[2018] FWC 6335
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009
s 739 - Application to deal with a dispute

Association of Professional Engineers, Scientists and Managers, Australia
v
NSW Electricity Networks Operations Pty Limited t/a TransGrid
(C2018/2210)

DEPUTY PRESIDENT SAMS

SYDNEY, 20 NOVEMEBER 2018

Dispute arising under an expired and replaced enterprise agreement – direction to employee to relocate work location – whether relocation direction results in unreasonable hardship – whether direction reasonable and lawful – additional travel time – means of travel – increased costs – fatigue issues – adverse impacts on employee and his family – mitigating factors – Field Allowance – Fatigue Management Procedure – flexible start and finish times – challenge to jurisdiction – whether dispute continues after replacement of agreement – whether principles in Stephenson v Abetz apply – whether Stephenson v Abetz wrongly decided – other jurisdictional objections – whether dispute about workplace safety and disciplinary action – differences in statutory schemes sufficient to find that Stephenson v Abetz does not apply – other jurisdictional objections dismissed – dispute able to be determined by the Commission – meaning of unreasonable hardship – principles considered – accepted that additional travel time, extra costs and loss of family time adversely impacts on employee – hardship not as excessive as contended for – alternatives available – relocation direction does not impose unreasonable hardship – application dismissed – dispute concluded.

INTRODUCTION

[1] On 26 April 2018, the Association of Professional Engineers, Scientists and Managers, Australia (‘APESMA’ or the ‘Association’) filed an application, pursuant to s 739 of the Fair Work Act 2009 (the ‘FW Act’) in which it seeks to have the Fair Work Commission deal with a dispute in accordance with a dispute settlement procedure (‘DSP’) in an agreement. The dispute is with the NSW Electricity Networks Operations Pty Limited t/a TransGrid (the ‘respondent’ or ‘TransGrid’) and is said to arise under the DSP in the TransGrid Employees Agreement 2013 (the ‘2013 Agreement’); notably, cl 35.5.3 Disciplinary Action and cl 35.5.4 Workplace Safety. TranGrid operates and manages the main high voltage transmission network in New South Wales and the Australian Capital Territory and employs around 106 employees in its Construction Team across various sites in New South Wales.

[2] Shortly stated, the dispute concerns a direction by TransGrid to one of the Association’s members, Mr Wesley Tuszynski to relocate from Ultimo to Wallgrove. It is the Association’s view that this direction is unreasonable, given the health and safety risk to Mr Tuszynski due to fatigue arising from the distance between Mr Tuszynski’s home in Manly and Wallgrove, involving travelling time of two to two and a half hours each way and significant additional costs with the excessive travel. It is further put that Mr Tuszynski faces disciplinary action if he fails to comply with the relocation direction; although I note that Mr Tuszynski has relocated to Wallgrove and has continued to commute there throughout the time this matter has been on foot.

[3] The matter was listed for conference and directions on 8 May 2018. However, as no settlement could be reached, I listed the matter for hearing and issued directions (subsequently amended) in preparation for a hearing on 5 July 2018. On that day, Ms M Buchanan, Senior Industrial Officer appeared for the Association and Ms A Sarelas appeared for TransGrid. At the outset of proceedings, Ms Buchanan proposed that in light of the jurisdictional objections pressed by TransGrid, that those matters be adjourned to another day and that the matter proceed to hearing as to the merits of the relief sought by the Association on behalf of Mr Tuszynski; namely that the Commission determine that:

Ms Sarelas agreed to the course of action proposed and both parties advised they would be briefing legal counsel to argue the jurisdictional objections raised by TransGrid. The jurisdictional hearing was listed on 20 September 2018 with Ms L Saunders of Counsel appearing for the Association and Ms H Fairhall, Solicitor (Herbert Smith Freehills) appearing for TransGrid, with both parties given permission to be represented by a lawyer, pursuant to s 596 of the Act. Further directions were issued after that hearing which were complied with on 27 September and 4 October 2018.

[4] It is logical to deal firstly in this decision with the jurisdictional objections of TransGrid because if these objections are upheld, the dispute will be concluded and consideration and determination of the merits of the dispute, will become unnecessary. The 2013 Agreement’s DSP at cl 35 provides:

35 Dispute Procedure

35.1 Objectives

35.2 The objective of the dispute settlement procedure is to ensure:

(a) disputes are resolved at their source and at the lowest possible level;

(b) disputes are resolved in a timely manner;

(b) [sic] employees address the issue with their team leader/manager first;

(c) the dispute remains in the part of the organisation concerned without interference from employees not involved.

35.3 This dispute resolution process applies to all disputed matters in relation to:

35.3.1 This Agreement

35.3.2 The National Employment Standards.

35.3.3 Disciplinary Action

35.3.4 Workplace Safety

35.3.5 Consultation as per clause 5 of this Agreement

35.4 Local Matters

35.4.1 In the first instance the parties must try to resolve the dispute through discussions at the local level between

• the employee/s and their immediate supervisor and/or local manager.

• Employees may request assistance from an employee representative during these discussions.

35.4.2 If unresolved at the local level, resolution is sought at a corporate level with involvement of the following:

• The employee/s affected and, where requested, their employee representatives

• Relevant senior manager/s and Human Resources/Employee Relations representatives.

35.5 Corporate Matters

35.5.1 Claims or issues may be raised by either:

• Employee/s, and, where requested, on their behalf by their relevant employee representatives

• TransGrid

35.5.2 Resolution of the issues raised should include:

• Where relevant, utilisation of the Level 1 and Level 2 Committees

• Involvement and discussions with relevant member/s of TransGrid's Senior Management, Human Resources/Employee Relations and any other necessary resources.

35.6 If following the discussions set out above the dispute is still not resolved, either party may refer the dispute to Fair Work Australia

35.7 Fair Work Australia may deal with the dispute in 2 stages:

(a) Firstly, through mediation, conciliation, expressing an opinion or making a recommendation; and

(b) As a last resort, through arbitration or other binding determination.

35.8 The parties may agree that a person other than Fair Work Australia can deal with a dispute in accordance with the section 740 of the Act. In the absence of such agreement the dispute will be dealt with by Fair Work Australia.

35.9 TransGrid and the employee/s may choose to appoint another person, organisation or association to represent or support them during this process.

35.10 While the dispute resolution process is taking place work must be performed in accordance with the reasonable direction of the employer. However in providing such direction TransGrid shall take into consideration the impact of any changes to ensure that they will not prejudice any final outcomes from the dispute process.

35.11 All work must continue in accordance with this Agreement and the Act. Subject to applicable occupational health and safety legislation, an employee must not unreasonably fail to comply with a direction by the employer to perform work, whether at the same or another workplace that is safe and appropriate for the employee to perform work.

CHALLENGE TO JURISDICTION

For TransGrid

[5] In its outline of submissions of 21 June 2018 as to the Commission’s jurisdiction to determine this dispute, TransGrid raised the following matters.

[6] Firstly, on 30 May 2018, the TransGrid Employees Agreement 2016 (the ‘2016 Agreement’) came into operation. APESMA, on behalf of Mr Tuszynski had filed this s 739 dispute application on 26 April 2018, and identified the dispute as having arisen under the 2013 Agreement. Accordingly, the principles in Stephenson v Senator the Hon Eric Abetz (Special Minister of State) [PR945876] (‘Stephenson v Abetz’) apply, in that the 2013 Agreement and the operation of the DSP contained therein, ceased to apply to Mr Tuszynski. Further, it is irrelevant that a replacement agreement might contain the same, or similar DSP, as the Commission is not empowered to deal with the dispute.

[7] Secondly, in the alternative, that the Commission’s power to deal with this dispute is derived from s 739 of the FW Act and is limited to matters arising under the Agreement and the National Employment Standards (‘NES’). To the extent that clause 35 of the Agreement refers to matters which are not referable to a term or matter in the Agreement or the NES, the Commission does not have jurisdiction to deal with disputes about these matters. This includes matters relating to ‘disciplinary action’ and ‘workplace safety’ at large. Thus, if the dispute is said to be about ‘workplace safety’ and/or ‘disciplinary action’, it was nothing more than a device to attract the application of the DSP and incorrectly characterises the dispute.

[8] Thirdly, correctly characterised, the dispute is about the lawfulness of the direction issued by TransGrid to Mr Tuszynski to relocate his place of work from Ultimo to Wallgrove, including whether such a direction constitutes ‘unreasonable hardship’ under Mr Tuszynski’s contract of employment. This is a matter of contractual interpretation and does not fall within the scope of the matters which can be determined by the Commission under clause 35 of the Agreement.

[9] As TransGrid’s primary jurisdictional objection relates to the Stephenson v Abetz principles and as that objection was extensively developed later in written and oral submissions, to which I will later refer, I will set out, at this point, TransGrid’s other jurisdictional objections.

[10] TransGrid submitted that the direction to relocate, and Mr Tuszynski’s claim that it constitutes unreasonable hardship, are matters which are to be determined by reference to the terms of the employment contract. Therefore, they do not fall within the scope of matters comprehended in cl 35 of the Agreement.

[11] As to the dispute being about ‘disciplinary action’, it was submitted that at no time, had Mr Tuszynski refused to attend work at Wallgrove and he had complied with the relocation direction. Given these circumstances, ‘disciplinary action’ has not and would not be threatened; it has not even been discussed. The mere fact that ‘disciplinary action’ might be a theoretical consequence of any failure to follow a direction, does not mean the dispute is about ‘disciplinary action’ where the agreed evidence is that the subject has never arisen. Moreover, it appears the parties agree that if the relocation direction is lawful, TransGrid would be legitimately entitled to take ‘disciplinary action’, if the circumstances arose.

[12] As to the dispute being about ‘workplace safety’, TransGrid submitted that APESMA provided no detail in respect to any dispute being about cl 6 of the Agreement (dealing with Work, Health and Safety), or how it is alleged TransGrid is failing to comply in respect to that clause. There is just a bold assertion that the relocation direction causes Mr Tuszynski to exceed a ‘door to door’ threshold under the Fatigue Management Procedure (‘FMP’).

[13] In addition, the FMP is not part of the Agreement, nor is it referred to in cl 6. As with the other jurisdictional objection, this purported characterisation of the dispute, being about ‘workplace safety’, is a mere device to attract the application of the DSP under cl 35, and thereby ground the jurisdiction of the Commission.

[14] Even if it might be found the Commission is empowered to arbitrate the dispute, TransGrid has at all times complied with the FMP, and Mr Tuszynski’s working arrangements have been discussed and agreed to by him, in compliance with the FMP requirements, as follows:

(1) that the requirements under the Procedure are as follows:

(A) maximum of 16 hours per shift (door to door) or 16 hours of wakefulness (being 16 hours from when you leave home and arrive home);

(B) maximum of 12 days’ work over a 14 day period; and

(C) mandatory self-assessment after 12 hours of work; and

(2) the following steps would be taken to manage any risks associated with Mr Tuszynski’s fatigue levels so as to facilitate compliance with the Fatigue Management Procedure:

(A) after 12 hours of work, Mr Tuszynski will use the Fatigue Self-Assessment tool as required;

(B) Mr Tuszynski and his manager Mr Tran will have regular conversations around fatigue to ensure the risk can continue to be appropriately managed; and

(C) Mr Tran and Mr Tuszynski will work together to develop a Fatigue Management Plan – with such plan being updated if any risks change.

[15] In oral submissions, Ms Fairhall, for TransGrid put that the principles in Stephenson v Abetz apply directly to this case. She set out the background to the dispute and the relevant facts (which are not in dispute). She observed that s 35(e) of the 2016 Agreement, which replaced the 2013 Agreement, makes no reference to disputes under the former agreement, or is otherwise preserved by a savings provision.

[16] Ms Fairhall referred to the provisions of the Act set out at ss 51, 52, 54(2) and 58(1)-(2), which read:

51 The significance of an enterprise agreement applying to a person

(1)  An enterprise agreement does not impose obligations on a person, and a person does not contravene a term of an enterprise agreement, unless the agreement applies to the person.

(2)  An enterprise agreement does not give a person an entitlement unless the agreement applies to the person.

52 When an enterprise agreement applies to an employer, employee or employee organisation

(1)  An enterprise agreement applies to an employee, employer or employee organisation if:

(a)  the agreement is in operation; and

(b)  the agreement covers the employee, employer or organisation; and

(c)  no other provision of this Act provides, or has the effect, that the agreement does not apply to the employee, employer or organisation.

Enterprise agreements apply to employees in relation to particular employment

(2)  A reference in this Act to an enterprise agreement applying to an employee is a reference to the agreement applying to the employee in relation to particular employment.

54 - When an enterprise agreement is in operation

…

(2)  An enterprise agreement ceases to operate on the earlier of the following days:

(a)  the day on which a termination of the agreement comes into operation under section 224 or 227;

(b)  the day on which section 58 first has the effect that there is no employee to whom the agreement applies.

58 Only one enterprise agreement can apply to an employee

Only one enterprise agreement can apply to an employee

(1)  Only one enterprise agreement can apply to an employee at a particular time.

General rule--later agreement does not apply until earlier agreement passes its nominal expiry date

(2)  If:

(a)  an enterprise agreement (the earlier agreement ) applies to an employee in relation to particular employment; and

(b)  another enterprise agreement (the later agreement ) that covers the employee in relation to the same employment comes into operation; and

(c)  subsection (3) (which deals with a single-enterprise agreement replacing a multi-enterprise agreement) does not apply;

then:

(d)  if the earlier agreement has not passed its nominal expiry date:

(i)  the later agreement cannot apply to the employee in relation to that employment until the earlier agreement passes its nominal expiry date; and

(ii)  the earlier agreement ceases to apply to the employee in relation to that employment when the earlier agreement passes its nominal expiry date, and can never so apply again; or

(e)  if the earlier agreement has passed its nominal expiry date--the earlier agreement ceases to apply to the employee when the later agreement comes into operation, and can never so apply again.

[17] Ms Fairhall argued that put that as the 2013 Agreement ceased to operate, the Commission no longer has the power to hear and determine disputes under that Agreement. She relied on two further decisions which have relied on Stephenson v Abetz; namely; Launders v Officeworks Pty Ltd [2015] FWC 5692 (‘Launders’) and Mugford v Qantas Airways Ltd [2016] FWC 677.

[18] Ms Fairhall acknowledged that there has been some doubt expressed by members of the Commission about the correctness of Stephenson v Abetz, but significantly the reservations of Lawler VP dealt with accrued contractual rights, not the statutory creation and limitation of rights under an enterprise agreement. These rights depend on an agreement’s express, or implied terms. No such term exists to suggest the 2013 Agreement survives the cessation of its operation. Moreover, s 595 makes clear the Commission can deal with a dispute only if it is expressly authorised to do so. In this case, the Commission’s jurisdiction is limited to a dispute about matters in relation to the NES and the 2013 Agreement.

[19] Ms Fairhall put that a corollary of APESMA’s submission would produce the nonsensical proposition that the Commission could hear and determine a dispute before an agreement is approved by the Commission and applies to the parties.

[20] Ms Fairhall acknowledged that while certain accrued rights under an enterprise agreement continue, pursuant to s 544 of the Act in relation to civil penalties, Parliament did not do so in respect to the DSP in an enterprise agreement. In the absence of any express, or implied term giving the Commission the power to hear and determine a dispute under an enterprise agreement which ceases to operate, the Commission cannot do so; so much is clear from Stephenson v Abetz.

[21] Ms Fairhall rejected APESMA’s submission that Stephenson v Abetz can be distinguished because here the DSPs under the 2013 and 2016 Agreements are identical; in Stephenson v Abetz they were not identical. This is an irrelevant consideration to the Commission’s jurisdiction.

[22] Ms Fairhall conceded that the applicant could have filed a fresh application under the 2016 Agreement’s DSP about the subject matter of this dispute, and it would be jurisdictionally sound. At this point, I asked if this was so, ‘why are we wasting our time about it?’. I directed the parties to confer and upon resumption, Ms Fairhall said that the jurisdictional objections had been foreshadowed by TransGrid at the outset of the dispute and it was up to APESMA to remedy or correct the dispute. It elected not to do so.

For APESMA

[23] In written submissions, Ms Saunders Counsel for APESMA noted that the relevant DSP clause in the 2016 Agreement is the same as in the 2013 Agreement. The 2016 DSP does not expressly exclude any rights under the same clause in the 2013 Agreement. APESMA seeks a finding that the Commission’s jurisdiction continues as this:

a. is consistent with the doctrine of survivability of private arbitration clauses;

b. avoids an interpretation of the FW Act that requires the extinguishment of accrued rights, contrary to the usual presumption against this; and

c. accords with a correct interpretation of the sections of the FW Act giving rise to the Commission’s power to arbitrate disputes of this kind.

[24] Counsel put that Stephenson v Abetz is firstly, not binding on the Commission and its reasoning is not applicable under the scheme of the Act and secondly, in any event, was wrongly decided. The minority opinion in BlueScope Steel (AIS) Port Kembla v The Australian Workers Union, the Australian Manufacturing Workers’ Union & the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2018] FWCFB 856 (‘Bluescope’) is similarly incorrect.

[25] Counsel submitted that Stephenson v Abetz dealt with ‘certified agreements’ under s 170LW of the Workplace Relations Act 1996 (‘WR Act’) and distinguished this type of agreement with an ‘agreement’ made in accordance with Div 2 Part VIB. Although an ‘agreement’ made under Div 2 of Part VIB ‘existed’, it was not operative until it became a ‘certified agreement’ in accordance with Div 4 Part VIB s 4 (s 170LX). Importantly, the source of the Commission’s power to deal with a dispute, expressly required a provision in a ‘certified agreement’ (as distinct from an ‘agreement’), authorising it to do so. Accordingly, it was put that the Full Bench had concluded:

a. s 170LW makes the Commission’s jurisdiction ‘dependent on the agreement being a certified agreement’ (at [45]-[46]);

b. s 170LX is a further limitation on s 170LW (at [42]); and

c. if a certified agreement ceases to operate per s 170LX, the ‘Commission no longer has jurisdiction’.

[26] In effect, the Full Bench found ‘operation’ to be an essential feature of a certified agreement in that it must be read as an ‘operative certified agreement’. Once a certified agreement ceases operation, it therefore ceases to exist, contrary to the normal application of administrative law; see: State of NSW v Kable (2013) CLR 118 at [52]. Ms Saunders submitted that there was limited textual support for the Full Bench’s conclusions in this regard. While ‘operation’ is an effect of certification – it does not automatically follow that it is a necessary feature of a ‘certified agreement’, such that a cessation voids the fact of certification.

[27] Ms Saunders submitted that the scheme of the FW Act is entirely different. Counsel then set out the relevant statutory provisions going to the source of the Commission’s jurisdiction to arbitrate disputes at s 738 which provides as follows:

738 Application of this Division

This Division applies if:

(a) a modern award includes a term that provides a procedure for dealing with disputes, including a term in accordance with section 146; or

(b) an enterprise agreement includes a term that provides a procedure for dealing with disputes, including a term referred to in subsection 186(6); or

(c) a contract of employment or other written agreement includes a term that provides a procedure for dealing with disputes between the employer and the employee, to the extent that the dispute is about any matters in relation to the National Employment Standards or a safety net contractual entitlement; or

(d) a determination under the Public Service Act 1999 includes a term that provides a procedure for dealing with disputes arising under the determination or in relation to the National Employment Standards.

[28] It was said that two conclusions are obvious. The Commission’s jurisdiction is not presumptively predicated on the existence of a document with statutory force (as shown by the reference to contracts and other written agreements at s 738(c) above); and there is no express requirement for the enterprise agreement to be operative.

[29] Counsel noted that s 12 of the Act defines an enterprise agreement as being ‘a single enterprise agreement or a multi-enterprise agreement’. An enterprise agreement is ‘made’, that is to say, comes into existence, when it is approved by a majority of employees who are to be covered by it (s 182). Thus, an enterprise agreement exists as a matter of fact, before it is approved by the Commission. Indeed, this ‘existence’ must occur in order to make an application under s 185 of the Act or the enterprise agreement coming into operation under s 54. This is to be distinguished to an operative certified agreement under the WR Act, in so far as an agreement under the FW Act is not an operative enterprise agreement until it is approved. In other words, Counsel further submitted the phrase ‘enterprise agreement’ cannot coherently be read as meaning ‘operative enterprise agreement’ in the way ‘certified agreement’ could arguably be read as ‘operative certified agreement’ under the WR Act.

[30] Ms Saunders put that absent evidence of a clear intention otherwise, the legislature is presumed to have intended that terms within an Act are to be read consistently. It would be impermissible to give the phrase ‘enterprise agreement’ in s 738, a different meaning to that set out above, without a clear textual indicator in support of this contention. Section 738 contains no such suggestion. Indeed, as set out above, the contrary proposition is shown: the section evidences no intention that the documents giving rise to the Commission’s jurisdiction be limited to those which otherwise have force under the FW Act.

[31] Counsel added that support is found in s 739, which constrains the Commission’s arbitral powers. The section contains no reference to ‘persons covered’; instead, the applicant need only be a ‘part[y] to the dispute’. Further, s 739(4) provides that the Commission cannot make a decision inconsistent with ‘a fair work instrument which applies to the parties’. This demonstrates an express contemplation of the Commission exercising powers of arbitration arising out of documents which do not so apply within the meaning of the FW Act, such as an enterprise agreement which has ceased to operate.

[32] It was put that the minority decision in Bluescope rests on a rejection of this ‘separate mode of legally relevant existence’(at [73]). This turns on a misreading of s 182 (i.e. that the section “does not refer to enterprise agreements”) and must, for the reasons set out above, be disregarded.

[33] Accordingly, this fundamental shift in the legislative scheme means:

a. Stephenson v Abetz is no longer binding;

b. its reasoning no longer follows; and

c. the Commission’s jurisdiction to arbitrate a dispute, validly enlivened under an enterprise agreement, is not extinguished by that agreement subsequently ceasing to operate.

[34] Counsel referred to the decision of VP Lawler in Grabovsky v United Protestant Association of NSW Ltd t/as UPA [2015] FWC 2504 (‘Grabovsky’) where his Honour said:

With great respect to the Full Bench that decided Stephenson, its reasoning overlooks fundamental principles established by binding decisions of the courts, including the High Court, in relation to the operation of arbitration provisions in contracts. On every working day in this country there are commercial arbitrations being conducted pursuant to arbitration clauses in contracts that have been terminated for breach. Although the contract comes to an end in the sense that it cannot give rise to new obligations or liabilities, the operation of an arbitration clause survives the termination of the contract. The decision in Stephenson takes no account of that fundamental feature of the general law of contract and the numerous binding authorities that establish it.

[35] Counsel submitted that two conclusions flow from Grabovsky:

[36] Further, Ms Saunders submitted it is worth noting that the Bench in Stephenson v Abetz were bolstered in their conclusion, contrary to these principles, by the fact that (at [51]- [54]:

a. the new agreement contained clauses stating that its application was to the complete exclusion and replacement of the earlier agreement;

b. The outcome sought by Mr Stephenson was inconsistent with the terms of the replacement agreement (which would prevent it being awarded under the FW Act per s 739(4)).

These factors displaced ‘any prima facie preservation of such a right’. No corresponding matters arise in this matter.

[37] In oral submissions, Ms Saunders submitted that unless TransGrid was prepared to abandon its other jurisdictional objections; see: para [7] above – which it was not prepared to do, a discontinuance of this application was risky for Mr Tuszynski, in the sense that TransGrid was seeking to avoid the merits of the dispute being agitated and determined. Ms Fairhall responded by noting that TransGrid’s other jurisdictional objections had been pressed and not waived. In fact, it was APESMA which had requested a separate hearing on the Stephenson v Abetz objection only.

Other jurisdictional objections

[38] Ms Fairhall relied on TransGrid’s submissions filed on 21 June 2018; see: above at para [11]-[15] and further put that in considering whether the DSP permits the Commission to deal with a dispute, the Commission must identify whether the proper characterisation of the dispute falls under the DSP’s terms. In this case, the dispute is in fact about:

[39] These are matters of contractual interpretation, not properly the subject of a dispute under the Agreement at cl 35. As this is not a dispute about ‘workplace safety’ or ‘disciplinary action’, it cannot be said to be a dispute arising under cl 35 of the 2013 Agreement. Nevertheless, TransGrid had filed evidence in relation to the applicant’s claim going to fatigue management and other merit issues, merely as a response to APESMA’s case and in the event its jurisdictional objections are not accepted.

[40] In reply, Ms Saunders dealt with TransGrid’s other two jurisdictional objections by submitting that:

[41] As to the Stephenson v Abetz objection, Ms Saunders put that the two decisions Ms Fairhall relied on (and two others; see: Johnson v Finance Sector Union [2018] FWC 1035 and ‘Bluescope’) were wrongly decided. She then spent some time examining the relevant sections of the WR Act; namely, the definition of a certified agreement, being an agreement certified under Div 4 of Part VIB; s 170(1) promoting productive workplace relations with efficient dispute resolution and ‘for an application to be made there must be an agreement’. She said that at this point, it is an agreement, not a ‘certified’ agreement. One then goes to s 170LX which reads:

170LX When a certified agreement is in operation

(1) A certified agreement comes into operation when it is certified and, subject to this section, remains in operation at all times afterwards.

(2) The agreement ceases to be in operation if:

(a) its nominal expiry date has passed; and

(b) it is replaced by another certified agreement.

(3) The agreement:

(a) ceases to be in operation if it is terminated under section 170LV, 170ME, 170MG, 170MH or 170MHA; and

(b) does not operate if subsection 170LY(2) applies.

The agreement may also be set aside under subsection 113(2A).

(4) If:

(a) the application for certification of an agreement states that the application is made under Division 2; and

(b) at any time when the agreement is in operation, the employer who made the agreement, or any employer who is bound by the agreement under section 170MB (which deals with successor employers), is a constitutional corporation; and

(c) at any later time while bound by the agreement, any such employer ceases to be a constitutional corporation;

the agreement ceases to apply to the single business or part carried on by that employer.

[42] Ms Saunders then reviewed the details of Stephenson v Abetz. At [42] there is the critical finding which reads:

[42] Further, we think s 170LX of the Act is another constraint or limitation on the Commission's jurisdiction to exercise the private arbitration power arising from the procedures in a certified agreement for preventing and settling disputes.

and at [46]:

[46] An agreement which authorises the Commission to exercise such a power of private arbitration cannot operate with that effect unless it is a certified agreement.

[43] Ms Saunders put that the Full Bench’s reasoning appears to hinge on the inseparability between certification and operation. However, there is nothing in the WR Act which indicates that a lack of operation means it ceases to be a certified agreement. Ms Saunders relied on the obiter comments in Grabovsky and the reference to the Acts Interpretation Act and private arbitration.

[44] Ms Saunders described the right to have a dispute dealt with as a substantive right which is recognised by the Commission, as not being extinguished, simply because an employee may be terminated, and the relevant agreement no longer applies to the employee; see: ING Administration v Jajoo (PR974301) (‘ING v Jajoo’) and Deakin University v Rametta [2010] FWAFB 4387 (‘Deakin University’). This is a continuing line of authority, unlike Stephenson v Abetz.

[45] Ms Saunders conceded that if the legislative scheme was the same, or a different Act was functionally identical, then Stephenson v Abetz would probably be binding. However, that is simply not the case here. The corresponding provisions were relevantly and markedly different. Here, under s 738 of the FW Act, the Commission’s powers are no longer predicated on the existence of a document which has been authorised by the Commission. This was the case under the WR Act. Even if the submission was wrong about an enterprise agreement as understood by s 738, it is difficult to see how it would not be another written agreement, under s 738(c) of the Act. Ms Saunders said that s 739 makes the position even plainer, with limitation provisions to parties to the dispute and in particular, ss 5, which reads:

739 Disputes dealt with by the FWC

…

(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.

[46] Ms Saunders emphasised the meaning of the term ‘enterprise agreement’ in s 52, according to the principles of statutory construction in particular, requires the term to be given a consistent meaning throughout the Act. By reference to ss 181, 182 and 185 a proposed enterprise agreement comes into existence at the point of a successful vote of employees. This pre-dates the application being made for approval and the actual approval of the Commission. Positive obligations can be enforced through civil remedy provisions in s 544, where such an application is made within six years. For something to be enforced, requires operational coverage. This is a completely different scheme to that under which Stephenson v Abetz was decided.

[47] Ms Saunders observed that all four of the decisions earlier referred to, which had applied Stephenson v Abetz, involved unrepresented applicants. This fact obviously meant the Commission did not have the benefit of detailed submissions as to the alleged binding force of that case.

[48] Accordingly, Counsel submitted that the conclusions reached in Stephenson v Abetz fundamentally turn on the provisions of the WR Act, as they stood at the time. The FW Act is a fundamentally different legislative scheme. Further, not only is Stephenson v Abetz not directly binding, its reasoning does not follow under the current statutory regime. The decision requires an interpretation that is inconsistent with the orthodox principles of statutory construction and produces an outcome which is not in keeping with the usual approach to private arbitration powers. It is for these reasons Stephenson v Abetz was wrongly decided. It would be an error to follow it now.

[49] Ms Saunders added that jurisdiction is not a ‘moveable feast’. Absent clear words in the underpinning instrument to the contrary, once a court or Tribunal is seized of jurisdiction, it cannot subsequently lose it, without direct legislative intervention, or express provision in a replacement agreement entered into by the parties.

[50] In reply, Ms Fairhall refuted the submission that the respective schemes of the two Acts were fundamentally different – approval and certification are inseparably wedded and essentially operate in the same way. Adopting Ms Saunders’ approach meant that the Commission could entertain a dispute before an agreement is approved and may never be approved. That could not possibly be the intention of s 739 of the Act. Ultimately, s 52 ensures that if an Agreement is not in operation, it does not apply to the parties. The Commission’s jurisdiction is only engaged for the period that the agreement is in operation.

Further Submissions

[51] After the hearing, TransGrid requested an opportunity to put further submissions. This was consented to on the basis APESMA could respond. TransGrid’s supplementary submissions (27 September 2018) are summarised as follows:

(a) The FW Act remains relevantly unchanged from the WR Act and it is clear from the FW Act scheme that the Commission’s powers with respect to dispute resolution, are only enlivened while an agreement is in operation;

(b) There is no ‘presumption’ as to the preservation of rights under an agreement which has ceased to operate. Inoperative enterprise agreements are ‘statutory artefacts’ (not contracts). Similarly, any right of a party to dispute resolution under an enterprise agreement is not a statutory right, nor is it a right that Parliament ‘enacted’ through ‘legislation’. Thus, the principles cited by APESMA in support of an accrued right under the 2013 Agreement, are inapplicable in this case; and

(c) Given the above, Stephenson v Abetz remains applicable and binding to this matter. The proceedings should be dismissed for want of jurisdiction.

[52] Developing these submissions, Solicitors for TransGrid argued that the making, approval and operation of enterprise agreements under the FW Act remains fundamentally and substantially the same as under the WR Act, as demonstrated in the table set out below.

Minor differences are ‘distinctions without a difference’.

[53] It was submitted that Stephenson v Abetz did not turn on the use of the term ‘certified’ agreement, per se, but rather the term connotes an agreement that has been approved by the Commission and has commenced operation. These two concepts are inextricably linked, just as is the case under the FW Act. Unlike the WR Act, the FW Act makes no textual distinction between an agreement which has been made, but not approved, and one which has been approved. However, the reference to an enterprise agreement in s 738(b) can only be a reference to an enterprise agreement which has been approved by the Commission and is in operation given that:

(a) s 738(b) refers to an enterprise agreement that ‘provides for a procedure for dealing with disputes, including a term referred to in section 186(6)’. This signifies that the procedure is one in an enterprise agreement which the Commission has already determined has met the criteria in the approval process (rather than a term in a pre-approved enterprise agreement);

(b) s 739(5) provides that the Commission may only deal with a dispute on application ‘by a party to the dispute’. A person cannot logically be a ‘party to a dispute’ under an enterprise agreement, unless the agreement applies to that person. For this to occur, the agreement must be in operation.

(c) Similarly, an enterprise agreement does not impose obligations on a person or give a person an entitlement, unless the agreement applies to the person (s 51). As a matter of practical application then, there can be no dispute about matters ‘arising under the agreement’, (including a party’s rights and entitlements therein), and thus no requirement for any dispute resolution by the Commission, unless and until the agreement has commenced operation and applies to the party.

[54] TransGrid’s solicitors submitted that the principles of accrued rights do not apply to enterprise agreements and accordingly, cases such as Ferris v Plaister (1994) 34 NSWLR 474 and Pipeline Services WA Pty Ltd v Atco Gas Australia Pty Ltd [2014] WASC 10, dealing with the interpretation of common law contracts are inapplicable to this case. As to VP Lawler’s obiter comments in Grabovsky, it was put that the DSP rights under the 2013 Agreement are not acquired or accrued under statute; rather, they are discrete rights acquired or accrued under the enterprise agreement. This must be so because Parliament may alter statutory rights, but not DSP rights under an enterprise agreement.

[55] Further, the authorities relied on by APESMA deal with statutory rights, pursuant to s 8 of the Acts Interpretation Act 1901 (Cth) which provides that:

“Where an Act repeals in the whole or in part a former Act, then unless the contrary intention appears the repeal shall not:

…

(c) affect any right privilege obligation or liability acquired accrued or incurred under any Act so repealed.”

There is obviously no repeal of the FW Act comprehended here, to which the present case might apply.

[56] TransGrid rejected any reliance by APESMA on the cases which it cited in the hearing going to the continuation of a dispute, beyond an employee’s termination of employment, so long as the dispute had arisen prior to termination. These cases do not apply here where the question of the certification of the s 739 process arises when the relevant enterprise agreement, under which it was lodged, no longer applies and has been replaced.

APESMA’s further reply (4 October 2018)

[57] Counsel criticised TransGrid’s submission regarding Stephenson v Abetz for not addressing the Full Bench’s reasoning, but merely stating the conclusion than an operative enterprise agreement was required. There was no basis for concluding any difference between the ‘inextricability of operation’ arising from the different statutory schemes.

[58] As to TransGrid’s three reasons in support of its submission that the term of an enterprise agreement in s 738 of the Act means an ‘operative enterprise agreement’, Counsel said the submission is wrong because:

[59] It was submitted that the error in TransGrid’s reasoning is demonstrated by its acceptance that a dispute arising under an enterprise agreement continues, even when the employment relationship ends and the agreement ceases to apply, or ceases to impose obligations on the employer and the employee. This would require a contrary conclusion to all the relevant authority on that proposition; namely, ING v Jajoo; Telstra Corporation Limited v Communications, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2007] AIRCFB 374 and Deakin University.

[60] Finally, it was put that TransGrid’s submissions miss the point. The relevant right in this dispute is to have a validly activated arbitration process concluded. This right accrues once the application is made, and absent clear statutory language to the contrary, should not be displaced.

CONSIDERATION – JURISDICTIONAL OBJECTIONS

Workplace safety and disciplinary action

[61] I can dispose of TransGrid’s two less significant jurisdictional objections in short order, noting the lack of vigour which TransGrid pressed these matters, is a likely pointer to the strength (or lack of it) of the prospects of these objections being upheld.

[62] In respect to the dispute being about workplace safety, I do not see how it can possibly be said that excessive travel times and the impact on an employee’s health, is not a matter intrinsically about ‘workplace safety’. The fact that TransGrid actively engaged with Mr Tuszynski in respect to steps he was able to take to self assess and avail himself of ameliorating measures under a FM Plan, are demonstrable indicators that this dispute is, in part, about ‘workplace safety’, consistent with cl 35.3.4 in the Agreement and cl 6(f) of the Agreement, which reads as follows:

f) agreeing to participate in the formulation of safety plans and initiatives and the implementation of these schemes.

[63] It is necessary to point out, as was the case here, that disputes are rarely static; they evolve over time, and related matters, not identified at the beginning of a dispute, may emerge or mutate. In this respect I refer to the principles of dispute resolution set out by Saunders C in Construction, Forestry, Mining and Energy Union v Mt Arthur Coal Pty Ltd [2016] FWC 2959 at [8]:

[8] In characterising the nature of a dispute the Commission is not confined to the application filed to deal with the dispute. The entire factual background is relevant, and may be ascertained from the submissions advanced by the parties on the question of jurisdiction. Further, a dispute may evolve during proceedings in the Commission. It may therefore be necessary in some cases when ascertaining the character of a dispute to have regard to both the nature of the dispute alleged in an originating application and the factual circumstances as they evolve. 

[64] An evolving dispute does not mean that the essential elements of the dispute have been incorrectly characterised. I reject the objection that this dispute is not about ‘workplace safety’, as comprehended by cl 35.5.4 of the Agreement.

[65] Similarly, I accept that as this dispute evolved, it could have, or had the potential to morph into a dispute about ‘disciplinary action’. The fact that TransGrid has never raised with Mr Tuszynski or implied the imposition of disciplinary action for a failure to follow a lawful reasonable direction, is more a consequence of Mr Tuszynski’s commendable cooperation in avoiding this possibility, while at all times, maintaining his dispute. Given the numerous authorities on lawful and reasonable directions involving the dismissal of an employee for a failure to comply, it is entirely understandable why Mr Tuszynski would have this possibility in mind, if he failed to comply with the relocation direction. Moreover, the term ‘disciplinary action’ is not defined in the 2013 Agreement and appears only in cl 35. I can see no reason why the term should be given a narrow interpretation, such as to confine it to ‘disciplinary action taken’. I think an ordinary reading of the term means that it would include ‘possible disciplinary action’.

[66] In addition, I consider it somewhat bizarre and unrealistic for TransGrid to insist this dispute is not about disciplinary action when it obviously had, and has rights to take disciplinary action, against Mr Tuszynski if he fails to follow a lawful and reasonable direction. In this case, TransGrid maintains the relocation direction is lawful and reasonable and if it is found to be so, and Mr Tuszynski refuses to remain located at Wallgrove, then it will no doubt invoke its rights in that regard. Given all the circumstances, I accept this dispute may involve an element of disciplinary action – at least in a prospective sense – and such a matter is intrinsically woven into the fabric of this dispute. I dismiss the objection that this dispute is not about ‘disciplinary action’, as comprehended by cl 35.5.3 of the Agreement.

Stephenson v Abetz

[67] Underpinning APESMA’s primary jurisdictional argument is the proper construction of the terms ‘enterprise agreement’ in the FW Act and the term ‘certified agreement’ under the former WR Act. I do not understand there to be any disagreement as to the usual and well known principles of statutory construction applying to that exercise. In this respect, I set out the helpful summary of the principles found in J.J. Richards & Sons Pty Ltd v Fair Work Australia [2012] FCAFC 53 (‘JJ Richards’) where his Honour, Flick J, said at [50]-[54]:

‘50. First, the so-called “golden rule” of the common law as to statutory construction is that “the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no farther”: Grey v Pearson [1857] EngR 335; (1857) 6 HLC 61 at 106 per Lord Wensleydale. See also: Australian Boot Trade Employees’ Federation v Whybrow & Co [1910] HCA 53; (1910) 11 CLR 311 at 341 to 342 per Higgins J. The “golden rule” is not confined to circumstances where a “mistake” has been made in the wording of an Act; the rule is also applied to avoid construing legislation so as to produce patently unintended or absurd results: Footscray City College v Ruzicka [2007] VSCA 136 at [16], 16 VR 498 at 505 per Chernov JA (Warren CJ and Maxwell P agreeing).

51. Second, the common law also recognised that “[i]t is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do”: Thompson v Goold & Co[1910] AC 409 at 420 per Lord Mersey. See also: Dallikavak v Minister for Immigration and Ethnic Affairs (1985) 9 FCR 98 at 103 per Northrop and Pincus JJ; Minister for Immigration and Citizenship v Hart [2009] FCAFC 112 at [6] per Spender J.

52. Third, a construction of a statutory provision is to be preferred “that would best achieve the purpose or object of the Act”: Acts Interpretation Act 1901 (Cth) s 15AA. The requirement to look to the purpose or object of an Act is more than an instruction to adopt the traditional mischief or purpose rule in preference to the literal rule of construction; s 15AA requires no ambiguity or inconsistency in a statutory provision before a court is not only permitted, but required to have regard to purpose: Mills v Meeking [1990] HCA 6; (1990) 169 CLR 214 at 235. Dawson J there went on to observe that the provision there in question, being a provision comparable to s 15AA, “... requires a court to construe an Act, not to rewrite it, in the light of its purposes”. Similarly, in Trevisan v Commissioner of Taxation (1991) 29 FCR 157 at 162, Burchett J observed that s 15AA “... is not a warrant for redrafting legislation nearer to an assumed desire of the legislature. It is not for the courts to legislate ...”. See also: R v L (1994) 49 FCR 534 at 538 per Burchett, Miles and Ryan JJ; Skea v Minister for Immigration, Local Government and Ethnic Affairs (1994) 51 FCR 82 at 85 per Moore J; Minister for Immigration and Multicultural Affairs v Lim [2001] FCA 512 at [7], [2001] FCA 512; 112 FCR 589 at 592 to 593 per Sundberg J. “In the end the task of the court is to ascertain and to enforce the actual commands of the legislature”: Re Application of The News Corp Ltd (1987) 15 FCR 227 at 236 per Bowen CJ.

53. In R v Young [1999] NSWCCA 166, 46 NSWLR 681 at 686, Spigelman CJ summarised these principles of statutory construction as follows:

[5] The proposition that a court can introduce words into an Act of Parliament offends a fundamental principle of our constitutional law. It is no part of the function of any judge to amend legislation. The task of the courts is to determine what Parliament meant by the words it used, not to determine what Parliament intended to say ...

[6] In order to construe the words actually used by parliament, it is sometimes necessary to give them an effect as if they contained additional words. This is not, however, to introduce words into the Act. This involves the construction of the words actually used. Judicial statements which appear to have been prepared to countenance something more than this, should be so understood.

[7] The most frequently cited formulations are:

“It is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do.” 
Thompson v Goold & Co [1910] AC 409 at 420, per Lord Mersey; and


“...we are not entitled to read words into an Act of Parliament unless clear reason for it is to be found within the four corners of the Act itself.” 

Vickers, Sons & Maxim Ltd v Evans [1910] AC 444 at 445, per Lord Loreburn LC. To similar effect is the following formulation:

“Additional words ought not to be read into a statute unless they are required in order to make the provision intelligible.” 
Wills v Bowley [1983] 1 AC 57 at 78B.


[8] The process by which words omitted by inadvertence on the part of the draftsperson may be supplied by the court, must remain capable of characterisation as a process of construction of the words actually used.

[68] I turn first to the relevant provisions of the WR Act.

[69] Section 4 – Interpretation defines a ‘certified agreement’ as ‘an agreement certified under Division 4 of Part VIB’. Section 170LT(1) Certifying Agreements ss(1) states:

(1)  If an application is made to the Commission in accordance with Division 2 or 3 to certify an agreement, the Commission must certify the agreement if, and must not certify the agreement unless, it is satisfied that the requirements of this section are met.

[70] Section 170LD deals with a certified agreement’s nominal expiry date and reads:

For the purposes of this Part, the nominal expiry date of a certified agreement is the date specified in the agreement as its nominal expiry date, or that date as extended or further extended under section 170MC.

[71] Section 170LI distinctively and separately contemplates a species of ‘agreement’ prior to certification as the preceding word ‘certified’ does not appear.

(1)  For an application to be made to the Commission under this Division, there must be an agreement, in writing, about matters pertaining to the relationship between:

(a)  an employer who is a constitutional corporation or the Commonwealth; and

(b)  all persons who, at any time when the agreement is in operation, are employed in a single business, or a part of a single business, of the employer and whose employment is subject to the agreement.

(2)  The agreement must be made in accordance with section 170LJ, 170LK or 170LL.

[72] The final subsection in Division 2, s 170LM then logically sets out the first step in seeking certification, noting the agreement is still not described as ‘certified’.

[73] Section 170LW provided the power for the former Commission to deal with disputes:

Procedures in a certified agreement for preventing and settling disputes between the employer and employees whose employment will be subject to the agreement may, if the Commission so approves, empower the Commission to do either or both of the following:

(a)  to settle disputes over the application of the agreement;

(b) to appoint a board of reference as described in section 131 for the purpose of settling such disputes. [my emphasis]

[74] Section 170LX relevantly deals with the operation and termination of a certified agreement and reads:

(1) A certified agreement comes into operation when it is certified and, subject to this section, remains in operation at all times afterwards.

(2) The agreement ceases to be in operation if:

(a) its nominal expiry date has passed; and

(b) it is replaced by another certified agreement.

[75] It seems to me that particular care and a degree of caution must be exercised when comparing the purpose, creation and operation of an industrial instrument under one statutory scheme to a seemingly corresponding industrial instrument, under a different statutory scheme. Obviously, in Stephenson v Abetz the agreement there under consideration was a ‘certified agreement’ created under the WR Act. The agreement under consideration here is an enterprise agreement created under the FW Act.

[76] While at first blush, as TransGrid submitted, it might be said, that any differences between a ‘certified agreement’ and an enterprise agreement, are ‘differences without a distinction’, I cannot agree. In my view, the differences between the two species of industrial instrument are of such significance that I find myself unable to agree that Stephenson v Abetz is, (or ever was) applicable to matters of this kind under the FW Act. I set out below some of the differences between the agreement streams under the two Acts. The list is not exhaustive.

[77] Firstly, is the obvious one of nomenclature. There is no such creature as a ‘certified agreement’ found anywhere in the FW Act.

[78] Secondly, the fundamental requirement on the Commission to be satisfied that an enterprise agreement meets the Better Off Overall Test (‘BOOT’) under the FW Act (ss 186 and 187), is a different, and arguably more onerous test than the requirement for the Commission to be satisfied that a ‘certified’ agreement under the WR Act meets the No Disadvantage Test (‘NDT’).

[79] Thirdly, certified agreements have a maximum life of five years, whereas an enterprise agreement’s nominal term cannot exceed four years.

[80] Fourthly, under Part 2-4 of the FW Act, specific process steps must be taken (e.g. issuance of the Notice of Employee Representational Rights (s 173) at least 21 days before the vote) and the terms of the Agreement and their impact on employees must be explained to them (s 186(2)), which if not followed will be fatal to the Agreement being approved by the Commission. Under s 170LT of the WR Act, an agreement will not be certified unless the Commission is satisfied that the agreement passes the No Disadvantage Test and is not contrary to the public interest. There is no general public interest test in Part 2-4 of the FW Act, noting that s 189 deals with the public interest in the context of the Agreement not satisfying the BOOT.

[81] Fifthly, an enterprise agreement under the FW Act must contain certain compliant terms (DSP (186(6), consultation and flexibility terms (ss 201-205) and must not include any unlawful terms (ss 186(4)-(5), and 194). There are no corresponding mandatory requirements, except for a reference in s 170LT(8) to dispute resolution procedures and a separate recognition of agreements being made about ‘industrial disputes and industrial situations’ in Part VIB – Division 3.

[82] Seventhly, under the FW Act, there are provisions for the appointment of Employee Bargaining Representatives. There are no similar provisions under the WR Act.

[83] Eighthly, an application for an enterprise agreement under the FW Act must be made within 14 days of the Agreement being made (the vote for the agreement (s 185(3)(a)). Under s 170LM of the WR Act, an application to certify an agreement must be made within 21 days of its approval by employees.

[84] Ninthly, certified agreements may be made for ‘part of a business’ (s 170L – Object), whereas the FW Act focuses on the ‘enterprise’ or ‘multi-enterprise’.

[85] In my opinion, the Commission’s jurisdiction to arbitrate a dispute is not limited to a DSP in an enterprise agreement, as it was previously so limited by being only exercisable under a DSP in an operative certified agreement (as Stephenson v Abetz concluded). Relevantly, there is no express requirement that the jurisdiction arises from a DSP in an enterprise agreement which is operative, i.e. having been approved by the Commission. That this must be so, is evident from ss 180 and 182 of the FW Act which provides that an ‘enterprise agreement’ is made when it is voted on by a majority of employees who cast a valid vote for approval. Prior to a successful vote, the agreement is referred to as a ‘proposed enterprise agreement’. I agree with Ms Saunders that when this occurs, and before an agreement is approved by the Commission, the agreement has a distinct factual and legal existence, which is necessary before a valid application for approval can be made under s 185 of the FW Act.

[86] Turning then to the specific provisions in respect to disputes arising under ‘certified’ agreements and enterprise agreements under the respective Acts. Under s 170LW of the WR Act, the former Commission was empowered, through a procedure in a certified agreement, to settle disputes over the application of the agreement. ‘Certification’ was therefore an express requirement for the Commission to have jurisdiction to determine a dispute arising under the application of the certified agreement; see: Stephenson v Abetz at [45]-[46]. By comparison, Part 6-2 – Division 2 of the FW Act applies where ‘an enterprise agreement includes a term that provides a procedure for dealing with disputes, including a term referred to in section 186(6)’(s 738(b)). In Stephenson v Abetz at [49], the Full Bench found that the effect of ss 170LW and 170LX, was that if a ‘certified’ agreement ceased to have operation, the Commission no longer had jurisdiction to exercise private arbitration of the Agreement. Therefore, the question becomes whether the term ‘enterprise agreement’ in s 738(b) really means operative enterprise agreement. As the parties pointed out, under the FW Act, there is no textual distinction between an enterprise agreement which has been made, but not approved, and one that has been approved by the Commission (unlike in the WR Act). However, is it correct to say, as TransGrid submits, s 738(b) can only be a reference to an enterprise agreement which has been approved by the Commission and is in operation?

[87] Ms Fairhall submitted that s 738(b) is a reference to DSPs in enterprise agreement which the Commission has already approved. Part of the difficulty I have with this proposition is that s 186(6) is a reference to the strict requirement that a DSP be included as a term in an enterprise agreement before the Commission approves it. It is not a reference to a DSP which is in an enterprise agreement that has already been approved by the Commission. In other words, the reference to the DSP in s 738(b), is a reference to a term found in an enterprise agreement that has not yet been approved and is not yet operative. This seems to me to lead to the opposite conclusion for which TransGrid contends. In any event, as Ms Saunders pointed out, the term ‘including’ is not to be read as meaning exclusive.

[88] Pursuant to s 739(5) of the FW Act, the Commission can only deal with a dispute on application by a party to the dispute (s 739(6)). As Ms Fairhall submitted, a person cannot be a party to a dispute unless an enterprise agreement applies to that person. For that to occur, the enterprise agreement must be in operation (s 51). As the Full Court of the Federal Court of Australia (Bromberg, Katzmann and O’Callaghan JJ) said in One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union [2018] FCAFC 77:

[89] At the time APESMA made the application, it (and Mr Tuszynski for that matter), were both parties to the 2013 Agreement, which was operative. APESMA had standing to make the application and the Commission was then seized with jurisdiction to ‘deal with the dispute’ (s 739(6)). I agree with Ms Saunders that this section does not necessarily provide support for the proposition that a person who had standing when they made a s 739 application, subsequently loses it once the agreement ceases to operate pursuant to s 54. For that to be so, it seems to me that the word ‘operative’ must be read into s 738(b).

[90] Sections 51 and 54 of the FW Act give some limited assistance to determining whether ‘operative’ ought to be properly read into s 738(5). That said, they do highlight some practical issues and provide context. Pursuant to s 51 of the FW Act, an enterprise agreement does not impose obligations, nor does it give a person any entitlements, unless the agreement applies to them. Pursuant to s 54(2)(b), an enterprise agreement ceases to operate once a ‘later agreement’ comes into operation which replaces the ‘earlier agreement’. There are obvious practical issues in respect to arbitrating a dispute in respect to a matter arising under an enterprise agreement, even where it has been properly made at the time of lodgement, if the enterprise agreement ceases to apply to the employee and the employer in the period between lodgement and determination. Here, if the Commission arbitrates the dispute under the 2013 Agreement, I doubt whether that decision would impose any obligations on the parties, given the 2013 Agreement ceased to apply to them on 30 May 2018. That said, the relevant terms of the 2013 and 2016 Agreements are unchanged. It would be unusual, for a model employer such as TransGrid, to ignore a determination of the Commission on the basis that the determination may not be binding. While potentially impractical, I think that particular matter is a question of law which is unnecessary for the Commission to determine in the present context.

[91] As his Honour Flick J cited in JJ Richards ‘it is a strong thing to read into an Act of Parliament words which are not there, and in the absence of a clear necessity it is a wrong thing to do’. In my view, the term ‘enterprise agreement’, as it appears consistently throughout the Act, in particular s 738(b), cannot be read as including the prefatory word, ‘operative’. The corollary of this proposition is that there is no limitation on the Commission’s powers to arbitrate a dispute under a DSP in an enterprise agreement, provided the application was properly made in the sense that it applied to the applicant at the time it was lodged, even where the enterprise agreement ceased to operate, in the context of it being replaced or terminated, as the case may be. I consider the ratio in Stephenson v Abetz is therefore not binding on me.

[92] I agree with Ms Saunders that earlier single member decisions, (including my own in Launders), that Stephenson v Abetz was followed. However, in those cases the parties were unrepresented. Here, the submissions of experienced legal representatives on this complex issue have been detailed and comprehensive and in Ms Saunders’ case, persuasive.

[93] Although I have found that the principles in Stephenson v Abetz do not apply to this dispute, I intend to make some further observations about Stephenson v Abetz as to whether it was correctly decided.

[94] It seems to me that the beneficial purpose of the provisions under Part 6-2 `could not possibly be intended to extinguish rights commenced under a statutorily created instrument which no longer applies. I agree with what Lawler VP said in Grabovsky when his Honour said:

[51] The period of Mrs Grabovsky’s employment by the Respondent prior to 2011 was covered by predecessor enterprise agreements, including enterprise agreements made under the Workplace Relations Act 1996.

[52] The decision of the Full Bench of the AIRC in Stephenson v Abetz (28 October 2014, PR952743) is authority for the proposition that when an workplace agreement made under Workplace Relations Act 1996 was replaced by a subsequent agreement made under that Act, the earlier agreement ceases to operate such that the Commission has no jurisdiction to deal with a dispute arising under the earlier agreement. As a single member of the Commission I consider myself bound to follow decisions of a Full Bench of the Commission or its predecessors that is properly applicable in the instant case unless that decision is per incuriam - a decision that overlooks obviously applicable statutory provisions or earlier applicable and of a Court binding the Full Bench.

[53] With great respect to the Full Bench that decided Stephenson, its reasoning overlooks fundamental principles established by binding decisions of the courts, including the High Court, in relation to the operation of arbitration provisions in contracts. On every working day in this country there are commercial arbitrations being conducted pursuant to arbitration clauses in contracts that have been terminated for breach. Although the contract comes to an end in the sense that it cannot give rise to new obligations or liabilities, the operation of an arbitration clause survives the termination of the contract. The decision in Stephenson takes no account of that fundamental feature of the general law of contract and the numerous binding authorities that establish it.

[54] Moreover, the interpretation adopted by the Full Bench in Stephenson has the effect of extinguishing accrued rights. Applied rigorously, the decision in Stephenson would oblige the Commission to refuse to continue dealing with a dispute properly notified pursuant to a dispute resolution procedure. It is a fundamental principle of statutory construction that the parliament is presumed, when enacting legislation, not to deprive people or citizens of their accrued rights other than by express words. In the case of Commonwealth legislation there is the further consideration of the operation of s.51(xxxi) of the Constitution. These matters were not considered by the Full Bench in Stephenson when it construed s.170LX of the then Workplace Relations Act 1996.

[55] I find that I do have jurisdiction to deal with the present dispute under each of the succession of enterprise agreements that applied to Mrs Grabovsky and the Respondent during the whole period of her employment. However, there is no suggestion that the classification description for Care Service Employee Grade 2 has changed over that succession of agreements and, accordingly, the reasoning set out above in relation to the current Agreement is equally applicable in relation to the dispute to the extent that it arises under any of the predecessor agreements.

See also: Esber v Commonwealth (1992) CLR 430.

[95] In addition, with respect to the Full Bench in Stephenson v Abetz, I find compelling, as I think did VP Lawler, the views of Deegan C in her decision which was successfully appealed in Stephenson v Abetz. At paras [55]-[57], the Commissioner said:

[55] In my view the words "ceases to be in operation" in s170LX do not operate so as to remove all rights parties to an agreement may have under an agreement which has been terminated or replaced by another agreement. The words in question do no more than provide that an agreement does not continue to determines [sic] the rights and obligations of those parties covered by it when a new Agreement commences to govern the employment conditions. The superseded agreement continues to provide the rights and obligations of the parties to the Agreement in respect of that period for which it was in operation.

[56] If the legislature had intended that the termination of an agreement would have the effect of completely extinguishing all rights employees or employers may have had as a consequence of the agreement, in my view, a more explicit statement to this effect would be required. I do not accept the argument that the parties would need to provide for such situations in the terms of the new agreement. In my view such provisions would be necessary only if the legislation explicitly removed all rights and liabilities under terminated agreements. In such circumstances the parties would be aware that such a consequence flowed from the making of a new agreement and would be alerted to the need for savings provisions.

[57] I accept the arguments put by the applicant and the CPSU that to find otherwise would lead to absurd results and would enable an employer to deny an employee rights merely by delaying a settlement of a dispute until a new agreement was certified.


[96] It is also of note that underpayment claims according to an industrial instrument, including an enterprise agreement, do not evaporate simply because the industrial instrument is no longer in operation. In other words, an enterprise agreement replaced, or terminated, continues to have a statutory existence and practical utility beyond its operative period. To my mind, this is a clear pointer that Stephenson v Abetz, with respect, may have been wrongly decided.

[97] In my view, there is no reason – let alone a cogent one – why an employee’s right to pursue a dispute under a DSP in an enterprise agreement which is no longer in operation, is extinguished. While I accept the present context is not entirely analogous, this seems entirely consistent with the preservation of DSP rights after an employee is no longer employed, provided the dispute was commenced prior to the termination of employment; see: ING v Jajoo and Deakin University.

[98] In this case there is no doubt jurisdiction commenced when the dispute was lodged on 26 April 2018. To my mind, once the Commission is seized of jurisdiction, unless there is a specific statutory bar or the replacement Agreement expressly provides for its extinguishment, the Commission’s jurisdiction remains on foot, and is exercisable.

[99] In another sense, there is a practical unreality of applying the Stephenson v Abetz approach to the current dispute. I raised with the parties during the hearing, that there would be nothing at all to prevent APESMA or Mr Tuszynski reactivating the same, or similar dispute, in accordance with the DSP under the prevailing 2016 Agreement. As Mr Tuszynski remains in employment, there could be no issue as to the limitation set out in ING where a DSP must have been commenced before a termination of employment. Accordingly, I consider there is a pall of unreality and senseless utility in TransGrid’s jurisdictional approach to this dispute.

[100] Finally, it is trite that had Parliament intended to extinguish a person’s properly initiated and pursued rights in a DSP of an enterprise agreement which is then replaced by a successor agreement, then it could have expressly said so. Having not done so, at the very least, it may be inferred that Parliament did not intend such an outcome.

[101] For these reasons, I am satisfied the Commission has jurisdiction to resolve this dispute under cl 35 of the 2013 Agreement. TransGrid’s jurisdictional objections are dismissed. I turn now to the evidence in this case going to the substance and merits of the dispute.

THE EVIDENCE

[102] Mr Tuszynski commenced employment with TransGrid as a Project Officer on 25 June 2012 at the Surry Hills office. In February 2014, Mr Tuszynski was relocated to the Ultimo office. His current position is an AIPM Certified Project Manager. Mr Tuszynski was employed under the terms of a then prevailing enterprise agreement and a specific contract of employment, which relevantly provides for the following at cl 6:

‘When required for business needs, TransGrid may direct you to perform work at other TransGrid locations either on a temporary or permanent basis provided that such a direction does not impose unreasonable hardship.’

[103] Mr Tuszynski said his role involved some travel to deal with projects on site. He recently delivered two large projects simultaneously, valued at twenty to forty million dollars, and one or two smaller projects, each of around one million dollars. His role involved managing procurement of major plant, project management of the concept, planning, managing the design process and involvement in option and feasibility studies.

[104] Mr Tuszynski described his understanding of the restructure of the Field Services Division within the Project Services/Project Delivery Branch where he worked. TransGrid commenced implementation of the new operating model to effect the restructure on 12 December 2016, through a Works Delivery Implementation Plan. Mr Tuszynski said that prior to the restructure he was involved in, and managed the development and delivery phases of projects, but since the restructure he is only involved in managing delivery. He claimed that this change reflected a 50% reduction in the scope of his activities. TransGrid had not updated the position description for Project Managers as a result. On 17 July 2017, TransGrid published and distributed changes to the Operating Model which established ‘Virtual Project Teams’. This would result in Project Managers reporting to a different manager in different regions and working in ‘virtual project teams’, with others based in different regional centres.

[105] Mr Tuszynski said that on 31 July 2017 in a phone call from his Manager, Mr Gittani, he was directed to relocate to Wallgrove the next day. He rejected this direction and did not relocate. In early August 2017, he was again directed to relocate on 31 August 2017. This was extended by a further two months to 31 October 2017. Relocation did not occur at this date.

[106] Mr Tuszynski said that on 29 September 2017 TransGrid published a new Transfer and Relocation Policy which provided for six months’ notice of any decision to relocate. The Policy expressly excluded an employee relocated at the direction of TransGrid, within the greater Sydney area, that is, transfers between Sydney CBD and Sydney (Western Sydney, Wallgrove). There was to be no compensation for his relocation from Ultimo to Wallgrove. Mr Tuszynski received a further extension to relocate on 19 February 2018.

[107] Mr Tuszynski sought consultation throughout this process with the HR Business Partner ‘because of my unique individual circumstances’; namely, he and his family live in Manly, he does not own a motor vehicle and he became a father for the first time on 15 May 2017. He set out the impact of the relocation as follows:

a. Excessive increased duration of travel to and from work each day;

b. Significant cost increases of travel by public transport;

c. Large financial impact of increased expenses if I was to travel to and from Wallgrove by car. Necessitating the need to purchase a motor vehicle, its depreciation, multiple tolls each day, petrol, registration, insurance and ongoing running costs;

d. Impact on health and wellbeing due to the reduction of free time to participate in sport (Football and OzTag) and fitness activities (yoga, running and swimming);

e. Problematic family impact due to travelling duration; and

f. Not being able to spend time with my son and support my partner.

[108] Mr Tuszynski claimed there was no consultation with him regarding the need for, or the reason/s for him to relocate to Wallgrove. Following the direction to relocate, he raised with various HR persons and his managers, the following matters:

a. Lack of any consultation regarding the proposed changes to my work location;

b. Lack of any compensation offered by TransGrid for relocation and the variation to my employment contract;

c. Lack of a program to assist personnel affected by the change to find alternative roles at Ultimo, i.e. a priority (job swap) for affected employees or making roles available to internal applicants only;

d. Elaborated on the distance and time to travel to the Wallgrove office from Manly

and return home;

e. As I do not own a motor vehicle and if I agreed to relocate I have unreasonably high costs to outlay to purchase a motor vehicle, register, insure, and maintain;

f. The unreasonable daily costs of tolls and fuel to travel from Manly to Wallgrove

compared to the costs to travel to Ultimo;

g. Inability to assist my partner during the week with our child due to my time travelling door to door;

h. Rejection of the option to have an Individual Flexibility Agreement to work from

home two days a week to limit the impact of travelling and provide a work life balance;

i. Rejection of the option to work periodically at other TransGrid locations e.g.

Sydney East substation at Belrose;

j. I am aware a number of other officers who work periodically at other TransGrid substation locations across the state; and

k. As Virtual Project Teams were in place, why did that necessitate the need to relocate to Wallgrove, and if I worked in Virtual Project Teams, I could be anywhere.

[109] When his issues were not resolved, he involved the Association and a dispute was formally raised with TranGrid (Ms Sarelas, Lisa Wakim and his Manager, Hai Van Tran) on two occasions in December 2017 and February 2018. At the time, Mr Tuszynski identified the extra costs he would incur by his relocation, which showed for a nine day fortnight it would cost him:

[110] Mr Tuszynski also advised of the need for him to apply a personal Fatigue Management Plan (‘FM Plan’) as he would exceed 12 hours per shift, ‘door to door’, under TransGrid’s Fatigue Management Procedure (‘FTP’). The Procedure provides as follows:

4.3.4 Office Work

While TransGrid offered a change to start and finishing times, this did not sufficiently address the excessive travel time. Mr Tuszynski proposed the option of secondment to roles in Ultimo or to prioritise options for job swaps for Ultimo roles. Both of these proposals were rejected by TransGrid.

[111] Mr Tuszynski was directed to relocate on 19 February 2018. However, he was on unpaid parental leave for eight weeks and did not attend Wallgrove until 19 April 2018. Mr Tuszynski described the actual impacts of the relocation as:

a. From Manly each day I travel 5 hours and 20 minutes to and from Wallgrove compared with 2 hours to and from Ultimo;

b. I am an absent father Monday to Friday and don't provide care or play time with

my son on weekday mornings or evenings;

c. I am constantly tired and suffer from a constant lack of sleep;

d. Saturday mornings I spend long hours catching up on sleep;

e. My partner is responsible for all our son’s needs pre and post child care;

f. I am unable to attend other weekly activities with my son; and

g. My partner and I are more stressed due to the strain my being absent places on our relationship and my lack of involvement in raising our son.

[112] Mr Tuszynski said he had tried to minimise these impacts by taking ‘power naps’ during work and staying at his parents’ or friends’ homes to have a full, uninterrupted night’s sleep. Nevertheless, he believed the present circumstances cause him and his family ‘unreasonable hardship’, in that he is away from home between 6.20am to 7.57pm Monday to Friday.

[113] It was Mr Tuszynski’s assessment that he was required to make site visits generally, on a four weekly basis, with other ad hoc visits, as the need arises. He had never been advised that he was required to travel to sites three times a week. Notwithstanding this, he was advised on 18 May 2018, that as his position was office based, the 12 hour ‘door to door’ policy did not apply. Mr Tuszynski relied on TransGrid’s Fatigue Management Procedure and said the Procedure provides for both planned (site) and office work not to exceed 12 hours per shift ‘door to door’, meaning the time from leaving home to commence a work shift, to arriving back home after a work shift. This constituted further ‘unreasonable hardship’.

[114] Mr Tuszynski said that after commencing work at Wallgrove he advised his Manager that he was exceeding the 12 hour ‘door to door’ limit. It was agreed he would work to comply with the Procedure. In May 2018, Mr Tuszynski was advised of a new communique - Office Work Fatigue Checklist. It did not provide ‘door to door’ limits, but was confined to time in the office. He was told not to apply the previous direction to apply the ‘door to door’ policy and he should not plan his work in accordance with the ‘door to door’ definition. Mr Tuszynski raised the following matters:

a. TransGrid personnel are scheduled by resource team leaders for 12 hours per shift (door to door).

b. The following clauses of TransGrid’s Fatigue Management Procedure (Annexure P) outline the importance of the 12 hours per shift (door to door). Clause 3 – Definitions, Clause 4.2, Clause 4.3.2 and Clause 4.3.4.

c. TransGrid’s FMP does not specify any different treatment between planned (site) or office work. It states the same maximum of 12 hours per shift (door to door) for personnel office based or site based.

d. I have experience in my role as a Project Manager and observe daily TransGrid’s application of the Procedure; by scheduling employees to adhere to the 12 hours per shift (door to door) hours.

e. Have personnel undertake works in periods of high demand where they exceed the 12 hours and apply the measures outlined in the FMP.

[115] Mr Tuszynski gave evidence that on 10 August 2017 he had applied for an Individual Flexibility Agreement (‘IFA’) and he commenced working from home on Wednesdays under direction from his then manager, who subsequently was assigned to another team. In October 2017, the IFA was modified so he could work from home on a Friday and these terms were agreed. He worked from home one day in the following four of the next five weeks. Mr Tuszynski said that on 24 November 2017, Mr Tran told him the IFA had not been signed and he would be refused the option of working from home on a Friday. He claimed Ms Sarelas had said on 20 December 2017, that TransGrid would reconsider reinstating the IFA, if he agreed to relocate, which he did. He again applied for an IFA on 20 April 2018 to work remotely one day per week. This was refused on 23 May 2018 on the grounds that ‘his role required regular stakeholder interaction and a presence on site’.

Mr Mark Britton

[116] Mr Britton has worked for TransGrid in various roles for over 34 years. As Manager Construction Programs, Mr Britton is accountable for the project management and construction of infrastructure and telecommunications projects for TransGrid. The Construction Team (the ‘Team’) comprises 106 employees of which there are 35 Project Managers located at various sites across NSW. None of them are based at Ultimo.

[117] Mr Britton described the role of a Project Manager as to:

(a) provide expertise in the design, specification and contract management of transmission projects to ensure a safe, reliable and secure supply to customers in a cost effective manner;

(b) manage project teams and provide cost estimates and project schedules;

(c) undertake designs and prepare documentation for the construction of new high voltage transmission projects and augmentations; and

(d) ensure that works are compliant with TransGrid’s policies and procedures.

In a practical sense, Project Managers are required to spend time at each of their project sites to effectively manage the project, assess actual progress, identify issues, and manage the forecast of expenditure and contractor claims, including managing the contractual claims process.

[118] Mr Britton’s evidence dealt in detail with the review of the organisation’s operating model announced on 22 July 2016. One outcome of this review was the restructure of the Construction Team and the creation of the Work Delivery Team. The primary objective was to increase the utilisation and efficiency of the field work intake team and deliver projects and maintenance, successfully and safely to budget. There was no impact on the Project Manager headcount. Mr Britton related the details of the consultation with staff including road shows, presentations and documentation provided to each of them.

[119] Mr Britton commented on the introduction of Virtual Project Teams, and said that they did not mean team members can work remotely, or from home. They still must visit and spend time at each of their project sites. Mr Britton denied that the new operating model structure and the creation of the Works Delivery Team resulted in a 50% change to Mr Tuszynski’s work. His role is still to manage projects, but not to develop them. This work is undertaken by a separate Project Development Team. Mr Britton pointed out that previously, members of the Works Delivery Team were geographically distributed in all offices, including Ultimo, although there are no construction projects at Ultimo. It is a field based activity. He noted the senior management team is located at Yass and Wallgrove.

[120] The intention of the new structure was to bring the entire Team together in one location and centralise most of the field functions in Wallgrove. This would improve communication and collaboration between the field construction and the project management staff, which to that time, had been ‘very poor’. The feedback from affected staff was overwhelmingly positive. At the time, Project Managers were spending a number of days, each week at Wallgrove and other locations. Twenty Delivery Project Managers were all required to relocate from Ultimo to Wallgrove and did so on 31 October 2017, except Mr Tuszynski. These field functions did not directly impact on the Project Development Team, based at Ultimo, which is a separate business unit and does not provide a field function. Their key relationship is with the Design Team, also based at Ultimo. Proposals to transfer or second members of this team to Wallgrove were not options, because their role was at Ultimo. Now all delivery and executive work is performed in Western Sydney, Orange, Wagga Wagga, Yass, Tamworth and Newcastle. In addition, there is no management, supervision or support for the Work Delivery Team in Ultimo.

[121] Mr Britton identified the three months’ notice given to each of the affected staff and the process of individual consultation with them. There was never any instruction, and as far as he was aware, no one had ever told Mr Tuszynski that he must relocate the day after the discussion on 31 July 2017. The notice he received and the contract variation was to apply after three months (31 October 2017), Mr Tuszynski did not accept his relocation and a number of discussions were held with him from August 2017 until 19 February 2018, six months since he was first notified. This was to provide for additional consultation and allow Mr Tuszynski time to prepare for the relocation. Mr Britton’s evidence was that as Mr Tuszynski had never refused to attend work at Wallgrove at the end of the notice period, no disciplinary action was ever foreshadowed or discussed. Mr Tuszynski then took eight weeks parental leave and was required to attend Wallgrove upon his return from leave on 19 April 2018. He relocated on that date and has continued to work from Wallgrove ever since.

[122] Mr Britton described the mitigating measures applying to Mr Tuszynski’s relocation:

[123] Mr Britton said that in the two meetings with Mr Tuszynski and Ms Buchanan in December 2017 and February 2018, TransGrid offered flexible start and finish times. This was rejected. Mr Britton responded to Mr Tuszynski’s spreadsheet calculation of the additional costs he was required to incur in travelling to and from Wallgrove as follows:

(a) the calculations are based on a 9 day work week over a 52 week year;

(b) the number of working days does not take into account a deduction of days that Mr Tuszynski would not be required to, or would not otherwise attend work, such as public holidays, annual leave and personal leave; and

(c) the Field Allowance (which is a weekly allowance paid irrespective of the days Mr Tuszynski attends work) is not deducted from the travel cost totals.

If the calculations are made reflecting 216 working days, the public transport cost difference is approximately $2,808 per annum, less the Field Allowance, resulting in a difference of $72.40 per week or $3.30 per day.

[124] If Mr Tuszynski used a private vehicle, toll costs would by entirely subsidised by the Field Allowance and he would have free parking on site. In addition, if a longer toll option is used, it would result in substantial savings and only add 20 minutes to the travel time compared to the more expensive toll route. Further, given Mr Tuszynski’s role requires him to travel to different sites, his travel time could be shorter if he did so from home to the other sites by using his own vehicle, without attending Wallgrove to collect a company vehicle. It was Mr Britton’s understanding that most, if not all, the other employees travel by car and he was unaware of any issues as to additional costs. Mr Britton said that flexible work arrangements had been discussed and for a period between August and November 2017, Mr Tuszynski worked from home every Wednesday (in addition to a nine day fortnight). This arrangement ended because:

[125] Mr Britton set out his understanding of the purpose and procedures of TransGrid’s Fatigue Management Procedure. He referred to cl 4.3 which provides:

4.3 Rules for Hours of Works

The following section sets out the requirements for hours of work:

4.3.1 Maximum Limits

• Maximum of 16 hours* per shift (door to door) or 16 hours of wakefulness;

• Maximum of 12 days work over a 14 day period;

• Minimum breaks in accordance with award conditions; and

• Mandatory self assessment (attachment 1) after 12 hours work.

*Note: the maximum limit of 16 hours must be considered by standby/on-call workers during rest periods. For example:

An on-call worker rises at 0700 hours and starts a standard 8 hour shift. Irrespective of the travel time to and from work, and the commencement of the on-call workers rest period post shift (door to door). The maximum limit allowable for consideration of using this on-call worker is 2300 hours, or 16 hours awake from a start time of 0700 hours. The only way this on-call worker can be considered for duties beyond this time, is if the worker discloses that some recovery sleep was achieved within the rest period.

This example, among many, is where consultation between workers and TransGrid is critical in ensuring fatigue risks are managed.

4.3.2 Planned Work

• Work must be planned to a maximum of 12 hours per shift (door to door);

• Maximum of 12 consecutive days work over a 14 day period;

• Minimum of 10-hour rest period between shifts; and

• If the job will potentially exceed 12 hours, planner or resource leader should be notified.

4.3.3 Shift Work

• Maximum number of planned consecutive night shifts is 6 x 8-hour shifts, or 4 x 12-hour shifts;

• Rotating shifts of less than 12 hours duration, forward shift rotations used (i.e. day to afternoon to night shift)

• A block of night shifts must be followed by a minimum 36-hour rest period;

• All work related activities (e.g. training) must be scheduled during the employees’ roster hours of work, including night shift workers in order to protect sleep and recovery opportunities. If not possible, then the start time of the next shift may need to be delayed to allow for a minimum 10-hour rest period; and

• Shift workers have must be aware of the risks associated with fatigue and the control measures detailed in fatigue management plans required to manage this risk.

4.3.4 Office Work

• Work must be planned to a maximum of 12 hours per shift (door to door); and

• Maximum of 12 consecutive days over a 14-day period.

4.3.5 Heavy Vehicle (over 12 tonnes) Driver

The hours of work for heavy vehicle drivers are in accordance with TransGrid’s Safe Driving procedure.

It was Mr Britton’s belief that Mr Tuszynski has never been required to work in excess of 16 hours per shift (‘door to door’) or 16 hours of wakefulness.

[126] The Procedure also requires work to be planned to a maximum of 12 hours per shift ‘door to door’ (the time leaving home to commence a shift, to arriving back home after a shift). Mr Britton said Managers are required to ensure that appropriate fatigue management strategies are adopted when planning work for staff. Employees have a responsibility to consider fatigue management when deciding if it is critical for the work to be completed immediately.

[127] Mr Britton understood the issue of fatigue management, in the context of his relocation to Wallgrove, was raised by Mr Tuszynski in a meeting with Ms Sarelas, Ms Wakim and Mr Tran on 20 December 2017. At the time, TransGrid did not accept that there was an issue, given the amount of sedentary time he would spend on public transport and not involved in work, or high risk work. Nevertheless, TransGrid was confident a Fatigue Management Plan (‘FM Plan’) could be put in place to ensure Mr Tuszynski arrived at work and at home rested.

[128] Mr Britton stated that since Mr Tuszynski commenced work at Wallgrove there were a number of discussions and actions taken in relation to the development of a FM Plan, including Mr Tuszynski working 7.47 hours per shift which was within the 12 hour limit of shift time and within the 16 hours allowable from leaving home to returning home. It was explained to him that these hours did not exceed 12 consecutive days with a 14 day limit. Nevertheless, Mr Tuszynski was told that if he experienced fatigue when doing critical active work, he must cease work and complete a fatigue self assessment. Mr Tuszynski was subsequently informed that in respect to office based staff, the requirements under the Procedure were:

•  a maximum of 16 hours per shift (door to door) or 16 hours of wakefulness (being 16 hours from when you leave home and arrive home);

•  a maximum of 12 days’ work over a 14 day period; and

•  a mandatory self-assessment after 12 hours of work.

[129] Mr Britton claimed that although Mr Tuszynski was not exceeding maximum shift limits, TransGrid agreed to the following:

•  Mr Tuszynski would use the Fatigue Self-Assessment tool as required;

•  Mr Tuszynski and Mr Tran would have regular conversations around fatigue to ensure the risk could continue to be appropriately managed;

•  Mr Tran and Mr Tuszynski would work together to develop a Fatigue Management Plan – with such plan being updated if any risks change; and

•  advice on the Fatigue Management Plan would be obtained from Mr Workman or Stephen Boyle (Safety Advisor) as required.

[130] It was said that Mr Tuszynski accepted these arrangements and had not raised further concerns in relation to fatigue management.

In reply

[131] In a reply statement, Mr Tuszynski put that the new position description did not include initiation and development tasks which he had previously undertaken. He also disputed that Project Managers spend two to three days per week onsite. Mr Tuszynski denied he had ever agreed to relocation. He had not attended the meeting Mr Britton described on 2 April 2017. Mr Tuszynski said that although he disputed his role was field based, this was not relevant to whether his relocation to Wallgrove was reasonable, as he was in a seconded role at the time.

[132] Mr Tuszynski understood that the Virtual Project Teams were promoted as not requiring relocation of the Team. A Project Manager could be at one location and the Site Manager at another. Mr Tuszynski claimed that based on his past six years’ experience, he estimated that travel to locations outside Wallgrove occurred no more than one to two days every three weeks. The restructure actually increased the need to attend the Wallgrove offices.

[133] It was Mr Tuszynski’s belief that a number of Project Managers were opposed to relocation. Mr Tuszynski said prior to the restructure, the Project Manager used to maintain key relationships in managing design, procurement, planning, environmental and stakeholder engagement. This function has now moved to the Project Developer role.

[134] Mr Tuszynski said the Ultimo office utilises ‘hot desking’, meaning staff are willing to help each other by allowing those outside Ultimo to use an absent employee’s desk.

[135] Mr Tuszynski stood by his statement that Mr Gittani advised him on 31 July 2017 to report to Wallgrove the next day. However, he was provided one month’s notice, later extended by two further months. Mr Tuszynski understood novated leases are only available to senior staff.

[136] Mr Tuszynski said that TransGrid believed it was not required to individually assess each employee’s circumstances. Mr Tuszynski rejected a change in start and finish times, as it simply meant a slower commute and less public transport options, outside peak times. Mr Tuszynski had suggested working an eight day fortnight. This was rejected.

[137] Mr Tuszynski noted the FMP covers both office sites and site personnel. He rejected the interpretation that the FMP’s 12 hour limit did not apply to office workers. He was not aware of any other employee being required to work longer than 12 hours, ‘door to door’. Mr Tuszynski said there had been no FM Plan developed and he had been only self assessing fatigue and taking mitigation controls.

[138] In cross examination, Mr Tuszynski said TransGrid had been a great place to work and he had worked on some excellent projects. However, the current relocation was unreasonable and he was very keen to have the issue resolved. Mr Tuszynski reaffirmed that prior to the restructure he was involved in projects from inception to completion. The initial work and planning phases are now completed by Project Developers in the Project Development Team. He is now only involved in the execution and close out phases of the work. In respect to his position description, rate of pay, title, classification and reporting line, Mr Tuszynski agreed that these did not change. However, his job satisfaction and the kind of work he does, has changed. From doing four phases of a project and he now only does two – execution and close out.

[139] Mr Tuszynski said that he did not attend the group meeting on 2 April 2017, as he was in a seconded role as Customer Manager at the time. He did not meet with Ms Wakim on 31 July 2017. It was not until after this date that he had any discussions, consultation or formal notice of his expected relocation. Despite having meetings with various TransGrid Managers and proposing alternative options, TransGrid said no to all of them. Mr Tuszynski claimed in a meeting with Ms Makim the question of disciplinary action was raised. He had asked ‘what if I don’t go?’ and Ms Makim mentioned there is a process in the Agreement for dealing with that. He accepted that no one had mentioned disciplinary repercussions or consequences, if he did not relocate.

[140] Mr Tuszynski confirmed that he travels to Wallgrove by a combination of bike, ferry and train, as he does not own a vehicle. He further explained that he cycles to Manly ferry wharf, ferries to Circular Quay, catches two trains to Rooty Hill and cycles from Rooty Hill to Wallgrove – in all about 40-45 minutes of cycling. While insisting there is no FM Plan, he self assesses and if necessary takes a ‘power nap’ in the prayer room as a result of management’s instructions. He added that it takes two hours and forty minutes to get to work and he then works seven hours and forty seven minutes. Mr Tuszynski added that previously he would cycle to Manly wharf, catch the ferry to Circular Quay and cycle to Ultimo; taking around one hour and fifty five minutes a day. Part of the mitigation involves taking a nap, drinking more fluids and eating well. These measures have helped reduce his fatigue. Nevertheless, he believed he was being treated differently to other TransGrid employees and was required to spend almost fourteen hours ‘door to door’ each day.

[141] In re-examination, Mr Tuszynski agreed he had not been threatened with disciplinary action, but he understood the consequences if he failed to follow TransGrid’s directions. Mr Tuszynski acknowledged that his dispute before the Commission does not involve any changes to his role. It only concerns relocation.

[142] Mr Tuszynski referred to the FMP and the relevance to a maximum of 16 hours. He believed this applies to ‘stand by’ and ‘on call’ workers during rest periods. Mr Tuszynski emphasised that as he is an absent father, he is always tired and spends half a day catching up on sleep. Therefore, the current arrangements are unsustainable. If he loses this case he will have to go to the expense of buying, registering, insuring and maintaining a car. Mr Tuszynski put that there were other intangible costs to the current arrangements, not covered by the Field Allowance. He agreed his partner owns a car - but she uses it for her own work as an architect and to transport their child to child care. He also understood there was a bus from Rooty Hill to Wallgrove, but it was unreliable and took no longer time, than if he cycled.

[143] In cross examination, Mr Britton said he understood the presentations of the restructure were made to all of the teams, but he was not aware if Mr Tuszynski was actually present or not. He was on secondment at the time. Mr Britton conceded the restructure detail did not show Mr Tuszynski in it. Nevertheless, Mr Tuszynski met personally with Ms Wakim and Mr Gittani after the decision had been made to relocate to Wallgrove. Mr Britton could not recall whether Mr Tuszynski was looking for alternative positions when he came off secondment. He understood Mr Tuszynski had been actively applying for other roles at Ultimo since the relocation decision was announced, but did not know how he was applying. If a suggestion of a job swap was raised, that was a matter for HR.

[144] Mr Britton agreed he was not aware if Mr Tuszynski owned a car, how he travelled to work or his outside activities. He only learnt of his alleged travel costs and excessive travel time when he received Mr Tuszynski’s costing spreadsheet. Nevertheless, it was Mr Britton’s opinion that most project management persons did not perform a 14 hour day, although he accepted there would be a different outcome if an employee experienced less than 14 hours.

[145] Mr Britton could not say what impact a change in start and finish times might have on Mr Tuszynski. He said it was incorrect that a novated lease would not be available to Mr Tuszynski. Mr Britton said he was unaware of each individual’s personal travel arrangements or where they live.

[146] In addressing the dispute over the need for frequent site visits, Mr Britton said firstly, he had no direct knowledge of Mr Tuszynski’s experience over the last six years, and secondly, the role of a Project Manager requires the person to visit the sites, with sufficient frequency to be able to manage the project; and thirdly, given that Project Managers manage more than one project this would require one visit a week to each site. Mr Britton said that there is no link between the budget for a project and the Project Manager’s performance. Mr Britton noted that before his relocation, Mr Tuszynski had not actually fulfilled his role for more than nine months, as he had been on secondment and had taken leave. Further, it was a key purpose of the restructure to get better project delivery and ensure Project Managers are closer to, and supervising and understanding the work. (Mr Tuszynski currently has two projects in his portfolio).

[147] Mr Britton added that in order to address fatigue, excess travel issues and efficiency, employees are often encouraged to stay in a hotel with appropriate sustenance arrangements. This may also involve visiting two sites over two days. Mr Britton agreed he was responsible for planning and managing work once they arrive onsite; however, what people did outside that (to get to work) was a personal choice. The time it takes to travel is entirely related to the mode of travel. He accepted that public transport was the longest option for Mr Tuszynski from Manly to Wallgrove.

[148] In questioning from me about the FMP’s reference to 12 hours and 16 hours, Mr Britton agreed the policy was unclear and ‘a little bit contradictory’. While not being able to explain the distinction between 16 hours and 12 hours, he understood that the 12 hours concerned planning the work to ensure actual work does not exceed 12 hours. However, there will be occasions where that limit is exceeded due to work circumstances. However, where someone gets close to 16 hours from home in the morning until home at night, this might mean staying at a hotel because 16 hours cannot be exceeded. The Procedure encourages self assessment when one gets close to 12 hours and discussion with the Team Leader or Manager, if the work cannot be completed within 16 hours. Sometimes this might involve having someone else complete the work. Mr Britton then detailed what might be required to take into account with an FM Plan, including the nature of the work and whether the employee is driving or using public transport. He could not comment on the effect of taking rest breaks. However, TransGrid has no intention of requiring anyone to do anything which is unsafe. Mr Britton could not say if there was an FM Plan in place for Mr Tuszynski. He understood management had directed this be done, but it is also the responsibility of the employee to be involved in the FM Plan.

[149] As to the IFA approved by Ms Wakim, Mr Britton agreed he had not approved it subsequently. When he found out about it, he cancelled it.

[150] In re-examination, Mr Britton said he was aware of a number of people who frequently travel between Ultimo and Wallgrove and was not aware of any issues of concern raised by them.

SUBMISSIONS (ON MERIT)

For APESMA

[151] Ms Buchanan submitted that TransGrid’s direction to relocate Mr Tuszynski from Ultimo to Wallgrove is unreasonable when his personal circumstances are taken into account. These include a daily travel time of 5 hours 20 minutes (an extra 3 hours), significant additional costs in connection with that travel (of $500 per fortnight) and less time spent with his young family. Unsuccessful attempts have been made to mitigate the adverse consequences of the relocation direction. Ms Buchanan accepted that Mr Tuszynski’s role requires some additional travel in visiting project sites, but Mr Tuszynski’s evidence was that this was infrequent as most of his work was office based. While Mr Tuszynski has continued to report to Wallgrove, he maintains his opposition to the relocation as ‘imposing unreasonable hardship’ on him and his family in terms of cl 6 of his contract of employment.

[152] Ms Buchanan relied on DL Employment v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) FWCFB 7946 (‘DL Employment’), to establish that an unreasonable relocation of work site, may constitute a repudiation of the contract of employment. The starting point of this objective assessment is not whether the relocation is accepted as reasonable by other employees, but whether it is unreasonable for Mr Tuszynski, given his personal circumstances. While it is acknowledged Mr Tuszynski had six months’ notice of the relocation (largely through his own agitation), all his options to reduce the adverse impact on him and his family, had been rejected by TransGrid. He had put forward an IFA which had been accepted, but then withdrawn. Ms Buchanan observed that while a Field Allowance of less than $50 a week is payable to all relevant employees, including Mr Tuszynski, this goes no way near compensating him for the adverse impact of the relocation.

[153] Ms Buchanan submitted that because a 2016 business restructure has resulted in a significant reduction in the scope of Mr Tuszynski’s role, there would be grounds for considering him to be made redundant.

For TransGrid

[154] It was TransGrid’s position that the direction to relocate was both lawful and reasonable and did not impose ‘unreasonable hardship’ on Mr Tuszynski. Moreover, cl 6 of Mr Tuszynski’s contract of employment clearly contemplates him being required to work in a location, other than that to which he was first appointed.

[155] It was noted that there is no definition of ‘unreasonable hardship’, either in the contract of employment or in a general industrial or employment context. Nevertheless, TransGrid relied on Allaro Homes Cairns Pty Ltd v O’Reilly & Anor [2012] QCA 286 (‘Allaro Homes’) where the term was said to be:

‘both a subjective and an objective enquiry: subjective, in that evidence must be led to demonstrate hardship to the builder; and objective, in that the nature and extent of the hardship must be unreasonable in the circumstances in which it occurs.’

[156] In this sense, it was argued that relevant factors require only a consideration of any additional detriment to Mr Tuszynski, arising from his relocation from Ultimo to Wallgrove. In addition, Mr Tuszynski had overstated the financial impact on him by not taking account the days he would not be working, such as annual leave, public holidays or RDOs, and he did not deduct the Field Allowance payable for additional travel costs. TransGrid identified the following matters as demonstrating that Mr Tuszynski has not experienced ‘unreasonable hardship:

(a) as he receives the additional financial benefit in the form of a Field Allowance as a result of relocating to Wallgrove. The current Field Allowance equates to $2,095.60 per year;

(b) when Mr Tuszynski’s calculations are corrected to deduct the Field Allowance from the Wallgrove public transport travel costs, the total additional financial cost to him associated with complying with the relocation direction is approximately

$3.30 per day;

(c) TransGrid has offered, on two occasions, flexible start and finish times to Mr Tuszynski to enable travel outside of peak hours, thereby reducing travel time. Mr Tuszynski has rejected these offers;

(d) TransGrid provides benefits to employees who have relocated to the Wallgrove office which are available to Mr Tuszynski to mitigate the impact of the relocation from Ultimo. These include free on-site parking for those employees who drive to work, and the ability to enter into a novated vehicle lease which provides assistance for obtaining a vehicle; and

(e) in total, Mr Tuszynski had more than 8 months’ notice of the effective date of the relocation direction, and 5 months more than the other affected staff members in the Works Delivery/Construction Programs team who had relocated to Wallgrove by 31 October 2017. This gave Mr Tuszynski additional time to prepare for, and arrange his personal circumstances to adjust to the change of working location.

[157] TransGrid distinguished the authority in DL Employment to this case, in that there was no contractual right to direct employees to relocate from Kogarah to Ingleburn. Here, there is a clear contractual right to do so arising from Mr Tuszynski’s contract of employment.

[158] TransGrid rejected APESMA’s submission that Mr Tuszynski’s role is redundant. The 2016 Operating Model Restructure had minimal impact on Mr Tuszynski, as his substantive duties, position, pay and other conditions remain the same. It is a gross exaggeration to submit that there was a ‘significant reduction in the scope of Mr Tuszynski’s duties’. In any event, there was no repudiation of the contract of employment then, or since, as Mr Tuszynski continues to work at Wallgrove after the restructure. In addition, a change in work location does not make Mr Tuszynski’s position redundant, particularly where the work he was required to perform, is still required to be performed.

[159] TransGrid rejected APESMA’s claim that this dispute relates to a refusal of a request by an employee for flexible working arrangements. Mr Tuszynski did not make a request, pursuant to s 65 of the Act, but rather requested an IFA pursuant to s cl 10 of the Agreement. This is an entirely different matter. Even so, TransGrid had reasonable business grounds to refuse the IFA, being regular stakeholder interaction and a presence on site required for Mr Tuszynski to effectively undertake his role. Further, there is no capacity for such a matter to be dealt with under s 739 of the Act, in the absence of any agreement between the parties permitting the Commission to do so.

CONSIDERATION ON MERITS

[160] Both parties rely on cl 6 of Mr Tuszynski’s contract of employment which relevantly provides:

‘When required for business needs, TransGrid may direct you to perform work at other TransGrid locations either on a temporary or permanent basis provided that such a direction does not impose unreasonable hardship.’

[161] In my opinion, the clear intention of cl 6 above is entirely consistent with other of the terms of the 2013 Agreement. For example:

‘(e) the need to transfer/relocate employees to other work or worksites’

17.3 Span of Hours: (a) Employees who work in the Sydney Office shall observe a span of ordinary working hours between 7.00am and 7.00pm Monday to Friday (b) Employees who work in field locations shall observe a span of ordinary working hours between 6.00am and 6.00pm, Monday to Friday.

[162] Given these provisions, I do not consider there is any doubt that the relocation direction to Mr Tuszynski was lawful. Moreover, I do not apprehend APESMA’s submissions seriously contest that conclusion. Before turning then to cl 6 and the ‘unreasonable hardship’ arguments, it is opportune, at this juncture, for me to observe that APESMA’s reliance on DL Employment is misplaced. The factual context in that case is easily distinguishable to this case. In DL Employment, the employees were directed to relocate from a production plant in Kogarah to a new plant at Ingleburn. The telling difference in that case was that there was no express contractual right for the employer to direct the employees to relocate. The Full Bench found that the relevant enterprise agreement did not permit the employer to direct employees to a new location.

[163] I turn then to the term ‘unreasonable hardship’. TransGrid referred to Allaro Homes as one of the few authorities on the meaning of ‘unreasonable hardship’. However, I am not comfortable that this case is ‘on all fours’ with the more frequently used term of reasonable, in an industrial relations context. As there is no definition of ‘unreasonable hardship’ in the 2013 Agreement, it is necessary to look to the meaning of ‘unreasonable’, or its more frequently used and discussed antonym, ‘reasonable’. I have said on other occasions, that the meaning of ‘reasonable’ is probably the most argued term in the industrial relations lexicon. It is often associated with the other frequently invoked concept of fairness, and like that term, must always be considered objectively.

[164] As to the meaning of the term ‘reasonable’, in the context of whether an employer’s direction to an employee is reasonable and lawful, I set out hereunder a number of oft quoted authorities to explain the term in an industrial context. The test of whether in this case the relocation direction was reasonable, in the sense that it was not unreasonable, was explained in R v Darling Island Stevedoring & Lighterage Co Ltd (1938) 60 CLR 601 where Dixon J said at 621-622:

If a command relates to the subject matter of the employment and involves no illegality, the obligation of the servant to obey it depends at common law upon its being reasonable. In other words, the lawful commands of an employer which an employee must obey are those which fall within the scope of the contract of service and are reasonable. Accordingly, when the award was framed, the expression "reasonable instructions" was adopted in describing the employees' duty to obey. But what is reasonable is not to be determined, so to speak, in vacuo. The nature of the employment, the established usages affecting it, the common practices which exist and the general provisions of the instrument, in this case an award, governing the relationship, supply considerations by which the determination of what is reasonable must be controlled.

[165] Relevantly, the High Court in Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 discussed the legal notion of ‘reasonableness’. Kieffel CJ at [10]-[11] said:

10. In the joint judgment in Minister for Immigration and Citizenship v Li it was explained that a decision made in the exercise of a statutory power is unreasonable in a legal sense when it lacks an evident and intelligible justification. That may be so where a decision is one which no reasonable person could have arrived at, although an inference of unreasonableness is not to be drawn only where a decision appears to be irrational. None of these descriptions could be applied to the Tribunal's decision in the present case.

11. Statements such as that made in the Wednesbury case, that a decision may be regarded as unreasonable if no reasonable person could have made it, may not provide the means by which a conclusion of unreasonableness may be arrived at in every case. But it serves to highlight the fact that the test for unreasonableness is necessarily stringent. And that is because the courts will not lightly interfere with the exercise of a statutory power involving an area of discretion. The question is where that area lies. [Endnotes removed]

Later, Nettle and Gordon JJ said at [88]-[89]:

88. The standard of reasonableness is derived from the applicable statute but also from the general law.

89. First, there is a legal presumption that a discretionary power, statutorily conferred, must be exercised reasonably in the legal sense of that word. That is, when something is to be done within the discretion of the decision-maker, it is to be done according to the rule of reason and justice; it is to be done according to law. [Endnotes removed]

Further, at [134]-[135], Edelman J added:

134. Like other legal instruments, statutes often confer powers upon a decision maker without any express condition as to the manner in which those powers must be exercised. To the question: "how should the power be exercised?" the implication will not usually be: "in any way that the decision maker desires". Rather, it will usually be implied that the power should be exercised reasonably. As for the content of the duty of reasonableness, following the classic exposition by Lord Greene MR, the content of the implication of reasonableness as an independent ground of judicial review has often been expressed in this Court in terms similar to those which ask whether a decision is "so unreasonable that no reasonable repository of the power could have taken the impugned decision or action". In Canada, in a distinction now abandoned, this high standard of unreasonableness was once described as "patent" unreasonableness in contrast with "unreasonableness simpliciter". Although Lord Cooke of Thorndon presciently observed nearly two decades ago, and a majority of this Court more recently said, that the legal standard of reasonableness is not necessarily limited to patent unreasonableness, it is not helpful to attempt to divide unreasonableness into predetermined species. Rather, the precise content of an implication of reasonableness, where it is implied, will be based upon the context, including the scope, purpose, and real object of the statute.

135. An important matter of context in relation to the statutory implication is the legal tradition in which many statutes conferring administrative powers have been enacted. A strong part of that tradition has been the common description of unreasonableness in the terms of "patent" unreasonableness. One reason for this description may be that the consequence of a finding of unreasonableness is that the decision by the body entrusted by Parliament will be beyond power and unlawful. The strong terms of the common description of unreasonableness may be based upon an assumption that Parliament did not manifest an intention that such a conclusion be lightly reached. To reiterate, this is not to suggest that there are two, or more, tests of unreasonableness. There is only one, but its content is assessed in light of the terms, scope, purpose, and object of the statute, as Allsop CJ eloquently said in Minister for Immigration and Border Protection v Stretton. [Endnotes removed]

[166] Perhaps a useful layman’s summary definition is to be found in Anon v Federal Commissioner of Taxation [1949] 78 CLR at 360 in which Dixon J, although in a slightly different context, aptly described ‘unreasonableness’ as:

‘a conclusion which may be applied to a decision which lacks an evident and intelligible justification’.

[167] To complete the picture, the definition of ‘hardship’ as defined in the Macquarie Dictionary (5th ed) is:

1. a condition that bears hard upon one; severe toil, trial, oppression, or need.

2. an instance of this; something hard to bear.

[168] On one view, a daily 5 hour and 20 minute commute from home to work seems extraordinarily excessive. One might legitimately ask, why would one bother, when the daily hours of work are 7.47 hours? That said, the actual extra travel time experienced by Mr Tuszynski is around 3 hours. The primary reason for this excessive travel time is due to Mr Tuszynski’s own preferred mode of transport, being bike/ferry/train/bike. I do not criticise Mr Tuszynski’s preferred means of commute. However, a similar commute by car is between 1 hour 10 minutes and 1 hour 24 minutes one way (depending on which toll roads used). Moreover, TransGrid cannot be held responsible for Mr Tuszynski’s personal choices. In one sense, it might be said that Mr Tuszynski’s daily cycling regime, is an excellent means of him keeping fit and healthy – hardly a bad thing. On the other hand, less time spent with family is significant and regrettable.

[169] Whether additional travel arising from a direction to relocate is unreasonable will very much be a matter of timing, of degree, personal circumstances and preference, viewed objectively. At the outer limit, a direction to relocate overseas, (absent a specific agreed contractual term to allow for it), would likely be found to be unreasonable, whereas a direction to relocate, involving an extra half an hour travel, (barring any other grounds), would unlikely to be found to be unreasonable.

[170] In Parkes v Fat Prophets [2017] FWC 6121, I considered a direction to an employee to relocate from Byron Bay to Sydney, at short notice, and where the employee refused to do so, resulting in his dismissal. At [93] I said:

[93] On 30 March 2017, the applicant was told that if he did not relocate to Sydney, the respondent ‘would need to end the current arrangement and end his employment.’ This was Mr Lopez’s evidence. It is trite to observe that what is ‘reasonable’ depends very much on the particular facts and circumstances of a case. While I accept Mr Lopez may have said that the applicant could have time to think about it, talk to his wife and the Company would look to a timetable for his relocation, Mr Lopez regarded the applicant’s blanket refusal to leave Byron Bay as making it unnecessary for these steps to be taken. I consider Mr Lopez’s hasty jump to a conclusion that such steps would not alter the applicant’s resolve, was unreasonable. In my view, from any objective standpoint, giving an employee little or no notice of a work relocation, some 772 kilometres away from where the employee has lived and worked for six months, is manifestly unreasonable. It was an unreasonable ultimatum. A more prudent course, would have been to inform the applicant that he had a reasonable period of time, to give an indication he was prepared to do so - say two weeks - subject to an agreed timetable and suitable relocation expenses; such as penalties for breaking his existing rental lease and removalist costs. I note Mr Lopez’s evidence that he considered six weeks as a ‘suitable timeframe’ (PN506). By effectively dismissing the applicant, without any notice or warning, must on any objective analysis, render any reason for dismissal, without foundation and invalid. I find accordingly. [My emphasis]

[171] Mr Tuszynski also argued that there is a significant additional cost imposed on him by the relocation. While I accept that Mr Tuszynski’s estimation of extra costs was to craft his assessment to ensure the maximum possible imposition, I do not accept that Mr Tuszynski’s methodology for calculating the extra cost produced the degree of imposition contended for. This is so because he failed to take account of the Field Allowance payable to him. He based his assessment on working 52 weeks a year, on a 9 day fortnight, without consideration of annual leave, public holidays and visits to sites using a TansGrid vehicle. When all these factors are taken into account, I accept TransGrid’s estimate that Mr Tuszynski’s additional daily travel costs are around $3.30. Balanced against the obvious hardship on Mr Tuszynski and his family by such excessive travel time, it must be accepted that his hours of work are within the time limits of 12 hours shift time within the maximum allowable time of 16 hours, ‘door to door’, under the Fatigue Management Procedure.

[172] A second precondition which must be met before the FMP is compromised, is that even if his travel time exceeds 12 hours per day, ‘door to door’, it must not do so for 12 consecutive days (FMP 4.3.4 – Office work). Given he works a 9 day fortnight, Monday to Friday, this second precondition is not met.

[173] That said, while I consider the FMP is somewhat confusing (as Mr Britton properly conceded) and could be made clearer, a fair reading of the FMP does not lead to a conclusion that the demands on Mr Tuszynski result in breaches of the Procedure. Moreover, TransGrid positively encourages Mr Tuszynski to control and manage fatigue issues by self assessment and appropriate response actions.

[174] While I acknowledge the test of ‘unreasonable hardship’ is not to be measured by a comparison to other employees who were directed to relocate and are satisfied, (or at least have reluctantly accepted the relocation), the fact is the other 19 employees affected, have not disputed their relocation. This is also relevant to Mr Tuszynski’s proposal that he would be the only employee in the Team, who would not be required to work primarily from Wallgrove, as he wishes to work remotely, either from home or at Ultimo.

[175] It might be said that Mr Tuszynski has already been given preferential treatment as a result of the Division’s restructure. He has had effectively eight months’ notice of his relocation, whereas his colleagues had the requisite Agreement notice of 3 months.

[176] In balancing all the relevant considerations in this case, and while I have some sympathy for Mr Tuszynski’s expectation of continuing work from Ultimo and the deleterious impact the relocation has had on him and his family, I am not satisfied he has made out a case for a finding by the Commission that the relocation direction has imposed ‘unreasonable hardship’ on him, as contemplated by cl 6 of his contract of employment.

Was Mr Tuszynski entitled to invoke cl 9 of the Agreement?

[177] In the alternative, APESMA submitted, (although I apprehend not with much enthusiasm), that Mr Tuszynski was entitled to be made redundant, pursuant to s 9 of the Agreement, because the job and the relocation was not acceptable alternative employment. This submission cannot be accepted for the following reasons:

[178] Mr Tuszynski asserted that his role at Wallgrove had changed, such as about 50% of his former duties are no longer required to be performed. A few observations can be made about this assertion.

In short, Mr Tuszynski’s role is not redundant.

[179] For the aforementioned reasons, I dismiss APESMA’s dispute application and conclude the proceedings.

\05MembersAssociates\Sams DP\Templates\Signature Block 181213.tif

DEPUTY PRESIDENT

Appearances:

L Saunders of Counsel with M Buchanan for the applicant.

H Fairhall with A Sarelas for the respondent.

Hearing details:

2018:

Sydney:

July 5 and September 20.

Final written submissions:

For the applicant 4 October 2018.

For the respondent 27 September 2018.

Printed by authority of the Commonwealth Government Printer

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