Association of Professional Engineers, Scientists and Managers, Australia, The v Rail Corporation New South Wales T/A Sydney Trains
[2014] FWC 8584
•2 DECEMBER 2014
| [2014] FWC 8584 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739 - Applications to deal with disputes
Association of Professional Engineers, Scientists and Managers, Australia, The
v
Rail Corporation New South Wales T/A Sydney Trains
(C2014/6995)
“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
v
Rail Corporation New South Wales T/A Sydney Trains
(C2014/7056)
Australian Municipal, Administrative, Clerical and Services Union
v
Rail Corporation New South Wales T/A Sydney Trains
(C2014/7656)
Australian Rail, Tram and Bus Industry Union
v
Rail Corporation New South Wales T/A Sydney Trains
(C2014/7683)
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Rail Corporation New South Wales T/A Sydney Trains
(C2014/7008)
Rail industry | |
COMMISSIONER CARGILL | SYDNEY, 2 DECEMBER 2014 |
Alleged disputes about matters arising under the enterprise agreement and the NES;[s186(6)].
[1] On 30 October 2014 The Association of Professional Engineers, Scientists and Managers, Australia (APESMA) notified a dispute under section 739 of the Fair Work Act 2009 (the Act) between itself and Sydney Trains. Disputes in very similar terms were notified by other unions as follows:
• 31 October 2014 by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU);
• 7 November 2014 by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU);
• 10 November 2014 by the Australian Municipal, Administrative, Clerical and Services Union (ASU); and,
• 11 November 2014 by the Australian Rail, Tram and Bus Industry Union (RTBU)
(collectively, the unions).
[2] Each of the disputes concerns the processes which are being followed by Sydney Trains in the restructure of its Fleet Maintenance Division (FMD). The unions allege that Sydney Trains has refused to take reasonable steps to assess and consider affected employees for redeployment. It is further alleged that Sydney Trains is failing to meet its obligations under the relevant enterprise agreement, the Sydney Trains Enterprise Agreement 2014 (the Agreement). In addition the unions say that Sydney Trains is in breach of the status quo provision in the Agreement and is failing to comply with its obligations under section 389 of the Act.
[3] The disputes were the subject of a lengthy conciliation conference on 12 November 2014 but did not resolve. I understand that an exchange of correspondence between the parties took place following the conference.
[4] In a letter to me dated 19 November 2014 APESMA, on behalf of the unions, noted that the matters were still in dispute and sought an urgent relisting for the purposes of seeking interim orders regarding the status quo provision as well as directions for substantive arbitration of the issues in dispute.
[5] The matters were listed on 28 November 2014 for hearing of the application for interim orders. At that hearing APESMA was represented by Ms Rose, the CEPU and Unions NSW were represented by Ms Carruthers, the ASU by Ms Wright, the AMWU by Mr Lavelle Wilson and the RTBU by Ms Bennett. Sydney Trains was represented by Mr Woods, solicitor, who appeared with permission.
[6] The unions relied on two witness statements. The first, by Mr P Davies, Director NSW for APESMA became Exhibit Unions 1. Mr Davies was briefly cross-examined about one paragraph of his statement. The second statement, by Mr J Mifsud was marked Exhibit Unions 2. Mr Mifsud is employed in the FMD and is affected by the restructure. He was not required for cross-examination.
[7] Sydney Trains provided a witness statement by Ms R Davies, the Senior Reform Implementation Manager within the FMD. Her statement was marked Exhibit Sydney Trains 1. It should be noted that, although this statement was entered into evidence without cross-examination, this was for the limited purpose of the hearing on 28 November. The unions reserved their right to cross-examine Ms Davies if the matters proceed to a substantive hearing.
[8] I do not intend to provide a detailed analysis of the evidence in light of the urgency of the present application. Suffice to say that I have considered the three statements of evidence. However, before I move to consider the submissions of the respective parties, it is appropriate that I provide a very brief summary of the background to the disputes.
[9] There has been a period of great change at Sydney Trains and its predecessor, Rail Corporation of New South Wales. Parts of those changes have involved restructures of several divisions or units within the organisation. A process of consultation led to a document titled “Recruitment Channels” (Recruitment Channels) which sets out different streams for recruiting for new positions which are created as a result of restructures.
[10] Sydney Trains decided to restructure the FMD. Ms Davies provides evidence about the reasons for the restructure and how the proposed new structure was arrived at. It is her evidence that this new structure encompasses 100 new positions including various managers, coordinators, planners and engineers. There are also some 645 positions including trades and non-trades roles which are not subject to any change.
[11] Sydney Trains decided that it would advertise each of the 100 positions both internally and externally under the third stream in the Recruitment Channels. This decision is said to have been made because there are no equivalent positions under the existing structure with the same grade and function.
[12] It should be noted that the unions challenge the suggestion that all, or most, of the 100 positions are in fact “new”. They do not accept that any changes in the roles are of a magnitude such that the existing incumbents could not be directly appointed to them, either with or without the need for some limited training. This difference between the parties is the nub of the underlying disputes.
[13] The consultation process regarding the proposed restructure began in July 2014. That process included meetings and presentations with employees and unions. Some of these meetings took place at “Peak Level” and led to the setting up of local working parties at affected depots. APESMA representatives raised some concerns about the processes which Sydney Trains was proposing to use including, formally, in a letter dated 12 September 2014.
[14] By agreement there was a pause in the consultation process from about mid August. As I understand it this was largely due to the concurrent negotiations for the new enterprise agreement.
[15] On 7 October the Agreement was approved and it came into operation on 14 October. For present purposes it is sufficient to note that the major differences between the Agreement and its predecessors are that there is no longer a “no forced redundancies” provision or a salary maintenance provision.
[16] Also on 14 October a Deed between the parties to these disputes as well as another rail entity and two other unions came into force. The Deed deals with managing excess employees, organisational change and career transition, voluntary redundancies, job swaps and salary maintenance. It also includes a dispute resolution process (DSP) which provides that the DSP in the Agreement will apply.
[17] Clause 4.2 of the Deed provides that Sydney Trains will apply the NSW Government Managing Excess Employees Policy (the MEE) which is at Attachment A to the Deed.
[18] The consultation process concerning the restructure re-commenced in the latter part of September with further meetings, presentations and exchanges of correspondence. The issues which had been raised by APESMA and the other unions were not resolved leading to the notification of the disputes. It should be noted that on 29 September APESMA notified Sydney Trains that it was invoking the status quo provision of the predecessor agreement. On 2 October Sydney Trains informed employees and union representatives at a Peak Level meeting that it had made a “definite decision” to implement the FMD restructure.
[19] The recruitment process for the positions which are the subject of the disputes is being carried out in four stages. Seven positions were advertised on 24 October, 18 positions on 7 November, 46 on 28 November and 29 or 30 are to be advertised in January 2015. The first group is presently being interviewed and assessed, the second is being shortlisted and will be subject to interviews and assessments from mid December. The third group is to be interviewed and assessed in January and February and the fourth group, thereafter.
SUBMISSIONS OF THE UNIONS
[20] Ms Rose provided a written outline of submissions and also made oral submissions. Each of the other unions supported APESMA’s position.
[21] APESMA submits that Sydney Trains is not taking reasonable steps to assess and consider affected employees in order to enable their proper redeployment. It also submits that the employer has adopted an unfair recruitment process and is not complying with its obligations under the Agreement, the Deed and the Act.
[22] The union points to clauses 2.1, 7.3(b) and 21 of the Agreement as being relevant. It submits that clauses 5.1 to 5.7 of the Deed are immediately relevant and notes that clause 5.6 brings into play various types of services such as redeployment and training.
[23] APESMA notes that the Deed expressly incorporates the MEE. It further notes that clause 10 of the MEE incorporates other government policies including the Agency Change Management Guidelines (ACM Guidelines) and Case Management and Redeployment Guidelines (CMR Guidelines).
[24] The union submits that clauses 5.1.2 and 5.1.3 of the ACM Guidelines and 6.3.3 and 6.4 of the CMR Guidelines require that affected employees be redeployed into positions in the new structure using matching and priority assessment processes. Ms Rose noted that both Guidelines apply to employees who are affected by organisational change not to excess employees. She also noted that a “definite decision” had been made to implement the FMD restructure which triggered the obligations under these guidelines.
[25] APESMA submits that Sydney Trains is failing to meet its obligations under section 389 of the Act. Reference is made to several decisions: Ulan Coal Mines Limited v Honeysett & others[2010] FWAFB 7578 @ [10] and [34]; Pykett v Technical and Further Education Commission[2014] FWC 3177 @ [14]; and Bhalla v Welltech Total Water Management [2014] FWC 7565 @ [55].
[26] APESMA submits that interim relief should be granted in terms of its draft order. Section 589(2) of the Act permits this exercise of power. The union submits that Sydney Trains has ignored the status quo provision in the Agreement despite it being enacted by APESMA on 29 September which was prior to the announcement of the final structure and the start of the recruitment process.
[27] The union also submits that, unless the process ceases, the rights and entitlements of the affected employees will be irrevocably compromised. It submits that this disadvantage outweighs any potential disadvantage to Sydney Trains. Reference is made to Quinn v Overland [2010] FCA 799 (Quinn) and the relevant principles to be applied when considering a claim for interim relief.
SUBMISSIONS OF SYDNEY TRAINS
[28] Sydney Trains says that it is complying with the status quo provision of the Agreement. It opposes the grant of interim relief.
[29] Mr Woods submitted that other objectives in clause 2 were also relevant to the present matters, not just that set out in sub-clause 2.5. He also noted that these objectives are stated as forming a guide for parties when there is a dispute rather than giving rise to obligations in themselves.
[30] Mr Woods submitted that what the unions were seeking amounted to an “extra claim” which was contrary to the provisions of clause 13 of the Agreement. He noted that the clause specifically provided that the parties would continue to recognise the employer’s managerial prerogative to propose and implement change.
[31] Mr Woods rejected APESMA’s submission that clause 21 had any relevance to the present disputes as it deals with situations where existing positions have become vacant. Here the positions are new. Mr Woods referred to the judgement in Australian Rail, Tram and Bus Industry Union v Rail Corporation New South Wales [2009] FCA 894 @ paras 34, 40, 41 and 64.
[32] Mr Woods noted that, by virtue of clause 5.1 of the Deed, employees cannot be forced to leave the organisation for a period of 12 months from 2 October 2014. He also noted that clause 5.8 provides that employees are to be given six months notice of an intention to declare them excess. Mr Woods noted that no-one was at that stage yet and consequently the obligations arising in the “Notice and Retention Period” part of the Deed have not yet crystallised.
[33] Mr Woods noted that the ACM and CMR Guidelines are not incorporated into the MEE but are referred to only as “associated documents”. He submitted that, in any event, the affected employees were not yet at a point in the process where the guidelines would apply.
[34] Mr Woods submitted that Sydney Trains is complying with the status quo provision of the Agreement. Recruitment Channels had been in place for some time, had been applied to other restructures and was an appropriate practice and procedure to be used for filling positions. The Recruitment Channels process was the status quo and Sydney Trains was working to that process. Reference was made to the decision in Australian Rail, Tram and Bus Industry Union v Rail Corporation of New South Wales [2007] AIRC 318.
[35] Mr Woods rejected the union’s submissions concerning section 389 of the Act. He submitted that the employees affected by the FMD restructure are a long way off any possible dismissal and will have access to the full range of services and options including an enhanced redundancy package.
[36] Mr Woods acknowledged the applicability of the principles set out in Quinn and the fact that there was a broad discretion as to whether interim relief should be granted. He submitted that there was no basis for any order as Sydney Trains was complying with its obligations under the Agreement, the Deed and the Act.
[37] Mr Woods submitted that a further factor which should weigh against the grant of relief was that what the unions were ultimately seeking was beyond the jurisdiction of this Commission to grant. In this regard he referred to the decision of The Australian Workers’ Union of Employees, Queensland v State of Queensland (Department of Communities, Child Safety and Disability Services) [2014] FWCFB 5546 and the implied limitation of the Commonwealth to restrict a State in the exercise of its executive authority.
SUBMISSIONS IN REPLY
[38] Ms Rose noted that the unions did not concede that all of the relevant positions were of a higher grade and further noted that they had not yet had the opportunity to challenge the position descriptions.
[39] Ms Rose submitted that the implied immunity decisions were not relevant. She noted however that the unions were prepared to amend the orders they seek to require Sydney Trains to comply with relevant policies rather than to require it to place existing employees into the “new” positions.
[40] Ms Rose submitted that the Agreement had ushered in a new era. The absence of a “no forced redundancies” clause was a significant change. The Deed had brought government policies into play. Recruitment Channels was a process which related to the old regime and was no longer relevant. The status quo had changed. Ms Rose also submitted that the real impact of the changes in the workplace was a relevant consideration.
[41] Ms Rose submitted that the unions should have the chance to run their substantive case. If no interim relief is granted employees’ rights will be significantly affected.
CONCLUSIONS
[42] The matters before me arise pursuant to the dispute settlement procedure of the Agreement. Clause 8.4 makes it clear that the Commission may conciliate and arbitrate matters in dispute provided that arbitration is restricted to matters listed in clause 8.2. Paragraphs (a) and (b) of that clause are both relevant in the present circumstances.
[43] As noted earlier, the Deed also contains a dispute resolution process which provides that any disputes will be resolved by conciliation and/or arbitration in accordance with clause 8 of the Agreement. I note that clause 12.2 of the Deed sets out a process which is to apply in the event that the Commission is unwilling or unable to deal with the dispute. However that does not detract from the fact that the parties to the Deed have invested the Commission with jurisdiction to deal with disputes arising under it.
[44] I am satisfied there is jurisdiction to arbitrate in relation to the matters in dispute.
[45] Section 589 of the Act gives power to the Commission to “make an interim decision in relation to a matter before it”. Such a decision can be made on the Commission’s own initiative or on application. Section 598(4) of the Act provides that a decision of the Commission may be made by order.
[46] The parties agree that the judgement in Quinn sets out the principles which are relevant to the question of whether or not to grant interim relief. The relevant passages are at paragraphs 45 and 46 of the judgement:
“[45] In determining an application for interlocutory relief, the Court addresses two main inquiries. First, whether the applicant has made out a prima facie case in the sense that if the evidence remains as it is, there is a probability that at the trial of the action the applicant will be held entitled to relief. Second, whether the inconvenience or injury which the applicant would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the respondent would suffer if an injunction were granted: Australian Broadcasting Corporation v O’Neill [2006] HCA 46; (2006) 227 CLR 57 at [65], [19].
[46] The requirement of a “prima facie case” does not mean that the applicant must show that it is more probable than not that the applicant will succeed at trial. It is sufficient that the applicant show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. How strong the probability needs to be depends upon the nature of the rights the applicant asserts and the practical consequences likely to flow from the order the applicant seeks. In that context there is no objection to the use of the phrase “serious question” to convey the strength of the probability: Australian Broadcasting Corporation v O’Neill per Gummow and Hayne JJ at [65]-[72], Gleeson CJ and Crennan J agreeing at [19].”
[47] I shall firstly address the question of whether the unions have made out a prima facie case. As I have already noted, the unions bring their case on three bases: Sydney Trains is not complying with the status quo provision in clause 8 of the Agreement; Sydney Trains is not complying with section 389 of the Act; and, Sydney Trains is not meeting its redeployment and redundancy obligations under the Agreement, the Deed and NSW Government policies.
[48] As noted, Recruitment Challenges has been applied to several restructures within the organisation. Sydney Trains is continuing to apply it to the FMD restructure. What has changed is the coming into operation of the new Agreement and the Deed.
[49] It is true that the Agreement has changed the landscape in some fundamental respects. However this has come about by means of a process set out in the Act. This process involved negotiations, voting by employees and approval by the Commission. It did not come about as a result of some unilateral action by Sydney Trains.
[50] Similarly, the Deed has come into existence by agreement of the parties to these disputes, and others, rather than being imposed by Sydney Trains alone.
[51] I do not consider that it is arguable that Sydney Trains is failing to comply with the status quo provision in clause 8 of the Agreement. Neither do I consider that there is a sufficient likelihood of success in relation to the issue concerning section 389 of the Act. That section will only come into play if any of the affected employees is ultimately dismissed, brings an unfair dismissal claim and Sydney Trains seeks to rely on a defence that the dismissal was a genuine redundancy. There are too many unknowns in such a scenario to provide the proper basis for any interim relief at this stage.
[52] The third basis of the unions’ case is that Sydney Trains is not meeting its redeployment and redundancy obligations under the Agreement, the Deed and the relevant Government policies. The main focus of this argument relates to the terms of the Deed and, in particular, the agreement at clause 4.2 of the Deed that Sydney Trains will apply the MEE. It is also argued that the MEE in turn incorporates the ACM and CMR Guidelines.
[53] There can be no doubt that Sydney Trains has agreed that it will apply the MEE. However, in its terms and indeed by its name, the MEE policy deals with management of excess employees. None of the employees affected by the FMD restructure has been declared excess as yet so it would appear that Sydney Trains has no present obligations under the MEE. I acknowledge that such obligations may very well arise in the future.
[54] There are two points to note about the ACM and CMR Guidelines and their relationship to the MEE. First, they are referred to as “associated documents” rather than being incorporated into the MEE. Secondly, and more importantly, clause 10 specifically refers to them as being relevant in terms of “managing excess employees”. Again, this stage of the process has not yet been reached in relation to the FMD restructure.
[55] I do not consider that the reference in clause 5.6 of the Deed to the provision of additional services outlined in clauses 5.10 and 5.11 as changing the fact that the relevant employees are presently in the Planning and Preparation Phase of the process.
[56] I am not satisfied that the unions have made out a prima facie case that Sydney Trains is failing to meet its redundancy and redeployment obligations.
[57] The next question is to determine where the balance of convenience lies. Clearly the present process may ultimately have serious impacts upon one or more of the affected employees. Mr Mifsud’s evidence is particularly relevant on this point. However, the recruitment process, at least for the first two groups of positions, is well underway and bringing that process to a halt for some indeterminate period of time will have consequences for the restructure. I also note that Sydney Trains has undertaken to consider internal applicants prior to interviewing any external candidates.
[58] I consider that the convenience of the parties is evenly balanced. In circumstances where I consider there is no prima facie case I have determined not to make interim orders.
[59] The matters will be relisted upon application.
COMMISSIONER
Appearances:
A Rose for The Association of Professional Engineers, Scientists and Managers, Australia
L Carruthers for Unions NSW and also for Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
J Wright for the Australian Municipal, Administrative, Clerical and Services Union
J Lavelle Wilson for the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
L Bennett Australian Rail, Tram and Bus Industry Union
A Woods, solicitor, with N Roberts, for Sydney Trains.
Hearing details:
Sydney
November 28.
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