Australian Rail, Tram and Bus Industry Union

[2011] FWA 6925

[2011] FWA 6925

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

Australian Rail, Tram and Bus Industry Union
(B2011/3517)

Australian Municipal, Administrative, Clerical and Services Union

(B2011/3520)

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

(B2011/3522)

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)

(B2011/3523)

v
Queensland Rail

COMMISSIONER ASBURY BRISBANE, 7 OCTOBER 2011

Proposed protected action ballot - Exceptional circumstances - Extension of notice period - s.443(5).

Overview

[1] On 26 September 2011, the Australian Rail, Tram and Bus Industry Union (RTBU) the Australian, Municipal, Administrative, Clerical and Services Union (ASU), the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) (collectively the Unions) applied under s.437 of the Fair Work Act 2009 (the Act) for protected action ballot orders.

[2] The applications sought such orders in relation to employees of Queensland Rail Limited (QR) whose terms and conditions of employment are covered by the QR Passenger Pty Ltd Rollingstock Assets Union Collective Workplace Agreement 2009; the Rollingstock and Component Services Union Collective Workplace Agreement 2009 and QR Passenger Pty Ltd - Passenger Operations Union Collective Workplace Agreement 2009 and who will be covered by a new proposed agreement.

[3] Directions were issued on 26 September 2011 for the hearing and determination of the applications, requiring QR to provide a response indicating whether it objected to the making of the orders and whether it sought to have its objections heard by Fair Work Australia (FWA). QR advised in accordance with those directions, that it objected to FWA making the orders in the terms sought, and wished to be heard in relation to the objection. All parties filed outlines of submissions and witness statements. The applications were listed for hearing on Wednesday 28 September 2011 and the hearing continued on 29 September 2011 so that Mr Kummerfeld could attend FWA to give some additional oral evidence and be cross-examined.

The applications and draft orders

[4] The applications were heard together as provided in s.442 of the Act, on the basis that they related to industrial action by employees of the same employer, and this would not unreasonably delay the determination of the application. The definition of the group of employees to be balloted was refined throughout the course of the hearing to encompass employees of Queensland Rail Limited who are employed in the Operations and Queensland Rail Rollingstock Assets function, excluding:

• Employees who are employed on the Kuranda Scenic Railway; and
• Employees classified in the AS, PT, Traincrew and Network Control Streams.

[5] The ASU and the RTBU attached draft orders to their applications containing a question numbered 10, in relation to whether employees supported an unlimited number of indefinite or periodic bans on authorisation of entry of trains onto the network and a question numbered 15 in relation to whether employees supported an unlimited number of indefinite or periodic bans on work undertaken outside the Electric Train Depot. In both cases, those questions were not set out in the Applications for a Protected Action Ballot Order (Form F34) filed by those Unions in these proceedings, and were withdrawn. The ASU also withdrew question 17 in relation to unlimited or periodic bans on steam cleaning. All Unions provided amended applications and/or Draft Orders reflecting these matters.

[6] The Unions conceded that in light of recent decisions of FWA in relation to what constitutes exceptional circumstances for the purposes of s. 443(5) of the Act, that it would be appropriate for seven days notice be given of industrial action to be taken by employees classified as Shunters, Rollingstock Defect Co-ordinators (RDCs) and Rollingstock Maintenance Co-ordinators (RMCs), on the basis that industrial action by such employees would have a direct and immediate effect on rail traffic.

[7] The forms of industrial action sought to be the subject of the ballot can be categorised as:

• unlimited stoppages of a set duration ranging from periods of 15 minutes to 48 hours;
• unlimited numbers of indefinite or periodic bans on the performance of overtime; and
• unlimited numbers of indefinite or periodic bans on the performance of certain tasks such as decanting of trains.

[8] All of the Unions gave undertakings prior to or during the hearing, to the effect that during any period of industrial action a skeleton crew would be available to cover any safety critical issues. These undertakings were said to include the removal of any blockage caused by a train or unit that was completely immobilised and which required the involvement of maintenance employees the subject of this application.

Application by QR for extension of notice period for industrial action

[9] QR submitted that in determining the applications for protected action ballot orders, FWA should exercise discretion under s.443(5) of the Act to extend the written notice period that each of the Unions must give before they can engage in industrial action, from three working days to seven working days. QR conceded that some of the forms of industrial action for which approval was sought in the ballot would not result in the cancellation of train services, and did not press the extension of the notice period, with respect to the following:

• Question 10 for AMWU and CEPU Draft Orders and Question 11 for RTBU and ASU Draft Orders (renumbered question 10 as a result of withdrawal of question 10) - An unlimited number of indefinite or periodic work bans on undertaking data entry work.
• Question 11 for AMWU and CEPU Draft Orders and Question 12 for RTBU and ASU Draft Orders (renumbered question 11) in the amended draft orders filed by the RTBU and ASU - An unlimited number of indefinite or periodic bans on the decanting of rolling stock (in respect of the city train only...).
• Question 13 for AMWU and CEPU Draft Orders and Question 14 for RTBU and ASU Draft Orders (renumbered question 13) in the amended draft orders filed by the RTBU and ASU - An unlimited number of indefinite or periodic bans on the removal of graffiti.
• Question 15 for AMWU and CEPU Draft Orders and question 16 for ASU and RTBU Draft Orders (renumbered question 14) in the amended draft orders filed by the RTBU and ASU - An unlimited number of indefinite or periodic bans on the performance of cleaning work.

Evidence

[10] Witness statements were tendered from:

• Peter Jason Young, State Organiser, CEPU 1;

• Jennifer Ann Thomas, Acting Branch Secretary ASU 2;

• Steven Ernest Franklin, Metals Division Organiser, AMWU 3;

• Shayne Kummerfield, RTBU Organiser 4;

• Simon Mark Williams, Chief Rail Operations Officer QR 5.

[11] Witness statements tendered by the Unions went to the requirements of Subdivision B of Chapter 3, Part 3-3 Division 8 of the Act. Further oral evidence was given by Mr Young on behalf of the CEPU and Mr Kummerfeld on behalf of the RTBU in relation to the issue of whether there were exceptional circumstances to justify FWA exercising the discretion in s.443(5) of the Act to extend the period of written notice of protected industrial action from three to seven days.

[12] Mr Young emphasised that the majority of the employees subject of the application are maintenance workers, and that industrial action by such workers would not shut down the QR network. CEPU members are predominantly maintenance electricians employed in the train shed at Mayne, the tilt train shed at Mayne and the long distance travel depots at Mayne, Gracemere and Portsmith. There is also a group of employees who are Rollingstock Maintenance Co-ordinators (RMCs) and a subset of that group who have an additional title of Rollingstock Defect Co-ordinators (RDCs). An additional period of notice for RMCs and RDCs was conceded because those employees deal with issues arising while trains are in traffic and make decisions about whether or not a train can move. Industrial action by RMCs and RDCs has the potential to result in a situation where a train may be stuck in traffic and cause congestion on the network. With respect to maintenance electricians, 99% of their work is workshop based and is predominantly preventative maintenance.

[13] Mr Young also said that trains comprise units, and many of the issues identified by Mr Williams as faults or failures would not cause a unit to be withdrawn from operations. Maintenance issues such as door failures and breakdown of air conditioning could be dealt with by isolating or locking out the area requiring maintenance so that the unit could keep operating. This is not uncommon and QR notifies passengers by making announcements or placing signs in relevant areas. In a worst case scenario, there is usually a spare unit. In relation to Mr Williams’ evidence that all trains need to be signed off by maintenance employees, Mr Young said that this occurred in cases where scheduled maintenance had been conducted, and in the event of industrial action, planned maintenance could be rescheduled.

[14] Mr Young also said that in cases of failures identified by Mr Williams, in areas such as traction motors, RMCs or RDCs would be contacted by drivers and would run through a series of scenarios to try to remedy the situation. If the situation could not be remedied, the driver would be instructed to lock out those motors and the train would continue to its destination, although this may be at slower speed. At the end of that journey the train would be driven back to a depot for repair. According to Mr Young it would require a very significant fault for a train to be unable to continue on its journey, and in such cases the train would be stopped, passengers taken off, and the train would be towed to Mayne for repair. This occurred rarely and in Mr Young’s estimation, based on consultation with his members, once every three months. Mr Young was aware of one situation where a train could not be towed, and a drive shaft had to be disengaged. In that case, a mobile gang from Mayne was sent out to the train to disengage the drive so it could be towed to Mayne. Mr Young said that this situation would qualify as an emergency, and would come within the undertakings given by the CEPU and other Unions with respect to members assisting with the removal of the train during periods of industrial action. Mr Young maintained that the faults identified by Mr Williams would not result in trains stopping and that QR constantly runs services with those faults being in existence.

[15] Under cross-examination, Mr Young agreed that in cases where trains are towed to the maintenance shed, some require work before they are towed and some “limp back”. The latter category are in the majority, and Mr Young disagreed with the proposition that some of these would require a maintenance crew to attend before they could be moved. Maintenance crew members would go onto the track as a last resort, because this would require blocks and stopping traffic in other areas.

[16] Mr Kummerfeld tendered a document headed “ROLLINGSTOCK ASSETS DAILY FLEET RESTRICTIONS REPORT” 6 showing days since faults on particular units had been reported and isolated, in circumstances where those units had remained in service. Mr Kummerfeld explained that a train is made up of a three or six car set of units, termed a “consist”. The Report tendered by Mr Kummerfeld related to one or more of the units within a consist. Essentially that Report demonstrates that a range of units used for city trains, trains running between Nambour and Brisbane and trains undertaking high speed country running, remain in service notwithstanding that faults ranging from door mechanisms, air conditioning, traction motors, dynamic brakes have been identified, reported and relevant units isolated. If an Automatic Train Protection system fails there is a procedure whereby that train proceeds to the next station, and a second driver is provided. In those circumstances the train can continue to operate indefinitely using a two driver operation. In relation to blown light valves, Mr Kummerfeld said that most cabs have some that are not operational and only three light bulbs are safety critical.

[17] Mr Kummerfeld maintained that units are serviced like any other motor vehicle or mode of transport, and have a service regime involving three monthly services. The rectification of many faults is delayed until the next scheduled service. In relation to the decanting of travel trains, Mr Kummerfeld said that this could be done at locations other than Mayne by contractors at various facilities. Similarly, refuelling is currently carried out by contractors at some locations. In the event of train failure, trains are removed from the line using available electric or diesel traction, with or without maintenance crew becoming involved, because train crew are utilised to carry out that role.

[18] Under cross-examination, Mr Kummerfeld maintained that if a unit requiring maintenance could be moved it would be moved by train crew and if it could not be moved it would be towed to Mayne by train crew. Maintenance personnel would not leave the Mayne Depot unless there was a derailment, which would come within the terms of the undertaking by Unions not to compromise safety. Mr Kummerfeld agreed that employees who work offsite are mainly shunters and that 7 days notice of a ban on offsite work is appropriate. Mr Kummerfeld maintained that travel trains are not always decanted before they leave for a run, and this depended on the volume of tanks and the amount of waste in them. There are four travel trains that require decanting. Mr Kummerfeld also maintained that a diesel train could run for 48 hours without being refuelled.

[19] Mr Kummerfeld said that some toilets on travel trains could be locked up and passengers directed to others, and that this occurred regardless of whether there was industrial action, in circumstances where toilets were blocked. Mr Kummerfeld also rejected the proposition that a ban on steam cleaning preventing travel trains from being broken up would stop travel trains from running, and said that they were broken up only for major maintenance or overhaul. The ban on steam cleaning would have an impact on the cleanliness of trains only. Mr Kummerfeld agreed that the intention of the ban on steam cleaning was so that trains would be filthy, and that the ban on decanting was intended to limit availability of toilets so that there would be delays and unscheduled stops for the tilt train while passengers used toilets at various locations on its route.

[20] Mr Kummerfeld also said that the matters identified by Mr Williams as failures are actually restrictions on a unit that do not prevent it from operating. Mr Kummerfeld was questioned about the requirement for travel trains to be signed off by maintenance employees before being handed over to traincrew and said that this applied only to tilt trains in depots at Mayne and Gracemere. Mr Kummerfeld also agreed that after maintenance is performed on a City Train, the train is required to be signed off by a qualified examiner before it can be handed over to train crew, and the process requires completion of a form known as SW54 Trade Inspection Certificate.

[21] Mr Williams gave evidence about the exceptional circumstances relied on by QR as a basis for FWA to exercise the discretion to extend the written period of notice before protected industrial action can be engaged in. That evidence establishes that QR is an integrated customer and rail infrastructure business and:

• Employs around 7,400 people;
• Owns, maintains and operates services on around 8,000 kilometres of railway track in Queensland;
• Operates from hundreds of locations including many remote stations, depots, maintenance facilities and offices around the State; and
• Is the sole provider of mass passenger rail services in Queensland.

[22] The City Network Passenger Service in South East Queensland comprises over 140 stations and customers make 170,000 trips on a typical weekday, including 20,000 - 21,000 trips undertaken by school students in uniform. During the morning peak period some 68,000 customers are moved around South East Queensland on inbound services arriving at Central Station, and 10% less from Central Station in the afternoon peak. QR also operates a train service from Eagle Junction to the airport under contract with Airtrain Pty Ltd.

[23] The Travel Train Network operated by QR incorporates:

• the Sunlander operating north and south bound services between Brisbane and Cairns;
• Tilt Trains between Brisbane/Cairns, Brisbane/Rockhampton and Brisbane/ Bundaberg;
• The Spirit of the Outback operating return services between Brisbane and Longreach;
• The Westlander operating return services between Brisbane and Charleville; and
• The Inlander that operates return services between Townsville and Mt Isa.

[24] Further, QR operates tourist trains such as the Kuranda Scenic Railway, the Savannahlander and the Gulflander, carrying thousands of tourists each week. The XPT train operating to and from Sydney travels on the QR network. In addition, QR is responsible for moving trains of other operators around its network, including QR National, Pacific National and various heritage operators. QR controls network access for QR National’s train services from the coal fields in the West Morton region to the Port of Brisbane and movement of minerals from Mt Isa to Townsville. QR also controls the network that allows rail freight businesses to operate providing for transport of containerised freight, grain, livestock and other freight within Queensland.

[25] Mr Williams said in his evidence that the many types of industrial action referred to in the applications and the fact that types of industrial action can be taken separately, concurrently and/or consecutively, can shut down all or part of QR’s integrated train services as follows:

• A withdrawal of labour by shunters would result in trains not being able to leave or enter the depots.
• If mechanical or electrical staff are unavailable issues on trains will not be fixed causing depletion; no train in the travel fleet will be able to run as maintenance employees must sign off on a checklist of factors prior to handing over to drivers; and absence of routine maintenance will progressively lead to trains being unavailable.
• Travel trains will be unable to run if they are not decanted or steam cleaned.
• An overtime ban will lead to some shifts of shunting personnel being unable to be filled so that trains may not be able to leave depots.
• A withdrawal of labour resulting in diesel trains not being refuelled will mean that these trains will not run.

[26] Maintenance issues are characterised by QR as “failures” or “faults”. A failure occurs where a train is removed from service to rectify a major fault that is hindering its performance or reliability and examples of these are a traction motor or Automatic Train Protection Device. A fault is a repair to a component that has failed, but does not require the train to be withdrawn from service, such as a blown light bulb or door handle. These could still result in trains being removed from service depending on the nature of the fault. Mr Williams also said that stranded trains may be unable to be moved without the intervention of maintenance staff and this could result in significant impacts depending on location.

[27] With respect to City Train services, Mr Williams gave evidence about the impacts of a total or partial shut down of the QR network and steps QR would take to either provide a partial service or to hire or organise buses to alleviate the effects of the stoppage. Limitations on the number of buses available means that it would not be possible to arrange sufficient buses within a three day notice period to provide an alternative means to transport customers in the event of a stoppage of the passenger network. Impacts on customers in the travel train network who travel from point A to point B for example, to visit medical practitioners or relatives, or tourists with bookings dependant on them arriving at a destination at a particular time, would be significant. This would be alleviated by seven days notice of industrial action being given. Mr Williams also pointed to geographical issues associated with the size of the area in which services are operated, and security issues associated with the need to shunt and marshal trains in yards.

[28] In relation to spare units, Mr Williams said that when numbers of units being pulled apart or undergoing major overhaul was considered, there were not many days when QR had more than two or three spare units, and on a good day five spare units.

[29] Under cross-examination, Mr Williams maintained that whether or not a fault caused a train to be taken out of service, depended on the magnitude of the fault or failure. Mr Williams agreed that a failure of the Automatic Train Protection system could be addressed by implementing a two driver operation and was unable to say how many of such failures earlier in the week had rendered a train inoperable. With regard to decanting and steam cleaning, Mr Williams said that if indefinite industrial action was taken, the impact of such action could be significant. Mr Williams agreed that contractors could decant trains, and provide them with water, but maintained that longer than three days notice would be required to engage such contractors.

[30] In response to the proposition that diesel trains could be refuelled at points other than Brisbane and by contractors, Mr Williams said a refuelling point in Brisbane was required to get to those other points and that if indefinite industrial action was taken there would be no refuelling point in Brisbane. Mr Williams was unable to confirm that a diesel train could run for 35 to 40 hours without refuelling but agreed that if this was the case, such trains could be operated while being refuelled at locations outside Brisbane. Mr Williams agreed that there is an onboard electrician on the Sunlander, Spirit of the Outback, Inlander and Westlander, and that such employees are not subject of the present applications for protected action ballot orders.

Statutory requirements for protected action ballot order to be made

[31] I am satisfied on the basis of the evidence and submissions, that the statutory requirements for a protected action ballot order to be made have been met. The applicant Unions are bargaining representatives for employees who will be covered by the proposed enterprise agreement, as required by s.437(1) and the agreement is not a greenfields or multi-enterprise agreement. In accordance with the requirement in s.437(3) the applications in each case, as amended, specify the group of employees who are to be balloted and the questions to be put to the employees including the nature of the proposed industrial action. The enterprise agreements covering the employees to be balloted have reached their nominal expiry dates, as required by s.438(1) of the Act. As required by s.440 of the Act the Unions have stated that they have given a copy of each application to QR and the Australian Electoral Commission within 24 hours after making the application.

[32] I am also satisfied, on the basis of the material set out in the applications, and the witness statements tendered by the Unions, that they have been, and are, genuinely trying to reach agreement with QR, as required by s.447(3)(b) of the Act. Further, I am of the view that the protected action ballot orders should require the action ballots in respect of the groups of employees represented by each of the AMWU, ASU, CEPU and RTBU to be held at the same time, pursuant to s.446 of the Act.

Extension of the period of notice of industrial action

[33] The issue for determination is whether FWA should exercise the discretion in s.443(5) of the Act, to extend the period of written notice required to be given before protected industrial action can be engaged in. Section 443(5) provides as follows:

“5) If FWA is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.”

[34] The power in s.443(5) is discretionary and its exercise is conditional on FWA being satisfied that there are exceptional circumstances justifying the period of written notice being longer than the three working days specified in s.414(2)(a) of the Act. The right to take protected action is an important feature of the statutory scheme under which bargaining occurs and the taking of protected action is a legitimate bargaining tactic that a union may engage in to strengthen its bargaining position. 7

[35] Ordinarily, and other than where an appropriate application is made for the suspension or termination of protected industrial action, it is not appropriate for FWA to moderate the effects of protected industrial action on an employer or its clients. Further, the structure of the bargaining provisions of the Act is not predicated on FWA shielding the employer from the effects of protected industrial action, and the leverage of parties in a bargaining context should not be disturbed lightly. 8

[36] Section 414(2)(a) requires that three working days notice of protected industrial action be given to the employer, and the starting point is that this period provides the balance inherent in the Object of the Act 9 of achieving productivity and fairness through an emphasis on enterprise based collective bargaining, underpinned by clear rules governing industrial action, by allowing the employer an opportunity to take action to defend itself or mitigate the effects of protected industrial action. The opportunity of the employer to defend itself or mitigate the effects of protected industrial action should not be enhanced, unless there are exceptional circumstances. With respect to the approach to determining whether exceptional circumstances exist in a particular case, Vice President Lawler said in CEPU v Australian Postal Corporation that:

“In summary, the expression “exceptional circumstances” requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.” 10

[37] Vice President Lawler went on to note that when considering whether to make an order to extend the required notice for protected industrial action, the concern of FWA is not simply to determine whether there are exceptional circumstances. There must be exceptional circumstances “justifying” the specification of a longer notice period. His Honour said that the notion of justification is critical and calls for a consideration of the purpose of the notice. The purpose of the notice is to balance the rights of employees to take protected industrial action with the ability of employers to take appropriate defensive action.

[38] Taking protected industrial action comes at a cost to workers, and that the cost is increased if the employer is able to take effective defensive action, because the duration of the action by employees necessary to place pressure on the employer, may be increased. It was also noted that determining whether exceptional circumstances justify an extension of the required notice period, requires the weighing of the interests of the employer and third parties, in the employer having a greater opportunity to take defensive action, as against the diminution of employees bargaining power that results from such an extension. The view was also expressed that:

“The fact that the legislature has seen fit to condition the ordering of an extension of the required notice period on the presence of exceptional circumstances justifying it, as distinct from merely conferring a simple discretion to extend the required notice period, indicates that normally there should be no extension.” 11

[39] Section 463(5) of the then Workplace Relations Act 1996 considered by Vice President Lawler in CEPU v Australian Postal Corporation, is in virtually identical terms to s.443(5) of the present Act, and the principles in that case are relevant.

Conclusions

[40] For the reasons set out in ARTBU and Others v Queensland Rail Limited 12I am of the view that there are exceptional circumstances relating to the operations of Queensland Rail such that the discretion of FWA to extend the required period of written notice that must be given before protected industrial action can be taken, is triggered. QR is the most significant provider of public travel services in Queensland and there is no other transport provider that has the capacity to service all of QR’s customers. The geographical area over which QR’s services are provided is very large and encapsulates remote locations. Further, many of the users of QR’s services are vulnerable in that they are school students, elderly persons, patients seeking medical treatment and tourists on schedules with interconnecting activities.

[41] However, I am also of the view that in the present case, those exceptional circumstances do not justify the general imposition of a seven day notice period for the taking of protected industrial action. The employees subject of the present application are maintenance employees. Generally, industrial action taken by those employees will not bring the QR network to a halt. Rather, such industrial action will disrupt some, but not all of QR’s services.

[42] There is clear evidence that many of the faults and failures identified by Mr Williams as having the potential to cause trains or units to be removed from service, will not in fact have that effect. There are degrees of faults and failures and these have a varying impact on whether a unit can remain in service while it is affected. There are trains in service operating safely for considerable periods of time, with faults and failures of the kind identified by Mr Williams, in relation to traction motors, air conditioning and doors. There is capacity to configure units in a “consist”, and to isolate faults or failures so that that a unit affected can remain in service - for example by placing it in the middle of a “consist”. There are spare units which can be deployed in the event that a unit is taken out of service.

[43] Circumstances where there will be disruption to some QR services as a result of industrial action by maintenance employees, can be distinguished from cases involving train crew and network controllers, where stoppages by such employees would effectively halt all services. If some, rather than all, services are disrupted, the difficulty of the task of organising alternative means of transport is reduced.

[44] It is also relevant that the Unions have made a number of concessions in relation to the seven day notice requirement. Of some significance are the concessions relating to shunters, to the effect that it is reasonable for shunters to be required to give seven days notice of industrial action, and that industrial action relating to offsite work should also be preceded by seven days notice, on the basis that such work is predominantly performed by shunters. The Unions have also conceded that seven days notice of industrial action is appropriate in the case of RMCs and RDCs.

[45] Further, it is relevant that the Unions have given undertakings that skeleton crews will be available to undertake work during periods of industrial action in the event of emergency situations. The situations described by Mr Williams as having the potential to stop traffic on the QR network were all within the emergency situations covered by the undertakings. Generally the undertakings given by each of the Unions are that where there is an emergency situation involving a train or unit blocking a track, or a derailment or similar situation, and maintenance employees are required to perform work to clear that blockage, a skeleton crew comprising necessary maintenance employees will be available to perform the required work. I accept that undertaking and have no reason to doubt that it will be adhered to by each of the Unions and their members. The fact that the undertakings were given is a significant factor weighing against the exercise of the discretion to extend the notice period.

[46] In relation to bans on refuelling or decanting trains, it is clear that there are other options available to QR to have this work performed. QR can operate trains in such a way that they are refuelled at locations other than Brisbane, and/or by contractors. Bans on decanting trains can be dealt with by scheduling stops or locking off toilets. Decanting trains can also be undertaken by contractors. The use of contractors to perform such work is a matter at the discretion of QR and the Act provides remedies against employees who are not subject of the present application, taking industrial action because QR has used contractors to undertake certain work. For example, if employees who are covered by an enterprise agreement which has not reached its nominal expiry date, place a ban on working on trains or units that have been decanted or refuelled by contractors, QR has remedies under the Act against such action, including seeking an order under s.418. I do not accept that QR needs seven days to put arrangements for contractors to undertake that work in place. From the date the Order for the protected action ballot is issued, QR will have ample opportunity to make logistical arrangements with contractors to undertake this work, and will have three days notice of any industrial action in which it will be able to determine whether it is necessary to implement such arrangements.

[47] I am not satisfied that the ban on steam cleaning will have the effect contended for by QR of stopping trains because they will not be able to be uncoupled. The evidence was that trains are not uncoupled unless they are to be subject to major maintenance or overhaul. Such work is more likely to be routine and scheduled and three days notice of industrial action will enable QR to decide whether to defer such maintenance. It is apparent that a ban on steam cleaning would cause trains to be dirty rather than prevent them from operating.

[48] In submissions, QR raised the issue of the impact of industrial action preventing the handover of trains from maintenance crew to train crew or yardmasters. According to QR, when City Trains emerge from the maintenance and repair shed, maintenance personnel who have performed work on the unit need to certify or vouch for the fitness of the unit to return to operation. Without this handover, units cannot be handed back to the control of the yardmaster and released into the system. This was also said to be the case with travel trains such as the Tilt Train, which are the subject of checks before they leave Brisbane and regional depots, and with respect to which maintenance personnel are required to complete certain paperwork to enable the train to depart.

[49] The maximum period of industrial action that will be authorised by the ballot is a period of 48 hours. At worst, if maintenance employees stop work for 48 hours, any trains undergoing maintenance will not be handed over by maintenance employees within that period. The disruption likely to be caused by this is not sufficient to justify the exercise of the discretion in s.443(5). Further, there was no evidence from QR about why this work could not be undertaken by other qualified staff, including those at managerial level. For the reasons set out above, there are remedies available to QR in the event of unprotected industrial action being taken in response to alternative arrangements it may make to have work performed.

[50] An Order will issue with this decision that pursuant to s.443(5) of the Act, any form of industrial action taken by Shunters, RMCs and RDCs will require seven days notice. The Order will also require seven days notice of industrial action relating to the performance of work offsite on the basis that the evidence establishes that such work is predominantly undertaken by Shunters or in cases of emergency where maintenance employees are deployed to move trains blocking part of the QR network. There was no evidence about the level of involvement of members of each Union in work undertaken by Shunters, RMCs, RDCs and offsite work. Accordingly, for the avoidance of doubt, and in light of the fact that the Orders will operate simultaneously, the extended periods of notice relating to Shunters, RMCs, RDCs and offsite work have been included in each Order.

COMMISSIONER

 1   Exhibit 1.

 2   Exhibit 2.

 3   Exhibit 3.

 4   Exhibit 4.

 5   Exhibit 8.

 6   Exhibit 7.

 7   LHMU v Foster’s Australia Pty Ltd[2009] FWA 750 per Kaufman SDP at [17].

 8   AMWU v Clyde Babcock-Hitachi (Australia) Pty Ltd [2011] FWA 2291 at [7].

 9 Fair Work Act 2009 s.12(f)

 10   PR979157 (9 October 2007) at [10].

 11 Ibid at [21].

 12   [2011] FWA 6073

Printed by authority of the Commonwealth Government Printer

<Price code C PR515456>