Australian Rail, Tram and Bus Industry Union v KDR Victoria Pty Ltd t/a Yarra Trams

• Jurisdiction: Australia Federal only
• Court: Federal Court (Australia)
• Judgment Date: 22 November 2021
• Neutral Citation: [2021] FCA 1377
• Date: 22 November 2021

Federal Court of Australia

Australian Rail, Tram and Bus Industry Union v KDR Victoria Pty Ltd t/a Yarra Trams [2021] FCA 1377

File number(s):	VID 360 of 2021
Judgment of:	WHEELAHAN J
Date of judgment:	22 November 2021
Catchwords:	INDUSTRIAL RELATIONS – construction of Yarra Trams Enterprise Agreement 2019 – Operations – whether the respondent employer proposes to contravene the Agreement with respect to meal break entitlements for tram drivers, thereby contravening s 50 of the Fair Work Act 2009 (Cth) – where similar or same terms were in force in previous enterprise agreements – whether and how a common understanding between the parties as to the operation of the Agreement affects construction of the Agreement – on its proper construction, the proposed action would not contravene the Agreement.
Legislation:	Fair Work Act 2009 (Cth) ss 50, 54(1)(a), 186 Fair Work (Registered Organisations) Act 2009 (Cth) Workplace Relations Act 1996 (Cth)
Cases cited:	ACE Insurance Ltd v Trifunovski [2011] FCA 1204; 200 FCR 532 Agricultural and Rural Finance Pty Ltd v Gardiner [2008] HCA 57; 238 CLR 570 Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10; 222 CLR 241 Australian Liquor, Hospitality and Miscellaneous Workers Union v Prestige Property Services Pty Ltd [2006] FCA 11; 149 FCR 209 Carr v Western Australia [2007] HCA 47; 232 CLR 138 City of Wanneroo v Holmes (1989) 30 IR 362 at 378 Fair Work Ombudsman v Foot and Thai Massage Pty Ltd (in liq) (No 4) [2021] FCA 1242 Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407; 76 NSWLR 603 Health Services Union v Ballarat Health Services [2011] FCA 1256 Josephson v Walker (1914) 18 CLR 691 King v Melbourne Vicentre Swimming Club Inc [2020] FCA 1173 King v Melbourne Vicentre Swimming Club Inc [2021] FCAFC 123; 308 IR 171 Merchant Service Guild of Australia v Sydney Steam Collier Owners and Coal Stevedores Association (1958) 1 FLR 248 Metropolitan Health Service Board v Australian Nursing Federation [2000] FCA 784; 99 FCR 95 Pagnan SpA v Tradax Ocean Transportation SA [1987] 3 All ER 565 Printing & Kindred Industries Union v Davies Bros Ltd (1986) 18 IR 444 Saraswati v The Queen (1991) 172 CLR 1 Seaman’s Union of Australia v Adelaide Steamship Co Ltd (1976) 46 FLR 444 Sheehan v Thiess Pty Ltd [2019] FCA 1762 Shop Distributive and Allied Employees’ Association v Woolworths Limited [2006] FCA 616; 151 FCR 513 Shop, Distributive and Allied Employees' Association v Target Australia Pty Ltd [2021] FCA 1038 Short v F W Hercus Pty Ltd [1993] FCA 72; 40 FCR 511 Textile, Clothing and Footwear Union of Australia v Givoni Pty Ltd [2002] FCA 1406; 121 IR 250 Theiss Pty Ltd v Sheehan [2020] FCAFC 198 Transport Workers Union v Linfox [2014] FCA 829; 318 ALR 54 Watcham v Attorney-General of the East Africa Protectorate [1919] AC 533 WorkPac v Skene [2018] FCAFC 131; 264 FCR 536
Division:	Fair Work Division
Registry:	Victoria
National Practice Area:	Employment and Industrial Relations
Number of paragraphs:	69
Date of hearing:	28 October 2021
Counsel for the Applicant:	Mr H Borenstein QC with Mr Y Bakri
Solicitor for the Applicant:	Gordon Legal
Counsel for the First Respondent:	Mr P O’Grady QC with Mr L Howard
Solicitor for the First Respondent:	Herbert Smith Freehills
Counsel for the Second Respondent:	Mr B Avallone
Solicitor for the Second Respondent:	Herbert Smith Freehills

ORDERS

		VID 360 of 2021
BETWEEN:	AUSTRALIAN RAIL, TRAM AND BUS INDUSTRY UNION Applicant
AND:	KDR VICTORIA PTY LTD T/A YARRA TRAMS (ACN 138 066 074) First Respondent ; CARLA PURCELL Second Respondent

order made by:	WHEELAHAN J
DATE OF ORDER:	22 November 2021

THE COURT ORDERS THAT:

1. Counsel for the parties are to confer, and by 4.00pm on 29 November 2021, the solicitors for the parties are to email to the Chambers of Wheelahan J draft orders to give effect to these reasons for judgment, and to provide for the further conduct of this proceeding.

THE COURT NOTES THAT:

If the parties are unable to agree orders, the court will fix a case management hearing.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

WHEELAHAN J:

Introduction

1. The applicant is a registered organisation under the Fair Work (Registered Organisations) Act 2009 (Cth), and there is no issue in relation to its standing to bring this proceeding. The first respondent (Yarra Trams) is a national system employer for the purposes of the Fair Work Act 2009 (Cth) (FW Act, or Act), and operates the tramway services in Melbourne. The second respondent is employed by Yarra Trams as its Chief Operations Officer.

2. On 27 August 2021, I ordered by consent that a separate question be tried –

Does the first respondent propose to contravene the Yarra Trams Enterprise Agreement 2019 – Operations and propose to contravene s 50 of the Fair Work Act 2009 (Cth) in the manner alleged at paragraphs 19 to 23 of the Statement of Claim dated 2 July 2021?

3. The separate question turns on limited facts and the construction of an enterprise agreement made and approved under the FW Act that covers and applies to the applicant organisation, Yarra Trams, and relevantly its employees employed as tram drivers. The issue in dispute is whether Yarra Trams proposes to contravene s 50 of the FW Act and the relevant enterprise agreement by altering entitlements to meal breaks for tram drivers in the manner alleged by the applicant in its statement of claim.

4. The basic foundation of the dispute was agreed between the parties by the terms of a statement of agreed facts, which was received into evidence. In addition, I received evidence of the terms of earlier industrial instruments covering tram drivers, and affidavit evidence of some industrial context around the management of tram timetables, rosters, and the reasons for meal breaks. Not all of the evidence that the parties sought to adduce was admitted. I ruled as inadmissible several paragraphs of affidavits filed on behalf of both the applicant and Yarra Trams. No deponent was cross-examined.

The industrial instruments

5. On 20 May 2020, an enterprise agreement titled the Yarra Trams Enterprise Agreement 2019 – Operations (2019 Enterprise Agreement) was approved by the Fair Work Commission pursuant to s 186 of the FW Act. By operation of s 54(1)(a) of the Act, the enterprise agreement commenced operation on 27 May 2020. The agreement has a nominal expiry date of 30 June 2023. Amongst other matters, the agreement provides for terms and conditions that regulate meal breaks for tram drivers.

6. The questions in this...