekly Paid Agreement. Therefore, any alignment in terminology between the RRR Schedule and any other part of the 2016 Agreement is likely to have been coincidental.

[70] Third, and in any event, there is no precise alignment in terminology. The other provisions of the 2016 Agreement exterior to the RRR Schedule upon which the Rail Commissioner relies do not use the expression "level of remuneration" but rather "remuneration level". This cannot be reconciled with the proposition that the expression "level of remuneration" is a term of art that does not bear its ordinary meaning.

[71] Fourth, nowhere in the 2016 Agreement is the aggregate wage for train drivers treated as a broader concept than their "remuneration level". Clause 21.1.3 provides that "The remuneration levels applicable to each classification are set out at Schedule 1 and 3 of this Agreement" but Schedule 1, which applies to train driver classification, is where the aggregate wage is provided for. Clause S.1.1 of Schedule 1 sets out, in tabular form, the base weekly wage rates of train driver classifications, and these are described as "weekly wage rates" rather than remuneration levels. Clause S.1.2 of Schedule 1, entitled "Aggregate Wage for Suburban Train Driver Classifications", sets out the method of calculation of the aggregate wage. In doing so, it cross-refers to Schedule 7, which sets out the "aggregate wage calculation guideline in operation at the date of approval of this Agreement". In our view, there is no reason not to consider that the reference to "remuneration levels" in clause 21.1.3 means, in respect of train driver classifications, the entirety of the remuneration payable under Schedule 1, which encompasses the aggregate wage. Thus, even if "level of remuneration" in clause 4.2.1(b) of the RRR Schedule is to be equated with the expression "remuneration level" used elsewhere in the 2016 Agreement - a proposition which we do not accept - the latter expression is not in respect of train driver classifications to be regarded necessarily as exclusive of the aggregate wage in all contexts.

[72] We likewise reject the Rail Commissioner's submission that a comparison process requiring an aggregate wage inclusive of shift and weekend penalties and rostered overtime to be taken into account would be impractical and thus would not have been intended. It may be observed that clause 4.2.1(a) requires that the subject alternative position have the same or similar hours of work; thus this requirement would necessarily bring to bear for the purpose of the comparison the number of hours of work and the days and times at which they are required to be performed. This supports the proposition that shift and weekend penalties and rostered overtime would be relevant to the comparison required by clause 4.2.1(b). We accept the RTBU's submission that the comparison required by clause 4.2.1 as a whole is necessarily an individualised one which, in respect of paragraph (b), requires a comparison between the overall monetary earnings of the redeployee's pre-redeployment position and the quantum of remuneration attaching to a proposed alternative position. That this comparison might require some degree of analysis does not render it impractical.

[73] Finally, we do not accept that there is some anomaly between an approach to clause 4.2.1 of the RRR Schedule which requires more than the base weekly wage to be taken into account and the unchallenged conclusion made by the Commissioner that, whilst a redeployee, an employee is only to be paid the base weekly wage. Once an employee classified as a train driver ceases to perform work as a result of outsourcing, they no longer perform the hours of work which attract the penalty rates and allowances incorporated into the aggregate wage while the redeployment process contemplated by the RRR Schedule is undertaken. In that circumstance, it is logical that the redeployee would only receive the base weekly wage. However, a suitable alternative role must have the same or similar hours as the redeployee's previous role, so there is no anomaly that it must provide for remuneration not less than the earnings for the previous role. Had it been intended that the suitable alternative role only need to provide for the base weekly wage for the redeployee's classification, then clause 4.2.1 would not have referred to the redeployee's earnings "prior to becoming a redeployee". Alternatively, the provision could have made an unambiguous reference to the employee's weekly wage for their classification.

[74] The Rail Commissioner's first appeal ground challenges the Commissioner's conclusion in the decision that the aggregate wage for train drivers was to be included for the purpose of the comparative assessment required by clause 4.2.1(b) of the RRR Schedule. For the reasons stated above, we consider that the Commissioner's conclusion in this respect was correct, and accordingly the first appeal ground is rejected. That is all that is strictly necessary to be said about the proper construction of clause 4.2.1 in this appeal. However, we note that the Commissioner's determination in relation to clause 4.2.1 went further than this and involved a conclusion that types of payments other than the aggregate wage would be excluded from the required assessment. It is sufficient to observe that this conclusion is inconsistent with the construction of clause 4.2.1(b) we have arrived at in determining the first appeal ground. If there are further disputes about this issue, they will no doubt be dealt with under the dispute resolution procedure in the 2020 Agreement.

[101]

[75] There is no factual dispute that the policy decision to outsource the operation of the Adelaide rail network was made by the South Australian Cabinet in May 2019, and that the Cabinet also made the selection of the successful tenderer, Keolis Downer, in September 2020. It is likewise clear that because, under s 4(2) of the RCA Act, the Rail Commissioner is a body corporate, the Rail Commissioner has a separate legal identity to that of the Crown. The essential question raised by the Rail Commissioner's second appeal ground is whether these matters preclude the conclusion that the declaration that any employee is excess as a result of the current outsourcing exercise is "...a result of the Rail Commissioner's decision to privatise, outsource, contract out..." for the purpose of clause 4.6.1(b) of the RRR Schedule.

[76] A number of contextual matters suggest that the Rail Commissioner's posited answer to this question is inconsistent with the intention of those who made the 2016 Agreement. The evidence of the negotiations for the 2016 Agreement demonstrates that a concern about future privatisation, and how redundancies and redeployment might be dealt with if it occurred, was the major and most contentious subject matter of the negotiations. This is reflected in the Objectives of the RRR Schedule. As earlier stated, the RRR Schedule was derived from the Weekly Paid Agreement. There are four objectives specified in the version contained in Appendix 1 of the Weekly Paid Agreement. These are reproduced in the RRR Schedule, but a fifth objective is added: "With the exception of consultation regarding changes to workforce composition, these arrangements will apply to employees who, in the event of outsourcing or privatisation of Rail Operations (or part thereof), do not transfer to the new business under Transfer of Business arrangements under the Fair Work Act 2009 (SA)". This objective indicates a specific intention that the RRR Schedule address the issue of outsourcing or privatisation of the operation of the rail network. No distinction is made between outsourcing/privatisation resulting from a decision of the Rail Commissioner and any other circumstance in which privatisation might occur.

[77] The next reference to outsourcing/privatisation in the RRR Schedule is in clause 1.1.1(e), which deals with the matters to be notified when "the Rail Commissioner is seriously considering changes to workforce composition". This clause reproduces clause 1.1.1 of Appendix 1 in the Weekly Paid Agreement, except that there is a mutatis mutandis alteration from "Employer" to "Rail Commissioner" and paragraph (e) is added, which specifies as a matter to be included in the notification: "In the event of privatisation or outsourcing, applicable Transfer of Business arrangements under the Fair Work Act 2009 (Cth)". Again, no distinction is made on the basis of the decision-maker for the privatisation/outsourcing. It may be noted that the Rail Commissioner does not submit that clause 1.1.1 is not applicable to the current outsourcing exercise on the basis that, because it was the South Australian Cabinet who determined that it should occur, the Rail Commissioner never undertook the process of "seriously considering" the significant workforce composition changes which would necessarily be associated with outsourcing/privatisation.

[78] The only other operative provision in the RRR Schedule which specifically deals with the matter of outsourcing/privatisation is clause 4.6.1(b) itself. Clause 4.6.1 as a whole is taken from the Weekly Paid Agreement, with mutatis mutandis alterations from "Employer" to "Rail Commissioner" in paragraphs (b) and (c). It seems to us to be counter-intuitive that one of the two operative provisions in the RRR Schedule which specifically deal with a major subject matter of the negotiations for the 2016 Agreement, and address the objective of the RRR Schedule concerning outsourcing/privatisation, would exclude the situation where employees are made excess because of an outsourcing/privatisation decision made by the South Australian Cabinet. That is particularly the case where:

[105]

[79] When Appendix 1 of the Weekly Paid Agreement was adapted to become the RRR Schedule in the 2016 Agreement, all references to "the Employer" in the Weekly Paid Agreement were simply replaced with "the Rail Commissioner". It may be noted, from clauses 3.1 and 4.2 of the Weekly Paid Agreement, that the employers covered by the Weekly Paid Agreement to which the term "Employer" in that agreement refers includes a range of government departments and agencies which are merely administrative units with no juristic identity separate to that of the Crown. That makes it unlikely, in our view, that the reference to the Rail Commissioner in clause 4.6.1(b) of the RRR Schedule was intended to make a sharp point of distinction between decisions of the Rail Commissioner and those made by the South Australian Cabinet.

[80] These matters of context are indicative of ambiguity in the use of the reference to the Rail Commissioner in clause 4.6.1(b). The Rail Commissioner's approach requires a very narrow and literal reading of the provision whereby it applies only where the Rail Commissioner is the sole decision-maker in respect of the relevant outsourcing/privatisation exercise. However, the context indicates that a broader interpretation may be available whereby the reference to the Rail Commissioner is to be understood as comprehending that the Rail Commissioner is an instrumentality of the Crown (as provided for in s 4(2)(d) of the RCA Act) such that the Rail Commissioner's participation in the implementation or operationalisation necessary to give effect to a decision by the South Australian Cabinet to outsource or privatise rail operations is sufficient to constitute a "Rail Commissioner's decision" for the purpose of clause 4.6.1(b). We consider that the latter interpretation is to be favoured as one which better fits the intention of the RRR Schedule as disclosed by the subject matter of the negotiations and the stated objectives of the RRR Schedule and which makes practical industrial sense.

[81] The position here is in some degree analogous to that considered by the Federal Court Full Court in QR Limited v CEPU.[53] In that case, QR Limited was a government-owned corporation. The Queensland Government decided that the coal and freight transport business operated by QR Limited should be sold to a private operator. QR Limited was bound by enterprise agreements which required it to consult with affected employees and their representatives over any proposed changes that would impact on employees' terms and conditions of employment, including termination of employment and changes in the composition, operation or size of the Company's workforce. At first instance, QR Limited was found to have contravened these consultation provisions. On appeal, QR Limited contended that this finding was in error, in part on the following basis:

[112]

[85] The practical significance of the third issue is that, on the approach taken by the Commissioner in the decision, an employee who is declared excess as a result of a decision of the Rail Commissioner of the type referred to in clause 4.6.1(b) of the RRR Schedule cannot be made compulsorily redundant unless and until they have received and rejected an offer of a suitable alternative role. The Rail Commissioner's position would lead to the result that such an employee may be made compulsorily redundant even though no offer of suitable alternative employment is made, provided that the 12-month process provided for in clause 4.3 of the RRR Schedule has been completed (subject to any extension because of exceptional circumstances pursuant to clauses 4.3.6 and 4.3.7).

[86] Contrary to the Rail Commissioner's submissions, we consider clause 4.6.1 to be textually ambiguous insofar as the relationship between paragraphs (b) and (d) is concerned. The Rail Commissioner contends that the reference in clause 4.6.1(d) to "employees other than those in 4.6.1(b)" excludes only those employees who, under clause 4.6.1(b), have been determined to be excess as a result of a relevant decision of the Rail Commissioner and have been offered and have rejected a suitable ongoing permanent role. Thus, the Rail Commissioner submits, an employee subject to a relevant decision of the Rail Commissioner who has not been offered suitable alternative employment would fall under clause 4.6.1(d), so that such an employee may be terminated after the completion of the process in clause 4.3 without ever having received a suitable job offer. In the decision the Commissioner found, and in this appeal the RTBU submits, that "employees other than those in 4.6.1(b)" excludes the whole category of employees who have been determined to be excess as a result of a relevant decision of the Rail Commissioner, with the balance of clause 4.6.1(b) setting out the separate obligation of the Rail Commissioner with respect to this category of employees to make them a suitable job offer before they can be terminated. In our view, both interpretations are textually available having regard to the fact that clause 4.6.1 as a whole is poorly drafted and makes the relationship between its various components unclear. The drafting infelicities include that:

the words "when the following criteria has been satisfied" in the chapeau suffer from plural/singular confusion, and thus render unclear whether the "criteria" are cumulative or in the nature of alternatives;

this lack of clarity is exacerbated by the fact that "or" is used at the end of paragraphs (a) and (d) but not (b) and (c); and

the use of the preposition "For" at the commencement of paragraph (b) does not logically relate to the rest of the sentence in the form that it is drafted, indicating a defect in the drafting of the paragraph which must be taken into account.

[87] We prefer the interpretation of clause 4.6.1 adopted by the Commissioner in the decision, for two principal reasons. The first is that, as the Commissioner found, the interpretation advanced by the Rail Commissioner would render clause 4.6.1(b) otiose. Clause 4.6.3 provides, in substance, that where any employee has received and rejected an offer of a suitable ongoing permanent role, they may thereupon be made compulsorily redundant on a minimum of five weeks' notice, even if the 12 month period contemplated by clause 4.3 has not completed. This would necessarily bring an end to the redeployment process. That would mean, on the Rail Commissioner's approach, that the separate prescription in clause 4.6.1(b) for employees declared excess as a result of a relevant decision of the Rail Commissioner would serve no separate purpose.

[88] Second, as found by the Commissioner, the South Australian Government made this representation in a poster directed to employees: "Job protection: one suitable job offer guaranteed under RRR" (underlining added). In addition, the evidence before the Commissioner included a document headed "Frequently asked questions" which was provided to employees by the Rail Commissioner and which included the representation: "Enhanced redeployment, retraining and redundancy provisions which require one suitable job offer to be made to any employee declared as excess after 1 January 2018"[57] (underlining added). The "Frequently asked questions" document was identified in the declaration dated 12 December 2016 made by Mr Michael Deegan, the Rail Commissioner, in support of the application for approval of the 2016 Agreement as one provided pursuant to s 180(5) of the FW Act to explain the terms of the 2016 Agreement and their effect. Both representations were made preceding the third ballot which ultimately approved the 2016 Agreement, and are to be understood in a context whereby employees were concerned about the possibility of the privatisation of the rail network, had rejected two previous proposed agreements which contained inferior redeployment and redundancy provisions, and had negotiated an improved position with the Rail Commissioner based on the RRR Schedule derived from the Weekly Paid Agreement. In our view, these representations promised to the employees that, if privatisation occurred and employees were declared excess, that they were guaranteed one offer of a suitable alternative job before being made compulsorily redundant, and the promises were intended to assist to persuade employees to vote to approve the third proposed agreement. As earlier recounted, they did so.

[89] The Rail Commissioner conceded, during the course of oral argument, that the interpretation of clause 4.6.1 it advanced in the appeal did not involve the guarantee of one suitable job offer. This inconsistency with the representations made in the lead-up to the making of the 2016 Agreement was not the subject of any explanation. In our view, such specific representations made by the Rail Commissioner and the South Australian Government cannot be so lightly overlooked. We consider that the making of the representations in the context earlier explained, and the subsequent approval by employees of the proposed agreement to which the representations related, are indicative of a common intention that, in the event of the rail network being outsourced/privatised, there would be a guarantee of one suitable alternative job offer before an employee was made compulsorily redundant. That strongly supports the interpretation favoured by the Commissioner.

[90] As earlier stated, clause 4.6.1(b) as drafted is grammatically defective. Having regard to the two identified considerations above, we believe it should be read as meaning: "For an employee whose position has been determined to be excess as a result of the Rail Commissioner's decision to privatise, outsource or contract out or the closure/part closure of a service(s), such an employee has been offered employment in a suitable ongoing permanent role and has declined such ongoing employment". This gives effect to the preposition "For" as introducing the description of the category of employees to which the provision relates (an employee whose position has been determined to be excess as a result of the Rail Commissioner's decision to privatise, outsource or contract out or the closure/part closure of a service(s)), then sets out in respect of such employees the criterion which must be satisfied before the redeployment process ends (has been offered employment in a suitable ongoing permanent role and has declined such ongoing employment). Once this criterion is satisfied, such employees will be made compulsorily redundant (unless one of the consensual alternatives in clause 4.6.1(a), (c) or (e) is adopted). Clause 4.6.1(d) is then to be read as excluding from the scope of its operation the category of employees to which clause 4.6.1(b) applies (an employee whose position has been determined to be excess as a result of the Rail Commissioner's decision to privatise, outsource or contract out or the closure/part closure of a service(s)). Thus, an employee in this category cannot be made compulsorily redundant merely because of the passage of the 12 month period contemplated by clause 4.3.

[91] For the above reasons, we reject grounds 3 and 4 of the appeal. In relation to ground 5, we do not consider that the Commissioner erred in "failing to give sufficient weight" to the objective intention that the no forced redundancy policy was to end and that thereafter employees could be subject to a forced redundancy. The 2016 Agreement makes it clear that the no forced redundancy policy ends on 1 January 2018. The RRR Schedule makes it equally clear that forced redundancies can occur, but only after a range of criteria have been satisfied. In the case of employees to whom clause 4.6.1(b) applies, the relevant criterion is, consistent with the representations made prior to the approval of the 2016 Agreement by employees, that the employees must have received and rejected a suitable job offer. Ground 5 is therefore also rejected.

[134]

1.1 Notification

1.1.1 When the Rail Commissioner is seriously considering changes to workforce composition, including calling for employees to express an interest in VSPs or potentially forced redundancies, the public sector agency will notify the affected employees and the Union in writing of the intention. The notification will include (but not be limited to):

The reason the Rail Commissioner is considering changes to workforce composition;

The affected work/process/service delivery;

The affected department/location/worksite/unit;

The number and classifications of positions including (but not limited to) changes in position duties and/or responsibilities/tasks/workload;

In the event of privatisation or outsourcing, applicable Transfer of Business arrangements under the Fair Work Act 2009 (Cth);

Any relevant information regarding potential effects of staffing changes on continuing employees, including changes to existing practices and/or changes that the Rail Commissioner considers necessary;

Any known potential redeployment and job vacancy options;

Data regarding the use of existing labour hire, temporary and casual employees and steps taken to reduce the use of labour hire, temporary and casual employees; and

Any other relevant information.

1.1.2 The Rail Commissioner agrees to genuinely consider in good faith any feedback provided by employees and/or the Union. The Rail Commissioner agrees to take all reasonable steps to mitigate adverse effects such as reducing, where practicable, the use of labour hire, temporary and casual staff.

1.1.3 The Rail Commissioner will provide the Union with not less than 14 days or as otherwise agreed to respond to written notification.

1.1.4 Where the total number of positions affected may be 20% or more of the FTE at the worksite, the Rail Commissioner will facilitate reasonable paid time for meeting(s) between employees and the Union.

1.1.5 Where the Union respond to the written notification or requests for further information, the Rail Commissioner will respond within 14 days or as otherwise agreed.

1.2 Meetings with Union

1.2.1 The parties agree to meet and seek to reach agreement on the proposed changes to workforce composition, as soon as practicable after step 1.1 has been completed (unless otherwise agreed).

1.2.2 The Rail Commissioner will give genuine consideration to matters raised by the Union including any proposals to mitigate any adverse effects and any other proposals to avoid the redundancy (for example, job swaps where employees may wish to swap roles).

1.2.3 Where any issues remain unresolved following further consultation, either party may utilise Clause 23, Resolving Workplace Concerns or Disputes in the Agreement, including by referring the matter to the Fair Work Commission, noting however that the Commission will not be empowered to make any order having the effect of determining the composition of the workforce.

1.2.4 The parties agree to maintain the status quo whilst the matter remains in dispute.

1.3 Identification of new workforce composition

1.3.1 Prior to calling for expressions of interest (EOI), the proposed new workforce composition (i.e. full-time equivalent required to undertake the required duties) must have been identified in accordance with consultative processes set out in 1.1 and 1.2, and following any Transfer of Business arrangements applicable under the Fair Work Act 2009 (Cth). The Rail Commissioner will then confirm in writing the new workforce composition to the affected employees and the Union.

1.3.2 An agency cannot use the EOI process to inform/decide what the new workforce/change may be.

1.4 Regional and Remote Localities

At a glance

Court

Decision date

Source

Judgment (247 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (5)

Rail Commissioner v Craig Rogers [2021] FWCFB 371 (27 January 2021)