Australian Rail, Tram and Bus Industry Union-New South Wales Branch v NSW TrainLink

[2020] FWC 3679

[2020] FWC 3679

FAIR WORK COMMISSION

DECISION

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

Australian Rail, Tram and Bus Industry Union-New South Wales Branch
v
NSW TrainLink
(C2018/4567)

Rail industry
DEPUTY PRESIDENT SAMS	SYDNEY, 14 JULY 2020

Application to have the Commission deal with disputes in the NSW rail industry - practice and procedure - introduction of new intercity rail fleet - associated issues and Union concerns - long history of Commission proceedings - matters listed for arbitration - evolving nature of dispute - Notice of Discontinuance of one dispute - respondent objects to the discontinuance - Rules of the Commission - no action to be taken by the Commission at this time.

INTRODUCTION

[1] The Fair Work Commission (the ‘Commission’) presently has three dispute applications filed by the Australian Rail, Tram and Bus Industry Union (‘ARTBIU’ or the ‘Union’) pursuant to s 739 of the Fair Work Act 2009 (the ‘Act’), all of which relate to the NSW Government’s procurement of a new intercity Sydney rail fleet for NSW TrainLink (‘NSW Trains’ or the ‘respondent), at a cost of approximately $2.4 billion. These disputes, their lodgement dates and specific subject maters are as follows:

1. C2018/4567 – filed 16 August 2018 – Union complaints about non-disclosure agreements required of Union officials and delegates and a claim of a lack of consultation with Union members. This matter was reallocated to me after Senior Deputy President Hamberger’s retirement. I convened a number of conferences with the parties in late 2018 and 2019. Relevantly, the scope of the dispute widened to now include Union concerns with the role of the guard on the new trains and issues about train design, including an in-cab CCTV camera, passenger door controls and traction interlocking.

2. C2020/441 – filed 28 January 2020 – after the respondent had commenced discussing the classification of the drivers for the new fleet and a phasing in of changes for guards in 2023, NSW Trains sought a relisting of the original matter concerning the interpretation of the NSW Trains Enterprise Agreement 2018 (the ‘Agreement’). At the same time, the Union lodged application C2020/441. Further conferences were listed.

3. C2020/4062 – filed 28 May 2020 – the Union lodged a third application related to alleged deficiencies in the new fleet’s Operating Instruction Manual (‘OIM’) and consultation.

[2] In a conference with the Commission on 10 June 2020, and with the parties’ consent, I listed all three applications for hearing on 23 July 2020 and 7 August 2020. I took the view then, and I do not resile from that view, that as all three matters concerned the one single matter, that of the introduction of the new intercity rail fleet, it would be more efficient to require the parties to deal with all issues in dispute, in one proceeding. This was despite the fact that the passage of time may have rendered obsolete, resolved or no longer relevant, some of the many facets of these disputes over almost two years.

BACKGROUND

[3] At this point, I am reminded of what Commissioner Saunders (as the Deputy President then was) said in Construction, Forestry, Mining and Energy Union v Mt Arthur Coal Pty Ltd[2016] FWC 2959 about the evolving nature of disputes over time, when he said at [6]-[10]:

‘[6] The test under s.739 of the FW Act is whether the dispute settlement procedure in the enterprise agreement “requires or allows” the Commission to deal with the dispute. It is therefore necessary to look at the text of the dispute settlement procedure, understood in light of its industrial context and purpose, to determine whether the dispute, properly characterised, falls within it.

[7] The scope of a dispute settlement procedure in an enterprise agreement should not be narrowly construed; “to do so would be contrary to the notion that certified agreements are intended to facilitate the harmonious working relationship of the parties during the operation of the agreement.”

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

[9] It is also important to note that the character of the dispute is distinguishable from any relief which may be sought, or granted, following an arbitration of the dispute. However, the relief sought may cast light on the true nature of the dispute in some cases.

[10] If the Commission has jurisdiction to deal with the dispute, the nature of the relief that the Commission may grant in such circumstances will depend on the limitation in s.739(5) of the FW Act and the agreement of the parties as recorded in their enterprise agreement, provided that such relief is reasonably incidental to the application of the Enterprise Agreement to which the dispute relates.’ (endnotes omitted) (my emphasis)

These disputes are a classic example of an evolving dispute about a single issue; albeit an enormously important issue for the Union and its members and one of great significance to the State of New South Wales and the travelling public.

[4] I set out the above background to put in context a relatively innocuous procedural dispute that has arisen between the parties, which the Commission has been requested to determine.

[5] On 24 June 2020, the Union filed a Form F50 – Notice of Discontinuance (‘NOD’) – in respect to the original dispute application (C2018/4567). Ordinarily, a NOD would be welcomed by a respondent to an application as finally concluding a matter, with its subject matter unable to be reagitated. However, NSW Trains did not agree to the matter being discontinued and sought either of the following:

‘19. If the Commission agreed with the Respondent's position, options include exercising its power under rule 6(2) of the Fair Work Commission Rules 2013 to:

(a) merge C2020/441 and C2020/4062 into C2018/4567; or

(b) merge the three applications into a new matter number to deal with all NIF-related disputes; or

(c) adopt some other mechanism to create efficiency and certainty to deal with NIF-related disputes.

20. Should the Commission decline to accept the proposal outlined above, the Respondent respectfully submits that matter C2018/4567 not be discontinued and that it remain open for the parties to apply at short notice to seek the Commission's assistance for NIF-related issues.’

In the result, I directed the parties to file short submissions on the issue which I have considered and had regard to.

CONSIDERATION

[6] The starting point in this matter is the well-accepted understanding that once a party or person, who is the applicant to an application, withdraws or discontinues their application, at any time, this usually ends the matter, or at least the substantive matter, save for the rare cases of subsequent costs applications.

[7] This practice is confirmed by Rule 10 of the Fair Work Commission Rules 2013 (the ‘Rules’) which states:

10 Discontinuance

(1) An applicant in an application before the Commission may discontinue the application at any time.

(2) To discontinue the application, the applicant must notify the Commission by:

(a) lodging a notice of discontinuance; or

(b) advising the Commission, or a member of the staff of the Commission, by letter, email, fax or telephone, or orally in person, that the applicant:

(i) wishes to discontinue the application; or

(ii) has settled the application; or

(iii) wishes to withdraw the application; or

(iv) no longer needs the Commission to deal with the application; or

(c) advising the Commission of the discontinuance during the course of a conference or hearing.

Note 1: For paragraph (a), the notice of discontinuance must be in the approved form—see subrule 8(2).

Note 2: The Commission prefers applicants to advise it of the discontinuance of a matter by lodging a notice of discontinuance in the approved form.

Note 3: See subregulations 3.02(8), 3.03(8), 3.07(8) and 6.07A(8) of the Regulations in relation to the refund of an application fee when an application is discontinued.

(3) To remove any doubt, this rule does not prevent the Commission from dismissing an application on its own initiative.

Further support for the practice is found in the Form F50 itself.

[8] In both cases, there is no requirement for a respondent to consent or otherwise to the discontinuance of an application. Indeed, there is no reference to any other party, notably the respondent, in either Rule 10 or the Form F50. This tells against the proposition that a respondent to a discontinued application, must consent or oppose a NOD when it is filed. I also note that the filing of a NOD does not require the approval or otherwise of the Commission. The effect of a NOD, as far as the Commission is concerned, is to close the file, dissolve any directions previously issued and vacate any further proceedings.

[9] NSW Trains relied on Rule 6(2) which permits a wide discretion to dispense with a rule if the Commission so determines. It reads:

6 Dispensing with rules and orders inconsistent with rules

…

(2) The Commission may make an order that is inconsistent with these Rules and if it does so, the order will prevail.

[10] The Commission’s discontinuance Rules are to be contrasted with the corresponding Rules of the Federal Court Rules 2011 which at Rule 26.12 reads:

26.12 Discontinuance

(1) A party claiming relief may discontinue a proceeding in whole or in part by filing a notice of discontinuance, in accordance with Form 48.

(2) The party may file the notice of discontinuance:

(a) without the leave of the Court or the other party’s consent:

(i) at any time before the return date fixed in the originating application; or

(ii) if the proceeding is continuing on pleadings—at any time before the pleadings have closed; or

(b) with the opposing party’s consent—before judgment has been entered in the proceeding; or

(c) with the leave of the Court—at any time.

Note 1: For when pleadings close, see rule 16.12.

Note 2: The Court may give leave subject to conditions including costs—see rule 1.33.

(3) The notice of discontinuance must:

(a) state the extent of the discontinuance; and

(b) if the discontinuance is by consent—be signed by each consenting party.

(4) However, a litigation representative or a representative party must not discontinue a party’s claim without first obtaining the leave of the Court.

(5) An application for a winding up order under section 459P or 461(1)(a) of the Corporations Act 2001 may be discontinued only with the leave of the Court.

(6) A notice of discontinuance filed by one party does not affect any other party to the proceeding.

(7) Unless the terms of a consent or an order of the Court provide otherwise, a party who files a notice of discontinuance under subrule (2) is liable to pay the costs of each other party to the proceeding in relation to the claim, or part of the claim, that is discontinued.

[11] It may be accepted that the obvious differences between the Commission’s and the Federal Court’s Rules are a reflection of the statutory mandate under s 577 of the Act which reads:

Performance of functions etc. by the FWC

The FWC must perform its functions and exercise its powers in a manner that:

(a) is fair and just; and

(b) is quick, informal and avoids unnecessary technicalities; and

(c) is open and transparent; and

(d) promotes harmonious and cooperative workplace relations.

Note: The President also is responsible for ensuring that the FWC performs its functions and exercises its powers efficiently etc. (see section 581).

[12] While I accept that as NSW Trains correctly put, Rule 6.2 empowers the Commission to make an order inconsistent with the Rules, I know of no authority (nor was any identified) which would support the proposition that Rule 6.2 is a default position for the ordinary and usual course when a NOD is filed.

[13] On one view, discontinuing matter C2018/4567 is neither here nor there. It is difficult to see how either party is prejudiced one way or the other. Indeed, it seems rather curious that NSW Trains would not want to see irrelevant or stale matters reagitated, when the effect of the NOD dispenses the earlier concerns of the Union and prevents them from being reagitated in the final proceedings.

[14] That said, I propose to defer consideration of this matter and make no orders at this time, as to whether the NOD should be accepted or otherwise. I do so, bearing in mind firstly, the self-evident evolution of this dispute, and secondly, to do so would be contrary to my earlier decision of 10 June 2020, to list all three matters for hearing on the dates referred to earlier.

DEPUTY PRESIDENT

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