C2006/3723, Transcript of Proceedings [2007] AIRCTrans 112 (13 March 2007)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 16545-1

SENIOR DEPUTY PRESIDENT HAMBERGER

C2006/3723

AUSTRALIAN RAIL, TRAM AND BUS INDUSTRY UNION
AND
RAIL INFRASTRUCTURE CORPORATION
s.170LW -prereform Act - Appl’n for settlement of dispute (certified agreement)
(C2006/3723)

SYDNEY

10.13AM, THURSDAY, 22 FEBRUARY 2007

Continued from 17/1/2007

Reserved for Decision

PN2276

THE SENIOR DEPUTY PRESIDENT: Mr Howell.

PN2277

MR HOWELL: Thank you, your Honour. Your Honour, our written submissions - well our submissions ..... reduced to writing are rather lengthy. I will endeavour to not repeat them this morning, but what I would foreshadow, your Honour, procedurally today would be our substantive submissions orally and in that I will try and deal with what my friend has put in writing. Then my friend and I might be briefly in reply on anything new which wasn't ......

PN2278

Other than that, much of our reply will be dealt with in the first instance, if I can put it that way and, your Honour, as to the substantive merit of the dispute insofar as we need to say anything in addition to the written submissions, I had intended to deal with those under three broad headings and they are the construction of the agreement, the contractual position, if I can use that expression and the reasonableness of what was the ......

PN2279

Now, our submissions on relief, subject, of course, to anything your Honour might want ..... of our written submissions as set out in paragraphs 201 and 202 of our written submissions and in our respectful submission, in answer to questions posed and the way we there set out, clause 104.2 provides for a fair and equitable settlement consisting with the parties' obligations to the agreement, matters of jurisdiction and how I deal with the written submissions and I have intended to deal with those ..... this morning ..... your Honour might ......

PN2280

Now, before we deal with the substance or merit for the RTBUs case, your Honour, there are a couple of matters that arise from my friend's written submissions that we should deal with at the outset. I will only deal with them briefly so as they're not consuming too much of the time allocated for submissions, but if your Honour thinks you'll be assisted by anything further ..... and indeed ......

PN2281

Now, the two matters which I think need to be dealt with at the outset are the relevant principles applicable to construction of an enterprise agreement and the jurisdictional challenge that my friend seeks to make and as part of our argument. Everything else which my friend says arises really by way of merit and I'll deal with it as we deal with the questions of merit in our submissions. As to the relevant principles, your Honour is no doubt well familiar with them.

PN2282

I thought it appropriate, however, to say something briefly about it because it appears that my friend in paragraphs 31 to 40 of his written submissions is seeking the resurrection of ....., that is he's seeking to breathe life into what we would submit is a now long dead approach to construction and often described as the literalist approach and that is you look to the words used in the clause itself and you don't look to the surrounding circumstances ..... context until an ambiguity can be identified.

PN2283

Your Honour, in our respectful submission that's not the approach taken by the courts or the Commission to the construction of statute, the construction of contract ..... construction of an industrial instrument, most particularly certified agreement and awards. What is more, with respect, the authorities my friend relies upon don't make good that proposition.

PN2284

I am not going to deal with it in detail, but in particular my friend relies upon decisions before the New South Wales Industrial Relations Commission in Zoological Parks Board and Kingmill. In our respectful submission, my friend is being somewhat selective in the relevant passages he's set out in his written submissions and in doing so, with respect, isn't properly representing the statements of principle contained in those decisions.

PN2285

We would urge your Honour to have regard to the entirety of the relevant statements of principle. They're not over long. In Zoological Parks Board, the relevant paragraphs are to be found at paragraphs 43 to 47, noting in particular the adoption by the Full Bench of what is said by the Vice President in the decision of Fox v GIO and I will just briefly quote from that. His Honour there said and this was expressly dealt with by the Full Bench:

PN2286

The modern approach to statutory interpretation insists that the context be considered in the first instance, not merely at some later stage ...(reads)... that is the mischief that one may discern the statute is intended to remedy.

PN2287

To similar effect we point your Honour to paragraph 67 in the Kingmill decision and again to similar effect in Delta Electricity which is another one of the authorities referred to at 31 and, your Honour, this case demonstrates a wide ..... approach really is not an appropriate approach to construction. As I think it was Brennan J said in Codelfa Constructions:

PN2288

Words are really nothing more than symbols of meaning.

PN2289

In order to understand what that meaning is, one may well have regard to relevant ..... context. In particular in this case, the clause that we principally rely upon is at clause 15.5.1 of the 2002 RIC agreement. That clause includes reference - sorry, includes expressions such as major periodic maintenance, construction work and project work. There's no definition of what that means in the enterprise agreement itself. One must look beyond the agreement in the first instance to understand what that is intended to attach to, what those phrases are intended to mean.

PN2290

Your Honour, whilst we're dealing with those decisions, we should in passing note the emphasis in the Zoological Parks Board decision to disavowing evidence of what they describe as user in paragraphs 58 to 59 of the decision. In other words, one cannot take evidence of what happened in practice as relevant to the construction of what an agreement is supposed to mean.

PN2291

As to the authorities we principally rely upon, we embrace the approach adopted in Zoological Parks Board, Kingmill and Delta Electricity, but we take your Honour to two authorities, both decisions of the Federal Court, both of which are binding upon your Honour. The first is Short v Hircus, an authority which has been decided with approval on more occasions than I would have time to list this morning, but I will hand up a copy. I might as well hand up the others whilst the associate is coming around.

PN2292

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN2293

MR HOWELL: The relevant passage is somewhat lengthy. It's to be found in (1993) 46 IR 128 commencing at the middle of page 133 to the penultimate paragraph on page 136. Your Honour will no doubt have been taken to it before. We rely upon the entire passage, but in particular the following which we say encapsulates the approach your Honour should adopt in construing these relevant instruments. It commences at about the middle of page 134, briefly setting out the quote, commencing:

PN2294

No-one doubts you must read any expression in its context and if, for example, an expression was first created by a particularly respected draftsman for the purpose of stating the substance ...(reads)... are plainly relevant to an understanding of what is likely to have been intended by its use.

PN2295

Skipping down a page a little:

PN2296

The context of an expression may thus be much more than the words that are ...(reads)... understanding its original use and seeing how it is now used.

PN2297

That passage, your Honour, has particular significance in this case, we would respectfully submit. In short, your Honour has regard to context in the first instance, not merely upon demonstration of some ambiguity and in light of the ordinary English meaning of the provision to that context. Your Honour, the only other authorities that I want to take you to for the purposes of construction are again well entrenched decisions.

PN2298

The first of the judgment of Madgwick J in Kucks v CSR Ltd reported at [1996] IRCA 166; (1996) 66 IR 182 and in particular what his Honour states at page 184 under the heading legal principles and the more recent unanimous Full Bench - court of the Federal Court in United Firefighters' Union of Australia v Metropolitan Fire and Emergency Services Board. That's [2006] FCAFC 84; (2006) 152 IR 106 which both specifically approves Kucks and at paragraphs 51 to 53 and summarises effectively short passages at 52 where their Honours stated:

PN2299

A narrow or pedantic approach is not to be taken. The intention of the framers of the document is to be ascertained objectively ...(reads)... rather than with niceties of jargon.

PN2300

As I say, your Honour is probably well familiar with the principles as matters of merely being put forward to try and deal with what appears to fall from my friend's written submissions. The second matter is the jurisdictional point. My friend asserts that our challenge to the directions lies at the heart of this dispute on the basis that it is neither a reasonable nor a lawful direction in accordance with common law principles, is beyond the terms of the agreement itself and as such is beyond your Honour's jurisdiction.

PN2301

We would respectfully submit that my friend seeks to impermissibly focus on the form of the relief we seek, rather than the proper jurisdictional issue. We say the proper jurisdictional issue in accordance with the authorities we've set out in our written submissions is the characterisation of the dispute, not the form of relief we seek. It's the dispute which must be characterised.

PN2302

Your Honour, we say if you make it through that jurisdictional gateway and it's a jurisdictional gateway which my friend concedes is open in paragraph 8 of his written submissions and everything else falls as a question of power, what power does the private arbitrator have in dealing with the relevant dispute? Again, we've dealt with the issue of power in our written submissions and in our respectful submission the power afforded a private arbitrator under this agreement is sufficiently broad to encompass the factual arguments we would seek to run, but your Honour may well be against us on that.

PN2303

If your Honour is against us, then your Honour ought not cherry pick the jurisdictional question in the way that my friend seeks to have you do. Your Honour, as we've outlined in our written submissions, we advance in essence three arguments in support of our position with the dispute and in particular to support the proposition that the employees need not comply with this direction and the first relates solely to the terms of the agreement and the context.

PN2304

The second relates to the contractual arrangements between the parties either by express agreement or by a term implied into that contract by virtue of custom and practice. Now, we see that as a contractual argument, not as an argument about the importation of a term into the agreement. In our respectful submission, the certified agreement is a statutory instrument, it says what it says. One can't in our respectful submission imply a term into that agreement which has been voted the ..... procedure.

PN2305

THE SENIOR DEPUTY PRESIDENT: So you're saying you can't - a certified agreement in your view can't have an implied term, as it were?

PN2306

MR HOWELL: The authorities are both ways and insofar as the authorities do say that one can do that, that is not what we seek to do in these proceedings. The third basis upon which we say the dispute is not one with which the employees need to comply is that contractual issue of reasonable and lawful direction. We say my friend seeks to cherry pick the jurisdictional point because if your Honour is not satisfied on the first limb of our argument, that is that the agreement itself is silent, then everything else would fall away and what your Honour will do is issue a decision in which you say you're satisfied the agreement itself is silent on the point, the agreement doesn't impose any relevant restriction and your Honour need not consider the other matters as they fall outside the terms of the agreement.

PN2307

Of course, I should say we assert to the contrary. We say that the power available to a private arbitrator under the clause is sufficient to enable you to deal with all of the relevant matters, but that would be the approach we would urge upon your Honour if your Honour was otherwise not satisfied that the proposition is correct, but turning then to the substantive merits of our argument.

PN2308

As your Honour would be aware if you've had the chance to glance through our written submissions, the foundation of our case is clause 15.5.1 of the 2002 Rail Infrastructure Corporation Agreement and the relationship between the various agreements is to be found in paragraph 35 of our written submissions. In essence, the 2002 agreement is called up and forms part of the 2005 agreement subject to any inconsistency with that later agreement and we say there isn't any and so the relevant provisions arise in the 2002 agreement.

PN2309

In essence, your Honour, for the reasons we articulate in the written submissions, the RTBU contends that clause 15.5.1 being the latest manifestation of a clause that originally came about in clause 15 of the 1997 RSA agreement, then in clause 42 of the 1998 RSA agreement does far more than merely provide an entitlement to an allowance. Your Honour, our arguments on the meaning of clause 15.5.1 are sufficiently dealt with in writing between paragraphs 35 and 53 of the written submissions.

PN2310

We highlight the internal distinction within clause 15.1 - sorry, 15.5.1.1 between the word employees in the first sentence and the limitation of which employees the clause will apply to in the second sentence, namely:

PN2311

This will apply to employees engaged on major periodic maintenance work -

PN2312

THE SENIOR DEPUTY PRESIDENT: Can I ask you some questions? Obviously it's fairly central to your argument or is central to your argument and I just want to make sure I understand exactly what it is you're saying. In the second sentence, the highlighted - the sentence you've highlighted in 15.5.1.1:

PN2313

This will apply to employees engaged on major periodic maintenance project work or construction work who may be required to commence and finish their shift at the work site.

PN2314

Now, as I understand it, you're saying that that means that employees are either engaged to do that or they're engaged to do routine maintenance work, but you couldn't have it - that clause couldn't apply to somebody sometimes doing routine maintenance work and sometimes doing project work or periodic maintenance or construction work.

PN2315

MR HOWELL: In essence, yes, your Honour. We say the expression engaged on major periodic maintenance project work or construction work is intended to attach to a particular kind of employee, rather than the performance of a particular kind of work.

PN2316

THE SENIOR DEPUTY PRESIDENT: Task, yes. Why? I've read all your stuff about, you know, saying that employment and engagement are essentially synonymous, so I take that as read for now, but it sort of arguably at least begs the question, I mean, if you're - I suppose the issue then, yes, is whether you could be an employee who is engaged on major periodic maintenance at some time for some of your work and then also doing routine maintenance work at other times and so arguably - I am putting this forward as devil's advocate, if you like, this clause applies to people at some times, but not at other times, the same people. Why do you say that's wrong?

PN2317

MR HOWELL: In essence, your Honour, because that would lead to a rather absurd scenario, a scenario which would be industrially unworkable in our respectful submission. To articulate that a bit further and I had intended to come to it shortly, but we might as well deal with it now up front.

PN2318

THE SENIOR DEPUTY PRESIDENT: Okay.

PN2319

MR HOWELL: One would firstly have to be able to identify in our respectful submission with some degree of certainty what falls within the notion of major periodic maintenance work, construction work or project work and in our respectful submission there is no evidence before your Honour which would satisfy your Honour that those terms have a crystallised meaning. Your Honour, the only evidence that deals with - sorry, if your Honour will bear with me for one moment. I have the relevant references.

PN2320

Your Honour, the only evidence on that point, that is what is considered, what is to be captured by those relevant terms is set out in our written submissions at paragraphs 141 to 143. I don't need to take your Honour to it now, but in essence what falls within notions of major periodic maintenance is determined by the scope of the work. It would be absurd to suggest in our respectful submission that if an employee was, for example, to perform the replacement of one sleeper, two sleepers, three sleepers, five sleepers, 10 sleepers, 20 sleepers, that they could not be directed to start and finish at the work site, but if they were to complete 21 or 40 or 50 or perhaps more, then they could be rostered to work anywhere.

PN2321

THE SENIOR DEPUTY PRESIDENT: Why? I have to tell you that's not necessarily - you're also saying, well, it's absurd. The trouble with using terms like that is it may be absurd to you, but it's not necessarily absurd to somebody else.

PN2322

MR HOWELL: I understand, your Honour, but - - -

PN2323

THE SENIOR DEPUTY PRESIDENT: Why couldn't it mean - look, normally, you would be doing work on your line of track and you go home every night, but if there's a big project, a major re-sleepering project and you would know what a major re-sleepering project was, well, arguably, there are these big projects, there's one going on now as I understand it.

PN2324

MR HOWELL: Indeed.

PN2325

THE SENIOR DEPUTY PRESIDENT: So in this situation, you can be required to commence and finish your shift at the work site, because it would be more efficient to do so and in that situation, then the clause applies, 15.5.1 applies to those people in that situation. You're saying, no, it can't mean that. It can't mean that somebody who normally does routine maintenance on their own particular line of track, go home every night, but occasionally they might be asked to work on a big project where they would be asked to go, you know, away from their normal home for a period of time. Why is that absurd?

PN2326

MR HOWELL: Because, your Honour, one would not have thought that such - in our respectful submission - well, take it in two stages. I will deal with why that would be absurd in the second stage, but the first part of our argument is when one has regard to the relevant context, in particular how these provisions have been drafted over time and we say when you look at the 97 and the 98 agreement, it's quite plain that that equivalent provision does not stand alone. Indeed, the only reason my friend is able to make the submission that it stands alone in the 2002 agreement is because it has its own little number.

PN2327

THE SENIOR DEPUTY PRESIDENT: Right.

PN2328

MR HOWELL: Your Honour will see from the structure of the earlier instruments and they're set out in our written submissions.

PN2329

THE SENIOR DEPUTY PRESIDENT: When you say not stand alone, stand alone from what?

PN2330

MR HOWELL: As I understand my friend's argument, or, actually, I will take a step back. We would submit in the 1997 RSA agreement and in the 1998 RSA agreement, clause 15 and clause 42 respectively, when your Honour has a look at those provisions and they're set out in terms in our written submissions, the opening stanza, this paragraph that we're having this debate about, quite plainly operates to condition everything which falls after it and it's perhaps easiest if I take your Honour to it to make good the proposition.

PN2331

THE SENIOR DEPUTY PRESIDENT: Yes.

PN2332

MR HOWELL: The 1998 provision contained in paragraph 100 of our written submissions at page 27 - - -

PN2333

THE SENIOR DEPUTY PRESIDENT: You say paragraph 100? Yes.

PN2334

MR HOWELL: Yes. Your Honour can go to either, it doesn't really matter. They're relevantly in the same form, but if your Honour has a look at how that provision is drafted and, as I say, insofar as its opening stanza is concerned, it's quite plain, it's identical to the provision from the 97 agreement. The structure of that provision quite plainly is intended to condition the operation of the entire clause.

PN2335

THE SENIOR DEPUTY PRESIDENT: Okay, just take me through this. Why does that matter?

PN2336

MR HOWELL: There's an opening introductory stanza which opens with:

PN2337

In order to maximise efficiency -

PN2338

then that is confined and then one has a series of dot points underneath.

PN2339

THE SENIOR DEPUTY PRESIDENT: Yes, I can see the difference. Okay, let's assume that follows.

PN2340

MR HOWELL: To follow the proposition through, 97 has that particular form of words, 98 has that particular form of words. The only difference, the only relevant difference is that that opening stanza is given a number of its own. Leave aside the fact that it's now under a provision which is headed allowances, but the only relevant difference which could be said to lead to the conclusion that that provision now stands alone, rather than conditioning the operation of the remainder of the provisions is that it now has its own number.

PN2341

THE SENIOR DEPUTY PRESIDENT: Okay, so let's say it doesn't stand alone. Let's say it conditions all the clauses that follow, let's take that for now. If that's true, then why does that make that proposition I put forward, which is that these people might do it sometimes and not other times, why is that absurd?

PN2342

MR HOWELL: Because in our respectful submission, your Honour, one would not expect to see such a foundational condition of employment, that is where you start and finish your employment attached to such a vague concept as major periodic maintenance project or construction. Indeed, your Honour, the whole purport of Mr Ogilvy's evidence was that there is no relevant distinction between how the work is organised.

PN2343

These people perform this work interchangeably. Indeed, he purports to attach I think it was attachment A to his affidavit as a document which showed that some of the staff were permanently funded by MPM and some of the staff were permanently funded by the routine maintenance budget and he sought to draw from that the idea that they often and interchangeably performed this work. Your Honour, such a foundational condition of employment would not attach to such a vaguely defined notion in our respectful submission.

PN2344

Those words, if you accept what we say in clause 15 of the 1997 agreement, clause 42 of the 1998 agreement, are intended to restrict the scope of the clause, in other words the reference to employees in the first sentence of the opening stanza, then it's plainly intended to restrict its operation. It necessarily flows, then, that the immediately following provisions are designed to provide some form of authority to make a relevant form of direction, the language of them in our respectful submission would not enable some other conclusion to be drawn and, indeed - - -

PN2345

THE SENIOR DEPUTY PRESIDENT: Okay, sorry to be difficult, but I see why you're saying that the rest of 15.5.1 is - the whole thing only applies to these employees referred to in your highlighted sentence. I understand the logic of that. You're saying if you look at the history, clearly that is what was intended. It wasn't a stand alone clause, but does that answer the question? I mean, you have put one argument, but that in itself seems to be quite a separate issue from my proposition that perhaps this applies to people who perform periodic maintenance and other times do routine maintenance. The conditionality of that first paragraph on the rest of the clause, does that make any difference to that point?

PN2346

MR HOWELL: Your Honour, the only other matter which I think I could probably take your Honour to to support the construction is the organisational structure as it has existed over time and, your Honour, the only evidence and I don't think this is actually cavilled with by my friend, but the organisational structure as it has existed over time was that throughout RSA, that's Rail Services Australia and its predecessor, the Railway Services Authority I think it was, there was in essence two divisions.

PN2347

There was the major works division and there was the projects and supports division. Sorry, there was the major works division and the infrastructure division. The major works division, to paraphrase Ms Reynolds' evidence, owned all of the major equipment, the major re-railing gangs, et cetera. The infrastructure division was that part of the business which had the specific depots based all around the state and had attached to them specific lengths of track.

PN2348

The positions in the infrastructure division were filled by what Ms Reynolds described as the local infrastructure manager and I can give you the relevant quote, if your Honour would be assisted by it. The lead-up to the quote I am going to give you is set out in full in paragraph 170 of our written submissions. It's a rather lengthy - - -

PN2349

THE SENIOR DEPUTY PRESIDENT: Paragraph which, sorry?

PN2350

MR HOWELL: Paragraph 170 of our written submissions, that's the quote which leads to this expression which itself is set out in paragraph 180 of our written submissions. It's paragraph number 324 in the transcript and the quote is this:

PN2351

So people both prior to and after the multi-skilling were always employed as routine maintenance workers working from a depot ...(reads)... vacant positions and those positions on the establishments -

PN2352

and I should interpose there, by establishments, I take it that Ms Reynolds is referring to the established business structures which she is referring to earlier which is the major works division and the infrastructure division. To continue the quote -

PN2353

establishments dictated what type of position it was.

PN2354

Dictated what type of position it was:

PN2355

Thank you, and that would have been represented to people at the time they were employed?

PN2356

Ms Reynolds says:

PN2357

It would have been in their letter of offer.

PN2358

Indeed, your Honour, Mr Ogilvy in cross-examination seems to again accept that there is this foundational distinction. He tries to assert otherwise elsewhere in his evidence, but in cross-examination he says this:

PN2359

Okay, so the expression worked off their length would mean nothing to you?

PN2360

Mr Ogilvy says:

PN2361

Yes, it means something.

PN2362

Question:

PN2363

And what would it mean to you?---It means the gang travelled away.

PN2364

Question:

PN2365

It means the gang travelled away, all right, and it means they travelled away because they were employed to work from a particular home depot on a particular length of track, correct?

PN2366

Answer:

PN2367

Yes.

PN2368

Your Honour, the whole organisational structure was based on this foundational distinction between a migratory team which was within the major works division and the depot based teams which are based in the infrastructure division. That in and of itself tends to suggest that there would be a difference in the conditions of employment relating to how one might be required to travel around the place.

PN2369

THE SENIOR DEPUTY PRESIDENT: This is all explaining why 15.5.1 is to interpret it as people sometimes doing major periodic maintenance and some as doing routine maintenance.

PN2370

MR HOWELL: Yes, your Honour. The very organisational structure was set up to create a distinction between the two forms of work. Mr Ogilvy himself in evidence described it as being the very purpose of establishing that model, that is major periodic maintenance and the routine maintenance structure. Ms Reynolds in her evidence describes the background to the creation of that structure which in answer to a question from your Honour, she says came in in about 1998.

PN2371

The whole purpose of that structure was to separate the two out because it was costing them too much on their quotes to be able to compete with the other infrastructure maintenance providers. The two forms of work were being amalgamated and funded collectively and they had to separate them, so the infrastructure division would draw up its maintenance schedules for its length of track and they would put a request through to the major periodic works division to come through their track in accordance with a locally determined maintenance schedule and do that work.

PN2372

The workers in the individual divisions worked in accordance with a locally agreed roster. That's how it's described in the industrial agreement in 2002, your Honour. Your Honour, all these matters point towards there being a foundational distinction between the people who would start and finish in the work site - sorry, start and finish at the home depot and those people who would start and finish at a work site.

PN2373

THE SENIOR DEPUTY PRESIDENT: So if I could ask the $64,000 question, why doesn't the agreement say these people can't be required to work away from home, they can be asked, but they can't be required?

PN2374

MR HOWELL: Your Honour, the only answer I can give you is that that is how the clause was understood to operate on the ground because the people who are engaged to perform major periodic maintenance, construction work and project work and only major periodic maintenance work, construction work and project work are the people who are employed in the migratory teams.

PN2375

THE SENIOR DEPUTY PRESIDENT: So is your answer to my question essentially, well, it was just so obvious that it didn't need to put it in?

PN2376

MR HOWELL: It has always been there, your Honour, and that's the evidence of Mr Klineberg, Ms Reynolds and Mr Copeland. There has always been this foundational organisational distinction. It's always been understood that way.

PN2377

THE SENIOR DEPUTY PRESIDENT: Okay, thanks. Sorry, that was a very prolonged interruption.

PN2378

MR HOWELL: That in essence, your Honour, is what the submissions we were going to make today are specifically directed to, why it is we say this agreement says what it says and, your Honour, if I could deal with - I ought come back and deal properly with the two propositions which my friend seeks to advance. Your Honour, just to articulate clearly what we say the relevant construction of the instrument is, your Honour, we say the opening provision draws an internal distinction between the employees used in the first sentence of the stanza and the limited class of employees which are, quote:

PN2379

Engaged in major periodic maintenance whether project work or construction work to which the provision is intended to apply.

PN2380

The opening provision is plainly intended in our respectful submission to condition the entire clause. The opening provision creates a specific and limited discretion to require certain employees to commence and finish at the work site and again in relation to the opening paragraph, we would respectfully submit it deliberately draws the distinction between specific groups of infrastructure maintenance work and infrastructure maintenance workers and those groups which, quote:

PN2381

May be required to commence and finish their shifts at the work site.

PN2382

Your Honour, the only group of infrastructure maintenance workers that is not identified in the opening stanza in the relevant clause and as such cannot be the subject of a start and finish direction - in our respectful submission the clause goes far beyond merely provision an allowance. Your Honour, the only other thing which I should deal with is what I've characterised as my friend's second proposition and that is that the reference in the opening part or, sorry, the reference in the opening stanza to a location other than the work site cannot be read to mean a home depot and could be read to mean either a yard or depot other than the employee's normal yard or depot or the place provided for lodging for camp away purposes.

PN2383

Your Honour, that's the proposition advanced in paragraphs 26 to 28 of my friend's submissions. Your Honour, in essence we accept that the expression a location other than the work site could mean a location where someone is provided temporary lodging. Your Honour, in our submission, the opening stanza conditions the entire clause and one of those provisions that is conditioned by the opening stanza includes that very notion.

PN2384

It's in clause 15.1.5. As to why a location other than the work site couldn't be read as another depot, your Honour, in our respectful submission one needs to go no further than the examination of the clause itself, in particular point 2 to point 4. Internally they draw the distinction between the depot where the employees, quote, operate from, or, quote, who operate out of a particular depot and the work site.

PN2385

That's the internal distinction which is drawn in the clause itself. The clauses clearly draw a distinction between the depot from which it is they operate and the work site, in other words, in our respectful submission, the home depot and the work site. The home depot is the depot from which they operate. Your Honour, the other argument we ought deal with is the respondent's alternative argument and this is set out in paragraphs 29 and 30 of the written submissions.

PN2386

The alternative submission is that if there is a restriction on the capacity to camp employees away, then it can only apply to employees when performing major periodic maintenance project work or construction work and he attempts to draw support from that by looking at clauses 4 and 14 of the 2002 agreement. Your Honour, the first thing we say is my friend is, with respect, being a tad misleading when he puts in quotations the expression when performing major periodic maintenance, et cetera, et cetera, because that is not a quote from the clause itself. I am not sure where that quote is drawn from, but the clause itself says:

PN2387

This will apply to employees engaged in major periodic maintenance, project work or construction work who may be required to commence and finish their shifts at the work site.

PN2388

It doesn't say anything about when they are performing that particular form of work and we say for the reasons we articulated earlier and in our written submissions, the expression engaged on should be read synonymously with employee and as we articulated earlier, we say that your Honour ought not accept that because it would provide a situation where the hook upon which such a direction hangs is so flexible that it is never capable of clear delineation, when someone is doing X work, when someone is doing Y work.

PN2389

Now, your Honour, the things which my friend seeks to draw in support of his proposition are firstly clauses 4 and 14 and he says that the RTBU submission being that employees are offered employment on the basis they will be a routine maintenance worker or migratory worker is not supported by any evidence. Now, in relation to the first point, that is that one can draw support from the travelling time provisions for the proposition that our contention is baseless, one I don't think really needs to go further than Rail Infrastructure Corporation's own management instruction that's to operate with the roster code which sets out how these travelling time provisions are supposed to work. Your Honour, it's attached to Tony Doyle's statement. That's ARTC6. It is set out in our written submissions.

PN2390

THE SENIOR DEPUTY PRESIDENT: I have got ARTC6.

PN2391

MR HOWELL: Thank you, your Honour. It is one of the attachments. It's attachment B and in particular clause 14 which is at page 5.

PN2392

THE SENIOR DEPUTY PRESIDENT: Travelling time, is that it?

PN2393

MR HOWELL: Indeed, and as the clause itself says:

PN2394

Employees required to travel on a daily basis will be paid excess travel time from any time spent travelling in excess of one hour from their residential station. This allowance applies only to infrastructure workers engaged on MPM work, project work and construction work who may be required to commence.

PN2395

It pulls together the idea that travelling time applies only in our respectful submission to these particular types of workers and again that's dealt with more comprehensively in our written submissions. Your Honour, I've already taken you to what Ms Reynolds and Mr Ogilvy had to say, but I suppose the only other thing that I should say, your Honour, is if your Honour is not satisfied - sorry, the only other matter that your Honour should take into account in - I withdraw that.

PN2396

As to the second thing which my friend says about our submissions, that is that there's no evidence to support there being employees either offered employment as what we characterise as a routine maintenance worker or as a migratory worker, your Honour, with respect, there is such evidence. The evidence is set out in my written submissions and I take your Honour to it now, but, indeed, your Honour, there's no evidence to the contrary.

PN2397

If I could actually point your Honour in the direction of it. It's dealt with in paragraphs 180 through to 183 of our written submissions. Indeed, that is the evidence of the basis upon which people were employed in the infrastructure maintenance division, the rail infrastructure corporation's business.

PN2398

THE SENIOR DEPUTY PRESIDENT: Can I ask you, the suggestion is that I could draw a negative inference from the fact that you didn't actually call as a witness any employees who could give direct evidence that when they were employed, this is what they were told.

PN2399

MR HOWELL: Yes, your Honour.

PN2400

THE SENIOR DEPUTY PRESIDENT: Why shouldn't I draw such an inference?

PN2401

MR HOWELL: Well, your Honour, for two reasons. Firstly, we have evidence from the employer, the senior human resources person in the employer about what these people were told and that's Ms Reynolds. Her evidence goes uncontradicted. You have evidence from two union officials who have been in the industry forever and a day, but more importantly were also originally employees who went through this process and they've given evidence about what happened to them.

PN2402

It might be somewhat tangential, but that is the evidence that they've given, but the suggestion that your Honour should draw an adverse inference is also a two edged sword. My friends employ in the order of 1000 secondees. There's no reason why they couldn't have led evidence to the contrary of what is asserted by Mr Copeland, Mr Klineberg and Ms Reynolds. What's more, they had Mr Ogilvy who was one of these infrastructure division depot managers. There's no evidence from him about the basis upon which he employed people.

PN2403

If one is to draw an adverse inference, your Honour, as I say, it is a two edged sword and, of course, the only inference that your Honour could draw is that it wouldn't have helped us, not that it necessarily would have hurt us. That is the appropriate way to approach the changes in my respectful submission and, your Honour, we had intended to call an employee. His evidence didn't go to that point. We didn't call that employee because ultimately we didn't think we ultimately needed to.

PN2404

There was sufficient evidence from the employer from two individuals who used to be employees and from two union officials. We formed the view that his evidence, at least on that point, wouldn't have taken it any further and that in relation to other matters might well have confused the matter or muddied the waters further which would not have assisted our case. It wouldn't have hurt our case, but it wouldn't have assisted our case and in essence, your Honour, it's not an inference which would be particularly persuasive, if I can put it that way.

PN2405

It wouldn't be an overly large feature in your Honour's consideration of this matter, particularly in light of the evidence your Honour does have about how this organisation was structured. Again, we come back to the same point and we've shown in evidence how the positions have changed over time from the specific job skill classifications through to the multi-skilled teams who've shown how the infrastructure maintenance workforce has - sorry, the organisation of the infrastructure maintenance workforce has been split up from the general workforce to the major works division and the infrastructure division, the access division and the projects and support division under our infrastructure corporation which existed at the time when ARTC took over.

PN2406

Your Honour, that structure does not support the idea that these people performed this work interchangeably, willing, wherever and, your Honour, I suppose the only other thing that I can point your Honour to which is objective evidence that to require routine maintenance workers, if I can use the catchcry which we've used throughout, to perform this other form of work required some special arrangement or as Mr Klineberg set out in his evidence, some agreement, is the north coast agreement, the north coast restructure agreement which is attached in two places. It's attached as an annexure to Mr Klineberg's statement in reply and also to Mr Copeland's statement in reply. Mr Copeland's is smaller, so it might be easier if I take your Honour to that.

PN2407

THE SENIOR DEPUTY PRESIDENT: Which number is this?

PN2408

MR HOWELL: It's RTBU7, the north coast restructure agreement is at GC1 and if I could get your Honour to flick through to the page numbered - well, it's actually not numbered. It immediately follows the page numbered 11 which is under appendix A in the north coast structure, so if your Honour has appendix A, north coast structure, there's then at page 10 a chart and there's some evidence about what that is, then there's page 11.

PN2409

THE SENIOR DEPUTY PRESIDENT: Is this in the project report?

PN2410

MR HOWELL: No, this is the trial agreement. Your Honour might recall from the evidence that there was a trial agreement on the north coast that tested as it were this reorganisation from job specific gangs to multi-skill teams and the separation between the projects and support and the infrastructure division and if your Honour has the page headed the maintenance regime immediately follows page 11. A proportion of the page numbers aren't consecutive, your Honour.

PN2411

THE SENIOR DEPUTY PRESIDENT: Is this in the appendix C?

PN2412

MR HOWELL: No, it's in appendix A.

PN2413

THE SENIOR DEPUTY PRESIDENT: There's a preamble. Have you got a clause number?

PN2414

MR HOWELL: It's actually not numbered.

PN2415

THE SENIOR DEPUTY PRESIDENT: I don't know if I've got it.

PN2416

MR HOWELL: Your Honour, perhaps I could - if your Honour wants me to identify it for you quickly, if the associate wanted to hand it to me.

PN2417

THE SENIOR DEPUTY PRESIDENT: Yes.

PN2418

MR HOWELL: It's the page headed the maintenance regime and, your Honour, there is a little bit of evidence about this, but this broadly describes the structure which was set up under this restructure. In particular, about the middle of the page, you'll see the small underlined heading maintenance team and the evidence is, your Honour, the maintenance team is referring to the local depot teams and the duties there set out are the duties of that depot based team and the very last bullet point on the page is what I wanted to take your Honour to. The duties of the local depot team include work off link and I would remind your Honour what Mr Ogilvy said about the expression work off length. It means that the gang travelled away at another length of track, work off length, quote:

PN2419

Special situations negotiated through the consultative committee, for example, assist neighbours.

PN2420

Your Honour, that's entirely consistent with the evidence of Mr Klineberg, Ms Reynolds, Mr Copeland, that to get people to work off their length took a special arrangement. It required their agreement. It was something which was negotiated through the consultative committee set-up under the industrial agreements that have existed over time. It was the exception. Your Honour, everything else I think is sufficiently dealt with in writing by way of submissions on the agreement itself, but in summary, in our respectful submission clause 15.5.1 and its predecessors was always intended to limit the capacity of the relevant employer to require employees to start and finish at the work site as opposed to their home depot and to provide an allowance for those employees who could be required to do that work and, in short, your Honour, if you cannot be required to start and finish at the work site or perhaps more accurately finish and then start at the work site, then you cannot be required to camp away.

PN2421

To draw on the language from the old awards which are set out in our written submissions, if you can't be required to work in that way, then it is not the nature of your work to camp away. In other words, if you can't be required to start and finish, it's not the nature of your work to be required to work away from home. Your Honour, as to the contractual issues, your Honour has heard what we have had to say. We either are within power or not, but to deal with it briefly, again it's dealt with in detail in writing.

PN2422

In essence, we say that in addition to what we've articulated in writing, the resolution of the contractual issues is a step in the resolution of this dispute. To sum up what we say about the contractual issues, your Honour, all the evidence so far as there is any about the basis upon which people were offered and accepted employment in the infrastructure division is one way. The relevant parts of the evidence are set out in paragraphs 180 and 184 of our written submissions. I've already put submissions to your Honour about the inference which ought be drawn and the fact that the employer has a language of its own.

PN2423

In the alternative, your Honour, if your Honour is not satisfied that that was the express basis upon which people were offered and accepted employment, then your Honour should be satisfied that there is a well established custom and practice. To the effect of what we set out in our written submissions at paragraph 178, in essence infrastructure maintenance workers were either employed to work from a depot on a dedicated length of track or as a part of a migratory team.

PN2424

Those infrastructure maintenance workers, the routine maintenance workers who are employed from a depot to work on their length of track - sorry, were employed to work on their length of track unless some other special arrangement was reached and those infrastructure maintenance workers, the routine maintenance workers who are employed to work from a depot would work on their length of track and start and finish in the depot each day unless a special arrangement was reached.

PN2425

As such, they could not be compelled to camp away. Your Honour, as we outlined at the beginning of our submissions, the custom and practice is significant because if your Honour accepts that submission, it results in a team that is implied as a matter of law under contracts of employment with relevant individuals and it would impose a restriction on the capacity to make the direction which is the subject of the dispute.

PN2426

We say it's a step in the resolution of the dispute for two reasons. As we outlined in our written submissions at paragraph 30, if there were such a custom and practice in the industry, then that would be relevant as a part of the context in which the agreement was reached and may assist in your Honour determining the agreement's meaning and secondly to deal with the support that my friend seeks to draw from clauses in particular 4.3 and 4.4 of the 2002 RIC agreement relating to excess travelling time and travelling expenses, each of those provisions relate to - and this is the quote from the submissions:

PN2427

Employees who are required to undertake work temporarily at a location away from their home depot and/or residence.

PN2428

I think as your Honour has suggested in arguendo with Mr Farr in the 496 application that preceded it, that assumes that someone can be directed. If your Honour is not satisfied that the clause we rely upon imposes the relevant restriction, your Honour may well be satisfied that there is a restriction that operates elsewhere and that the support that my friend seeks to draw from clause 4 is not open because by virtue of a contractual restriction, they could not be required and, your Honour, that would be entirely consistent with I think it is item 14 in the management instruction which I have already taken your Honour to, that management instruction, of course, being one which was to operate concurrently with the 1998 RSA.

PN2429

Your Honour, I am sorry that the submissions have been a bit disjointed, but the only other matter that I think we ought comment upon by way of submissions is the evidence of Mr Pandelakis which is the statistical material. Your Honour, firstly at its highest, that evidence can only what is described in the Zoological Parks Board case that my friend relies upon as evidence of user and as such, it's simply not admissible to support a construction argument.

PN2430

Your Honour, similar observations are made by Burchett J speaking on behalf of the majority, speaking on behalf of the court, actually, in Short v Hircus when he is commenting on the old Seamen's Union decision which goes back to the mid-70s. Your Honour, in light of those authorities, we would respectfully submit albeit that it is in evidence, Your Honour should place no weight on it.

PN2431

Secondly, we would respectfully submit that the document itself is entirely unreliable. That it can be said that the employees from time to time undertook work other than - sorry, undertook work that led to the payment of an overnight allowance doesn't assist your Honour testing the proposition advanced by the RTBU or by my friend because it says nothing about whether that work was done as a part of a special arrangement which, leaving aside what the union's witnesses have said, is clearly what was required in order to get certain groups of workers to do that work as set out in the north coast infrastructure agreement which I just took your Honour to.

PN2432

It required a special arrangement reached as a part of the consultative committee process, the roster process. It says nothing about how they can perform that work, in other words, whether or not they agree to do that or not and, your Honour, the only submission my friend could put using that material is that this has happened so often in some parts of the workforce that your Honour should not accept that there is a restriction of the kind we advance.

PN2433

THE SENIOR DEPUTY PRESIDENT: I suppose if your argument is custom and practice, you're saying the custom and practice is that these people don't do it and these people do do it, you know, there's two different groups of people, I mean, I know I am begging the question of whether they're required to do it and whether it was voluntary, but I suppose the argument might be, well, even if it's voluntary, it's happened so much, there's so many of these people doing it, that you can't argue that it's custom and practice that they don't do it. It's sort of evolved from a sort of - you know, once upon a time there was a very clear distinction, but now they do it so much that actually the distinction has really broken down. I think that might be a kind of argument - - -

PN2434

MR HOWELL: Well, that in itself might go to the question of custom and practice, your Honour, which could deal with the contractual issue, but it can't be used as supportive of or destructive of the arguments we advance about the construction of the instrument, but, your Honour, we will deal with this shortly, but the material - we will deal with it in two ways.

PN2435

Firstly, the individual who are at the heart of this dispute, they're set out in table 6 and it shows that those employees on two, three, five and 17 occasions respectively over the last I think it's two years and two months did this work. There might be multiple days each time, but that's the number of occasions that they did it in the relevant period of time.

PN2436

Now, one can't really draw from that in our respectful submission some general proposition that it happened so often with these people that they've in some way given away whatever restriction might have existed in the past or that there wasn't any such relevant restriction and particularly when one has a look at the evidence of Mr Copeland, the evidence of Mr Klineberg about the fact that people would often jump at the chance, because they got this additional remuneration as a consequence, but the other thing I wanted to take your Honour to and, unfortunately, I haven't got it with me, is a little calculation we've done of the figures in table 3 which is attached to Mr Pandelakis's statement.

PN2437

Your Honour, table 3 of Mr Pandelakis's statement sets out different depots and identifies how many occasions each of the relevant depots has been paid their relevant overnight allowance. I think the first one we should make is that as Mr Pandelakis conceded in cross-examination, each occasion doesn’t necessarily equate to a day, but even leaving that aside, if your Honour has a look at the table, table 3, Mr Pandelakis's evidence is that there were 520 working days.

PN2438

Now, I think there were actually more, but even if you accept that for one moment and if there were 520 working days and there were 10 people, take Condobolin as an example, there were 10 people, that means there could have been 5200 occasions upon which someone could have performed work overnight, there were 2033 occasions on which they did and I did do a table which set out what percentage that actually was and it came out at approximately 39 per cent, the figures for Condobolin, Narrabri and Broken Hill were all ball park, in that order of 25 to 39 per cent, but everything else from there on down was between 10 per cent and less than one per cent of the working time available spent doing work that required the payment of the relevant allowance. Now, your Honour, I can provide the table later with a short note if it assists.

PN2439

THE SENIOR DEPUTY PRESIDENT: Yes, if you could.

PN2440

MR HOWELL: But the proposition that - the point that we wanted to make, your Honour, is two-fold. Firstly, when one has a look at what proportion of the time actually led to the payment of this allowance, it cannot be used to support the proposition which your Honour articulated earlier, that this is such a regular thing that whilst there might once have been a distinction, there is no longer, but insofar as there are parts of the business which have regularly had the relevant payment, those parts fall within the exceptions that were discussed by Mr Klineberg in his evidence. They're on the Broken Hill line.

PN2441

THE SENIOR DEPUTY PRESIDENT: I think this table was meant to have excluded the exceptions, the classifications, rather.

PN2442

MR HOWELL: This part didn't. That deals with the classifications, but this part here, your Honour, Broken Hill and Narrabri - Condobolin, Broken Hill, Dubbo, Parkes, all of these are in the area that Mr Klineberg described as an exemption. If your Honour wants evidence of that, it can be quickly ascertained by looking at RTBU8 and your Honour will see that those are the areas where it's always been accepted that people would work away from home.

PN2443

Your Honour, as to the reasonable and lawful direction, the third and final limb, this isn't articulated in any real way in our written submissions, the foundation perhaps need not be set beyond what was said by Wilkinson J in Jones v Associated Tunnelling which is at [1981] UKEAT 523_80_1610; (1981) IRLR 477 and the relevant passage that we rely upon is set out in the decision of Logan v Otis Elevators, an unreported decision of Judicial Registrar Walker dated 30 October 1995 which we've handed up where Wilkinson J said:

PN2444

The starting point must be that a contract of employment cannot simply be silent on a place of work. If there's no express term, there must be either some rule of law ...(reads)... in which case, in order to give a contract business efficacy, it is necessary to imply some term to each contract of employment.

PN2445

Your Honour, in short, whether a direction to perform work at a location other than the individual's contracted place of work either expressly agreed or read into by implication requires an analysis of all the circumstances, your Honour would have no doubt dealt with disputes of that kind over time, your Honour, this dispute requires these employees to travel between five and six hours on a day off, to start on site at 7 am the following morning, requires them to stay away from home for a period of up to five days at a time and then to travel home again five or six hours or up to five or six hours during a period that is supposed to be their time off.

PN2446

Your Honour, the distance, the time, the duration that they're away from home in our respectful submission ought lead to the conclusion that it is not a reasonable and lawful direction. Finally, your Honour, the evidence before your Honour from both sides is that this is the first time that a dispute of this kind, a dispute in relation to a direction to camp away, has come to the Commission.

PN2447

Your Honour, in our respectful submission, is entitled to ask why that would be. If my friend's submissions are correct and this sort of thing is just an ordinary routine part of the business that happens all the time, why would the dispute arise now? It's perhaps a rhetoric question, but, your Honour, even if you disregard the evidence of Mr Klineberg and Mr Copeland, in our respectful submission the answer is to be found in the evidence of Ms Reynolds and your Honour should pay particular regard to the evidence of Ms Reynolds.

PN2448

She appeared under summons for the union in these proceedings. She is an employee, a human resources employee of the Rail Infrastructure Corporation. Her evidence is that migratory workers would be rostered and directed to camp away historically. That's at paragraph 393 of the transcript. Routine maintenance workers worked on the length of track. Again, that's at 393. There's no unbroken practice for routine maintenance workers to work away from home.

PN2449

This was the practice for the migratory workforce, but not the routine maintenance workers. That's at paragraph 405. Your Honour, much of her other evidence is set out in the written submissions. It's not that long in the transcript and we would urge your Honour to have a look at it, but in our respectful submission it's becoming an issue, your Honour, because even though under Rail Infrastructure Corporation, people were prepared to do it on occasion by agreement through the roster consultation process.

PN2450

ARTC has run its workforce down to an extent that people have been called upon to work away from home a great deal more. They're simply fed up and they're just not prepared to do it any more. They were not employed to work in this way and they haven't been required to over time. Your Honour should accept that the agreement does limit the capacity to start and finish depot based workers, routine maintenance workers and start and finish on site and it does limit the capacity to direct these employees to camp away. Even if your Honour is not so satisfied, then in our respectful submission this particular direction should fall foul because it's not reasonable. Subject to dealing with anything in reply from my friend, those are our submissions.

PN2451

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Howell. Mr Baroni.

PN2452

MR BARONI: Thank you, your Honour. I don't intend to traverse every single matter, your Honour. The submissions we've put are detailed and in my respectful submission deal with the matters that need to be dealt with in this matter. Can I say that it shouldn't be taken by the Commission that where in the submissions I don't make reference to our evidence in its entirety that I'm not relying on that evidence. You should read these submissions in the context that all our evidence we rely upon.

PN2453

Your Honour, can I just deal with two small amendments or omissions for the assistance of your Honour. If I can take you to paragraph 30, your Honour, specifically where you can see the reference to clause 14 and then the heading of that clause in bold, that should be specifically a reference to clause 14(ii) and then at paragraph 63, your Honour, there's a typographical error there where you've seen the penultimate line that makes reference to paragraph X, that should be paragraph 45.

PN2454

Your Honour, can I firstly deal with this issue about which my friend says the Commission has jurisdiction to deal with and that is in respect to a lawful and reasonable - whether the direction, the heart of the dispute, is lawful and reasonable. In my submissions I outline in detail the jurisdiction of the Commission in respect to 170LW and your Honour can have regard to that. No doubt your Honour is well versed with relation to the operation of 170LW.

PN2455

The submission that my client makes in relation to that one specific issue is simply this, that if your Honour forms the view that all the other submissions that my friend relies on, that is that there's an implied or express limitation in the agreement or there's some sort of custom and practice or that there's some contractual right fall away, that is that all you're left within other words is simply we want the Commission to decide whether this direction in a vacuum is reasonable and lawful, then we say you have no jurisdiction.

PN2456

Why that is so is because it's not anything to do with the application of the agreement. It's as simple as that and also regard can be had to clause 8 of the relevant agreement, your Honour, and I've dealt with this in the submissions. It makes it plain that once jurisdiction is invoked, all the Commission is empowered to do - sorry, the arbitration can only occur where - at clause 8 of the 2002 agreement it makes it clear - sorry, not clause 8 of the 2002 agreement, clause 8 of the 05 agreement, it make sit clear that it's limited to arbitration with respect to a term or terms of the agreement, so in other words, it has to be.

PN2457

It fits hand in glove in my submission with the jurisdiction that arises under 170LW that it has to be about a term or terms of the agreement. Now, if I come to you, your Honour, and say, well, it’s not about the agreement, it's simply about whether the direction I've given an employee is reasonable and lawful, that's not within your jurisdiction and that's really all I need to say about that and that's in the only context which I raise that jurisdictional challenge.

PN2458

I've conceded, your Honour, that obviously if it's in relation to interpreting the agreement, the provision of the agreement, et cetera, then naturally your Honour does have jurisdiction. Ultimately what your Honour decides is a different issue, so in that respect, that's all I need to say about that issue and again, I think my friend touched upon this, but ultimately if your Honour is only left with that issue to decide, then we say, well, there's nothing to decide in any event because of the jurisdictional issue, so your Honour need not express a view about that at all.

PN2459

My client's contentions, your Honour, are made clear at paragraph 5 of our submissions. Dealing briefly with the impugned clause and my friend has made much about that the only difference in that clause is simply a number and I put to your Honour that that's not right. It's more than a number. If one looks at the 2002 agreement, your Honour, one can readily see that clause 15 appears under a general clause 15, remuneration related issues, so it's actually completely in a separate provision of the agreement.

PN2460

If you look at the 1998 agreement, your Honour, it appears as a distinctly separate clause, drafted differently and the reference to that in the 1998 agreement, your Honour, is clause 42 and the heading is also different, start and finish at work site. This heading is start and finish allowance so it's more than just a number. It's been drafted differently, it actually appears in a completely different part of the agreement and generally about the agreement, your Honour, they are completely different agreements.

PN2461

They've been drafted completely differently, they are different in many respects and I don't intend to take your Honour through that ad nauseam, but suffice to say that it’s not simply the issue of a number appearing and having regard to the principles' interpretation which are clearly set out in my submission which I must say I don't think they alter in any way what my friend has put when properly understood, whilst it's appropriate to have regard to context, that doesn't mean that the tribunal or court then goes and rewrites the agreement which is what my friend is putting to you in a round about way. I mean, it says what it says and again my submissions make it clear that no limitation can be found in that - - -

PN2462

THE SENIOR DEPUTY PRESIDENT: Are you saying that this sentence:

PN2463

This will apply to employees engaged on major periodic maintenance project work or construction work -

PN2464

does not apply to the rest of clause 15.5.1?

PN2465

MR BARONI: We say it stands alone.

PN2466

THE SENIOR DEPUTY PRESIDENT: So what is the implication of that? I am just wondering what the implication of that is.

PN2467

MR BARONI: Well, the implication, your Honour, that's ultimately the only clause you need to have regard to is 15.5.1. The implication is simply that it's not read as a precursor to the rest of the clause. It acts distinctly, it deals with its own subject matter contained therein and we've noted in our submissions, your Honour, that an alternative submission may be that if your Honour is against me on the primary submissions, that is that when you read that clause in its proper context, that we say there's no limitation that can be found in there which talks about camping away or restrictions on where you can start, et cetera.

PN2468

If your Honour is against me on that in any event, it would only simply apply to where somebody has been requested to perform major periodic maintenance project work or construction work, but that's to be understood in the context of performing that work. It doesn't go anywhere near as far and there's no evidence of this, your Honour, that there was some immutable distinction and again I've addressed this in my submissions, that at the time of employment, you're either X or you're Y.

PN2469

Well, there's no evidence of that at all. At best, you had hearsay evidence from - the evidence of the union was hearsay, nothing more, nothing less. There was no evidence about what was - - -

PN2470

THE SENIOR DEPUTY PRESIDENT: Do you say Ms Reynolds's evidence was hearsay?

PN2471

MR BARONI: Absolutely. She was never at any - that's only her opinion, by the way. It's nothing more than that and she was never at any of these interviews and, your Honour, this raises that issue about the inference that your Honour is entitled to draw. There's no record of proof here. It's not for me to make out the applicant's case. The applicant makes assertions that this existed and that existed and you can't do this and you can't do that and then somehow it's incumbent upon my client to bring forward the evidence that they should have brought. The fact is it's quite simple. We don't need to be too cute about this.

PN2472

They could have brought either the relevant employees at the heart of this dispute, other employees which could have plainly said to your Honour this, at the time that I was employed X was said to me or Y was said to me, that's all, as simple as that. They failed to do that. Why? Because your Honour is entitled to draw the inference that no such distinction, your Honour, was ever put to those employees. The agreement itself, your Honour, and again I've dealt with this in the submissions, makes no distinction at all. It simply talks about infrastructure workers, that's all.

PN2473

Now, your Honour can't in my respectful submission go rewriting the agreement. It says infrastructure workers. It doesn't say routine maintenance people or those employed on migratory gangs. It doesn't make any reference to those at all, nor does the 98 agreement, for that matter. It talks about infrastructure workers. That's what your Honour is dealing with, a class of person known as infrastructure workers which again if you look at the evidence of Mr Ogilvy at the coalface, not hearsay evidence, at the coalface, of projects that he has managed and directions that he has issued, it's quite plain from his evidence that people are interchangeable. They worked here, they worked there. Wherever they were required, they worked.

PN2474

He directed people to work away. That was the evidence. Now, my friend can dispute that and say what he wants, but that was the evidence that was brought. There's nothing in rebuttal about that evidence. There was no evidence in rebuttal to say that no such direction was ever given or that no such practice occurred. Any evidence that was brought was hearsay from the organisers and officials, that's it and to the extent that Ms Reynolds' evidence had touched upon that, again it was hearsay.

PN2475

There was no first-hand knowledge of this. Mr Ogilvy was there at the coalface. He was managing these projects and again I've dealt with this in my submissions, your Honour. He was organising these projects, he was managing them, he was directing employees to work where they were required to work. That evidence is uncontestable. They are projects which he specifically worked on as I said and directed, your Honour.

PN2476

Now, getting back to that clause 15.5.1.1, again why we say there's no limitation in there, clearly it doesn't talk about any restriction about camping away, it doesn't talk about any restriction and nor will you find this anywhere in the agreement, your Honour, or the 1998 agreement that there's some prohibition on directing people to work away, that there's some prohibition, you know, one category of employee versus another category of employee to work at certain locations as opposed to others and, in fact, again this is detailed in my submissions.

PN2477

THE SENIOR DEPUTY PRESIDENT: Can I just - I mean, 15.5.1.1 - well, presumably do you accept that, you know, you're not going to be asked to camp away if you're not being asked to commence and finish at the work site?

PN2478

MR BARONI: No.

PN2479

THE SENIOR DEPUTY PRESIDENT: You agree or you don't agree?

PN2480

MR BARONI: No, I don't accept - sorry - - -

PN2481

THE SENIOR DEPUTY PRESIDENT: You don't accept that? In other
words - - -

PN2482

MR BARONI: If your Honour can ask me the question again?

PN2483

THE SENIOR DEPUTY PRESIDENT: Yes, see if I can get this right, okay, that it's meaningless to say that somebody can - it only makes sense to say that somebody can be required to camp away if at the same time they're being asked to start and finish at the work site.

PN2484

MR BARONI: No. I can ask you to camp away, but you can start your day somewhere else. It doesn't have to be at the work site and in my submissions, your Honour, if you look at the words of clause 15.5.1.1, the first sentence is the relevant source for that assertion, that is:

PN2485

In order to maximise efficiency, employees will commence and finish their shift at the work site when it is determined by management to be more efficient than commencing and finishing at the location other than the work site.

PN2486

So when management takes the view that it's more efficient, they'll start somewhere other than - they'll start at the work site other than another location, so it's quite feasible and again I've dealt with this in my submissions, your Honour, that you could start at the pub. Your day starts at the pub, you go around the corner, drive to the work site, but you're still being asked to camp away.

PN2487

THE SENIOR DEPUTY PRESIDENT: Why would you do that?

PN2488

MR BARONI: For whatever reason, but that's one example, that's one example, but another example may be that it's not necessarily meant to be the home depot. It could be another depot that you could be asked to start at, rather than a work site, so I could be asked to camp away, but you start from another depot.

PN2489

THE SENIOR DEPUTY PRESIDENT: So if you were asked to work at another depot, so you're not at your home depot, you're at some other depot, so you don't get paid the start and finish allowance.

PN2490

MR BARONI: But you get paid the full day, because you're travelling in work time. That's the effect of it and, again, I mean, your Honour, the proposition is quite simple. If there was an intention to say that you had to start at your home depot, that's what it would have said, but it doesn't say that. It talks about other location, purposefully other location, a very broad concept. You can't read those words in my respectful submission in a limiting fashion, that is that somehow again using context or history, that means home depot. Nowhere in this agreement does it imply such a restriction.

PN2491

THE SENIOR DEPUTY PRESIDENT: But why then - sorry to press you on this, but obviously it's an important clause. If what you say is true, why would the second sentence be there? What purpose does it serve. Why would it only apply - okay, so this is saying we might ask you to start and finish at the work site if you're doing this kind of work, major periodic maintenance, et cetera, but we might also ask you to start away from the work site, not at your home depot, but a pub if you're doing other kinds of work.

PN2492

MR BARONI: Your Honour, I can only surmise, there could be a number of explanations, perhaps that that was the work that was most commonly performed and therefore there was perhaps a distinction drawn between it. I don't know. I mean, the simple answer is I don't know. There could be a number of plausible explanations why that drafting was, but one of them is not that you read that clause to mean this, you can't ask routine maintenance workers to work away. Even Ms Reynolds's evidence is clear on that. She conceded you can ask - - -

PN2493

THE SENIOR DEPUTY PRESIDENT: You could ask them. That's not the issue. We all agree you can ask them. The question is can you require them.

PN2494

MR BARONI: Ms Reynolds's evidence was that you can require them to work away. That was her evidence.

PN2495

THE SENIOR DEPUTY PRESIDENT: That you can require routine maintenance workers to work away?

PN2496

MR BARONI: Absolutely, within the rostering code, your Honour.

PN2497

THE SENIOR DEPUTY PRESIDENT: Can you show me where that's said?

PN2498

MR BARONI: Yes. Again, these are in my submissions.

PN2499

THE SENIOR DEPUTY PRESIDENT: Perhaps you can take me to where it is in your submissions. I have read your submissions, but I am sorry if I didn't memorise them.

PN2500

MR BARONI: Commencing at paragraph 60 of my submissions, your Honour, I say there under cross-examination:

PN2501

Ms Reynolds conceded that all employees including routine maintenance employees could be rostered away on consecutive shifts and be asked to work away within the limits of the rostering code.

PN2502

And I've the transcript reference there. Again, your Honour, at paragraph 61 of my submissions, a further concession was made by Ms Reynolds under cross-examination that workers could be required to stay away, in brackets camp away, if rostered for consecutive 12-hour shifts where such employees would be required to travel in excess of one and a half hours each way and there's a transcript reference there. Again, this was a concession made within the limits of the rostering code.

PN2503

Now, dealing briefly with that rostering code, your Honour, that rostering code applies to all employees. Again, the agreement is predicated on infrastructure workers. The rostering code makes no distinction between routine maintenance workers or any other kind of worker. It simply applies to all employees covered by that agreement without exception.

PN2504

You can't possibly come to the conclusion as Mr Copeland would want you to believe and his evidence - I will deal with that in a moment, but Mr Copeland would expect you to believe that somehow you've got to read the rostering code as not applying to routine maintenance workers. There's no basis to come to that conclusion and he was tested under cross-examination on that and he waxed and waned on it and again that's dealt with in my submissions, your Honour.

PN2505

Getting back to that 15.5.1, obviously the primary submission is that there's simply no words of limitation in requiring to camp away and that's based on what I've just said, your Honour, that nowhere in that agreement can you find any distinction between routine maintenance workers or people employed in migratory gangs, but in the alternative, in any event, if your Honour is against me on that, then at best, at best all you can read that clause to say is that when you're performing that kind of work, then that's when the restriction will apply, but that's not read to mean that somehow there was some contractual distinction, that is at the time of engagement, that an employee was either engaged or offered employment on the basis that he or she was a routine maintenance worker or he or she was employed in a migratory gang.

PN2506

There's just simply no basis to make that distinction, no evidence and in my submission, your Honour, you should draw the inference that's available to you in relation to the lack of evidence that was drawn on that very, very crucial point and that is to be contrasted with what you have is hearsay evidence, basically hearsay evidence from the union. The issue, your Honour, now dealing with the custom and practice, your Honour, based on the evidence that's been provided, again it falls into that category that it is hearsay.

PN2507

Again an employee could have been called or employees to give specific evidence about this custom and practice and none were called. In any event, the evidence that you do have, as I said, is hearsay, but what it leaves you with is that there's an assertion as to the custom and practice, but, your Honour, I can guarantee your Honour that when you've read the transcript again and taken all my submissions into account, you will be left in a situation where, number one, you don't know how that custom and practice operates, you'll have no idea.

PN2508

All you'll know is that there's an assertion that there's a custom and practice that you can't be required to work away if you're a routine maintenance worker, but you'll have no idea how that's to be applied and all you have to do, your Honour, is look at the cross-examination of Mr Klineberg and the cross-examination of Mr Copeland. There are exceptions here, exceptions there, if you were this, if you were that, if there was more sleepers, if there was less sleepers, maybe, could be, don't know, you'd have to look at the job.

PN2509

In my respectful submission, that's not, that nowhere near comes close to the test of what has to be shown by the applicant to assert that there's a custom and practice. You will never be able to work out with any specificity how the custom and practice which we say doesn't exist, but how the custom and practice is to apply. There is no surety of that. It is simply not open to you, your Honour, to find on the evidence. In fact, to the contrary, when you look at the evidence of Mr Klineberg and Mr Copeland and again this is in my submissions, with regards to the cross-examination and then contrast that to the evidence of Ms Reynolds who says, well, you can ask them to work away in a different circumstance, that is in accordance with the rostering code and I know my friend is going to say but Ms Reynolds's evidence should be looked at in the context that she qualified that by saying within the track limit.

PN2510

Be that as it may, it's still contradictory to the custom and practice. In other words, what she was saying is that you can ask them to work away, provided it's within their length of track. Well, that's not what the union is saying, so there's another contradiction in the custom and practice. The union have said quite clearly you cannot require an employee employed on routine maintenance to work away. That's the simple position they've put to your Honour. In my respectful submission, you can't make out that custom and practice based on the contradictory evidence and the thousands of exceptions which came out in cross-examination from - - -

PN2511

THE SENIOR DEPUTY PRESIDENT: You say thousands?

PN2512

MR BARONI: Perhaps that's an exaggeration on my part, your Honour, but I will reduce that to hundreds. Maybe even that's an exaggeration, but numerous, can I put it that way?

PN2513

THE SENIOR DEPUTY PRESIDENT: Rhetorical flourish. I will allow that.

PN2514

MR BARONI: Yes. There were numerous, to say the least. In relation to Mr Pandelakis's evidence, I don't intend to say all that much about that evidence, your Honour. Your Honour can make of that evidence - your Honour is entitled to put weight on it in my submission. It doesn't go to the issue of construction, I concede that. It's not intended to, but it goes theoretically to some suggestion of this custom and practice, but again in my submission your Honour need not rely on that to come to the conclusion that you just can't make out the custom and practice for the reasons which I've just said and that is that there's contradictory evidence between Ms Reynolds, Mr Copeland and Mr Klineberg and all those exceptions which again we deal with in cross-examination and again the references to all those are in my submissions, your Honour, so when you've had an opportunity to read those, it will crystallise for you in that respect.

PN2515

An issue which even adds further weight to the proposition that your Honour will be simply unable to distil a proper custom and practice is Mr Howell's concession this morning about, well, you really can't determine MPM work, major projects work - I will just try and find those words, you know, where do you draw the line if it's one sleeper, two sleepers, more or if it's - I mean, that of itself is clear, that you can't with any clarity understand how the custom and practice operates and they're the principles and I've taken your Honour to the principles in my submissions.

PN2516

Nobody can cavil with those principles. You just can't understand how this custom and practice operates, how the exceptions operate, where it's applied, where it's not to apply and again that evidence is simply not credible in my respectful submission when you look at the evidence of Mr Ogilvy and his coalface experience on those projects that he refers to in his evidence.

PN2517

Your Honour, they're my submissions. Just in summary, then, we say that the Commission ought to accept my client's evidence over the evidence of the union for a number of reasons. One is that it is clearly not hearsay, the most relevant evidence being that of Mr Ogilvy. As I've said, he's a person who managed these projects, gave directions to these employees to require them to work away. That evidence should be accepted.

PN2518

Our submissions in relation to how that clause, that is clause 15.5.1 should be interpreted, we say should be accepted. If your Honour is against me on that, we say that the only limitation that can be found is in relation to those people performing that work, that is the subject of the clause. Secondly, people performing work doesn't mean that they were exclusively employed to perform that work, there is no evidence of that and again the failure of the union to call the relevant employees to deal with that matter is striking and just while I am on that point, it's not a double-edged sword at all, your Honour.

PN2519

As I said, this is not a reverse onus of proof. It's for the applicant to make out his case, not for the respondent to bolster it. It's for him, he's got to make out the assertion. He raises it, he should make it out, not my client. There's no evidence again, your Honour, for the same reasons about some contractual right existing. Again, there's no evidence about what happened at those interviews that is first-hand knowledge.

PN2520

There's only hearsay and again under cross-examination, your Honour will see this under cross-examination, I think it witness Mr Klineberg or Mr Copeland could only speak for the interview they attended many, many, many, many years ago. That's it. Finally the issue with respect to the reasonableness or lawfulness of the direction, again, your Honour, we just say that simply if that's the ultimate - the only issue that your Honour is left with, then it simply cannot be something that your Honour has jurisdiction over. Those are my submissions, your Honour.

PN2521

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Baroni. Mr Howell.

PN2522

MR HOWELL: Thank you, your Honour. I will start with the basic proposition my friend advanced. I won't be very long in reply, your Honour. The basic proposition my friend advanced is that clause 15.5.1 of the 2002 agreement is in such strikingly different terms to the 1998 and 1997 agreement in its structure that your Honour should be satisfied that it was intended to have some different meaning to clause 15 of 97 and clause 42 of 98.

PN2523

Your Honour, in our respectful submission, if your Honour accepts what we say about clause 15 of the 1997 agreement and clause 42 of the 1998 agreement, one would have expected to see a far greater change in the language of the instrument than simply giving it a number and putting it in a slightly different form, a form which we note is entirely consistent with the remainder of the instrument. To accept that that small change in structure was intended to have such a massive change in its operation would be to fall foul of the caution expressed in Kucks and in the United Firefighters' Union case.

PN2524

One doesn't look at these instruments in a pedantic way. One accepts that these things are drafted by men of a practical bent of mind and that they might not have drafted it with legal technicalities or jargon in mind. Your Honour, the next proposition my friend advanced was that the reference to some other location in the opening stanza of clause 15.5.1 cannot be read as the home depot, indeed it could be any other location.

PN2525

Your Honour, we dealt with that at the outset of today, but just to reiterate what we said, we say that that opening clause is in the current instrument and as it was in the previous instruments designed to condition the entire operation of that provision and your Honour will see, I think it's in clause 15.5.1.5 that that provision expressly contemplates starting work somewhere other than the work site when you are camping away.

PN2526

That's why it doesn't say what my friend said it ought say, in other words not the home depot and when your Honour looks at the provisions immediately above clause 15.5.1.5, you will see that there is a clear distinction drawn between the depot that these people operate from, operate out of and the work site. That's the distinction which is drawn in 15.5.1.2, 15.5.1.3, 15.5.1.4. That's the internal distinction, where they operate from.

PN2527

That's their home depot, your Honour. The actual allowance itself in point 6 operates by reference to - I think it's described as the residential depot, the employee's residential depot. The whole clause operates by drawing a contra-distinction between where they operate from and the work site. Your Honour, just briefly then to deal with my friend's alternate submission, that's the alternative submissions set out in paragraphs 29 and 30 of his written submissions, he says, well, even if you disregard everything else and your Honour accepts, however, there is a restriction when people perform major periodic maintenance work, project work or construction work, in other words if there is a restriction that they can't be required to camp away when they do that work, these people are being directed to perform major periodic maintenance work, there's no doubt about that.

PN2528

As your Honour said, this is a massive re-railing project, that's the only evidence. If my friend's alternate proposition is accepted, then this direction is not reasonable or lawful. Now, we say that alternative proposition should not be accepted for the reasons that we advance, but if your Honour were minded to accept it, then the restriction would kick in because these people aren't seeking to be directed to perform major periodic maintenance work.

PN2529

Your Honour, my friend referred you to the evidence of Ms Reynolds about how employees and this is dealing with the issue of custom and practice, how employees could be - sorry, how routine maintenance workers could be directed to camp away and he's quite right. Your Honour will see in re-examination that she clarified what she meant when she said they could be required to be rostered away in accordance with the roster code and, your Honour, the entirety of the relevant passages is set out in our written submissions and I will point your Honour to that paragraph.

PN2530

The entirety of the evidence is set out in paragraph 151 of our written submissions, (b) on page 44 and running over to page 46 and the re-examination, your Honour, is at transcript paragraph numbers 752 to 759. Your Honour has it. Your Honour will see that insofar as she says they could be required to be camped away at places other than - sorry, insofar as she accepts they could be required to camp away by rostering them in accordance with the rostering code, it's only on their length of track.

PN2531

Your Honour, there are a couple of things we should say about that. That's in the context, of course, of Mr Klineberg's evidence, having accepted the proposition in Mr Klineberg's first statement at paragraph 21 and I might take your Honour to that very briefly. Your Honour ought read paragraph 20 and paragraph 21 of RTBU5 together. The point we make, your Honour, is in those two paragraphs, Mr Klineberg is not saying certain people could be directed to camp away.

PN2532

What he is saying - he couldn't give that evidence, your Honour. That would be evidence of user and we can't use that as supporting the construction of the agreement itself. We can use it to demonstrate custom and practice and what he says is people traditionally did X. There was some exceptions to that custom and practice and those exceptions are set out at paragraph 21.

PN2533

Ms Reynolds accepted that proposition and then in re-examination, having been cross-examined by my friend confirmed that insofar as those exceptions operate, they could be required to be camped away on their length. It's entirely consistent with what Mr Klineberg says in paragraph 21:

PN2534

There were some exceptions which existed through historical arrangements, in particular certain very large districts, for example, Ivanhoe, Broken Hill and certain classification streams, for example, signal electricians, but as a general rule, this is what they did.

PN2535

Your Honour, insofar as there were exceptions, they weren't exceptions to the custom and practice which we advanced. The proposition we advance is people couldn't be required to work beyond their length. That's what we set out in paragraph 170 of our written submissions as the starting point of the custom and practice we assert and if your Honour has a look at RTBU8 which is the restructure document to identify the length of track attached to the various depots in that district, your Honour will see two things, particularly when you compare it to the lengths of track which are set out in the evidence elsewhere.

PN2536

The lengths of track are far longer as one would expect in western New South Wales, the lengths of track are different between the signal electricians and the track and structures teams. It's not that certain classification structures were an exemption from the general proposition. It's that some classification structures operated on lengths of track which were longer than the lengths of track which operated for the track and structures people.

PN2537

They had their own length of track and because of the length of that track, they could, indeed on some occasions were required to camp on their length, but that's the custom and practice we advance and if your Honour accepts that, then the direction here would fall foul of the custom and practice because as your Honour will see in the evidence, there is many more than one depot between for example Casino and where these individuals are being required to work.

PN2538

The only other thing we should say about Ms Reynolds's evidence, she actually says employees could be directed to camp away in accordance with the rostering code, that is consecutive 12-hour shifts. Your Honour will see in RTBU9 that confirmation that ARTC intends to continue to acknowledge what in our respectful submission is a longstanding agreement that routine maintenance workers work a nine-day fortnight. Your Honour will see in the evidence of Mr Copeland and Mr Klineberg that they work eight-hour shifts. They don't work consecutive 12-hour shifts. They're not the people who fall within the rostering code that work in that way. Your Honour, I think that's it. Those are our submissions.

PN2539

THE SENIOR DEPUTY PRESIDENT: Thank you very much, Mr Howell.

PN2540

MR BARONI: Your Honour, just a housekeeping matter. I have a bundle of authorities. I'm not sure if you require them. They're the authorities that I rely on in my submissions. I am happy to provide you with those.

PN2541

THE SENIOR DEPUTY PRESIDENT: Thank you, and also I think, Mr Howell, you were going to send me a copy of that note on the calculations.

PN2542

MR HOWELL: Yes, and I will send a copy to my friend.

PN2543

MR BARONI: The only authority missing out of there, your Honour, is the Jones v Dunkel, but your Honour is - - -

PN2544

THE SENIOR DEPUTY PRESIDENT: I have got that, yes. Thanks. I will adjourn. I will reserve my decision.

<ADJOURNED INDEFINITELY [12.03PM]