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[36]
austlii:cth/FWCA/2025/2562
General information, not legal advice.
FWCA
2025-08-01
Original judgment source is linked above.
s.217 - Enterprise Agreement
Yarra Journey Makers Pty Ltd Trading AS Yarra Trams
YARRA TRAMS ENTERPRISE AGREEMENT 2023 - OPERATIONS
Application for variation of the Yarra Trams Enterprise Agreement 2023 - Operations
[1] This is a joint application made by Yarra Journey Makers Pty Ltd (Yarra Trams) and the Australian Rail, Tram and Bus Industry Union (RTBU) under s.217 to vary the Yarra Trams Enterprise Agreement 2023 - Operations[1] (the Agreement) to remove ambiguity and uncertainty.
[2] The application proposes a variation to cure a purported ambiguity and uncertainty by the insertion of a new subclause 25.2(d) in Part Two of the Agreement in the following terms:
"(d) If a paid meal break arrangement is put to a vote by Yarra Trams and endorsed by employees in accordance with cl. 25.2(b) above, the implementation of that arrangement will prevail over the meal and crib break provisions in the respective Appendix."
[3] The current terms of clause 25.2 of Part Two of the Agreement prescribes a process for the implementation of a paid meal break in lieu of an unpaid meal break for "affected operational staff" (excluding drivers). The process is as follows:
The affected operational staff are to be consulted.
The implementation of any change resulting from the consultation is to be preceded by a vote of employees.
The vote is to be on a work group by work group basis and will require a majority of the relevant workgroup to endorse the change.
[4] Both Yarra Trams and the RTBU assert the current clause is ambiguous because it is unclear, if a meal break is endorsed by a majority of employees, whether or not the voted up paid meal break arrangement takes precedence over crib and meal break prescriptions provided for in Appendix Two of the Agreement.
[5] The lack of clarity arises because clause 2.3 of the common conditions in Part 1 of the Agreement contains a hierarchy of precedence for parts of the Agreement which provides to the extent of an inconsistency:
Part Two and Three prevails over the common conditions in Part One; and
Each Part prevails over an Appendix to the Agreement.
[6] The controversy over the meaning of clause 25.2 of Part Two, and the precedence of a paid meal break arrangement voted by a relevant majority of employees over the prescriptions for meal and crib breaks in Appendix Two, is also the subject of a dispute between the parties which led the RTBU to make a s 739 application dated 12 March 2025 (C2025/1832).
THE POWER TO VARY TO CURE AN AMBIGUITY OR UNCERTAINTY
[7] Section 217 of the Act provides the following:
"Variation of an enterprise agreement to remove an ambiguity or uncertainty
(1) The FWC may vary an enterprise agreement to remove an ambiguity or uncertainty on application by any of the following:
(a) one or more of the employers covered by the agreement;
(c) an employee organisation covered by the agreement.
(2) If the FWC varies the enterprise agreement, the variation operates from the day specified in the decision to vary the agreement."
[8] By a decision dated 15 July 2024, Commissioner Yilmaz approved the Agreement.[2] The Agreement commenced operation from 22 July 2024, covering Yarra Trams, the RTBU and all employees of Yarra Trams who are employed in a classification contained within the Agreement.
[9] The Agreement has an elaborate and interconnected structure. It has three parts and three appendices.
[10] The Agreement has three parts:
Part One - Common Conditions: which sets out general terms and conditions that apply to all employees.
Part Two - Operations: which applies to the class of employees employed in the classifications listed at subclauses 1.1 (a) to (c) of Part Two, that is, those "engaged directly in positions involved in the day-to-day operations and running of the metropolitan tram network".
Part Three - Administration, Technical & Professional: which applies to the class of Employees that is employed as 'Administration Officers' in the classifications listed at clause 3 of Part Three, that is, those in "positions involving administrative duties in Tram Deports performing tram operations duties".
[11] The Agreement also includes three appendices which provide for further terms and conditions for specific classes of employees. Relevantly for employees covered by Part 2:
Appendix One - Tram Operations which, by clause 1.2 of Part Two, provides further terms and conditions for Part Two employees engaged in the following classifications:
Tram Driver/CSE (Trainee)
Tram Driver
Traffic Officer/Driver
Depot Trainer
Operational Training Officer
Customer Service Employee
Authorised Officer
Senior Authorised Officer
Appendix Two - Administrative, which by clause 1.2 of Part Two provides further terms and conditions for Part Two employees engaged in the following classifications:
Officer Production
Officer Production/Trainer
Officer Operations
Controller, Operations Centre
Customer Service Supervisor
Authorised Officer Supervisor
Officer, Customer Relations and Information.
Appendix Three - Annualised Salary Agreement is not relevant to this application but provides for a template annualised salary agreement which can be entered into between Yarra Trams and an employee.
The hierarchy of precedence over the Parts of the Agreement and its Appendices in the Common Conditions
[12] Clause 2.3 of Part 1 of the Agreement then outlines the system whereby certain Parts of the Agreement take precedence over another Part and/or the Appendices, to the extent of any inconsistency. Put shortly:
Parts Two and Three prevail over the provisions of Part One; and
Each Part prevails over the provisions of an Appendix.
Clause 25.2 of Part Two and its alleged uncertainty and or ambiguity
[13] The joint application relates to clause 25.2 of Part Two, which provides:
All other operational staff (excluding drivers)
[14] Following consultation with the RTBU according to subclause 25.2(a) of Part Two, Yarra Trams intends to request the affected operational staff to vote for one of four options for the implementation of a paid meal break in lieu of an unpaid meal break. Two of those options provide for a meal break of less than 45 minutes, which, if approved, could arguably contravene clause 1.2 of Appendix Two of the Agreement, which provides:
"No rostered shift shall provide for a meal relief of less than three-quarters of an hour provided that by agreement between Yarra Trams and the officer concerned such meal break may be reduced to half an hour."
[15] Clause 1.2 of Appendix Two of the Agreement applies to the affected operational staff.
[16] The parties argue that, because clause 25.2 of Part Two is silent on the matter, it is ambiguous and/or uncertain whether or not a meal break endorsed by a majority of employees in accordance with subclause 25.2(b) of Part Two either:
takes precedence over clause 1.2 of Appendix Two; or
can only be implemented if it conforms to the requirements of clause 1.2 of Appendix Two.
[17] The parties argue I should vary subclause 25.2 to make clear that clause 1.2 of Appendix Two of the Agreement is not a barrier to Yarra Trams implementing a system of paid meal breaks of thirty minutes or less, in the event the affected employees endorse such a system by vote pursuant to subclause 25.2(b).
[18] To state the obvious, my discretion to vary an agreement under s 217 may only be exercised if I am satisfied there is an ambiguity or uncertainty in the agreement. The principles to be applied in a consideration of an application under s 217 are:
• The Commission should approach an application in two stages. First, as a jurisdictional pre-requisite, it should identify whether there is an uncertainty or ambiguity. Secondly, if an ambiguity or uncertainty is identified, it should consider whether to exercise its discretion to vary the agreement the subject of the application;[3]
• The process of identifying ambiguity or uncertainty involves making an objective assessment of the words used in the provisions under examination. The words used are construed having regard to their context;[4]
• The Commission will generally err on the side of finding an ambiguity or uncertainty where there are rival contentions advanced and an arguable case is made out for more than one contention:[5]
• However, the Commission must make a positive finding that an agreement the subject of an application under s.217 is ambiguous or uncertain. Prima facie satisfaction of ambiguity or uncertainty is not sufficient;[6]
• The mere existence of rival contentions as to the proper construction of the terms of an agreement will also be an insufficient basis to conclude the existence of ambiguity or uncertainty. Such contentions may be self-serving. The task is to make an objective judgment as to whether the wording of a provision is susceptible to more than one meaning;[7] and
• Once an ambiguity or uncertainty has been identified, in exercising the discretion whether to vary the agreement, the Commission is to have regard to the mutual intention of the parties at the time the agreement was made.[8]
[19] Complexity confounds understanding. The parties have chosen to enter into an agreement with interlocking parts where certain parts take precedence over other parts "to extent of any inconsistency". The volumes of High Court jurisprudence on s 109 of the Constitution and the legion of decisions in the Federal Court, and in this Commission, over the meaning of incorporated award terms show the dangers associated with hierarchies of precedence and the use of the words "to the extent of any inconsistency". An agreement with a regime of precedence "to the extent of any inconsistency'" with three parts and three appendices was bound to lead to ambiguity and uncertainty.
[20] The terms of clause 25.2 suggest a failure of the parties to agree on the precise terms of a paid meal break during the negotiation. The parties developed a process where the terms of a paid meal break could be developed and agreed through a majority vote. It is unclear from the express terms of the clause whether or not the parties intended for the result of the majority vote to be fettered by the terms of Appendix Two.
[21] Therefore, on an objective assessment of the text of clause 25.2 in the context of the Agreement, there is uncertainty over whether an agreed paid break arrangement voted up by the employees would take precedence over Appendix Two or whether the crib and meal break prescriptions of Appendix Two takes precedence. It follows the terms of Clause 25.2 are capable of more than one meaning in the context of the precedence hierarchy in clause 2.3 of the common conditions in Part 1.
[22] I therefore find clause 25.2 is ambiguous or uncertain. Having identified an ambiguity or uncertainty the next step in determining whether I should exercise my discretion is to have regard to the mutual intention of the parties at the time the agreement was made
[23] The terms of clause 25.2 suggest the process encapsulated in that subclause was a "we ran out of time" provision. That is, the negotiators, rather than holding up the vote on the final agreement to negotiate the text of a term for a paid meal break, decided on a mechanism where the terms and conditions of a paid meal break could be determined early on in the life of the agreement. Given the democratic method used to resolve the consultation, it would be surprising if the parties intended the result would be in any way fettered by the limitations within Appendix Two.
[24] It follows, having regard to the mutual intention of the parties at the time the agreement was made, I am satisfied that I should exercise my discretion to vary the agreement in the terms sought by the parties. That is, by the insertion of a new clause 25.4(d) to Part Two in the following terms:
"(d) If a paid meal break arrangement is put to a vote by Yarra Trams and endorsed by employees in accordance with cl. 25.2(b) above, the implementation of that arrangement will prevail over the meal and crib break provisions in the respective Appendix."
[3] See Re Tenix Defence Systems Pty Limited Certified Agreement 2001 - 2004 at [28], [32] and [35].
[6] See CoInvest Ltd v Visionstream Pty Ltd (2004) 134 IR 43 [57].
[8] See Re Tenix Defence Systems Pty Ltd Certified Agreement 2001 - 2004 at [32].
Printed by authority of the Commonwealth Government Printer
(2004) 134 IR 43