Angelo Scoleri v Rail Commissioner [2020] FWC 3632

1 Fair Work Act 2009 s.739 - Application to deal with a dispute Angelo Scoleri v Rail Commissioner (C2019/5797) RAIL COMMISSIONER RAIL OPERATIONS ENTERPRISE AGREEMENT 2016 [AE423085] Rail industry COMMISSIONER HAMPTON ADELAIDE, 13 JULY 2020 Dispute about matters arising under the enterprise agreement – injury and income protection provision – multiple conferences conducted - matters resolved between the parties and confirmed by the Commission. [1] Mr Angelo Scoleri, assisted by the Australian Rail, Tram and Bus Industry Union, made an application under s.739 of the Fair Work Act 2009 (the FW Act) by reference to the dispute resolution provisions1 of the Rail Commissioner Rail Operations Enterprise Agreement 2016 (the Enterprise Agreement). [2] The Enterprise Agreement applies to Mr Scoleri and his employer, the Rail Commissioner. [3] The application sought the Commission’s assistance to deal with a dispute between the parties as to the proper application of clause 26 Injury and Income Protection, and Schedule 8 Rail Operations - Injury and Income Protection Principles, of the Enterprise Agreement. Schedule 8 provides medical benefits and top-up payments to injured employees in certain defined circumstances beyond those provided by the Return to Work Act 2014 (SA) (RTW Act). Those circumstances include where an employee has suffered physical or psychological injury sustained, whilst he or she was at work or lawfully exercising their duties, as a result of conduct directed at the employee that constitutes a criminal offence. 1 Clause 23 of the Enterprise Agreement. [2020] FWC 3632 DECISION -- 1 of 3 -- [2020] FWC 3632 2 [4] Whilst Mr Scoleri appeared to fall within the scope of Schedule 8, the proper application of the provision to his circumstances was not straightforward, for reasons including how various options to assess any entitlements were stated within the provision with no express means to determine which option was to be applied and how any such decision would be made. Further, there were other issues that arose from the interaction with the RTW Act. [5] In light of the above circumstances, and with the support of the parties, I convened a series of comprehensive conferences designed to explore the legal and practical application of the Schedule to the present matter. At various points, the parties each took further legal and other professional advice. Ultimately, the parties have agreed to resolve the matter and have requested that I formally record the resolution. [6] The resolution of this matter has been agreed in the following terms: “The Applicant Mr Scoleri agrees to accept in settlement of his claims pursuant to Schedule 8 of the Rail Operations - Injury and Income Protection Principles of the Rail Commissioner Rail Operation Enterprise Agreement 2016 an amount in redemption of his claimed entitlements & further agrees to the resignation of his employment.2 [7] In light of this resolution, the application itself is resolved and I will close the file. However, I should take this opportunity to acknowledge the professional and constructive contribution that has been made by both legal counsel for the parties, and their instructors. I would also acknowledge that the circumstances leading to Mr Scoleri being entitled to advance a claim under Schedule 8 were very unfortunate and have caused him distress. I trust that the resolution, which I consider to be a fair and proper outcome, will assist him into the future. COMMISSIONER Appearances: K Keogh, with permission, of Andersons Solicitors with D Phillips of the Australian Rail, Tram and Bus Industry Union on behalf of Mr Scoleri. 2 The settlement amount has been expressly agreed between the parties and confirmed by their representatives to each other and to the Commission. -- 2 of 3 -- [2020] FWC 3632 3 D Johns, with permission, of HWL Ebsworth, with G Sprott, of Department of Planning, Transport and Infrastructure and A Zadeh of the Department of Treasury and Finance on behalf of the Rail Commissioner. Conference details: 2019 October 17. December 3. 2020 February 3. March 4, 18. May 13. Final written submissions: 10 July 2020. Printed by authority of the Commonwealth Government Printer <AE423085 PR720897> -- 3 of 3 --