Rogers, Craig v Rail Commissioner - [2020] FWC 5780

1

Fair Work Act 
2009 
s.739—Dispute resolution

Craig Rogers

v

Rail Commissioner
(C2020/6407)

RAIL COMMISSIONER RAIL OPERATIONS ENTERPRISE 

AGREEMENT 2016
[AE423085]

COMMISSIONER HAMPTON ADELAIDE, 17 NOVEMBER 2020

Dispute about matters arising under the terms of an enterprise agreement – various related 
issues – agreed jurisdiction for Commission to arbitrate the proper meaning - parties could 
not agree the questions but common themes identified and considered – obligations during 
and after redeployment process established by the terms of the agreement assessed and 
determined in line with authority and relevant evidence informing the objection intention –
dispute determined – liberty to apply on one issue – s.739 of the Fair Work Act 2009.

1. The dispute and its context 

[1] This decision concerns the determination of a dispute about the proper application of 
the Rail Commissioner Rail Operations Enterprise Agreement 2016 (the 2016 EA) in the 
context of some significant change to the operations of trains in and around the greater 
Adelaide region due to commence on 31 January 2021. At that time, the rail operations 
presently carried out by the Rail Commissioner and its employees under the terms of the 2016 
EA will be undertaken by a private contractor, Keolis Downer. The dispute concerns the 
rights of the employees and the obligations of the Rail Commissioner in that context, and in 
particular, in relation to those employees who do not elect to transition to the new employer. 
For the most part, these rights and obligations are created by Schedule 5 – Rail Operations –
Redeployment, Retraining and Redundancy of the 2016 EA (RRR schedule).

[2] This matter is being determined by the Commission as a result of an application 
lodged under s.739 of the Fair Work Act 2009 (the FW Act) by Mr Craig Rogers, who is an 
employee covered by the 2016 EA. Mr Rogers is part of a group of employees who are also 
covered by that agreement who informally operate as part of the Australian Employment 

[2020] FWC 5780 [Note: An appeal pursuant to s.604 (C2020/8858) was 
lodged against this decision - refer to Full Bench decision dated 
27 January 2021 [[2021] FWCFB 371]  for the result of the appeal.]

DECISION


E AUSTRALIA FairWork Commission




 

https://www.fwc.gov.au/documents/decisionssigned/html/2021fwcfb371.htm


[2020] FWC 5780

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Alliance (AEA).1 The AEA, albeit not operating under that name at the time, represented 
Mr Rogers and a large group of employees during the negotiations for the 2016 EA through 
Mr Gary Collis, who was, and is, a bargaining representative for the group.

[3] The Australian Rail, Tram and Bus Industry Union (RTBIU) is covered by the 2016 
EA and has chosen to make written submissions concerning this matter but has not otherwise 
participated in the proceedings.

[4] The Respondent, the Rail Commissioner, is a statutory body corporate established 
under the Rail Commissioner Act 2009 (SA) (the RC Act) and its functions include the 
operation of public transport services by train or tram in metropolitan Adelaide. The 
Rail Commissioner is administratively part of the South Australian Department of 
Infrastructure and Transport (the Department or DIT). The Tram operations are not, and have 
never been, covered by the 2016 EA and I observe that these were also outsourced earlier this 
year.

[5] The dispute was referred to the Commission under clause 23 of the 2016 EA; being 
the relevant dispute resolution term, and it is common ground that the process required by that 
provision has been followed. This has included the Commission as presently constituted 
conducting conciliation proceedings. Both parties have expressly confirmed their concurrence 
with the Commission continuing to deal with the application and to now determine the 
matter.2

[6] It is also common ground that the Commission is empowered by s.739 of the FW Act, 
and clause 23 of the 2016 EA, to determine the dispute.

[7] Although the parties did not formally agree any facts, the following propositions 
advanced by the Rail Commissioner3 set some of the broad context for this matter and are not 
in dispute:

 Keolis Downer has been appointed as a contractor to provide the relevant rail 
operations.

 Keolis Downer will commence rail operations on 31 January 2021.

 Keolis Downer will engage employees to perform duties formerly undertaken by 
employees covered by the 2016 EA.

 Keolis Downer may make offers of employment to current Rail Commissioner 
employees.

 If a Rail Commissioner employee receives an offer of employment from Keolis 
Downer, that employee has the sole discretion over whether they accept the offer.

                                               
1 The AEA would appear to have no formal status under the FW Act other than indirectly as provided by Mr Collis being a 
bargaining agent during any relevant negotiations. I have referred to it as a group for convenience.
2 Confirmed during the hearing – transcript PN12 to PN15.
3 Rail Commissioner Outline of Submissions, 27 October 2020, supported by the evidence of Mr Nikoloski.








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 If the Rail Commissioner employee does not accept the job offered by Keolis 
Downer or is not offered a job at all, the normal work the employee has been doing 
will cease at the end of January 2021, however the employee will continue in the 
employ of the Rail Commissioner.

2. The issues to be determined by the Commission 

[8] Regrettably, the parties have not agreed upon the precise issues to be determined by 
the Commission through this arbitration. Each has provided a different set of questions and 
responses to those questions. In the absence of that agreement, the Commission provided a set 
of potential questions that appeared to reflect the issues discussed during the earlier 
proceedings. These were for discussion purposes only but have been largely adopted by the 
Rail Commissioner as the basis for making its submissions.

[9] The competing proposals are outlined in the positions of the parties set out later in this 
Decision. For present purposes it is enough to observe that the questions address the 
following themes:

“Unassigned” and/or declared excess

If an employee's normal duties cease because their work is being undertaken by an 
outsourced operator, does that employee become "unassigned" and/or declared 
"excess" for the purposes of the RRR Schedule and from when does this apply?

Rate of pay once an employee has been declared excess or their normal work 
ceases

This involves consideration as to what provisions of the 2016 EA determine the pay 
for an employee from the date normal work ceases and/or they are declared excess
until the redeployment process concludes - and what do these provisions require the 
employee to be paid.

Meaning of “level of remuneration” 

What does "level of remuneration" mean in relation to 'Criteria for suitable 
employment' at Schedule 5, clause 4.2.l (b) of the 2016 EA?

The conclusion of the redeployment process 4

When, and under what conditions, does the RRR process conclude for an employee 
who is a redeployee pursuant to the terms of the RRR Schedule, clause 4.6?

Does clause 4.6.1 (b) and/or 4.6.1 (d) of the RRR schedule apply to the employees 
whose normal duties cease because their work is being undertaken by the outsourced 
operator in this particular case? This involves consideration as to whether this 
particular outsourcing process falls within the scope of clause 4.6.1(b).

                                               
4 This combines the 4th and 5th questions posed by the parties.








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[10] I will return to the questions as part of the consideration of this matter. However, I 
have ultimately adopted questions based upon the above themes that properly reflect the 
substance of the dispute between the parties, avoid stating disputed assumptions within the 
propositions themselves, and which permit the issues to be addressed in a logical sequence. I 
have also taken into account some clarification of the Applicant’s position, in particular, 
provided during final oral submissions that has impacted upon the issues in dispute.

3. The immediately relevant terms of the Agreement and related 
statutory provisions pertaining to the Rail Commissioner

3.1 The terms of the 2016 EA 

[11] Clause 5 of the 2016 EA confirms its intended coverage in the following terms:

“5 INCIDENCE AND PARTIES BOUND

5.1 This is an Agreement between the Rail Commissioner, the RTBU and 
employees classified pursuant to this Agreement.”

[12] The 2016 EA contains various classifications for Rail Operations Employees -
including Train Drivers, Operations and Platform Coordinators and Passenger Service 
Assistants; and Rail Operations Support Employees - including Network Operations 
Supervisors and Controllers, and Shift Coordinators and Managers. The dispute has potential 
implications for all these classes of employees.

[13] Clause 6 of the 2016 EA provides as follows:

“6 RELATIONSHIP TO OTHER AGREEMENTS AND AWARDS

6.1 The provisions of this Agreement replace the Award, as it relates to employees
appointed to positions classified in accordance with this Agreement. Insofar as 
there is any inconsistency between a provision of this Agreement and the 
Award, the provisions of this Agreement will prevail to the extent of that 
inconsistency.

6.2 This Agreement, the Rail Commissioner’s policies and procedures and 
provisions of the Public Sector Act 2009 (SA) relevant to public sector 
employees (as varied from time to time) apply to the employment of employees 
under the terms of this Agreement. The Rail Commissioner’s policies and other 
contractual conditions do not form part of this Agreement nor the specific 
employment contract of employees.

6.3 The parties acknowledge that in developing this Agreement it was not intended 
to diminish or extinguish any existing terms, conditions, or employment 
benefits. In the event of any ambiguity or uncertainty arising from the 
implementation of this Agreement, reference may be made to the Rail Industry 
Award 2010 and to the policies and procedures in place at the time of 
implementation of this Agreement, and as varied during the life of this 
Agreement, in order that such ambiguity or uncertainty may be resolved.”








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[14] The 2016 EA also contains aims and objectives in clauses 2 and 3 respectively;
however, no party contended that these informed the present dispute.

[15] Clause 17 of the 2016 EA provides as follows:

“17 REDEPLOYMENT, RETRAINING AND REDUNDANCY

17.1 The parties acknowledge that there will be no forced redundancy of employees 
bound by this Agreement up to and including 1 January 2018.

17.2 From 2 January 2018, an employee, other than a fixed-term employee, who is 
declared excess to requirements in the Rail Commissioner’s Rail Operations 
will be subject to Schedule 5 – Rail Operations – Redeployment, Retraining 
and Redundancy which forms part of this Agreement.”

[16] The RRR schedule is the focus of this dispute and is set out in full below.5 The 
schedule must be, and has been, considered by the Commission in the context of the 2016 EA
as a whole.

“SCHEDULE 5 – RAIL OPERATIONS – REDEPLOYMENT, RETRAINING 
AND REDUNDANCY

… …

Operation

This Schedule operates in conjunction with consultation provisions contained in the 
Rail
Commissioner Rail Operations Enterprise Agreement 2016 (the Agreement) and 
consultation provisions contained in the relevant Award.

This Schedule applies to all agencies/departments identified in Clause 5, Incidence and 
Parties Bound by the Agreement.

Objectives

The objective of this Schedule is to ensure that proper consultation occurs between the 
Rail Commissioner, Employees and the Union regarding changes in workforce 
composition.

The parties acknowledge that:

 Redeployment and retraining is the preferred approach to workforce 
reductions;

 Forced redundancies should only be used as a last resort;
 With the exception of consultation regarding changes to workforce 

composition, these arrangements will apply to employees who, in the event of 
outsourcing or privatisation of Rail Operations (or part thereof), do not transfer 
to the new business under Transfer of Business arrangements under the Fair 
Work Act 2009 (SA);

                                               
5 Without the Contents clause.








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 Where there is a need for genuine redundancies, employees must be offered a 
Voluntary Separation Package (VSPs); and

 ny reduction in staffing levels should be achieved by:

1. Restricting the use of temporary contracts, casual employment and external
employment (i.e. labour hire and agency);

2. Natural attrition; and
3. Voluntary Separation Packages.

The parties further acknowledge that changes to staffing levels, including the offering 
of VSPs, has a significant effect on employees because it has the potential to lead to, 
amongst other things:

 The alteration in required skills of ongoing employees and potential retraining;
 The alteration of workloads and/or hours of work for ongoing employees;
 The potential diminution of job opportunities or promotional opportunities; and
 The possible redeployment of employees.

Nothing in this Schedule is intended to remove or limit the operation of Clause 23, 
Resolving Workplace Concerns or Disputes contained in the Agreement.

Procedure

1 Seriously considering changes to workforce composition

1.1 Notification

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

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

b) The affected work/process/service delivery;
c) The affected department/location/worksite/unit;
d) The number and classifications of positions including (but 

not limited to) changes in position duties and/or 
responsibilities/tasks/workload;

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

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

g) Any known potential redeployment and job vacancy options;
h) Data regarding the use of existing labour hire, temporary and 

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

i) Any other relevant information.








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

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

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

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

1.2 Meetings with Union

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

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

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

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

1.3 Identification of new workforce composition

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








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

1.4 Regional and Remote Localities

In addition to the consultative requirements contained in this Schedule, 
the following will apply in relation to regional and remote localities:

Where an agency proposes organisational change that will result in an 
employee who works/resides in a regional or remote locality in South 
Australia being declared excess, the Chief Executive, Agency Head or 
delegate must provide details of the proposed organisation change and 
affected employees to the Commissioner for Public Sector Employment 
prior to the implementation of the relevant organisational change and the
declaration of any employee as excess to requirements.

2. Voluntary Separation Process

2.1 Call for Expressions of Interest (EOIs) for Voluntary Separation 
Packages (VSP)

2.1.1. The Rail Commissioner will only call for EOIs after the number of 
genuinely redundant positions has been determined in accordance 
with the consultation requirements outlined above and following 
any Transfer of Business arrangements applicable under the Fair 
Work Act 2009 (Cth), unless otherwise agreed.

2.1.2. The Rail Commissioner will write to employees (i.e. 
permanent/ongoing employees) in work sites affected by the 
proposed change requesting EOIs for VSPs. The request will, at a 
minimum, be sent to employees working in the positions identified 
as no longer required (i.e. determined to be excess/redundant).

2.1.3. The call for EOIs for VSPs will have a specified closing date and 
will be open for not less than 21 days.

2.1.4. The call for EOIs will include information regarding how a VSP 
may be estimated, the number of positions that have been 
determined to be genuinely redundant, details of the position(s) that 
have been determined “excess” and an option for employees to 
discuss and explore reasons why these positions are no longer 
required. A copy of this notification should be provided to the 
Union.

2.1.5. Employees may seek assistance from a nominated Human 
Resource representative to determine an approximate calculation as 
to what a possible VSP would be without completing an EOI. Such 
a calculation would only be an approximation and possibly subject 
to variation.








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2.2 Agency considers outcomes of EOI process

2.2.1. As soon as practicable after the EOI period has closed, the Rail 
Commissioner will consider and consult with the relevant 
employees and the Union regarding the outcomes of the EOI 
process. For the purposes of consultation, the Rail Commissioner 
will provide the Union in writing the outcomes of the EOI process
and provide the Union with a minimum of 7 days’ notice to 
respond, prior to any VSP offers being made.

2.2.2. In the event the Rail Commissioner has determined potential VSP 
offers for affected employees, if requested, the parties agree to 
meet to discuss the proposed VSPs as soon as practicable.

2.2.3. Where a meeting is requested, the Rail Commissioner agrees to 
delay VSP offers to employees until after the meeting has occurred.

2.2.4. Where the Union requests further information or seeks a response, 
the Rail Commissioner will respond as soon as practicable.

2.2.5. The Rail Commissioner agrees to delay VSP offers to employees 
until 7 days after a response is provided to the Union.

2.2.6. In the event that the number of suitable applicants for VSPs is 
greater than the number of positions identified as “excess” the Rail 
Commissioner will inform the Union of the selection criteria it will 
utilise to determine which employees will be offered VSPs. The 
criteria may include (but is not limited to):

 The new workforce composition position descriptions;
 Hours of work;
 Skills, experience and qualifications; and
 Any other factors (such as geographical location).

2.3 Number of EOIs is the same as the number of identified excess positions

2.3.1 In the event the number of EOIs matches the number of identified 
excess positions, the Rail Commissioner will notify the affected 
employees and the Union.

2.4 Number of EOIs is less than the number of identified excess positions

2.4.1 Where the number of EOIs is less than the number of identified 
excess positions, the Rail Commissioner will not unreasonably 
refuse to offer an employee a VSP.

2.4.2 In the event the number of EOIs is less than the number of 
identified excess positions, the Rail Commissioner will move to the 
steps outlined in 3. Process for Identifying Excess Employees.

2.5 Calculation of a VSP








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2.5.1 The parties agree that for the purpose of a VSP, an employee will 
be paid not less than the Department of Treasury and Finance –
Targeted Voluntary Separation Packages (TVSPs) as at 1st July 
2015.

2.6 Employee offered a VSP

2.6.1 Affected employees will be notified in writing that their EOI for a 
VSP has been accepted and that they will be paid a lump sum 
payment of $15,000 plus a VSP as set out in clause 2.5.

2.6.2 The Rail Commissioner must declare that their position is no longer 
required and therefore “excess” (redundant). Upon receipt of a 
VSP, their employment in the public sector will cease.

3. Process for identifying excess employees

3.1 Notification to the Union

3.1.1 Where there are insufficient numbers of EOIs to meet the number 
of excess positions identified in 1.3, the Rail Commissioner will 
notify the relevant employees and the Union of the following 
information in writing:

a. The number of remaining excess positions, including job 
classification/role/worksite location/FTE equivalent;

b. number of affected employees; and
c. The proposed time frames and plan for notification and 

consultation with affected employees.

3.2 Meeting with Union

Prior to notifying affected employees, per step 3.3, the Rail Commissioner and 
the Union will meet to discuss the selection criteria to be used for forced 
redundancies, the proposed time frames and plan for notification and 
consultation with affected employees.

3.3 Notification to affected employees

3.3.1 The Rail Commissioner will inform the affected employee/s in 
writing that there were insufficient numbers of EOIs for voluntary 
redundancies and provide information regarding the number of 
positions and employees that will no longer be required. A copy of 
any correspondence will also be provided to the Union.

This will include all relevant information including, but not limited 
to, why the position/s have been determined to be genuinely 
redundant, the number of redundant positions, the application of 
the above selection criteria, and information regarding the timeline 
and process.








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3.3.2 The Rail Commissioner will notify employees of their right to be 
represented by the Union.

3.3.3 The Rail Commissioner will take all possible steps to mitigate the 
adverse effect on the employee/s affected, including (but not 
limited to) consideration of immediate redeployment to a suitable 
alternative position with the consent of the affected employee/s.

3.3.4 The Rail Commissioner will organise at least one paid meeting with 
the affected employee/s to discuss the redundancies. The Union 
will be invited to attend this meeting.

3.4 Notification to redundant employee(s)

3.4.1 The Rail Commissioner will then notify the redundant employee/s 
and the Union that the particular employees will be made 
redundant. Prior to notifying a redundant employee, the Rail 
Commissioner must declare that the employee’s position is no 
longer required and therefore “excess” (redundant).

3.4.2 The redundant employee/s will be notified in writing that their 
position is “excess” and may elect to consider a VSP or seek 
redeployment. In this same notification, the Rail Commissioner 
will provide the employee with the following:

 The date their position will be made redundant shall be no earlier 
than 28 days from the date the notification is received;

 nformation regarding taking a VSP and information regarding 
the redeployment process. This information will clearly outline 
what the employee’s entitlement would be if they elect to take a 
VSP at the date of termination, pursuant to step 2.5 and 2.6.

 That the employee may request a paid time meeting with the Rail
Commissioner to discuss any aspect of the redundancy and/or
redeployment process.

 That the employee is entitled to be represented during the 
meeting by the Union.

 Should the employee wish to accept the offer for a VSP at this 
time, they must do so within the timeframe provided, which must 
be no less than 28 days. Upon acceptance of the VSP, their 
employment in the public sector will cease upon receipt of the 
VSP.

4. Redeployment Process

4.1 Commencement of the Redeployment Process and Case Management

4.1.1 Following receipt of written advice of being declared an excess 
employee, where an employee has elected to become a redeployee 
(i.e. has decided not to accept an offer for VSP), the redeployee 








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will be assigned a case manager and will participate in the 
redeployment/retraining program.

4.1.2 A redeployment plan will be established in consultation with the 
redeployee which aims to identify a suitable alternative ongoing 
permanent role in the public sector. The plan will also include (but 
not be limited to):

details of any training to be provided; and
skills or duties relevant to a suitable placement and/proposed role.

4.1.3 A copy of the redeployment plan will be provided to the 
redeployee.

4.1.4 The redeployee’s case manager will have priority access to the 
notice of vacancies and redeployee will also have access to notice 
of vacancies.

4.1.5 The excess employee is also expected to cooperate and participate 
in all reasonable training opportunities or placements.

4.2 Criteria for suitable employment

4.2.1. An ongoing permanent role in any agency in the Public Sector will 
only be considered suitable for the purposes of redeployment if 
(unless the employee otherwise agrees):

a. The hours of work remain the same or similar;
b. The level of remuneration is not less than what the employee 

was earning prior to becoming a redeployee;
c. It is a reasonable distance/location from the employee’s 

residence to the new place of employment;
d. The classification is not lower than the employee was 

previously engaged as;
e. The nature of the work is such that it is reasonable to 

perform, taking into account the employee’s skill and 
experience;

f. There are no extenuating factors specific to the 
employee/worksite that would make it unreasonable for the 
employee to perform the ongoing permanent role.

4.2.2. The above criteria does not limit further discussions and 
agreements between the employee and their case manager.

4.3 Making of an offer of suitable employment during redeployment program

4.3.1. Within the first 6 months of an employee being declared excess, 
the applicable case managers/agency representatives must attempt 
to identify at least one role or placement that is a reasonable match 
with the employee's skills and capabilities (including with training).








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4.3.2. In the event that an offer for an alternative role/position is not 
made within 6 months of the employee being declared excess, the 
case manager must meet with the employee and their representative 
(if applicable) to discuss and review the employees redeployment 
plan.

4.3.3. The outcomes of these discussions and the action plan for next 
steps must be provided in writing to the employee and a copy 
forwarded to the Office for the Public Sector (OPS).

4.3.4. In the event an offer for a suitable ongoing permanent role has not 
been identified and made within 9 months from the date of them 
being declared excess, the relevant agency must notify OPS.

4.3.5. The Rail Commissioner will discuss with the employee (and the 
Union) any reasons that an alternative role has not been achieved. 
At this stage the CPSE or representative from the OPS will become 
involved in order to review the process and options available for 
redeployment.

4.3.6. In the event that an offer of suitable employment has not been 
identified and made within 12 months of the employee being 
declared excess, the agency, the CPSE or representative from OPS, 
and the employee (and Union) will meet to discuss the outcome of 
the redeployment/retraining program. The parties will discuss:

 Whether the redeployment plan has been complied with by the 
Agency and the employee;

 Whether all reasonable efforts have been made to identify 
suitable employment for the employee; and

 Whether there are exceptional circumstances which could make it
reasonable to extend the redeployment/retraining program, and/or 
amend the redeployment plan, to provide further opportunity to 
identify suitable employment.

4.3.7. For the purposes of 4.3.6, “exceptional circumstances” may 
include the geographical location of the employee, the unique skills 
and/or experience of the employee, the age of the employee, or the 
circumstances of the employee becoming excess, which 
circumstances provide additional difficulty to the identification of
suitable employment for the employee.

4.3.8. Where any issues remain unresolved, either party may utilise 
Clause 23, Resolving Workplace Concerns or Disputes in the 
Agreement.

4.4 Notification of a suitable ongoing permanent role

4.4.1 Where an offer of a suitable ongoing permanent role is made to an 
employee, such notification will be provided in writing. Written 
notification will also include:








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 A contract of employment for the new role;
 A Job and Person Specification for the new role; and
 Information advising the employee that should they not accept 

the suitable ongoing permanent role, the employee may be 
separated with 5 weeks’ notice and separation pay outlined in 
4.6.3 (provided that the terms of this Schedule have been met). 
Such information will be clearly outlined to the employee.

4.4.2 An employee will be given a minimum of 14 days to consider 
whether they wish to accept the suitable ongoing permanent role.

4.5 Deferment of redeployment program

4.5.1. The Rail Commissioner must defer the redeployment period where 
an employee that has been declared excess is absent from duty by 
reason of:

 Parental leave; or
 Defence reserves leave; or
 Where an employee is in receipt of weekly payments for a 

compensable workplace injury or illness and/or subject to a 
Rehabilitation and Return to Work Plan for such injury or illness.

4.5.2. The Rail Commissioner may approve an application for deferment 
of the redeployment period by an employee who has been declared 
excess, on the basis of exceptional personal circumstances by the 
employee. The Rail Commissioner is required to seek advice from 
the Commissioner for Public Sector Employment. This decision 
making function is not to be delegated.

4.6 Conclusion of the Redeployment Process

4.6.1 The redeployment process will end only when the following criteria 
has been satisfied:

a. The employee has accepted employment in an ongoing role; 
or

b. For an employee whose position has been determined to be 
excess as a result of the Rail Commissioner’s decision to 
privatise, outsource, contract out or the closure/part closure 
of a service(s) and that employee has been offered 
employment in a suitable ongoing permanent role and has 
declined such ongoing employment;

c. The Rail Commissioner and employee (and union if 
requested by the employee) have negotiated, been offered and 
accepted an additional separation payment;

d. For employees other than those in 4.6.1(b), the process set 
out in 4.3 is completed; or

e. The employee has at any stage elected to take a VSP, in 
accordance with step 4.7.








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4.6.2 Where the redeployment process ends, the Rail Commissioner will 
confirm in writing to the employee the outcome of that process.

4.6.3 Where an employee has been offered employment in a suitable 
ongoing permanent role and has declined such ongoing 
employment or the redeployment process set out in clause 4.3 is 
completed, the following will apply:

a. The employee will be provided in writing a minimum of 5 
weeks’ notice of the date of separation.

b. During the notice period, the Rail Commissioner agrees to 
allow a minimum of one day of paid leave each week to job 
seek.

c. During the notice period, the employee may give notice of 
their intention to resign their employment with 24 hours’ 
notice and be paid the balance of the notice period.

d. A separation payment the equivalent of that provided in 
clause 4.7.3 will be paid to the employee at the separation 
date of their employment.

4.7 Separation Payments

4.7.1 At any time while an employee is a redeployee, they may give 
notice that they wish to accept a VSP.

4.7.2 A redeployee will only be required to provide one weeks’ notice to 
terminate their employment (or less by agreement).

4.7.3 An employee who indicates that they wish to accept a VSP, in 
accordance with clause 4.7.1, will be entitled to the following 
amounts of redundancy pay:

a. An employee who has been a redeployee for between 0 to 3 
months is entitled to receive redundancy pay equal to 100% 
of the VSP prescribed in clause 2.5 plus a lump sum payment 
of $15,000; or

b. An employee who has been a redeployee for more than 3 
months and up to 12 months is entitled to receive 
redundancy pay equal to 100% of the VSP prescribed in 
clause 2.5; or

c. An employee who has been a redeployee for more than 12 
months is entitled to receive redundancy pay equal to 75% 
the VSP prescribed in clause 2.5.

5. Disputes

5.1. Where a dispute arises in relation to the operation of this Schedule, the 
parties may raise a dispute in accordance with Clause 23, Resolving 
Workplace Concerns or Disputes of the Agreement.








[2020] FWC 5780

16

5.2. A dispute may be raised at any stage of this Schedule. Where a dispute is 
raised in relation to this Schedule, the status quo will remain until the 
matter is resolved.

5.3. Where the parties cannot reach agreement to resolve a dispute in relation 
this Schedule, the parties agree that the dispute may be arbitrated by the 
Fair Work Commission.

Review
The Rail Commissioner and the RTBU will review the implementation of this 
process (i.e. Schedule 5) no earlier than January 2019.”6

“Declared excess” means the date of written notice to the employee that their 
position is no longer required.”

[17] As the positions advanced by the parties require consideration of the wage 
arrangements operating under the 2016 EA, I observe that the following clauses inform these 
arrangements:

“13 CLASSIFICATION AND WORK REQUIREMENTS

13.1 Employees will be appointed to positions classified in accordance with the 
classifications defined at clause 21 of this Agreement. An employee may, 
subject to their qualifications, experience and fitness, be rostered to undertake 
any duty for which they are trained and competent to perform.

13.2 A standby employee may be required to perform “other duties” (as determined 
and agreed by the parties from time to time.)

13.3 Nothing in this Agreement precludes an employee’s appointment to another 
classification of work within this Agreement, in which case this Agreement 
will continue to apply.

… … 

21 CLASSIFICATIONS & RATES OF PAY

21.1 Classification of Positions

21.1.1 Upon commencing employment, an employee will be appointed to a 
position classified in accordance with this Agreement, will be paid 
according to the salary applicable to the classification of that position 
and will remain on that classification unless reclassified or appointed to 
another position classified at another level.

21.1.2 Employees will be advised in writing of their classification and any 
subsequent changes.

21.1.3 The remuneration levels applicable to each classification are set out at 
Schedule 1 and 3 of this Agreement.

21.1.4 Employees engaged under this Agreement will be appointed to a 
position classified in accordance with the following classifications.

… ..

                                               
6 I have been informed during these proceedings that this review was not conducted. 








[2020] FWC 5780

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21.11 Rates of Pay

21.11.1 The rates of pay applicable to the respective classifications outlined in 
clause 21 of this Agreement are detailed at Schedule 1 and 3 of this 
Agreement.

… … 

21.14 Aggregate Wage – Suburban Train Drivers Only

21.14.1 The parties have agreed that, in relation to normal rostered work for
Suburban Train Drivers, the penalties and allowances provided for
Saturday and Sunday time, overtime, shift work, broken shifts,
distance payment and annual leave loading will be paid on an
averaging basis. This arrangement will be referred to as the ‘aggregate 
wage’ in respect of such employees.

21.14.2 Employees who are in receipt of the aggregate wage are not entitled to 
any additional payment in respect of annual leave loading as provided 
in clause 22.3.

21.14.3 The Aggregate Wage per Week and the Aggregate Percentage used to 
calculate such rates will be recalculated by the Rail Commissioner to 
coincide with each wage increase detailed at clause 21.15 and/or the 
final posting of any major roster change involving Suburban Train 
Drivers.

21.14.4 The calculations will be provided to the RTBU and its nominated
delegates for checking prior to tabling the new rates for employees.

21.14.5 The calculation of the Aggregate Wage will continue to be based on
the total number of full-time lines of work available within the Master 
Roster and the full-time equivalent employees required to fill that 
roster.

21.14.6 Senior Drivers will be paid an Aggregate Wage, as agreed between the 
parties.”

[18] Schedule 1 – Weekly Wage Rates – Rail Operations Employees contains weekly wage 
rates for each of the classifications covered by the schedule, with annual adjustments reflected 
for the life of the Agreement. This schedule also contains the following provision:

“S.1.2 Aggregate Wage for Suburban Train Driver Classifications

S.1.2.1 The aggregate wage per week and the aggregate percentage used to 
calculate such rates will be recalculated by the Rail Commissioner to 
coincide with each wage increase detailed at clause 21.15.2 and/or the 
final posting of any major roster change involving Suburban Train 
Drivers.

S.1.2.2 The calculations will be provided to the RTBU and its delegates for 
checking prior to tabling the new rates for employees.

S.1.2.3 The calculation of the aggregate wage will continue to be based on the 
total number of full-time lines of work available within the Master 
Roster and the full-time equivalent employees required to fill that 
roster.

S.1.2.4 In circumstances involving extended line closures associated with 
works related to electrification of the rail network during the life of this 








[2020] FWC 5780

18

Agreement, the aggregate wage will not be reduced to take account of 
fluctuations in roster arrangements, as would normally be the case.

S.1.2.5 The aggregate wage will not be reduced as a result of the 
implementation of shift harmonisation.

S.1.2.6 The aggregate wage calculation guideline in operation at the date of 
approval of this Agreement is attached at Schedule 7 – Aggregate 
Wage Calculation Guidelines.”

[19] Schedules 2 and 4 provide allowances for various shift patterns, equipment, working, 
training, overtime, penalty payments and various other allowances for relevant classifications 
and circumstances applicable to Rail Operations and Support Employees respectively. The 
hours of work provisions and associated payments are also further set out in clause 27 of the 
2016 EA. Other than where incorporated into the aggregate wage, all of these allowances and 
additional payments are contingent upon the existence of the relevant circumstance to provide 
justification for their payment to the employees.

[20] Schedule 3 – Weekly Wage Rates – Rail Operations Support Employees contains 
weekly wage rates for each of the classifications covered by the schedule, with annual 
adjustments reflected for the life of the Agreement. There is no aggregate wage concept set 
out for the Support employees.

3.2 The Rail Commissioner Act 2009 (SA)

[21] The RC Act relevantly provides as follows:

“4—Establishment of Rail Commissioner 

(1) There is to be a Rail Commissioner. 
(2) The Rail Commissioner—

(a) is a body corporate; and 
(b) has perpetual succession and a common seal; and 
(c) is capable of suing and being sued; and 
(d) is an instrumentality of the Crown and holds property on behalf of 

the Crown; and 
(e) has the functions assigned by or under this or any other Act; and 
(f) has the powers necessary or expedient for, or incidental to, the 

performance of the Commissioner's functions (including the power 
to enter into contracts), together with such other powers conferred 
by or under this or any other Act.”

“5—Appointment etc of Rail Commissioner 

(1) The Rail Commissioner will be constituted by a person appointed from 
time to time by the Governor for the purpose. 

(2) The person appointed under subsection (1) will be appointed for a term 
not exceeding 5 years, and on terms and conditions determined by the 
Governor. 

(3) The Governor may appoint 1 or more persons as the Governor thinks fit 
to be a deputy of the person appointed under subsection (1), and a person 
so appointed may act as the Rail Commissioner in appropriate cases. 








[2020] FWC 5780

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(4) At the expiration of a term of appointment, a person appointed under this 
section will be eligible for reappointment. 

(5) The Governor may remove a person appointed under this section from 
office—
(a) for misconduct; or 
(b) for incapacity to perform satisfactorily the Commissioner's 

functions; or 
(c) for material contravention of, or failure to comply with, the 

requirements of this or any other Act. 
(6) The office of the Rail Commissioner becomes vacant if the 
Commissioner—

(a) dies; or
(b) completes a term of office and is not reappointed; or 
(c) resigns by written notice to the Minister; or 
(d) is disqualified from managing corporations under Chapter 2D Part 

2D.6 of the Corporations Act 2001 of the Commonwealth; or 
(e) is removed from office under subsection (5). 

(7) On the office of the Rail Commissioner becoming vacant, a person may 
be appointed in accordance with this section to the vacant office.”

“6—Ministerial direction 

(1) The Rail Commissioner is subject to the direction of the Minister. 
(2) A direction of the Minister under this section must be given in writing. 
(3) The Minister must, within 6 sitting days after giving a direction to the Rail 

Commissioner under this section, have copies of the direction laid before 
both Houses of Parliament. 

(4) If the Minister gives a direction under this section, the Rail Commissioner 
must cause a statement of the fact that the direction was given to be 
published in its next annual report.”

“7—Functions 

(1) The functions of the Rail Commissioner are as follows: 
(a) to construct railways, railway tracks and associated track 
structures; 
(b) to manage, commission, maintain, repair, modify, install, operate or 

decommission rail infrastructure; 
(c) to commission, maintain, repair, modify, install, operate or 

decommission rolling stock; 
(d) to operate or move, or cause the operation or movement of, rolling 

stock on a railway by any means (including for the purposes of 
constructing or restoring rail infrastructure); 

(e) to move, or cause the movement of, rolling stock for the purposes 
of operating a railway service; 

(f) to act as a rail transport operator for railway operations carried out 
by the Commissioner; 

(g) to hold accreditation (if successful application is made) under the 
Rail Safety National Law (South Australia) Act 2012 as a rail 
transport operator in relation to railway operations carried out, or 
proposed to be carried out, by the Commissioner; 








[2020] FWC 5780

20

(h) to enter into agreements or arrangements relating to the 
management of risks associated with railway operations (including
where rail infrastructure interfaces with roads); 

(i) to operate passenger transport services by train or tram;
(k) to enter into service contracts relating to the operation of passenger 

transport services under Part 5 of the Passenger Transport Act 
1994; 

(l) to carry out any other function conferred on the Commissioner by 
the Minister. 

(2) The Rail Commissioner's functions include the carrying out of design 
work, roadwork and any other necessary or associated work relating to 
the Commissioner's functions. 

(3) The Rail Commissioner will be taken to hold an accreditation under the 
Passenger Transport Act 1994 to operate passenger transport services by 
train or tram as operated by the Rail Commissioner from time to time.”

“12—Staff 

(1) The Rail Commissioner's staff consists of—

(a) Public Service employees assigned to assist the Commissioner; and 
(b) any person appointed under subsection (3). 

(2) The Minister may, by notice in the Gazette—

(a) exclude Public Service employees who are members of the Rail 
Commissioner's staff from specified provisions of the Public Sector 
Management Act 1995; and 

(b) if the Minister thinks that certain provisions should apply to such 
employees instead of those excluded under paragraph (a)—
determine that those provisions will apply, and such a notice will 
have effect according to its terms. 

(3) The Rail Commissioner may, with the consent of the Minister, appoint 
staff for the purposes of this Act. 

(4) The terms and conditions of employment of a person appointed under 
subsection (3) will be determined by the Governor and such a person will 
not be a Public Service employee. 

(5) The Rail Commissioner may, with the approval of the Minister, under an 
arrangement with the relevant body, make use of the staff, equipment or 
facilities of—

(a) an administrative unit of the Public Service; or 
(b) an agency or instrumentality of the Crown.”

4. The case for Mr Rogers

[22] The Applicant in his submissions posed the following questions, responses and 
propositions:








[2020] FWC 5780

21

1. "Unassigned" or "Declared Excess"

What are the conditions that trigger the change, from an employee being determined as 
"unassigned" to "declared excess"?

Applicant’s position

There should be no “classification” to determine that an employee is unassigned as no 
such classification exists under the current 2016 EA. An employee under the 2016 EA 
is either working or classified as declared excess. If an employee is declared excess 
then initially as a first step he or she is either entitled to voluntary separation package, 
or alternatively, entitled to continue as an employee under the Redeployment, 
Retraining and Redundancy (RRR) provisions of the 2016 EA.

During final submissions, Mr Rogers accepted that there would be a (short) period 
between the time and the normal worked ceased and when an employee might be 
declared excess. He also accepted that during this period, the employee would not be 
entitled to shift or overtime payments7 and that Drivers would not be paid the 
aggregate wage.8

Basis for the position

There is nothing in the 2016 EA that provides for any classification of a person as 
being unassigned. Indeed, such a classification of a person being unassigned 
undermines the principle and purpose of Schedule 5 of the 2016 EA.

I apprehend that the Applicant accepts that there are some necessary processes to be 
undertaken between the cessation of normal work and the declaration of excess. This 
should be as short as possible. In terms of payments, I apprehend that the Applicant 
accepts that there is no provision in the 2016 EA that maintains anything beyond the 
weekly rates in the period between the cessation of normal work and the declaration of 
being excess.

2. Rate of Pay Once "Declared Excess"

During the timeframe of "declared excess" and appointment into a new 'suitable 
ongoing permanent role', can an employee receive an average weekly wage that is a 
reflection of previous gross earnings, when shift work hours and overtime are not 
rostered?

Applicant’s position

It is one of the fundamental principles of the 2016 EA that during the application of an 
employee being declared excess that he or she should be entitled to the level of 
remuneration not less than what the employee was earning prior to becoming a 
redeployee. The wages of a current employee currently comprise of payments of the 

                                               
7 Transcript PN1031.
8 Confirmed at transcript PN1033 to PN 1035.








[2020] FWC 5780

22

following types: a base rate; shift penalty payments; overtime penalty payments; plus 
applicable allowances.

In general, the shift penalty payments make up to around 20% of workers’ take-home 
pay. The work which almost all employees are required to complete requires 
nonstandard working hours for almost all operations and therefore shift penalty 
payments and overtime penalty payments are an integral part of an employee’s regular 
pay.

At the time of the negotiation of the 2016 EA this was recognised by the parties
involved.

Any idea that there should be a separation of shift penalty and overtime entitlements 
from the overall pay a worker may be entitled to if the “SA Railways” was outsourced 
in the future were specifically rejected at two prior employee ballots and then during 
the negotiation of the 2016 EA. Therefore, the current term of “remuneration” should 
be regarded as incorporating all types of pay an employee is entitled to receive under 
the 2016 EA as the alternative was specifically rejected during those negotiations.

The RRR schedule provides that the level of remuneration must not be less than what 
the employee was earning prior to the redeployment process.

Basis for the position

The evidence of Mr Rogers confirms the nature of standard remuneration for an 
employee and how that includes on a regular basis not only payments under the base 
rate but also shift penalty payments and overtime penalty payments and allowances.
This is not disputed by the Rail Commissioner.

Furthermore, it is clear from the negotiations that took place leading up to the 2016 
EA, that the inclusion of the term “remuneration” in the current version was as a result 
of a rejection of previous draft proposals which would have excluded such things as 
shift penalty payments and overtime payments from being continued in the event of 
SA Railways being outsourced.

The RRR process may continue for 12 months or more and this should be taken into 
account. 

In closing submissions, Mr Rogers clarified that the maintenance of the full level of 
remuneration was provided by clause 4.2.1 of the RRR schedule. That is, an employee 
becomes a redeployee when they are declared to be excess and this provision is 
intended to apply to and from that event to provide the remuneration maintenance.

3. Definition of Remuneration

How is the definition of remuneration to be applied, in particular to 'Criteria for 
suitable employment': clause 4.2.1 b of the Agreement?

Applicant’s position








[2020] FWC 5780

23

The term “remuneration” should be viewed broadly as including not only the base rate 
of payment but also the standard shift penalty payments and overtime payments which 
an employee could expect to receive in his or her standard pay.

Basis for the position

In general, the term “remuneration” has always been viewed in a broad manner 
encompassing all standard payments a worker could expect to receive for his labours.

In the High Court case of Chalmers v Commonwealth [1946] 73 CLR 19, the term 
“remuneration” with regard to the payments expected to be received by an employee 
was considered at page 34 by His Honour Justice McTiernan with the comment “the 
ordinary meaning of rate of remuneration covers rates of remuneration for overtime”. 
Further His Honour Justice Williams commented at page 37 “the ordinary meaning of 
remuneration is pay for services rendered”.

Under both the former Industrial and Employee Relations Act of 1994 (SA) and the 
Fair Work Act 1994 (SA) (SA FW Act) s.4(1) sets out the meaning of the word 
remuneration as being:

(a) wages or salary; or
(b) payment to or for the benefit of an employee in the nature of piece-work 

rates, penalty rates, shift premiums, overtime or special work rates; or
(c) allowances;

Such definitions and interpretations of the word “remuneration” should be viewed as a 
background to the standard meaning of that word within the context of the negotiation 
and operation of the 2016 EA.

The Applicant seeks to reject the Respondent’s meaning of the word remuneration on 
the grounds that under the interpretation of enterprise agreements as set out in the 
judgement of the case of Automotive Food Metals Engineering Printing and Kindred 
Industries Union v Berri9 would support a more restrictive interpretation of the 
meaning of words within each individual enterprise agreement. However, this does not 
apply. In particular, paragraph [46] of that judgement states the following:

“There is a long line of authority in support of the proposition that a narrow or 
pedantic approach to the interpretation of industrial instruments (such as 
enterprise agreements) is to be avoided, and that ‘fractured and illogical prose 
may be met by a generous and liberal approach to construction”.

It is the Applicant’s view that the use of the term “remuneration” in the 2016 EA 
cannot be viewed narrowly to solely identify just base rate payments. Wherever the 
term remuneration is used in the 2016 EA it is essentially used as shorthand for 
payment, occasionally linked to types of payment but not solely any specific single 
payment. Indeed, it is important to note that despite the 2016 EA including 27 specific 
definitions in clause 9 (and the document as a whole running to 106 pages) there is no 
specific definition for the term remuneration. Most importantly under Schedule 5 there 
is no requirement for separate consideration of base rates, shift penalty payments or 

                                               
9 [2017] FWCFB 3005.








[2020] FWC 5780

24

overtime payments, there is just a reference to one type of payment that is overall 
remuneration.

The RRR provisions, according to the Rail Commissioner, were a “cut and paste” of 
another agreement and as a result, the use of the term remuneration cannot be regarded 
as being used consistently throughout the 2016 EA. Rather, the terms of the RRR in 
the approved version were intended to provide a better outcome that the rejected 
versions of the enterprise agreement. This history is relevant to the objective facts.

The Rail Commissioner has not provided any objective material which supports their 
interpretation of the term. Not even Mr Johnson was able to state that he had expressed 
remuneration to exclusively mean base rate wage and nothing more.

In some circumstances subsequent conduct may be relevant to the interpretation of an 
industrial instrument. The Rail Commissioner’s February 2020 fact sheet10 clearly 
states that “if a Rail Commissioner employee is declared excess and transferred to a 
role within the Rail Commissioner in a position at a lower classification level, the 
employee will be paid the average of their previous work payments or gross income 
they would have received for the first six months, and after six months an employee 
will receive their substantive wage (base rate) as per the enterprise agreement, cease 
receiving roster based payments and will be eligible for any applicable increments”. 
Whilst this February 2020 fact sheet is clearly an incorrect statement of exactly what 
the Applicant claims to be the ongoing permanent remuneration package it does 
nevertheless support the view that after being declared excess an employee will be 
paid their gross income, not just their base rate, and this appears closer to the 
Applicant’s interpretation of remuneration due under clause 4.2.1 (b).

The rejected version contained reference to an income maintenance policy that would 
have provided a level of income maintenance beyond the 75% referred to in the draft 
provision itself. If the Rail Commissioner’s view of the final provision was accepted, 
the 2016 EA would not represent an improvement, and this was not the common 
objective understanding of the parties.

4. RRR Process Concludes

When does redundancy apply, if after completion of the 12 month review process 
"exceptional circumstances" exist, as outlined in 'Making of an offer of suitable
employment during redeployment program': clauses 4.3.6 dot point three, and 4.3.7 of 
the Certified Agreement?

Applicant’s position

There is no set period when upon an employee becoming “declared excess” that they 
must be forced into redundancy. Upon such an employee being declared excess under 
the 2016 EA the first stage is a 12 month period under the redeployment, retraining 
and redundancy provisions set out in schedule 5 during which that employee is subject 
to a redeployment process. At the end of that 12 months if that employee has not been 
redeployed, it would then be determined whether exceptional circumstances exist. 

                                               
10 Document CR6 attached to exhibit A1.








[2020] FWC 5780

25

There is no set minimum period during which such exceptional circumstances may 
apply.

Basis for the position

The Applicant relies upon the wording of the term set out in schedule 5 of the 2016 
EA. Overall if an employee cannot be redeployed in that 12 month period referred to 
there may still be a circumstance when the employer still cannot satisfy the suitable 
criteria for redeployment of that employee, i.e. they cannot find a position within his 
or her wage, skill set, experience, ability to be trained or other complex issues.

During that period there is also participant obligations upon that employee to still 
actively engage in looking for a job and not just relying upon his or her case manager. 
Having said that, there is no set time limit for the application of those criteria.

5. Rail Commissioner Scope of Limitations

With regard to 'Conclusion of the redeployment process': clause 4.6.1 (b) of the 
Agreement, does it sit within the scope of responsibility for the Rail Commissioner to 
outsource the operation of train services?

Applicant’s position

Clearly the decision by the SA Government to outsource the operation of train services
(SA Railways) and the consequences which followed that decision cannot be 
considered separately from any action by the Rail Commissioner 

Basis for the position

It is a nonsense to consider that somehow the actions and consequences of the two 
entities are not interrelated or that somehow the 2016 EA cannot be affected by the 
decision to outsource the operation of train services. The Respondent has recently 
considered that clause 4.6.1 (b) can only be enlivened if the Rail Commissioner made 
the decision to outsource. If this is correct then, given the status of the Rail 
Commissioner, if he had not made or complied with a decision to outsource the train 
services then surely such an outsourcing could not possibly take place as all of the 
current employees and all other rail assets would remain exclusively under his control 
and could not be passed on to the new private operator.

It should be noted that pursuant to section 6 of the RC Act that the Rail Commissioner 
is subject to the direction of the Minister. Furthermore the functions of the Rail 
Commissioner as set out under section 7 of the RC Act lie with the Rail Commissioner 
including the management, commission, maintenance, repair, modification, 
installation, operation or decommissioning of rail infrastructure along with the 
operation and movement of rolling stock and entering into agreement or arrangements 
relating to the management of risks associated with railway operations. If, as has been 
postulated by the Respondent, the Rail Commissioner has been excluded from the 
decision to outsource then clearly such an outsourcing is impossible.








[2020] FWC 5780

26

During the hearing it became clear from the evidence of both Ms Alford and 
Mr Nikoloski that the functions of both the relevant Department and the Rail 
Commissioner were so intermingled as to be indistinct. Under section 6 of the RC Act 
the Minister is required to issue written directives to the Rail Commissioner. However,
it is clear from the testimony of Ms Alford and Mr Nikoloski that no such written 
directives were bothered with. In fact, it is clear that the functions of the Rail 
Commissioner are almost completely absorbed by the Department, so much so that the 
Chief Executive of the Department and the Rail Commissioner are one and the same 
person, Mr Tony Braxton-Smith.

When dealing with corporate entities it could be said that the common law of 
“ostensible” or “apparent” authority would apply in this situation.11 In such a situation 
at common law the principles of applied authority may be regarded as a particular 
application of estoppel by representation or conduct. Apparent authority also arises 
where a company, or in this case the Rail Commissioner, has acquiesced in the course 
of dealings. In the current situation it is also clear that not only does the Department 
have apparent authority to exercise the duties of the Rail Commissioner but it could 
also be argued that the Rail Commissioner has by his conduct imparted his actual 
authority to the Department with regard to all aspects of the 2016 EA including the 
commencement and operation of the RRR procedures set out in Schedule 5.

In final submissions, Mr Rogers also relied upon two further propositions to support 
his notion that the approach to clause 4.6.1 (b) of the RRR schedule should extend to 
include the form of outsourcing that has occurred here. Firstly, that the Commission 
should imply that the RRR clause dealing with RRR provisions resulting from an 
outsourcing should come into operation once that outsourcing decision has been made 
and should then be put into operation during the course of that outsourcing irrespective 
of delay or confirmation by the Rail Commissioner once his Minister (and Cabinet) 
has already made the principal decision.12 Secondly, the good faith bargaining 
obligations in section 228 of the FW Act applied at the time of the negotiations and the 
failure of the Rail Commissioner’s negotiators to disclose what they now contend as 
the meaning of the RRR schedule should be considered in rejecting that approach.

Mr Rogers also posited that if the Rail Commissioner approach to the construction of 
clause 4.6 was adopted, this would mean that there was no need for subclause 4.6.1 (b)
and this should not be adopted.

In terms of the authority13 relied upon by the Rail Commission, Mr Rogers contends 
that this had no real application to this matter. That is, the Rail Commissioner has 
essentially surrendered the execution and functions to the Department. The 
Department under the Cabinet which controls the operation of the Rail Commissioner, 
not only as the Rail Commissioner's de facto agent, but also, essentially the body 
which dictates major policy and then carries it out. Further, here the Rail 
Commissioner is an “empty shell” or a “figure-head” whose role was to follow and 
administer the decision made on its behalf.

                                               
11 Northside Developments Pty Ltd v Registrar-General (1990) CLR 146, Hely-Hutchinson v Brayhead Ltd (1968) 1 QB 549 
and discussion in Halsbury’s Laws of Australia - Contractual and other dealings at [120-3065]).
12 Relying upon Byrne & Frew v Australian Airlines Ltd [1995] HCA 24 at paragraphs 12 -13.
13 Public Service Association (SA) Inc v State of South Australia & Ors [2012] SASCFC 66.








[2020] FWC 5780

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Essentially the 2016 EA as agreed by both parties grants the Fair Work Commission 
power to resolve disputes through arbitration. That power is extensive and particularly 
effective and binding given that is applies with the consensus of the parties granted 
through the 2016 EA.

[23] Mr Rogers provided a comprehensive witness statement and also relied upon the 
evidence of Mr Collis. 

[24] Mr Roger’s evidence went in the main to the following:

 The negotiations leading to the 2016 Agreement including, in particular, what is 
now the RRR schedule; and 

 The wage and other payments presently received by employees under the 
Agreement including the proportion of shift and overtime payments.

[25] Mr Collis’ evidence went mainly to the negotiations leading to the 2016 Agreement 
including, in particular, what is now the RRR schedule.

5. The case for the Rail Commissioner

[26] The Rail Commissioner adopted the questions below and responded as follows:

Question 1 

Where an Employee's normal duties cease because their work is being undertaken by 
an outsourced operator, does that employee become "unassigned" and/or declared 
"excess" for the purposes of Schedule 5 of the Agreement and from when does this 
apply?

Rail Commissioner’s position

The word "unassigned" is not synonymous with the term "declared excess" and is not 
used or defined in the Agreement. "Declared excess" has a precise definition and 
specific usage in the 2016 EA. Under the terms of the Agreement:

 The employee neither becomes unassigned nor declared excess upon the date 
of their normal work ceasing. Upon the employee's work ceasing there is a 
process to be followed under the 2016 EA before an employee is declared 
excess.

 The employee will subsequently be declared excess on a date to be notified 
by the Rail Commissioner after the completion of all prerequisite steps as set 
out above. This includes following completion of the transfer of business to 
Keolis Downer and only after the VSP process has been completed.

Basis for the position








[2020] FWC 5780

28

On the plain words of that clause, Schedule 5 applies to the employee from when they 
are "declared excess". The term "declared excess" also appears thorough Schedule 5 as 
a qualifier to several processes.

The term is defined under the heading Review at the end of Schedule 5 as follows:

"Declared excess" means the date of written notice to the employee that their 
position is no longer required.

Schedule 5 contains a heading - Procedure - under which the detailed process for 
redeployment and redundancy are prescribed. The stages under that procedure are 
sequential, as follows:

 Consultation when the employer is seriously considering changes to 
workforce composition.

 A Voluntary Separation Process ("VSP").

 A process for identifying excess employees after expressions of interest in 
VSP have been obtained.

 A redeployment process for those excess employees.

The declaration that an employee is "excess" occurs under section 3.4 of the 
Procedure. 

Section 3.1.1 of the Procedure makes it clear that the process for identifying excess 
employees commences after the call for Expressions of Interest (EOI) in a VSP. 

Calls for expressions of interest in a VSP occur under section 2 of the Procedure and 
only after the transfer of business is completed. Section 2.1.1 states that “the Rail 
Commissioner will only call for EOIs after the number of genuinely redundant 
positions has been determined in accordance with the consultation requirements 
outlined above and following any transfer of business arrangements applicable under 
the FW Act, unless otherwise agreed.”

The logical flow of the Procedure makes it clear that the process is sequential. First, 
consultation and information sharing. Secondly, a call for VSPs. Finally, if there are 
insufficient numbers of EOls, excess employees are then identified and formally 
notified that they are "excess" in accordance with section 3.4. The date of that 
notification to the employee will be the date the employee is "declared excess" as 
defined. This triggers the redeployment process.

The Rail Commissioner will then notify the redundant employees and the Union that 
the particular employees will be made redundant. Prior to notifying a redundant 
employee, the Rail Commissioner must declare that the employee's position is no 
longer required and therefore "excess" (redundant).

The redundant employee/swill be notified in writing that their position is "excess" and 
may elect to consider a VSP or seek redeployment.

Question 2 








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29

What provisions of the Agreement determine the pay for an employee from the date 
they become "unassigned" and/or or between the date that they are declared excess 
until the redeployment process concludes - and what do these provisions require the 
employee to be paid?

The Rail Commissioner’s position

Once an employee's normal duties have ceased and they are subject to Schedule 5, the 
employee will be entitled to pay in accordance with the terms and conditions of the 
Agreement. If the employee is not working rosters that incur allowances, penalties, 
overtime or an aggregate wage, then the employee will not be entitled to them. There 
is nothing in the RRR schedule to disturb the normal approach.

Basis for the position

The concept of the employee being "unassigned" has no relevance, but the date of 
being declared excess has, because it triggers the formal redeployment processes in 
section 4 of Schedule 5. 

The pay for an employee who has been declared excess or who is otherwise subject to 
Schedule 5 is derived from the plain and ordinary meaning of the words used in the 
2016 EA. Schedule 5 contains no provisions relating to pay for an employee who has 
been declared excess or is otherwise subject to its operation. There are no unique 
provisions for an employee derived from that schedule.

An employee who has been declared excess remains an employee covered by the 2016 
EA, including all provisions pertaining to pay. Various provisions of the EA deal with 
an employee's pay and prescribe how that pay is determined including:

 Clause 21 provides that upon commencing employment, an employee will be 
appointed to a position classified in accordance with this Agreement, will be 
paid according to the salary applicable to the classification of that position 
and will remain on that classification unless reclassified or appointed to 
another position classified at another level.

 The rates of pay applicable to the respective classifications outlined in 
clause 21 of the Agreement are detailed in Schedules 1 and 3 of the 
Agreement.

The employee, regardless of being declared excess or subjected to Schedule 5, will be 
paid according to the remuneration levels in Schedules 1 or 3, subject to the periodic 
increases set out at clauses 21.15 and 21.16.

Schedule 1 provides weekly wages for Rail Operations Employees, and provisions for 
an aggregate wage for suburban train drivers.

Clause 21.14 provides for an aggregate wage for Suburban Train Drivers and the 
"penalties provided" for the identified items in clause 21.14.1 are otherwise contained 
in clause 27 including:

 Clause 27.4.1 states that employers may be required to work broken shifts








[2020] FWC 5780

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 Clause 27.5.3 and 27.5.4 refer to payment for overtime worked.

It is clear from the words of the 2016 EA that the "aggregate wage":

 is a mechanism of offsetting penalties for shifts that are otherwise likely 
required to be worked by the relevant employee;

 would be based on normal rostered work available; and

 would be subject to change if there is a major roster change.

For rail operations support employees, the entitlement to overtime, weekend and shift 
penalties are based upon the times worked by the employee in clause 29. There is no 
aggregate wage for these employees.

Schedule 4 of the 2016 EA sets out allowances payable for certain functions or 
disabilities incurred. It is clear from the language that these payments are conditional 
on certain criteria being met and the disability or expense being incurred by the 
employee. Once an employee's normal duties have ceased and they are subject to 
Schedule 5, the employee will be entitled to pay in accordance with the terms and 
conditions of the Agreement. If the employee is not working rosters that incur 
allowances, penalties, overtime or an aggregate wage, then the employee will not be 
entitled to them.

If the plain meaning of the words is not sufficient (and the Respondent submits that it 
is), when the relevant clauses are read together, the common intention of the parties 
should be identified objectively by reference to that which a reasonable person would 
understand by the language the parties have used to express their agreement, without 
regard to subjective intentions or expectations.

There is no evidence before the Commission of a common intention of the parties that 
“during the application of an employee being declared excess that he or she should be 
entitled to the level of remuneration not less than what the employee was earning prior 
to becoming a redeployee" as asserted by the Applicant and his subjective expectation 
is not to be a factor in determining the meaning of the language used.

The evidence of the Applicant goes to the asserted intention to improve upon the 
provisions of the previously voted down agreement, which included a provision that 
an employee's salary for the purposes of "suitable employment" not be less than "75% 
of the employee's wage/ salary". That outcome was achieved in that the requirement 
for the wage/salary to be deemed suitable employment under clause 4.2.1 (b) became 
"the level of remuneration is not less than what the employee was earning prior to 
becoming a redeployee". However, the Applicant's evidence fails to establish any 
common intention that a different method of setting pay would apply from the time 
which the employee's normal work ceased until the employee secured alternative 
employment. The evidence referred to by the Applicant is about the tests for suitable 
employment, and not about wage maintenance until that time.

Question 3 

What does "level of remuneration" mean in relation to 'Criteria for suitable 
employment' at Schedule 5, clause 4.2.l (b) of the Agreement?








[2020] FWC 5780

31

The Rail Commissioner’s position

The terms "remuneration level" or "level of remuneration" are synonymous and mean 
the employee's weekly wages as set out in Schedules 1 and 3. On that basis there is no 
need to look beyond the plain and ordinary meaning of the clause.

Basis for the position

In the 2016 EA, the full phrase "level of remuneration" is used only in clause 4.2.1 (b) 
of Schedule 5.

The word "level" must have work to do. Level means “a position on a scale of amount, 
quantity, extent, or quality”.14 The synonymous term "remuneration level" is used in 
clause 21.1.3 of the 2016 EA and states that:

“The remuneration levels applicable to each classification are set out at 
Schedule 1 and 3 of this Agreement.”

Each classification is set out in the weekly wage table of Schedules 1 and 3 of the 
2016 EA. The only "remuneration" that has a "level" for "each classification" is the 
weekly wage table as defined in the Agreement.

The terms "remuneration level" or "level of remuneration" are synonymous and mean 
the employee's weekly wages as set out in Schedules 1 and 3. On that basis there is no 
need to look beyond the plain and ordinary meaning of the clause.

Where entitlements beyond the employee’s Remuneration Level apply in the 2016 EA 
various other terms are deployed, such as aggregate wage, penalties, overtime. These 
terms are not referred to in in clause 4.2.1 (b).

Schedule 1.2 operates to define how the Aggregate Wage is to be administratively 
calculated by reference to the table in schedule 1.1. Schedule 1.2 does not define or 
point to a “remuneration level” and does not inform the proper meaning of the term 
“remuneration level”.

The Applicant's evidence goes to its intention of having remuneration based on the 
employee's previous earnings, including shift penalties, overtime and allowances 
apply for the purposes of clause 4.2.1 (b). The Respondent's evidence is that no such 
intention was applied on its part. There is no alternative evidence of a common 
intention of the parties surrounding negotiations that supports the Applicant's 
contention.

The evidence of the Applicant refers to an information sheet that was provided to 
employees post the approval of the 2016 EA in relation to the decision to outsource. 
The matter referred to relates to an employee who is transferred to a role with a lower 
classification level, and in that sense is irrelevant as it cannot be regarded as "suitable 
alternative employment" as defined in clause (d) of the 2016 EA.

                                               
14 Oxford dictionary.








[2020] FWC 5780

32

The applicable income maintenance policy does not still apply by virtue of clause 6.2 
of the 2016 EA and the application of the “TransAdelaide” Income Maintenance 
Policy provided by the Rail Commissioner. The parties clearly agreed that the 
previous clause 4.2.3 was not to apply by virtue of re negotiated provisions at clause 
4.2. Its deletion was expressly contemplated and intended and cannot survive by virtue 
of clause 6.3.

Question 4 
Do clauses 4.6.1 (b) or 4.6.1 (d) of Schedule 5 apply to the employees whose normal 
duties cease because their work is being undertaken by the outsourced operator?

Question 5 
When, and under what conditions, does the RRR process conclude for an employee 
who is a redeployee pursuant to the terms of Schedule 5, clause 4.6 of the Agreement?

The more useful question is the second one in the above heading. This is because the 
relevant issue in dispute is whether a redeployee who has not been "offered 
employment in a suitable ongoing permanent role" can eventually be involuntarily 
terminated for redundancy.

Clause 4.6 is intitled: Conclusion of Redeployment Process. It can only therefore 
apply when an employee is a redeployee engaged in a redeployment process as 
described in Schedule 5.

The Rail Commissioner is not at liberty to unilaterally end the redeployment process. 
The placitum to clause 4.6 describes the "only'' criteria upon which the redeployment 
process can end. This requires each criterion to be applied one by one. When one of 
the described events occurs, the employee's redeployment processes ends:

a) The employee has accepted employment in an ongoing role; or
b) For an employee whose position has been determined to be excess as a 

result of the Rail Commissioner's decision to privatise, outsource, 
contract out or the closure/part closure of a service(s) and that 
employee has been offered employment in a suitable ongoing 
permanent role and has declined such ongoing employment;

c) The Rail Commissioner and employee (and union if requested by the 
employee) have negotiated, been offered and accepted an additional 
separation payment;

d) For employees other than those in 4.6.l(b), the process set out in 4.3 is 
completed; or

e) The employee has at any stage elected to take a VSP, in accordance 
with step 4.7.

There is no contention between the parties that (a), (b) or (e) will end the 
redeployment process as soon as they occur. They are conditional on a specified future 
event and that event brings the process to an end. Importantly, these criteria apply to 
all employees participating in Schedule 5, regardless of whether they are there by 
reason of outsourcing or not. Accordingly, these sub sections also apply to employees 
who have been "determined excess as a result of the Rail Commissioner's decision to 
privatise, outsource, contract out or the closure/part closure of a service(s)".








[2020] FWC 5780

33

Subclause (d) is clear on its words that if the redeployment process set out in 4.3 is 
completed and the employee is not in 4.6.l (b), the redeployment process ends. This 
subsection, like those in (a), (b) and (e) applies only to employees who have been 
"determined excess as a result of the Rail Commissioner's decision to privatise, 
outsource, contract out or the closure/part closure of a service(s)".

The redeployment process in clause 4.3 process is nominally 12 months in duration 
(clause 4.3.6) subject to extension based on any "exceptional circumstances" as 
described in clause 4.3.7. Whether there will be any "exceptional circumstances" 
cannot be determined in advance. They arise only in clause 4.3.6, which is dealing 
with an assessment that is to be consulted about at that time. The criteria for them in
clause 4.3.7 include factors which could change over the course of the 12 months.

For an employee to be covered by clause 4.6.l (b), four criteria must be met:

 the Rail Commissioner must have made a decision to outsource or contract 
out; and

 the employee must have been offered suitable employment; and

 the employee must have declined that offer.

If this occurs the redeployment process ends. If this does not occur and none of 
subclauses 4.6.1(a), (c) or (e) apply, the employee is covered by clause 4.6.l (d).

If clause 4.3 applies, a process of up to 12 months applies to the Employee. At that 
time, the redeployment process ends unless:

 As a result of discussions (or the settlement of a dispute) as envisaged at 
clause 4.3.6 the process is extended; or

 Exceptional circumstances apply that would make it reasonable to extend the 
programme.

The Rail Commissioner submits that the provisions concerned are unambiguous and 
should be afforded the meaning set out above.

In relation to the “Rail Commissioner's decision” for the purpose of clause 4.6.1 (b)
the Rail Commissioner contends that:

 The issue here is not one of interpretation but one of fact. Did the Rail 
Commissioner make the decision? If the Rail Commissioner does not make 
the decision to outsource then clause 4.6.1 (b) has no work to do.

 The evidence of Anne Alford is that the Rail Commissioner did not make the 
decision. As a result, clause 4.6.1 (b) has no application to an employee who 
is declared excess as a result of the decision to outsource work to Keolis
Downer.

 There is no evidence in the Applicant's case of a common intention that the 
words Rail Commissioner in clause 4.6.1 (b) should mean anything other 
than what they say.








[2020] FWC 5780

34

 The powers and actions of the government, as distinct from those of the Rail 
Commissioner as the employer are distinct.15 In the case at hand the actions 
and/or decision of the Rail Commissioner (Tony Braxton-Smith) or when 
acting in the role, the Deputy Rail Commissioner, Anne Alford.

In relation to the notion of “Exceptional Circumstances” the Rail Commissioner 
contends that:

 It is not reasonable nor practicable for the purposes of the dispute, as 
envisaged by the Applicant's submissions, that the FWC speculates as to what 
might constitute exceptional circumstances for the purposes of clause 4.3.6 of 
Schedule 5.

 The exceptional circumstances provision is by its nature contextual, 
rendering a determination of that issue fraught which is not capable of being 
determined.

In terms of the conclusion of the process the words make it clear that for an employee 
to be "in 4.6.1 (b)" there must also have been an offer of suitable employment and the 
employee must have declined it. If there is no suitable offer, the employee cannot be 
"in" 4.6.l (b) as all the conditions have not been met. This is consistent with the 
meaning of 4.6.l (b) describing a circumstance where redeployment will end, rather 
than a restriction on when it can end. The decline of a suitable job offer means it ends. 
The reverse is not expressed and cannot be implied from the plain and ordinary 
meaning of the words.

During final submissions, the Rail Commissioner confirmed its position that even 
where subclause (b) applied, this was not the only basis that would bring an end to the 
redeployment process. That is, even if the employee concerned is declared to be 
excess as a result of a relevant privatisation or outsourcing, it was not necessary that 
the employee had been offered and rejected suitable ongoing employment. If the 
process otherwise set out in clause 4.3 of the RRR schedule had been completed, the 
employee could be made redundant.

This approach is supported from the express move from the an absolute "no forced 
redundancy provision" in the previous enterprise agreement to a position where from 
2 January 2018, an employee, other than a fixed-term employee, who is declared 
excess to requirements in the Rail Commissioner's Rail Operations will be subject to 
Schedule 5 - Rail Operations - Redeployment, Retraining and Redundancy which 
forms part of this Agreement.

In respect to the Applicant's contentions, the Respondent submits that the plain and 
ordinary meaning of clause 4.6 is apparent, and no regard can be given to the 
surrounding circumstances; and even if this is not accepted, clause 4.6.1 (b) has no 
work to do in these circumstances as the Rail Commissioner did not make the decision 
to outsource. Further, it contends that there is no basis to imply any terms into the 
agreement as it had a plain meaning and the approach urged by the Applicant would 

                                               
15 Public Service Association (SA) Inc v State of South Australia & Ors [2012] SASCFC 66 at para [68].








[2020] FWC 5780

35

be contrary to authorities on the proper construction of an enterprise agreement. 
Finally, the Rail Commissioner submitted that the good faith bargaining provisions of 
the FW Act had no role to play in the present matter.

[27] The Rail Commissioner relied upon evidence from the following:

 Anne Alford – Executive Director South Australian Public Transport Authority, 
DIT and Deputy Rail Commissioner;

 Daniel Nikoloski – Team Leader, Workforce Reform (Rail), DIT; and

 Simon Johnson – Director, Enterprise Bargaining, Industrial Relations and Policy 
Branch, Department of Treasury and Finance (SA).

[28] Ms Alford’s evidence canvassed the following matters:

 The relationship between the Rail Commissioner, DTEI, the relevant Minister and 
Cabinet processes; 

 The decision-making process for the outsourcing of the rail operations to Keolis 
Downer; and

 The parties to the contracts associated with the provision of rail services after 
January 2021.

[29] Mr Nikoloski’s evidence canvassed the broad factual context in which the employees 
of the Rail Commissioner have been or will be made offers of employment by Keolis 
Downer. 

[30] Mr Johnson’s evidence canvassed the following matters:

 The negotiations leading to the 2016 Agreement including in particular what is 
now the RRR schedule; and

 The present negotiations for a new enterprise agreement to replace the 2016 
Agreement;

6. The position of the RTBU

[31] The RTBU did not seek to participate in the hearing of this matter; however, it sought 
to make the following written submissions:16

“1. The ARTBIU has reviewed both the Applicant’s and Respondent’s 
submissions and evidence and does not wish to appear.

2. Having said this, there are a few points that the ARTBIU would like to respond 
to but these can simply be considered on the papers.

Rail Commissioner’s decision for the purpose for Section 4.6.1(b) 

                                               
16 Provided on 2 November 2020.








[2020] FWC 5780

36

3. Section 4.6 of the Rail Commissioner Rail Operations Enterprise Agreement 
2016 contains criteria that if satisfied, specifies when the redeployment process 
will end.

Section 4.6.1(b) states

For an employee whose position has been determined to be excess as a 
result of the Rail Commissioner’s decision to privatise, outsource, 
contract out or the closure/part closure of a service(s) and that 
employee has been offered employment in a suitable ongoing 
permanent role and has declined such ongoing employment; 

4. Section 4.6.1(b) should be read to mean that a decision by the Rail 
Commissioner is the same as a decision by the Government of the day. Under 
the Rail Commissioner Act 2009 the Rail Commissioner is an instrumentality 
of the Crown and is subject to direction of the Minister. It would seem likely 
that the reference to the Rail Commissioner was inserted due to the Rail 
Commissioner being the title holder of the agreement, and the role is not to be 
viewed as two different decision-making entities. Otherwise, this sub-clause 
would have no work to do as the Rail Commissioner could never be taken to 
make such a decision. A useless clause could never have been the intention of 
the parties.

5 Even if the FWC were to find that the Rail Commissioner can never make the
decision to privatise or outsource, section 4.6.1(b) is enlivened when the Rail
Commission determines which employees are in excess.

Exceptional circumstances

6. The RTBU submits that it is not practical for the FWC to speculate on what 
might constitute exceptional circumstances. The exceptional circumstances 
provision is very much dependent on specific situations at hand.”

[32] I have also had regard to these submissions in determining this matter.

7. Observations on the evidence

[33] The witnesses were all required for cross-examination and there are some factual 
disputes about the negotiations. To the extent that any of the witnesses expressed views about 
the proper application of the 2016 EA to the dispute, this is a matter for the Commission itself 
to determine.

[34] To the extent that the evidence referenced the bargaining discussions leading to the 
approval of the 2016 EA or earlier instruments, I have considered that evidence subject to the 
observations made in the leading authorities about the potential use to which that material 
may be put in the present context.17 In particular, I have treated the subjective views and other 
interpretative opinions of those involved in the negotiations as submissions unless that 

                                               
17 Summarised in AMWU v Berri at [114] – paras 12 to 14.








[2020] FWC 5780

37

“evidence” fell within the narrow scope of material that properly informs the objective 
intention.

[35] I found that each of the witnesses genuinely tried to assist the Commission and were 
all witnesses of truth. Some of the witnesses, including in particular Mr Rogers and 
Mr Johnson, made statements as to their intentions during, and interpretation of the outcome 
of, the negotiations leading to the 2016 EA. I have treated that material as set out above.

[36] The evidence of Ms Alfred and Mr Nikoloski was given openly and objectively as to 
the facts.

[37] I found that Mr Collis was an open and genuine witness. One aspect of his evidence, 
about a conversation with Mr Johnson concerning the difference between a decision made by 
the Rail Commissioner and a decision made by the State “Government”, apparently during the 
negotiations leading to the 2016 EA, was probably not correct. This was not consistent with 
the evidence of Mr Rogers (who attended most or all of the same meetings) or that of Mr 
Johnson, and I am inclined to the view that Mr Collis has unintentionally conflated a later 
discussion in the context of this dispute. 

[38] To the extent that there is a difference of view about the statements made during the 
negotiations leading to the 2016 EA, I have resolved this having regard to the detail of the 
evidence and the impression that I have formed about the recall of each witness. I observe that 
the absence of any minutes and significant written exchanges of bargaining positions has not 
assisted the making of these findings.

[39] There is however some relevant material that was formally provided to the employees 
in the lead up to the employee ballot concerning the making of the 2016 EA and this has 
provided both some further context and some objective material shedding light upon the 
common objective intention of the parties.

8. Consideration 

8.1 The approach to be applied to determining the proper application of an 
enterprise agreement 

[40] A number of Full Benches of the Commission have outlined the approach that should 
be adopted in considering the construction and meaning of an enterprise agreement. The most 
recent statement of the principles was set out in Automotive, Food, Metals, Engineering, 
Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers 
Union (AMWU) v Berri Pty Limited18 (AMWU v Berri) in the following terms:

“[114] The principles relevant to the task of construing a single enterprise agreement 
may be summarised as follows:

1. The construction of an enterprise agreement, like that of a statute or 
contract, begins with a consideration of the ordinary meaning of the 
relevant words. The resolution of a disputed construction of an 

                                               
18 [2017] FWCFB 3005. 








[2020] FWC 5780

38

agreement will turn on the language of the agreement having regard to 
its context and purpose. Context might appear from:

(i) the text of the agreement viewed as a whole;

(ii) the disputed provision’s place and arrangement in the 
agreement;

(iii) the legislative context under which the agreement was made 
and in which it operates.

2. The task of interpreting an agreement does not involve rewriting the 
agreement to achieve what might be regarded as a fair or just outcome. 
The task is always one of interpreting the agreement produced by 
parties. 

3. The common intention of the parties is sought to be identified 
objectively, that is by reference to that which a reasonable person 
would understand by the language the parties have used to express their 
agreement, without regard to the subjective intentions or expectations 
of the parties. 

4. The fact that the instrument being construed is an enterprise agreement 
made pursuant to Part 2-4 of the FW Act is itself an important 
contextual consideration. It may be inferred that such agreements are 
intended to establish binding obligations. 

5. The FW Act does not speak in terms of the ‘parties’ to enterprise 
agreements made pursuant to Part 2-4 agreements, rather it refers to the 
persons and organisations who are ‘covered by’ such agreements. 
Relevantly s.172(2)(a) provides that an employer may make an 
enterprise agreement ‘with the employees who are employed at the 
time the agreement is made and who will be covered by the agreement’. 
Section 182(1) provides that an agreement is ‘made’ if the employees 
to be covered by the agreement ‘have been asked to approve the 
agreement and a majority of those employees who cast a valid vote 
approve the agreement’. This is so because an enterprise agreement is 
‘made’ when a majority of the employees asked to approve the 
agreement cast a valid vote to approve the agreement. 

6. Enterprise agreements are not instruments to which the Acts 
Interpretation Act 1901 (Cth) applies, however the modes of textual 
analysis developed in the general law may assist in the interpretation of 
enterprise agreements. An overly technical approach to interpretation 
should be avoided and consequently some general principles of 
statutory construction may have less force in the context of construing 
an enterprise agreement. 








[2020] FWC 5780

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7. In construing an enterprise agreement it is first necessary to determine 
whether an agreement has a plain meaning or it is ambiguous or 
susceptible of more than one meaning. 

8. Regard may be had to evidence of surrounding circumstances to assist 
in determining whether an ambiguity exists. 

9. If the agreement has a plain meaning, evidence of the surrounding 
circumstances will not be admitted to contradict the plain language of 
the agreement. 

10. If the language of the agreement is ambiguous or susceptible of more 
than one meaning then evidence of the surrounding circumstance will 
be admissible to aide the interpretation of the agreement. 

11. The admissibility of evidence of the surrounding circumstances is 
limited to evidence tending to establish objective background facts 
which were known to both parties which inform the subject matter of 
the agreement. Evidence of such objective facts is to be distinguished 
from evidence of the subjective intentions of the parties, such as 
statements and actions of the parties which are reflective of their actual 
intentions and expectations. 

12. Evidence of objective background facts will include:

(i) evidence of prior negotiations to the extent that the negotiations 
tend to establish objective background facts known to all parties 
and the subject matter of the agreement;

(ii) notorious facts of which knowledge is to be presumed; and

(iii) evidence of matters in common contemplation and constituting a 
common assumption.

13. The diversity of interests involved in the negotiation and making of 
enterprise agreements (see point 4 above) warrants the adoption of a 
cautious approach to the admission and reliance upon the evidence of 
prior negotiations and the positions advanced during the negotiation 
process. Evidence as to what the employees covered by the agreement 
were told (either during the course of the negotiations or pursuant to 
s.180(5) of the FW Act) may be of more assistance than evidence of the 
bargaining positions taken by the employer or a bargaining 
representative during the negotiation of the agreement.  

14. Admissible extrinsic material may be used to aid the interpretation of a 
provision in an enterprise agreement with a disputed meaning, but it 
cannot be used to disregard or rewrite the provision in order to give 
effect to an externally derived conception of what the parties’ intention 
or purpose was. 








[2020] FWC 5780

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15. In the industrial context it has been accepted that, in some 
circumstances, subsequent conduct may be relevant to the interpretation 
of an industrial instrument. But such post-agreement conduct must be 
such as to show that there has been a meeting of minds, a consensus. 
Post-agreement conduct which amounts to little more than the absence 
of a complaint or common inadvertence is insufficient to establish a 
common understanding.”

[41] This is a non-exhaustive statement of the principles to be adopted19 and I have applied 
this approach in determining this dispute.

[42] In Geo A Bond & Co Ltd (In Liq) v McKenzie,20 (Geo A Bond) Street J said:

“...it must be remembered that awards are made for the various industries in the light of 
the customs and working conditions of each industry, and they frequently result ... 
from an agreement between the parties, couched in terms intelligible to themselves but 
often framed without that careful attention to form and draughtsmanship which one 
expects to find in an Act of Parliament. I think, therefore, in construing an award, one 
must always be careful to avoid a too literal adherence to the strict technical meaning 
of words, and must view the matter broadly, and after giving consideration and weight 
to every part of the award, endeavour to give it a meaning consistent with the general 
intention of the parties to be gathered from the whole award.”

[43] In Re Aurora Energy Enterprise Partnership Agreement 2002 – 2005 Lacy SDP 
observed that:

“It is a widely accepted principle of statutory interpretation that the rules of construction 
are rules of common sense. Where the choice is between an interpretation that will 
result in inconvenience, injustice or absurdity and another which avoids such a result, 
then the latter ought to be adopted.”21

[44] The importance of context was emphasised by Burchett J in Short v Hercus Pty Ltd22

in the following terms:

“No one doubts you must read any expression in its context. And if, for example, an 
expression was first created by a particularly respected draftsman for the purpose of 
stating the substance of a suggested term of an award, was then adopted in a number of 
subsequent clauses of awards dealing with the same general subject, and finally was 
adopted as a clause dealing with that same general subject in the award to be 
construed, the circumstances of the origin and use of the clause are plainly relevant to 
an understanding of what is likely to have been intended by its use. It is in those 
circumstances that the author of the award has inserted this particular clause into it, 

                                               
19 See also Paper Australia Pty Ltd t/a Australian Paper v Australian Manufacturing Workers’ Union [2017] FWCFB 1621 
at [21].
20 [1929] AR (NSW) 498 at 503; See also City of Wanneroo v Holmes (1989) 30 IR 362 (at 378-379) and Amcor Limited v 
Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 at [2].
21 Re Aurora Energy Enterprise Partnership Agreement 2002 – 2005, [2008] AIRC 1074, at para 17; See also National 

Union of Workers v Plexicor Australia [2008] AIRC 1134.
22 (1993) 40 FCR 511, 517-8.








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and they may fairly be regarded as having shaped his decision to do so. The rules of 
construction, Mason and Wilson JJ. said in Cooper Brookes (Wollongong) Proprietary 
Limited v. The Commissioner of Taxation of the Commonwealth of Australia [1981] 
HCA 26; (1981) 147 CLR 297 at 320, are really rules of common sense. Common 
sense would be much offended by a refusal to look at the facts I have summarized. As 
Isaacs J. said in Australian Agricultural Company v. Federated Engine-Drivers and 
Firemen's Association of Australasia [1913] HCA 41; (1913) 17 CLR 261 at 272, 
citing Lord Halsbury L.C.: "The time when, and the circumstances under which, an 
instrument is made, supply the best and surest mode of expounding it.

(… … )

That much is fairly clear. Where there is seen to be a difficulty, the court can often go 
to the history of the matter. A number of illustrations will be found in Nurses (South 
Australia) Award (Interpretation) Case (ubi supra). But an ambiguity or obscurity may 
not be immediately seen on the face of a document. Both the problem and its solution 
may appear only when the wider context from which an expression first sprang is 
brought to notice. Is the court then forbidden to look past the document itself that is 
before it? The respondent says the instant award is clear, and we must shut our eyes to 
what went before. I think there are two answers to this argument. On the one hand, I 
do not accept that the award is clear on its face. The fact that I have given it a meaning 
by a process of construction (as it happens, contrary to the respondent's contention) 
cannot disguise the possibility of understanding the language, as the learned judge 
understood it, differently. (Cf. Pickard v. John Heine and Son Limited [1924] HCA 
38; (1924) 35 CLR 1 at 9, per Isaacs A.C.J.) That is certainly sufficient to justify a 
reference to its source. Where the circumstances allow the court to conclude that a 
clause in an award is the product of a history, out of which it grew to be adopted in its 
present form, only a kind of wilful judicial blindness could lead the court to deny itself 
the light of that history, and to prefer to peer unaided at some obscurity in the 
language. "Sometimes", McHugh J. said in Saraswati v. R [1991] HCA 21; (1991) 172 
CLR 1 at 21, the purpose of legislation "can be discerned only by reference to the 
history of the legislation and the state of the law when it was enacted". Awards must 
be in the same position.”23

[45] The nature of the present task has also been emphasised by the Full Bench in DP 
World Brisbane Pty Ltd v The Maritime Union of Australia24 in the following terms:

“[31] Importantly, the task of interpreting an enterprise agreement does not involve 
re-writing a provision in order to give effect to the Commission’s view of what would 
be fair and just, without regard to the terms of the agreement. As Madgwick J observed 
in Kucks v CSR Limited:

‘But the task remains one of interpreting a document produced by another or 
others. A court is not free to give effect to some anteriorly derived notion of 
what would be fair or just, regardless of what has been written into the award. 

                                               
23 This decision must be applied having regard to the fact that the instrument in that matter was an award of the Commission 

rather than an enterprise agreement made between the employer and a majority of the employees at the time of approval. See 

also AWU v Pasminco Australia Ltd and ors (2003) 131 IR 1 for the caution required in this regard.
24 [2013] FWCFB 8557.








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Deciding what an existing award means is a process quite different from 
deciding, as an arbitral body does, what might fairly be put into an award. So, 
for example, ordinary or well-understood words are in general to be accorded 
their ordinary or usual meaning.’”

[46] It is well established that terms are not easily implied into enterprise agreements.25

This is reinforced by the approach adopted in AMWU v Berri, and the implications of s.739(5)
of the FW Act that prevents the Commission from making a determination that is inconsistent 
with the terms of the approved enterprise agreement and the scheme of the legislation that 
permits variations only in certain defined circumstances. Implied terms must satisfy a number 
of prerequisites.26 For reasons that will become clear, I consider that several are absent in this 
case including the requirement that the implied term is reasonable and necessary for the 
effective operation of the clause and the requirement that it is so obvious that it goes without 
saying.

[47] More recently, the Full Court of the Federal Court in WorkPac Pty Ltd v Skene27

(WorkPac) also provided the following convenient summary of the required approach:

“[197] The starting point for interpretation of an enterprise agreement is the ordinary 
meaning of the words, read as a whole and in context. The interpretation “… turns on 
the language of the particular agreement, understood in the light of its industrial 
context and purpose …”. The words are not to be interpreted in a vacuum divorced 
from industrial realities; rather, industrial agreements are made for various industries 
in the light of the customs and working conditions of each, and they are frequently 
couched in terms intelligible to the parties but without the careful attention to form and 
draftsmanship that one expects to find in an Act of Parliament. To similar effect, it has 
been said that the framers of such documents were likely of a “practical bent of mind” 
and may well have been more concerned with expressing an intention in a way likely 
to be understood in the relevant industry rather than with legal niceties and jargon, so 
that a purposive approach to interpretation is appropriate and a narrow or pedantic 
approach is misplaced.”28 (citations omitted)

[48] The above observations are consistent with the approach taken in AMWU v Berri. In 
the end, my present task is to ascertain the objective intention of the 2016 EA based upon the 
language and terms of the agreement, when read as a whole, and considered having regard to 
its context and purpose. References to common intention of the parties are to be understood as 
referring to what a reasonable person would understand by the language in which the parties 
have expressed their agreement.

[49] The Applicant relies upon the good faith bargaining provisions of s.228 of the 
FW Act. This provision is part of the bargaining framework for enterprise agreements and 
there would be no doubt that it applied to the negotiations leading to the 2016 EA. The 
provision is in the following terms:

                                               
25 “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing 
Workers’ Union (AMWU) v Skilled Engineering Ltd [2003] FCA 260, [18].
26 BP (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266, 283 cited by the High Court in Byrne & Frew v 
Australian Airlines Ltd [1995] HCA 24 at paragraphs 12 -13.
27 [2018] FCAFC 131.
28 Ibid at [197].








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“228 Bargaining representatives must meet the good faith bargaining 
requirements

(1) The following are the good faith bargaining requirements that a 
bargaining representative for a proposed enterprise agreement must meet:

(a) attending, and participating in, meetings at reasonable times;
(b) disclosing relevant information (other than confidential or 

commercially sensitive information) in a timely manner;
(c) responding to proposals made by other bargaining representatives 

for the agreement in a timely manner;
(d) giving genuine consideration to the proposals of other bargaining 

representatives for the agreement, and giving reasons for the 
bargaining representative’s responses to those proposals;

(e) refraining from capricious or unfair conduct that undermines 
freedom of association or collective bargaining;

(f) recognising and bargaining with the other bargaining 
representatives for the agreement.

Note: See also section 255A (limitations relating to greenfields 
agreements).

(2) The good faith bargaining requirements do not require:

(a) a bargaining representative to make concessions during bargaining 
for the agreement; or

(b) a bargaining representative to reach agreement on the terms that are 
to be included in the agreement.”

[50] This was advanced in the context of a submission that the representatives of the Rail 
Commissioner, in effect, failed to disclose the interpretation of the RRR schedule that the 
Respondent now seeks to rely upon. I do not consider that there is any such obligation under 
s.228. There is also no reliable suggestion that there was a misrepresentation of the terms, and 
as will become clear, the representatives of the parties generally formed their own views as to 
the intention of the clauses and did not seek confirmation of this from the other parties or (in 
the case of the disputed elements) generally communicate this as part of the information 
provided as part of the formal employee approval process. As a result, even if the good faith 
bargaining obligations are directly relevant to the interpretation of an enterprise agreement, 
which I doubt, I do not consider that they have any work to do in this case.

[51] For completeness, I observe that the Commission is not empowered to grant some 
form of declaratory relief.29 Rather, the Commission is determining the proper application of 
the 2016 EA in order to determine the dispute between the parties about that instrument under 
the terms of the agreed dispute resolution procedure.30

                                               
29 AB v Tabcorp Holdings Limited [2015] FWCFB 523 at [11].
30 See Construction Forestry Mining and Energy Union v The Australian Industrial Relations Commission and Another 
[2001] HCA 16; (2001) 203 CLR 645, Kentz (Australia) Pty Ltd v Communications, Electrical, Electronic, Energy, 

Information, Postal, Plumbing and Allied Services Union of Australia [2016] FWCFB 2019 and Endeavour Energy v 

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

[2016] FCAFC 82.








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8.2 The context

The Rail Commissioner

[52] The Rail Commissioner operates under the RC Act. Under s.4 of the RC Act, the Rail 
Commissioner is established as a body corporate.

[53] Under s.5 of the RC Act, the Rail Commissioner will be constituted by a person 
appointed from time to time by the Governor, and the Governor may also appoint a Deputy 
Rail Commissioner. Presently, the Rail Commissioner is Mr Tony Braxton-Smith and Ms 
Alford is the Deputy. They also hold the positions of Chief Executive, Department 
Infrastructure and Transport and Executive Director South Australian Public Transport 
Authority respectively. 

[54] The Rail Commissioner is responsible to the Minister for Infrastructure and Transport.
Under s.5, the Rail Commissioner is subject to the direction of the Minister.

[55] Section 7 of the RC Act outlines the various functions of the Rail Commissioner and 
this has been set out earlier in this Decision. The Rail Commissioner has formally delegated 
responsibility and authority to departmental employees to be able to undertake day-to-day 
management of the network.31

[56] The Rail Commissioner has the power to make decisions to enter service contracts 
including making decisions to outsource work performed by its employees under s.7 of the 
RC Act. The Minister also has such powers under the Passenger Transport Act 1994 (SA) (PT 
Act).

[57] Section 39 of the PT Act provides that the Minister may set out in a service contract 
the terms and conditions on which a regular transport service is to be operated within the 
State.

The negotiations leading to the 2016 EA

[58] The enterprise agreement in place at the time of the negotiations for the 2016 EA, the 
Rail Commissioner Rail Operations Enterprise Agreement 2011, contained a No Forced 
Redundancy (NFR) provision,32 which was common across most of the SA public sector at 
that time that it was approved. In the lead up to the negotiations in 2016, the State 
Government policy was to replace the NFR program with a new Redeployment Retraining 
Redundancy (RRR) program across the broader public sector, introduced via the enterprise 
bargaining process. The former NFR program provided, amongst other provisions, that if an 
employee was "declared excess" and that employee entered into the NFR program, there was 
no timeframe that triggered " redundancy". In the bargaining for the 2016 EA various 
employee interests initially sought in effect, that the NFR, or at least its key features, be 
retained. 

[59] During 2016, there were two earlier proposed enterprise agreements which contained a 
RRR provision that were soundly rejected by a majority of employee group who voted in each 

                                               
31 The evidence of Mr Nikoloski at transcript PN877.
32 Clause 16.








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ballot. Following the rejection of the second proposed agreement (the rejected proposal) 
Mr Collis was engaged as a bargaining agent by some employees, with eventually, a large 
number of Rail Operations employees also appointing him as their bargaining agent.

[60] For reasons set out above, during the negotiations, the AEA sought, amongst other 
matters, that the new agreement in 2016 have an improved RRR provision than was contained 
in the earlier 2 rejected proposed agreements. In particular, it sought that there be a higher 
threshold for an employee to be made redundant and the payments to be made to employees 
as the outcome of the RRR process would be at their pre-excess declaration average earnings. 
I find that these issues were highlighted due to concerns held by the AEA (and others) that the 
rail service might be privatised (outsourced) by a future State Government and this context 
was understood by the parties.

[61] The Rail Commissioner was seeking to have an agreement proposal that was likely to 
be endorsed by the employees and to that end advanced a proposed RRR schedule based upon 
an existing provision contained in an agreement applying to another group of employees 
within the SA public sector; being the South Australian Public Sector Wages Parity 
Enterprise Agreement: Weekly Paid 201533 (the Weekly Paid Agreement) This had the 
advantage of achieving some consistency across the SA public sector and this was one of the 
objectives of the “government” negotiators. Although little if anything turns on this aspect, 
that rationale was not one expressly agreed by the negotiators. The proposal then being 
advanced by the Rail Commissioner also had additional benefits for the employees including 
as to the benchmark pay rates for alternative employment and some other conditions
associated with the conclusion of the RRR process.

[62] I find that there were some discussions about the issues being pursued by the AEA; 
however, there was little detailed negotiations about the terms of the revised RRR schedule 
beyond the notion that it was an improved version having regard to the concerns of the 
employees. The improvements proposed by reference to the (second) rejected agreement draft 
were highlighted by representatives of the Rail Commissioner.34 I also accept that the 
potential inclusion of an express reference to the aggregate wage for the train drivers was 
raised by the AEA but not included in any drafts because the Rail Commissioner’s 
representatives sought a provision that would apply to all employees. 

[63] Amongst other changes brought about by the proposed new RRR schedule, which 
were the same as the Weekly Paid Agreement and found their way into the 2016 EA, the 
following are significant when compared to the rejected version:

[64] The criteria for the assessment of suitable employment in the rejected proposal 
provided as follows (highlighted to assist the comparison):

“4.2 Criteria for suitable employment

a. The hours of work remain the same or similar where practicable;
b. It is a reasonable distance/location from the employee’s residence to the 

new place of employment;

                                               
33 An agreement approved under the SA FW Act.
34 Document CR12 attached to Exbibit A1 as an example.








[2020] FWC 5780

46

c. The classification is commensurate with the employee’s job fit 
assessment and analysis, and the employee is assessed as being able to 
perform the role with reasonable training and support over a reasonable 
period of time;

d. The classification does not provide a wage/salary of less than 75% of 
the employee’s substantive wage/salary;

e. The nature of the work is such that it is reasonable to perform, taking into 
account the employee’s skill and experience;

f. There are no extenuating factors specific to the employee/worksite that 
would make it unreasonable for the employee to perform the ongoing 
permanent role.

4.2.2. The above criteria does not limit further discussions and agreements between 
the employee and their case manager. 

4.2.3. The applicable Income Maintenance policy will apply to employees 
transferred to a suitable ongoing role.”

[65] The version of this clause in the RRR schedule forming part of the 2016 EA is set out 
earlier in this decision. In particular, the reference to “the classification does not provide a 
wage/salary of less than 75% of the employee’s substantive wage/salary” in subclause (d) and 
to the “applicable income maintenance policy” in subclause 4.2.3, has, in effect, been 
replaced in the 2016 EA with the following:

“b. The level of remuneration is not less than what the employee was earning prior 
to becoming a redeployee;

…

d. The classification is not lower than the employee was previously engaged as;

…”

[66] I accept that the parties expressly intended to remove reference to the “applicable 
income maintenance policy”. There is such a policy and I observe that if that policy still had 
relevance due to the operation of clause 6.2 of the 2016 EA, it would have no work to do as it 
applies only to employees who are redeployed to a lower classification. This circumstance is 
not contemplated by the final agreement due to subclause 4.2.1 (d) of the final provision. This 
understanding is shared by the parties to this matter. I also observe that the final version 
contained in the RRR schedule was an improvement on the rejected version as the benchmark 
for the redeployment position has changed from 75% of the employee’s substantive 
wage/salary, supported by an income maintenance policy that would have provided 100% 
only for a defined period and only where a lower position was being provided, to a benchmark 
of the level of remuneration (100% without the potential for a lower classification to be 
considered suitable (except by agreement)).

[67] The provision entitled Conclusion of the Redeployment Process in the rejected 
proposal provided relevantly as follows (highlighted to assist the comparison):

“4.6 Conclusion of the Redeployment Process

4.6.1 The redeployment process will end only when the following criteria has been 
satisfied:








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47

a. The employee has accepted employment in an ongoing role; or 

b. For an employee whose position has been determined to be excess as a 
result of the Rail Commissioner’s decision to privatise, outsource, 
contract out or the closure/part closure of a service(s) and all reasonable 
attempts have been made to offer that employee a suitable ongoing 
permanent role as set out in 4.3; or

c. The employee has been offered employment in a suitable ongoing 
permanent role and has declined such ongoing employment;

d. The Rail Commissioner and employee have negotiated, been offered and 
accepted an additional separation payment 

e. For employees other than those in 4.6.1(b), all reasonable attempts 
have been made to offer suitable alternative employment and the 
redeployment process set out in 4.3 is completed; or

f. The employee has at any stage elected to take a VSP, in accordance with
step 4.7.”

[68] The final version of this clause as directly relevant for present purposes is as follows:

“4.6 Conclusion of the Redeployment Process

4.6.1 The redeployment process will end only when the following criteria has been 
satisfied:

a. The employee has accepted employment in an ongoing role; or

b. For an employee whose position has been determined to be excess as a 
result of the Rail Commissioner’s decision to privatise, outsource, 
contract out or the closure/part closure of a service(s) and that employee 
has been offered employment in a suitable ongoing permanent role 
and has declined such ongoing employment;;

c. The Rail Commissioner and employee (and union if requested by the 
employee) have negotiated, been offered and accepted an additional 
separation payment;

d. For employees other than those in 4.6.1(b), the process set out in 4.3 
is completed; or

e. The employee has at any stage elected to take a VSP, in accordance with 
step 4.7.”

[69] I observe that the effect of the new version of this clause involved changing the 
requirement in subclause (b) from “all reasonable attempts to offer”, to the “employee has 
been offered employment”. Given that what was subclause (c) in the rejected version; “the 
employee has been offered employment in a suitable ongoing permanent role and has declined 
such ongoing employment” has been included in subclause (b), an objective understanding of 
this would be that a change and higher obligation was intended by that revised subclause. 

[70] I emphasise that the above changes are set out in this form only to highlight the 
immediate changes of direct interest in establishing the context for the 2016 EA. I have 
applied the full terms of the RRR schedule in discerning its meaning.








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[71] There are some other changes between the RRR provisions in the various versions;
however, the above illustrates the major changes of relevance to the objective understanding 
of the parties and the determination of the dispute. I observe that although these changes 
occurred because a model used elsewhere (the Weekly Paid agreement) was utilised, it is the 
meaning of the provisions in the context of final and complete 2016 EA that ultimately must 
be considered and applied by the Commission.

[72] The AEA’s negotiators formed the view that the proposed RRR schedule met its 
concerns and determined to recommend the proposed agreement (which also contained some 
other important additional benefits) to the employee group, leading to a significant 
endorsement of the 2016 EA. It is also the case that the representatives of the Rail 
Commission did not discuss the interpretation of the RRR schedule that it is now advocating
with the other parties, but equally, the AEA negotiators did not seek confirmation that their
view of those provisions was shared. 

[73] More relevantly for present purposes, as part of the process leading to the employee 
ballot for the 2016 EA, various materials were formally provided to inform them as to the 
intended operation of the Agreement. This included the following statement about provisions 
directly relevant to this dispute:

[74] From the Agreement Explained document provided to the employees:35

“17. REDEPLOYMENT, RETRAINING AND REDUNDANCY

This clause is different from the 2011 Agreement, in which it was titled ‘No Forced 
Redundancy'. This clause now specifies that there will be no forced redundancies up to 
and including 1 January 2018, and that from 2 January 2018, ongoing employees who 
are declared excess will be subject to Schedule 5, which forms part of this Agreement. 
Schedule 5 provides for Redeployment, Retraining and Redundancy provisions, 
including consultation around changes to workforce composition, access to voluntary 
separation packages, the process for identifying excess employees, the redeployment 
process and the process for disputes.

… … 

SCHEDULE 5 - RAIL OPERATIONS - REDEPLOYMENT, RETRAINING 
AND REDUNDANCY

This Schedule is new in the proposed Agreement and provides a detailed process to be 
undertaken in the event of changes to workforce composition including requirements 
for consultation, determining excess employees and the management of redeployment, 
retraining and redundancy of employees who have been declared as excess. It also 
provides for voluntary separation packages.

Objectives
The objective of this Schedule is to ensure that proper consultation occurs between the 
Rail Commissioner, employees and the relevant union/s regarding changes in 
workforce composition.

                                               
35 Document CR12 attached to exhibit A1.








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Seriously Considering Changes to Workforce Composition
The Rail Commissioner will notify affected employees if it is seriously considering 
changes to workforce composition and will consult with employees and the relevant 
union/s.

Voluntary Separation Process
The Rail Commissioner can call for employees to express their interest in a Voluntary 
Separation Package (VSP). The Rail Commissioner will then consult with the relevant 
employees and the relevant union/s regarding the outcomes of this process. For the 
purpose of a VSP, an employee will be paid not less than the Department of Treasury 
and Finance - Targeted Voluntary Separation Packages as at 1st July 2015. In addition 
to the payment of a VSP, an additional lump sum payment of $15,000 will be payable 
to an eligible employee who accepts a VSP either as a result of an EOI or within the 
first three months of being declared excess/redeployee.

Process for identifying excess employees
If there are not enough Expressions of Interests to meet the number of excess 
positions, the Rail Commissioner will notify the relevant employees and the relevant 
union/s. Selection criteria for forced redundancies will then be created through 
consultation with the relevant union/s.

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

Disputes
Where a dispute arises in relation to the operation of this Schedule, the parties may 
raise a dispute in accordance with 23 – Resolving Workplace Concerns or Disputes of 
the Agreement.

Review
The Rail Commissioner and the RTBU will review the implementation of this process 
no earlier than 12 months after date of approval of this enterprise Agreement.”

[75] From a formal information poster provided by the Government of South Australia:36

“Job protection: one suitable job offer guaranteed under RRR”; and

“Retention of no forced redundancy till 1 January 2018”.

                                               
36 Document CR13 attached to exhibit A1.








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[76] As outlined earlier, the improved offer represented by what is now the 2016 EA 
received strong support from the employees (226 Yes votes to 60 No votes) compared to the 
rejected version (98 Yes votes to 217 No votes).37

The outsourcing decision and process

[77] In May 2019, the Rail Commissioner (and the Department) was informed that the 
South Australian Cabinet had made a decision that rail operations should go to external 
tender. This is, that the train operations would be outsourced to a private sector provider to be 
selected through a tender process. The Rail Commissioner was informed that its (and the 
Department’s) role would be to help implement the decision, including by helping prepare 
and evaluate the tender process. This occurred with a view to the final decision on the 
awarding of any contract to be made by Cabinet. No formal direction was given to the Rail 
Commissioner and none was sought.

[78] The contract was eventually awarded to Keolis Downer by a decision of the South 
Australian Cabinet in September 2020. 

[79] On 18 September 2020, two service contracts were simultaneously executed: a 
contract between Keolis Downer and the Rail Commissioner to provide rail operations and a 
service contract between the Minister for Infrastructure and Transport and the Rail 
Commissioner. I understand that the service contract is between Keolis Downer and the Rail 
Commissioner because the Rail Commissioner is responsible to the Minister for oversight of 
rail operations under s.7 of the RC Act.38

[80] Keolis Downer will commence rail operations on 31 January 2021 and in doing so will 
engage employees to perform duties formerly undertaken by employees covered by the 2016 
EA. 

[81] Keolis Downer may make offers of employment to current Rail Commissioner 
employees and a process of seeking expressions of interest is currently underway. 

[82] If a Rail Commissioner employee receives an offer of employment from Keolis 
Downer, that employee has the sole discretion over whether they accept the offer. If 
employment then occurs, it is likely that the 2016 EA (or its replacement if made and 
approved prior to the transfer) will become relevant to that employment by virtue of the 
operation of Part 2-8 of the FW Act.

[83] If the Rail Commissioner employee does not accept the job offered by Keolis Downer 
or is not offered a job at all, the normal work the employee has been doing will cease in late 
January 2021, however the employee will continue in the employ of the Rail Commissioner.
It is also possible that the Rail Commissioner may seek to second one or more of its 
employees to Keolis Downer to deal with any short-term skill shortages. If that occurs, it is 
likely that the 2016 EA (or its replacement) will apply to that work with the full payment of 
relevant wages and entitlements. 

                                               
37 Exhibit A2.
38 The evidence of Ms Alford.








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Negotiations for a new enterprise agreement

[84] The 2016 EA passed its nominal expiry date on 30 June 2020. Negotiations for a new 
enterprise agreement have been in place both before and after that date. A proposed 
agreement has been put out to the employees for approval and the Commission has been 
advised that the ballot concluded on 10 November 2020. Despite the dispute about how the 
RRR schedule should be applied, no party has sought a change to the existing provisions and 
the proposed new agreement reflects the existing terms. Given that all parties could have 
sought to confirm their (disputed) position by seeking some change to the provisions, no 
inference should be drawn from this circumstance.

[85] The Commission has now also been advised that the proposed new enterprise 
agreement has been approved by a valid majority of employees and that an application for 
approval under s.185 of the FW Act has been made. If subsequently approved by the 
Commission, the 2016 EA would cease to operate and would no longer cover the relevant
parties39 and would not be relevant to any transferring employees. I also observe that if the
new enterprise agreement is not approved by the Commission prior to the transfer of the 
business (and the employees who take up an offer of employment with Keolis Downer) the 
existing 2016 EA will transfer with that employment.

8.3 The issues

[86] I consider that the following issues properly arise in this matter for determination by 
the Commission.

“Unassigned” and/or declared excess

If an employee's normal duties cease because their work is being undertaken by an 
outsourced operator, is there a period where the employee is not performing normal 
duties before potentially being declared "excess" for the purposes of the RRR 
Schedule and when does each apply?

Rate of pay once an employee has ceased normal duties and when they have been 
declared excess

This involves consideration as to what provisions of the 2016 EA determine the pay 
for an employee, from the date they cease normal duties and/or declared excess until 
the redeployment process concludes - and what these provisions require the employee 
to be paid.

Meaning of “level of remuneration” in clause 4.2.1 (b)

What does "level of remuneration" mean in relation to 'Criteria for suitable 
employment' at Schedule 5, clause 4.2.l (b) of the 2016 EA?

The conclusion of the redeployment process 

                                               
39 Section 54(3) of the FW Act.








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When, and under what conditions, does the RRR process conclude for an employee 
who is a redeployee pursuant to the terms of the RRR Schedule, clause 4.6?

Does clause 4.6.1 (b) and/or 4.6.1 (d) of the RRR Schedule apply to the employees 
whose normal duties cease because their work is being undertaken by the outsourced 
operator in this particular case?

If clause 4.6.1 (b) applies to this outsourcing, is this the only basis upon which the 
RRR process may conclude for a relevant employee to whom that provision applies?

[87] I do not consider that it is necessary or appropriate to speculate about the application 
of the exceptional circumstances provision in clause 4.3.6 of the RRR schedule beyond that 
which arises directly from the above issues. I agree with the RTBU and Rail Commissioner in 
this respect. The role and considerations associated with this aspect are clearly set out in the 
provision itself and each case would need to be considered on its own merits.

8.4 The proper application of the 2016 enterprise agreement to the issues in this 
dispute

[88] I have applied the approach to the proper construction of an enterprise agreement set 
out earlier in this decision starting with the terms of agreement itself. In relation to the 
relevance of the negotiations I have considered this context without regard to the subjective 
views of the negotiators. Without repeating the earlier discussion, evidence of prior 
negotiations is admissible to the extent that it establishes objective background facts known to 
all parties and the subject matter of the agreement; notorious facts of which knowledge is to 
be presumed; and evidence of matters constituting a common assumption. However, a 
cautious approach to reliance upon evidence of prior negotiations is warranted because of the 
diversity of interests involved in making an enterprise agreement.

[89] There are some elements of this context that are relevant to the proper construction of 
the 2016 EA including that the parties were negotiating, amongst other matters, the terms of 
the RRR schedule in the context of a potential outsourcing of the rail operations by a future 
State Government. This included that the proposed agreement involved moving away from 
the (then) existing NFR provision and the nature of the changes more generally from the 2011 
EA. Further, the material provided to the employees as part of the employee approval process, 
including by reference to the earlier rejected proposals, and the actual changes between 
versions of the proposed agreements, are of assistance in discerning the common objective 
intention.

[90] As set out in the authorities, regard may be had to this context in determining whether 
the provisions of the 2016 EA are ambiguous as well as for the purposes of resolving any 
such ambiguity. Consistent with the authorities outlined earlier, language considered in its 
context will often have a clear meaning and context will often not displace that meaning –
“but not always”.40 Further, in seeking the common objective intention I have had regard to 
the Agreement as a whole, including its approach to wage rates, and the RRR schedule as a 
whole, including its structure and the combined effect of the provisions.

[91] I now turn to the issues identified earlier. 
                                               
40 Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at 384 per McHugh, Gummow, Kirby 
and Hayne JJ. 








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“Unassigned” and/or declared excess

[92] It is common ground between the parties that the term “unassigned” is not used within 
the 2016 EA and is unhelpful. However, based on written submissions, there remained a 
dispute between the parties as to how and when an employee is declared excess and whether 
there will be a period between that point and when the normal duties cease because of the 
outsourcing. This was clarified by the Applicant in final oral submissions and it is now 
common ground that a period of this kind is likely to occur. Notwithstanding that consensus, 
it is appropriate that I outline the basis upon which I agree that this is the case as it informs 
the later issues and their disposition. 

[93] When the RRR schedule is read as a whole, it becomes apparent that a sequential 
process is envisaged. This will involve a period between the point when the normal duties 
cease because of the outsourcing and the declaration of an employee being excess during 
which some of that process must take place.

[94] The term is defined” at the end of the RRR schedule as follows:

"Declared excess" means the date of written notice to the employee that their position is 
no longer required.

[95] The declaration that an employee is "excess" occurs under sclause3.4 of the Procedure. 

[96] Section 2.1.1 states that:

“the Rail Commissioner will only call for EOIs after the number of genuinely redundant 
positions has been determined in accordance with the consultation requirements 
outlined above and following any Transfer of Business arrangements applicable under 
the Fair Work Act 2009 (Cth), unless otherwise agreed.”

[97] Section 3.1.1 of the Procedure makes it clear that the process for identifying excess 
employees commences after the call for expressions of interest (EOI) in a VSP. Further, the 
identification of excess positions occurs prior to, and is linked with, the eventual 
identification of excess employees.

[98] This means in the present context that calls for expressions of interest in a VSP would 
occur under clause 2 of the procedure after the transfer of business, and the confirmation of 
employees who elect to transfer, is completed. This may also need to include consideration of 
any ongoing staffing needs as a result of a request to second appropriately skilled employees 
(at least for a period) to Keolis Downer. If there are insufficient numbers of EOIs, excess 
employees are then identified and formally notified that they are "excess" in accordance with 
clause 3.4.

[99] That is, the Rail Commissioner would notify the relevant employees and the RTBIU
that the particular employees will be made redundant. Prior to notifying a redundant 
employee, the Rail Commissioner must declare that the employee's position is no longer 
required and therefore "excess" (redundant). The date of that notification to the employee will 
be the date the employee is "declared excess" as defined. This triggers the redeployment 
process set out in clause 4 of the RRR schedule.








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[100] As a result, the stages leading to and following the declaration of being excess are as 
follows:

 Consultation when the employer is seriously considering changes to workforce 
composition;41

 Identification of likely excess positions;

 A VSP process in accordance with clause 2 of the RRR schedule;

 A process for identifying excess employees after expressions of interest in VSPs
have been obtained in accordance with clause 3 of the RRR schedule;

 The final determination of positions no longer being required and a formal 
declaration of excess employees; and

 A redeployment process for those excess employees in accordance with clause 4 of 
the RRR schedule.

[101] Accordingly, there is likely to be a period between the time that the normal work of 
the employees ceases due to the outsourcing and any declaration of employees being excess to 
enable the necessary parts of the above procedure to be undertaken by the Rail Commissioner
before the declarations are made. I do however agree with the Applicant that any such period 
should be as short as possible and not be used to unreasonably extend the process before a 
declaration of excess can be made. The obligations operating upon the Rail Commissioner 
under the above process must also be taken seriously and implemented in full and this will 
also impact upon the length of that process.

Rate of pay once an employee’s normal work has ceased and when they have been
declared excess

[102] Based upon the final submissions of the parties the first element of this issue is 
common ground. That is, in the period once an employee has ceased normal work due to the 
outsourcing, an employee will be paid the relevant specified weekly wage rates, pending the 
process that may lead to a declaration of being “excess”. 

[103] In the absence of any suggestion that a term of the RRR schedule addresses this period
with respect to wages and other conditions, the normal operation of the 2016 EA should 
apply. 

[104] However, the arrangements to apply after a declaration of an employee being “excess” 
remain in dispute. The Applicant contends that at this point, clause 4.2.1 of the RRR schedule 
applies to the employee(s) concerned. This in turn means that, amongst other matters, the 
level of remuneration must not be less than what the employee was earning prior to becoming 
a redeployee (clause 4.2.1 (b)).

[105] The Rail Commissioner contends that clause 4.2.1 is not relevant as an employee does 
not become a redeployee by being declared to be excess and the provision is not directed to 
this issue at all.

                                               
41 This is already occurring. 








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55

[106] The parties also dispute the meaning of the provision more generally and I will deal 
with that issue shortly.

[107] To understand whether clause 4.2.1 is directed at the present issue it is necessary to 
consider the full context of the provision and the scheme of the RRR schedule as a whole. I 
have earlier broadly outlined the process established by the schedule in dealing with the first 
issue. 

[108] Clause 4.2.1 is clearly part of the redeployment process (or program as it is described 
in some clauses). This is clear from the structure of the schedule, its placement in clause 4 and 
the terms of the provision itself. The commencement of the redeployment process is set out in 
clause 4.1 and includes the following operative elements:

“4.1.1 Following receipt of written advice of being declared an excess employee, 
where an employee has elected to become a redeployee (i.e. has decided not to 
accept an offer for VSP), the redeployee will be assigned a case manager and 
will participate in the redeployment/retraining program.”

[109] As a result, it is tolerably clear on face value that an employee will become a 
redeployee if they have received a written advice that they have been declared an excess 
employee and elects to become a redeployee by not accepting a VSP. 

[110] Clause 4.1.2 then provides as follows:

“4.1.2 A redeployment plan will be established in consultation with the redeployee 
which aims to identify a suitable alternative ongoing permanent role in the 
public sector. The plan will also include (but not be limited to):

details of any training to be provided; and
skills or duties relevant to a suitable placement and/proposed role.

[111] Accordingly, the purpose of the redeployment process and the next step is to identify 
“a suitable alternative ongoing permanent role in the public sector”. This is the context in 
which clause 4.2 operates and this is made clear by the terms of the provision itself; namely:

“4.2.1. An ongoing permanent role in any agency in the Public Sector will only be 
considered suitable for the purposes of redeployment if (unless the 
employee otherwise agrees):

a. The hours of work remain the same or similar;
b. The level of remuneration is not less than what the employee 

was earning prior to becoming a redeployee;
c. It is a reasonable distance/location from the employee’s 

residence to the new place of employment;
d. The classification is not lower than the employee was 

previously engaged as;
e. The nature of the work is such that it is reasonable to perform, 

taking into account the employee’s skill and experience;








[2020] FWC 5780

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f. There are no extenuating factors specific to the 
employee/worksite that would make it unreasonable for the 
employee to perform the ongoing permanent role.

4.2.2. The above criteria does not limit further discussions and agreements between 
the employee and their case manager.” (emphasis added)

[112] As a result, an employee at this point is a redeployee but the apparent purpose of this 
provision is to define the nature of the future role to be sought by the RRR process rather than 
to determine the arrangements that are to be applied during that process itself.

[113] The question then becomes whether this provision is ambiguous when considered in 
context and/or whether there is any other basis to give this provision a wider import than its 
apparent purpose.

[114] The fact that the relevant terms of the proposal which became the RRR schedule were 
developed in response to a claim to improve the provision from the notion of “a wage/salary 
of less than 75% of the employee’s substantive wage/salary” supported by the income 
maintenance policy, does not assist the Applicant. This follows because the provision sought 
to be improved was directed to the same issue; namely, the nature of the future role. Whilst I 
accept that Mr Rogers and Mr Collis genuinely considered that the improvement met their 
concerns more generally, the reality is that the parties did not even turn their mind in any joint 
sense to the issue of the pay arrangements that are to apply whilst the RRR process is 
underway. As a result, even if relevant, this would not provide the foundation for a finding 
that this element of the provision was ambiguous or that a different objective interpretation 
was open.

[115] For reasons set out earlier, I also do not consider that there is any basis to imply a 
broader application of this part of the RRR schedule. This includes the evidence about the 
relatively high proportion of earnings that is made up in this workplace by payments such as 
overtime and public holiday penalties and the like, which I accept. However, none of this 
enables the Commission to imply terms that are not there, given the relevant principles. 

[116] As a result, I consider that there are no provisions in the RRR that address themselves 
to the rate of pay to be applied during the redeployment process itself. This means that the 
normal provisions of the 2016 EA apply, just as is the (agreed) case for the period prior to the 
declaration of an employee being excess. If an employee is in the RRR process and only if 
they are otherwise entitled to be paid additional amounts beyond their relevant weekly wage 
rate based upon the duties and hours they are then working or if due under some other term or 
condition,42 this is to be paid. If there are no such entitlements provided by the terms of the 
2016 EA, the weekly wage rate would be relevant.

[117] For reasons that I have outlined earlier, there was a significant adjustment in some of 
the submission on this issue during final submissions. In that light, there was not an 
opportunity to fully raise the potential consequences of the above finding with the parties. As 
a result, should there be a need for further clarification on the practical application of the 
outcome in paragraph [116] above, I will grant leave to apply for a further determination on 
that aspect.

                                               
42 This would not include clause 4.2.1 (b) of the RRR schedule for reasons that are set out below.








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Meaning of “level of remuneration” in relation to 'Criteria for suitable employment' at 
Schedule 5, clause 4.2.l (b) of the 2016 EA

[118] The clause is ambiguous when considered in context.

[119] I accept, for the reasons largely set out by Mr Rogers, that the concept of remuneration 
often connotes a broader application than references to concepts such as wages, base rates or 
even salary, depending upon the context in which it is used. The reference in those 
submissions to the South Australian legislation is not directly relevant to this matter but is 
illustrative of the potential broader use of the term “remuneration”.43 The elements making up 
“remuneration” that might be included for different purposes are also context related. I also 
accept the proposition advanced by the Rail Commissioner that the meaning of the term must 
be assessed in the context of the 2016 EA as a whole and that the concept of the “level of
remuneration” being earned is the focus of the immediate provision.

[120] I do not consider that the phrase “level of remuneration” should be applied as narrowly 
as contended by the Rail Commissioner or as broadly as that posited by Mr Rogers in the 
context of its use within the 2016 EA. In addition, I consider that both parties have placed too 
much emphasis upon where the RRR provision was drawn from. It was not expressly agreed 
on the basis of the Weekly Paid Agreement and the employees were not told that this drafting 
heritage was the basis of the provision during the approval process. The 2016 EA must be 
considered as a whole, including how the notion of “remuneration” or remuneration levels are
used within its terms. Whatever the RRR provisions may mean when placed in a different 
context is not of much assistance to the present matter.

[121] The term “remuneration” is not defined within the 2016 EA and it is used somewhat 
inconsistently. It first appears in part one of the Agreement, in clause 2.2.4. where the 
instrument defines an intention to provide “employees with remuneration and benefits which 
reflect the competitive performance of the organisation.” This appears to invoke a broader use 
of the term; however, little can be made of this for present purposes given its immediate 
context. 

[122] I have set out the most immediately relevant elements of clause 21 of the 2016 EA 
earlier in this decision. Clause 21.1.3 refers to the “renumeration levels applicable to each 
classification” being set out at schedules 1 and 3. This is potentially significant as I accept that 
the two phrases are objectively likely to intend the same result. Whilst I consider that this is 
appropriate, I do observe that the Agreement also describes the contents of schedules 1 and 3 
as setting out “rates of pay” or “wage rates”44 and this illustrates that care should be taken in 
adopting a strict approach to the words used. Further, whilst not of itself determinative, the 
fact that the term “level of remuneration” is not defined by reference to what benefits are to be 
included and whether any such elements are averaged over a period of time, is indicative of 
the fact that the 2016 EA does not contemplate something beyond that which is addressed as a 
level (already) defined or established by the terms of the Agreement. This tends to reinforce
the intended role of the rates and arrangements contemplated in schedules 1 and 2.

                                               
43 See also Shorten and Others v Australian Meat Holdings Pty Ltd (1996) 70 IR 360 for a discussion of the term when used 

in a different context.
44 Including clauses 21.11 and 21.15 and in each of the schedules concerned.








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[123] I have earlier also set out the main terms of the 2016 EA dealing with the aggregate 
wage for Train Driver classifications including the operative elements within schedule 1. In 
addition, schedule 7 provides the detailed guidelines for the calculation of the aggregate wage 
levels. Clause 3 of schedule 7 defines the concept of the aggregate wage in the following 
terms:

“3.0 DEFINITIONS

Clause 33.2 Aggregate Wage

So far as normal rostered work is concerned the Parties to this Part of this 
Award may agree to apply the penalties and allowances provided for Saturday 
and Sunday time, overtime, shift work, broken shifts, distance payment and 
annual leave loading (built into the base rate) on an averaging basis and this 
arrangement will be referred to as the "Aggregate Wage".”

[124] Of potential significance is that although the aggregate wage is recalculated from time 
to time to reflect roster changes and changes to wage rates and allowances that form part of 
the calculation, the following example from schedule 7 further defines the nature of that 
wage:

“AGGREGATE CALCULATION

The total cost of weekly penalties then needs to be incorporated in the following 
formula to calculate the Aggregate Wage:

Example
45 weeks x (base rate + penalties per week)

+ 7 weeks (5 weeks A/L and 2 weeks LSL) x base rate

= Total earnings per annum

� 52 weeks
x 100

� base rate

= Aggregate percentage

Therefore;

45 weeks x ($ 780.50 + $ 
181.45)

= $ 43,287.75

+ 7 weeks x $ 780.50 = $ 5,463.50

= Total earnings per annum = $ 48,751.25

� 52 weeks = $ 937.52








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x 100 = $ 93,752.40

� base rate ($ 780.50) = 120.12%

Aggregate percentage = 20.12%

FINAL CALCULATION

For the Suburban Train Drivers, Intermediate, Operations Co-ordinators and Senior 
Drivers, the Aggregate Wage is automatically transposed onto the Control Sheet, and 
that is the final figure.

For the Suburban Train Drivers, Mainline, a combined Aggregate wage is calculated 
by using a weighted average of the Aggregate Wage rates from the four Depots 
(Adelaide, Belair, Gawler and Port Stanvac). Each figure is weighted by the number of 
lines of work at that depot using the formula:

(Agg Wage-Adelaide x no. of lines at Adelaide) + (Agg Wage-Belair x no. of lines at 
Belair) + (Agg Wage-Gawler x no. of lines at Gawler) + (Agg Wage-Pt Stanvac x no. 
of lines at Pt Stanvac) all divided by the total number of lines on the roster for all 
depots.

The result becomes the Aggregate Wage paid to all Suburban Train Drivers, Mainline, 
regardless of their depot.”

[125] Further, the aggregate wage as calculated continues to be paid even where there are
extended line closures (to allow for electrification works) and the aggregate wage was not 
reduced as a result of the implementation of shift harmonisation that would otherwise have 
impacted upon that wage.45 There is also an aggregate wage calculated for the defined 
classifications of Train Drivers46 and this reflects the levels in schedule 1. The aggregate wage 
is also expressly provided for in schedule 1.

[126] In light of the above, based upon the terms of the Agreement I see no objective reason 
why the concept of the level of remuneration as used in the 2016 EA should not include the 
different aggregate pay levels for the Drivers. This fits the ordinary and plain meaning of the 
term and although this leads to a different outcome for Drivers, (as opposed to other classes of 
employees) the reality is that it is only the Drivers that have the concept of an aggregate wage 
recognised in the relevant schedules. There is nothing in the context or the other relevant 
considerations that would support a broader or narrower interpretation of this provision. 

[127] I also consider that as intended in the present context, the phrase “prior to becoming a 
redeployee” is a reference to the commencement of the RRR process for that employee and 
not necessarily the remuneration being paid at the time the employee is declared to be excess.

[128] As a result, I find that the level of remuneration for present purposes means the 
relevant rates of pay that are set out in schedules 1 and 3, including the aggregate wage that 
has been determined under the arrangements contemplated in clause S.1.2 for the different 
levels of Drivers, that applied prior to the employee concerned becoming a redeployee. 

                                               
45 Clause S1.2.4 and S1.2.5 of schedule 1.
46 Clause 4 of schedule 7.








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However, the level of remuneration for this purpose does not include any (other) allowances, 
specific shift or disability payments, penalties or overtime payments. This, along with the 
other elements of clause 4.2.1 of the RRR schedule, set the benchmark requirements for what 
would be a suitable ongoing role in the Public Sector for the purposes of redeployment. 

The conclusion of the redeployment process 

[129] Clause 4.6 is clearly intended to provide the circumstances in which the redeployment 
process concludes. It is necessary for one of the circumstances to apply for a redundancy to be 
concluded and should be read in conjunction with the RRR schedule more generally.

[130] It is convenient to advance consideration of this issue with the second question; 
namely, does clause 4.6.1 (b) or 4.6.1 (d) of the RRR Schedule apply to the employees whose 
normal duties cease because their work is being undertaken by the outsourced operator in this 
particular case? This in turn requires the determination as to whether subclause 4.6.1 (b) of 
the RRR schedule applies to the present outsourcing.

[131] For reasons that follow, I find that subclause (b) is intended to deal with nature of 
outsourcing that has occurred here and applies to the present circumstances.

[132] Despite first impressions, the clause is ambiguous, and the context supports the notion 
that it should not be applied narrowly. This includes the context in which it was being 
negotiated, including that it was this form of outsourcing (amongst others) that was being 
contemplated when the improvements to the RRR provisions were being negotiated. Further, 
the clause should be read as a whole; namely contemplation of the Rail Commissioner’s 
decision to privatise, outsource, contract out or the closure/part closure of a service(s). The 
notion of “privatising” services and the closure of services are more akin to decisions that are 
made by the Government. In that light, I consider that the objective meaning of the provision 
is that it applies to circumstances of the kind evident here.

[133] The Rail Commissioner relies upon the decision of the Supreme Court of SA in the 
matter of Public Service Association (SA) Inc v State of South Australia & Ors47 where the 
Court noted:

“This “concession” does not lead logically to a conclusion that clause 25.1 requires 
consultation by the employer with employees of public hospitals prior to the 
government making a decision to adopt the new policy in relation to car parking fees at 
public hospitals. The Chief Executive, Department of Premier and Cabinet, is the 
statutory employer pursuant to the provisions of the Act. He is not the agent of the 
Crown and neither does he or she bind the Crown in respect of employees covered by 
the enterprise agreement as the agent of the Crown. An analysis, founded in principles 
related to the authority of Cabinet Ministers to bind the Crown in negotiating 
Government contracts is misconceived. Such an argument misunderstands the 
distinction between the position of the Chief Executive, Department of Premier and 
Cabinet, as the statutorily mandated employer for the purposes of the Act and distinct 
principles relating to Crown agency relevant to the negotiation of government 
contracts.”48

                                               
47 [2012] SASCFC 66.
48 [2012] SASCFC 66 at para [68].








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[134] I accept that this decision reinforces that there may be a distinction between decisions 
made by various entities in the State Government and that the employing entity and the 
Crown, in the sense of decisions made by executive government (Cabinet), are not the same. 
However, that decision was concerned with proceedings for alleged breach of a consultation 
obligation that applied to the statutory employer under the relevant State legislation in 
circumstances where the Government made a policy decision to introduce changes to car 
parking fees at Government hospitals within the State more generally as part of the 2010/2011 
Budget Statement. I consider that this context is important in ascertaining the implication of 
the decision. In any event, the issue in this case is what the objective intention of the 2016 EA 
is, having regard to the relevant principles of interpretation that I have set out earlier at some 
length. In particular, whether the terms of clause 4.4.1 (b) was intended to apply to 
circumstances such as the current outsourcing decision. The common intention of the parties 
understood by reference to what a reasonable person would understand by the language in 
which the parties have expressed their agreement, in the context in which the 2016 EA was 
made and applies, strongly suggests the broader application of this particular provision was 
objectively intended. 

[135] I turn to the other construction issue concerning clause 4.4.1 of the RRR schedule. I 
observe that Mr Rogers apparently does not maintain the view that clause 4.6.1 (b) is an 
absolute obligation to conclude the RRR process. That is, “as long as exceptional 
circumstances apply, that still means that you're still under the operation of the provisions of 
the triple R schedule.”49 The context in which exceptional circumstances apply is as follows:

“4.3.6. In the event that an offer of suitable employment has not been identified and 
made within 12 months of the employee being declared excess, the agency, the 
CPSE or representative from OPS, and the employee (and Union) will meet to 
discuss the outcome of the redeployment/retraining program. The parties will 
discuss:

� Whether the redeployment plan has been complied with by the Agency 
and the employee;

� Whether all reasonable efforts have been made to identify suitable
employment for the employee; and

� Whether there are exceptional circumstances which could make it
reasonable to extend the redeployment/retraining program, and/or amend
the redeployment plan, to provide further opportunity to identify suitable
employment.

4.3.7. For the purposes of 4.3.6, “exceptional circumstances” may include the
geographical location of the employee, the unique skills and/or experience of 
the employee, the age of the employee, or the circumstances of the employee
becoming excess, which circumstances provide additional difficulty to the 
identification of suitable employment for the employee.”

[136] I observe that the term exceptional circumstances is not conclusively defined and 
would need to be read in conjunction with definition of suitable ongoing employment 
(redeployment) provided in clause 4.2.1 and discussed above. That is, unless agreed to the 
contrary by the employee concerned, the alternative position would need to meet all of the 

                                               
49 Final oral submissions – transcript PN1004 as an example.








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requirements in clause 4.2.1 of the RRR schedule. Where no such position can be found, the 
processes contemplated in clause 4.3.8 of the RRR schedule would appear to have work to do.

[137] The Rail Commissioner contends, in effect, that the items in clause 4.6.1 (b) and (d)
are not mutually exclusive alternatives.

[138] On face value, clause 4.6.1 operates such that where subclause (b) applies its terms 
must be met for the redeployment process to conclude (with a redundancy rather than a VSP). 
That is, where an employee whose position has been determined to be excess as a result of the 
relevant decision set out in that subclause, the employee must be offered employment in a 
suitable ongoing permanent role and have declined such ongoing employment for the process 
to conclude without taking a VSP or other agreed outcome. I observe that if this approach is 
not adopted, the subclause would have no work to do as the RRR process could end on the 
basis set out in subclause (b) in any event by virtue of clause 4.6.3.

[139] There are some other factors that also support this interpretation. Subclause (d), which 
references the conclusion of the arrangements in clause 4.3, expressly applies to employees 
“other than those in 4.6.1 (b)”. Further, the broader objective context, including the 
communications to the employees as part of the pre-ballot information process, is more 
consistent with the notion that an offer of employment in a suitable ongoing permanent role 
would be applied as part of the (improved) RRR process. Finally, the subsections operate as 
meaning that the RRR process ends “only when the following criteria has been met”.
However, it is evident that this would not mean that all the criteria must be met in each case 
as the distinction between (b) and (d) make such an approach problematic and the criteria are 
expressed as alternatives. In addition, the construction of clause 4.6.1 as a whole is much 
more consistent with the notion that the relevant criteria is to be satisfied and in the case of 
the outsourcing, subclause (b) must be met. This would mean that subclauses (b) and (d) are 
mutually exclusive but subclauses (a) and (e) may also apply to employees to whom 
subclause (b) applies. This is consistent with the fact that subclause (d) is the only provision 
that defers to subclause (b). This is the ordinary and natural meaning of the provision and the 
context, the structure of the provisions, and other relevant considerations do not lead to a 
different result. This includes the objectives, to prioritise redeployment and retraining, set out 
in the Objectives provision contained in the RRR schedule itself.

[140] I accept that the above approach means that it is more difficult to conclude the process 
where an offer of an ongoing suitable permanent role in any agency in the Public Sector is not 
made. This is relevant because the objective intention was that the NFR policy was only to 
apply for a set period and the clear implication is that after that time employees could be 
subject to a forced redundancy if the required circumstances are met. However, it was not 
contended by the Rail Commissioner that offers of this kind could not be made to employees 
in the circumstances of the employees covered by the 2016 EA and the contextual and 
drafting considerations supporting the above approach to the meaning of the provision are 
strong. Further, Mr Rogers’ apparent acceptance that clause 4.6.1 (b) does not apply as an 
absolute, that is, there is no limit to 12 months provided there are exceptional circumstances, 
is pragmatic and appropriate given the operation of the RRR schedule in its entirety. This is 
reflected in the determination below to the extent that the terms of the provision allow.

9. Conclusions and determination








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[141] For the reasons set out above, I determine that the proper application of the 2016 EA 
in the context of this dispute is as follows:

“Unassigned” and/or declared excess

If an employee's normal duties cease because their work is being undertaken by an 
outsourced operator, there will be a period where the employee is not performing 
normal duties before potentially being declared "excess" for the purposes of the RRR 
Schedule. This period should only be as long as is reasonably necessary to undertake 
the steps that are to be taken prior to the making of the declarations of being excess.

Rate of pay once an employee has ceased normal duties and when they have been 
declared excess

The normal provisions of the 2016 EA apply, just as is the (agreed) case for the period 
prior to the declaration of an employee as being excess. If an employee is in the RRR 
process and only if they are otherwise entitled to be paid additional remuneration 
beyond their relevant weekly wage rate based upon the duties and hours they are then 
working or due to some other term or condition of employment, this is to be paid. If 
there are no such entitlements provided by the terms of the 2016 EA, the weekly wage 
rate would be relevant.

For reasons set out earlier, I grant leave to apply in the event that further clarification 
on the practical application of the outcome set out in paragraph [116] of this decision 
is required. 

Meaning of “level of remuneration” for the purposes of clause 4.2.1 (b) of 
schedule 5

The level of remuneration for present purposes means the relevant rates of pay that are 
set out in schedules 1 and 3, including the aggregate wage that has been determined 
under the arrangements contemplated in clause S.1.2 for the different levels of 
Drivers, that applied prior to the employee concerned becoming a redeployee. 
However, the level of remuneration does not include any (other) allowances, specific 
shift or disability payments, penalties or overtime payments. This, along with the other 
elements of clause 4.2.1 of the RRR schedule, set the benchmark requirements for 
what would be a suitable ongoing role in the Public Sector for the purposes of 
redeployment.

The conclusion of the redeployment process 

Clause 4.6.1 (b) of the RRR schedule is intended to deal with the nature of outsourcing 
that has occurred here and applies to this dispute.

In connection with employees who have been determined to be excess as a result of 
outsourcing and other decisions covered by clause 4.6.1 (b), and subject to the caveat 
below, it is the requirement that such an employee will be offered a suitable ongoing 
permanent role, and if this is declined, the RRR process will conclude.








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However, the RRR process may conclude for such employees on some of the other 
bases set out in clause 4.6 where the relevant criteria have been met. This includes the 
acceptance of ongoing employment and a VSP as expressly contemplated by 
subclauses (a) and (e) receptively of clause 4.4.1. In that regard, I also observe that 
there is no absolute limit of 12 months to the RRR process and where exceptional 
circumstances under clause 4.3.7 exist, the period may be extended. The absence of 
any offered suitable ongoing permanent role as defined in clause 4.2.1 of the RRR 
schedule as determined above, would be a relevant factor for any employee declared to 
be excess as a result of a decision covered by clause 4.6.1 (b) including the current 
outsourcing. 

Any dispute about the operation of this provision in a particular case, may be dealt 
with under clause 23 of the 2016 EA.

[142] I so determine.

[143] Liberty to further apply has been granted as set out above.

COMMISSIONER

Appearances:

M Young of counsel, with J Wither, both with permission for and with Mr Rogers, the 
Applicant.

S Bakewell, of EMA Consulting with permission, with D Nikoloski for the Rail 
Commissioner.

Hearing details:

2020
November 4 and 10.
By Video Hearing.

Final written submissions:

November 9 and 12 (advice of the making of the new enterprise agreement).


WIR MARK COMMISSION AUSTRALLA THE SEAL OF THE FA




 



[2020] FWC 5780

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Cases cited by this decision: