Australian Rail, Tram and Bus Industry Union v Qube Logistics (Rail) Pty Ltd T/A Qube Logistics
[2023] FWC 1903
•1 AUGUST 2023
| [2023] FWC 1903 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.424—Industrial action
Australian Rail, Tram and Bus Industry Union
v
Qube Logistics (Rail) Pty Ltd T/A Qube Logistics
(B2023/762)
| COMMISSIONER CRAWFORD | SYDNEY, 1 AUGUST 2023 |
Suspension or termination of protected industrial action – endangering life etc – economic impact of industrial action
Introduction
On 27 July 2023, the Australian Rail, Tram and Bus Industry Union (RTBU) filed an application pursuant to s.424 of the Fair Work Act 2009 (FW Act) seeking an order for the suspension or termination of protected industrial action on the basis that the action has threatened, is threatening, or would threaten to endanger the life, personal safety or health, or the welfare, of the population or of part of it. The Respondent to the application is Qube Logistics (Rail) Pty Ltd (Qube).
The action that is potentially relevant to the application commenced on 14 July 2023, when the RTBU provided notice of the following four partial work bans pursuant to s.414 of the FW Act, with each work ban to commence at 12:01am on Thursday, 20 July 2023:
· An indefinite ban on RTBU members covered by the Orders operating a train of more than 12 wagons during any local or shuttle working;
· An indefinite ban on RTBU members covered by the Orders accepting Lift-up or Lay-back changes to their start times;
· An indefinite ban on RTBU members covered by the Orders shunting more than 12 wagons at a time; and
· An indefinite ban on RTBU members covered by the Orders on any form of mainline working except Single Locomotive Working.[1]
There is no dispute that the notified actions were approved in accordance with the protected action ballot order (PABO) issued in Matter B2023/568[2] and that the various elements necessary for the actions to be protected under the FW Act were satisfied.
The notified action relates to bargaining for an enterprise agreement to replace the existing Qube Logistics (Rail) Train Crew NSW Enterprise Agreement 2019[3] (Proposed Agreement) which nominally expired on 31 March 2023. Bargaining for the Proposed Agreement commenced on 19 May 2022.[4] The Commission conducted a conciliation conference in accordance with s.448A of the FW Act on 26 June 2023.
Qube responded to the RTBU’s notification on 19 July 2023 by providing notice pursuant to s.471(4)(c) of the FW Act that members taking part in one or more of the partial work bans would not be entitled to payment for each day that a ban is engaged in and Qube refuses to accept the performance of any work by RTBU members on such days.[5]
The RTBU wrote to Qube later on 19 July 2023 to indicate it had advised members who had received the notice from Qube of their rights under s.471(4A) of the FW Act and that it anticipated a large number of members would not attend work from 12:01am on Thursday, 20 July 2023.[6] Kevin Pryor (RTBU Organiser) gave uncontested evidence that the RTBU’s density amongst the relevant Qube workforce is around 70% and that compliance with the industrial action has been “fairly good”.[7] I take that to mean a majority of the relevant workforce, and potentially up to around 70%, has not been attending work since 20 July 2023.
The application filed by the RTBU on 27 July 2023 alleged safety issues were arising as a result of actions taken by Qube to mitigate the effects of the protected action by continuing rail services.[8] These issues had also been raised in writing with the Office of the National Rail Safety Regular (ONRSR) on 27 July 2023.[9]
On 28 July 2023, the RTBU gave notice to Qube that its partial work bans notified on 14 July 2023 would cease from 12:01am on 29 July 2023 in the interests of alleviating the alleged safety issues.[10]
On 28 July 2023, Qube gave written notice that employees who had participated in partial work bans since 20 July 2023 and had not returned to work as normal by 12:00am on Monday, 24 July 2023, would be locked out for 72 hours until 12:01am on Tuesday, 1 August 2023.[11] The written notice was unhelpfully headed ‘Notice of Indefinite Lockout’, which is inconsistent with the remaining terms of the notice.
By the time it filed evidence in support of its application on 29 July 2023, the RTBU had decided it intended to notify Qube of an indefinite stoppage as a form of employee response action pursuant to s.410 of the FW Act.[12] There is no prescribed period of prior notice for employee response action.[13]
Subsequent to the end of the hearing, I was notified by the RTBU on 1 August 2023 that it has given formal notice of an indefinite strike commencing at 12:01am on 1 August 2023 and that Qube had also given written notice of a lockout from 12:01am on 1 August to 12:01am on 2 August 2023. It appears Qube’s lockout was notified to provide certainty in circumstances where it was still awaiting receipt of the RTBU’s indefinite strike notice.
Permission
I granted permission for the RTBU and Qube to be legally represented at the hearing on 31 July 2023 on the basis it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter, pursuant to s.596 of the FW Act.
Material relied upon by the RTBU and Qube
The RTBU relied on the following evidence in support of its application:
· Witness statement of Kevin Pryor dated 29 July 2023. During the hearing on 31 July 2023, the RTBU confirmed it did not rely on paragraph [43] of Mr Pryor’s statement and a purported screenshot appearing as part of Attachment KP8 to the statement. Qube also objected to paragraph [42] and [52] of Mr Pryor’s statement. I allowed these paragraphs into evidence despite some significant reservations about the utility of paragraph [42] on the basis I would take Qube’s objections into account when determining what weight, if any, to give to this evidence. Mr Pryor’s statement with the agreed deletions was marked Exhibit A1 and he was cross-examined during the hearing;
· Witness statement of Greg Woods dated 28 July 2023. Mr Woods’ statement was marked Exhibit A2 and he was not cross-examined;
· Witness statement of Keith McMahon dated 29 July 2023. Mr McMahon’s statement was marked Exhibit A3 and he was not cross-examined;
· Witness statement of Stephen Priestly dated 29 July 2023. Mr Priestly’s statement was marked Exhibit A4 and he was not cross-examined;
· Witness statement of Troy George dated 28 July 2023. Mr George’s statement was marked Exhibit A5 and he was not cross-examined; and
· On 31 July 2023, I issued an order for Colin Holmes from the Office of the Rail Safety Regulator to attend the hearing to give evidence at the request of the RTBU. Mr Holmes gave oral evidence during the hearing.
The RTBU also relied on an outline of submissions dated 29 July 2023 and oral closing submissions.
Qube relied on the following evidence in opposing the application:
· Witness statement of James Berriman dated 30 July 2023. Mr Berriman’s statement was marked Exhibit R1 and he was not cross-examined;
· Witness statement of Wayne Dobby dated 30 July 2023. Mr Dobby’s statement was marked Exhibit R2 and he was not cross-examined;
· Witness statement of Dan Coulton dated 31 July 2023. Mr Coulton’s statement was marked Exhibit R3 and he was cross-examined;
· Witness statement of Stuart Hudd dated 31 July 2023. Mr Hudd’s statement was marked Exhibit R4 and he was cross-examined; and
· Witness statement of Nicholas Angelos dated 31 July 2023. Mr Angelos’ statement was marked Exhibit R5 and he was cross-examined.
Qube also relied on an outline of submissions dated 31 July 2023 and oral closing submissions.
Summary of the evidence
The following summaries are necessarily brief given the time pressures. The summaries represent what I have identified as evidence to highlight in the decision. I have reviewed all the evidence.
RTBU
Kevin Pryor
Mr Pryor is a Locomotive Divisional Organiser for the RTBU and has been responsible for these negotiations with Qube and also negotiations for the previous two enterprise agreements. Mr Pryor’s statement contained a history of the bargaining process and the various forms of industrial action. This included evidence about a conciliation conference at the Commission on 26 June 2023, a communication from the RTBU to its members on 26 June 2023[14] and a memorandum Qube circulated to employees on 7 July 2023.[15] It also attached relevant documents in support of the application.
Mr Pryor was cross-examined particularly in relation to the bargaining process, the RTBU’s Federal Court application, Qube’s variation application to the Commission and an email allegedly sent by James Berriman.
Greg Woods
Mr Woods is employed by Qube as a Train Driver at its Newcastle Depot. Mr Woods has a background in training and provided evidence about train driver qualifications. Mr Woods stated Railsafe publishes an ‘Operating Rail Traffic Standard’ (Standard) for train drivers on the Sydney Trains Network. A copy of the Standard was attached to Mr Woods’ statement. The Standard requires qualifications for ‘traction knowledge’ and ‘route knowledge’. These qualifications may expire even when a driver is still operating trains. A driver remains route qualified if they have driven on the route in the previous 12 months. A driver remains traction qualified if they driven a particular type of rolling stock within the last 24 months. There is also an initial assessment process to achieve a route qualification.
Mr Woods gave evidence about events on 14 July 2023. Mr Woods stated he was directed to drive train 5WB7 from Newcastle to Wollongong and then drive by car back to Newcastle. Mr Woods raised fatigue issues and was advised he would be relieved on route to Wollongong. Qube’s internal system ‘Qube live’ initially indicated Mr Woods would most likely be relieved at Cowan by a Moss Vale driver, John Edwards Senior. Mr Woods was then advised he would have to travel to Enfield before getting relieved because Mr Edwards Senior is not route qualified past Enfield. Mr Woods also gave evidence that there is an under supply of drivers as a result of industrial action which is raising these types of issues with route qualifications.
Keith McMahon
Mr McMahon recently retired from his employment with Sydney Trains as a driver trainer. He still holds positions with the RTBU. Mr McMahon gave evidence about the importance of maintaining current competencies for train drivers and the potential for catastrophic consequences if rules are breached. Mr McMahon gave evidence about the complexities of the rail network and the risks that can present if a driver is not familiar with a given route.
Stephen Priestly
Mr Priestly is employed as Network Incident Manager for Sydney Trains. Mr Priestly gave evidence about the Glenlee network which is jointly operated by Sydney Trains and the Australian Rail Track Corporation (ARTC). Freight trains wishing to enter this area must gain consent from Sydney Trains and ARTC. This approval can be for scheduled set paths or for ad hoc paths.
Mr Priestly gave evidence about an incident on 26 July 2023 involving Train 3164 operated by Qube. Mr Priestly gave evidence this train entered the Sydney Trains network at Glenlee without the approval of Sydney Trains. Mr Priestly was tasked with investigating this incident for Sydney Trains.
Mr Priestly listened to relevant phone calls between Sydney Trains, Qube and ARTC. Mr Priestly ascertained that Train 3164 presented at Glenlee around 4:44am seeking to access the Sydney Trains network without an ad hoc path being approved. Sydney Trains did not accept access for the train because no ad hoc path was approved. It indicated the train should instead travel on the Southern Sydney Freight Line (SSFL). There were conversations between Qube, ARTC and Sydney Trains, but Sydney Trains had still not accepted the train onto the Glenlee network. At 5:42am, Train 3164 appeared on the Sydney Trains network moving towards Macarthur. This created problems with passenger trains and as a result, the train was directed to travel on the passenger network into Enfield and wait there until 10am when the peak passenger commute period ends.
Train 3164 entering the Sydney Trains network unannounced meant another train, SN26, was stuck behind it and delayed. Train 3164 was ultimately accepted onto the Sydney Trains network to avoid delaying a passenger service.
Mr Priestly gave evidence Qube has made multiple requests to Sydney Trains to not delay their trains since 21 July 2023 due to ‘crew resource management’.
Mr Priestly gave evidence he was asked to look up the crew on Train 4962 on 26 July 2023 travelling from Morandoo to Port Kembla. Mr Priestly confirmed the crew was John Edwards Senior and Craig Writer.
Troy George
Mr George is an InterCity Train Driver with NSW Trains based at Moss Vale depot. Mr George was driving a passenger train, Train SN26, on 26 July 2023. As Mr George approached Campbelltown at around 5:30am, he was directed to stop and told by a signaller that an unscheduled freight train was in front of his train and there would be a delay. The signaller indicated they were not aware which direction the freight train was travelling. Mr George gave evidence of being extremely concerned about this uncertainty from a signaller and that it was unprecedented in his experience. Train SN26 was then required to sit stationary between two stations, a practice that should be avoided because it can create various risks to safety. Train SN26 remained stationary for around 15 minutes and then continued on its route.
Colin Holmes
Mr Holmes is employed in the Office of the Rail Safety Regulator. He gave evidence about the concept of route qualifications and their purpose in minimising safety risks. Mr Holmes gave evidence about the sort of evidence he would require during an audit to determine if the relevant qualification requirements had been met.
QUBE
James Berriman
Mr Berriman is Qube’s Interstate Operations Manager. Mr Berriman gave evidence about an email he allegedly sent regarding safety issues on 22 July 2023. Mr Berriman denied sending the relevant email.
The RTBU seemingly accepted Mr Berriman did not send the relevant email and did not rely on the alleged email in support of its case.
Wayne Dobby
Mr Dobby is Qube’s Enterprise Infrastructure Manager. Mr Dobby gave evidence confirming checks he had undertaken to confirm Mr Berriman did not send an email as alleged on 22 July 2023.
Dan Coulton
Mr Coulton is employed by Qube Holdings Limited as General Manager – Industrial Relations. Mr Coutlon gave evidence about the bargaining process, including in relation to a conciliation conference conducted by the Commission on 26 June 2023 and a Federal Court application filed by the RTBU concerning the application of pay rates under the current and predecessor agreements. Mr Coulton gave evidence about an in principle agreement reached on 26 June 2023 and receiving an unstamped copy of the RTBU’s application prior to reaching the in principle agreement. Mr Coulton gave evidence about receiving a stamped copy of the application on 27 June 2023 and then becoming concerned about the potential underpayment amounts.
Mr Coulton gave evidence about a further conference at the Commission on 10 July 2023 and offers subsequently provided by Qube to the RTBU via email on 12 July 2023. Mr Coulton explained that the RTBU rejected Qube’s offers on 13 July 2023 and proposed a counter-offer. The counter-offer was not acceptable to Qube.
Mr Coulton gave evidence about the industrial action taken thus far and an application filed by Qube to vary the current agreement and its predecessor on 29 July 2023. Mr Coulton provided evidence in response to that filed by Mr Pryor regarding the bargaining process and respective positions.
Stuart Hudd
Mr Hudd is Qube’s National Safety Manager Rail and Agri and CEO of Qube’s Registered Training Organisation.
Mr Hudd provided evidence about route qualifications and Qube’s safe management system (SMS), which is used by Qube to monitor the competency standard of drivers. This includes recognition of relevant work performed for Qube or labour hire contractors.
Mr Hudd responded to evidence about route qualifications provided by Mr Woods. There were not substantial differences in the evidence but Mr Hudd referred to the potential for drivers to have broader route experience than that required for their current routes and that driver validation processes are not the only way for a driver to achieve route competency.
Mr Hudd gave evidence about Mr Edwards Senior. Mr Hudd stated Mr Edwards Senior is very experienced despite only commencing employment with Qube in June 2023. Mr Edwards Senior provided Qube with evidence of his route competencies on commencement with Qube and evidence of their currency from his recent employment with Southern Shorthaul Railroad (SSR). Mr Hudd stated this evidence, which was attached to his statement, confirmed Mr Edwards Senior was route qualified to travel beyond Enfield towards Broadmeadow, amongst various other routes. Mr Hudd also referred to diary entries provided by Mr Edwards Senior to substantiate his competencies. Mr Hudd stated a driver assessment for Mr Edwards Senior for the relevant route was not required because of his demonstrated experience.
Mr Hudd gave evidence about being contacted by the ONRSR in response to concerns raised by the RTBU in its correspondence dated 27 July 2023. Mr Hudd gave evidence he provided information about the qualifications of Mr Edwards Senior and Mr Writer to the ONRSR and that receipt of this information was confirmed by the ONRSR. Mr Hudd also referred to SSR providing copies of Mr Edwards Senior’s transcript on 31 July 2023 to clarify his route competencies. The transcript was attached to Mr Hudd’s statement.
Mr Hudd responded to Mr George’s evidence about the incident on 26 July 2023. Mr Hudd stated he disagreed with much of Mr George’s evidence and that no report had been made to him by Sydney Trains or via the ONRSR online portal. Mr Hudd gave evidence it is common for trains to be delayed and denies Mr George’s statement discloses a safety breach.
Nicholas Angelos
Mr Angelos is National Rail Access Manager for Qube. Mr Angelos provided evidence about Qube’s Access Agreements with Sydney Trains which allow access to the Sydney Trains network on a scheduled or ad hoc basis.
Mr Angelos stated he was not aware of any issue occurring on 26 July 2023 until he received the RTBU’s material in support of its application. Mr Angelos stated that he has not received any concerns from Sydney Trains, ARTC or UGL regarding safety issues with Qube’s crews since the commencement of protected industrial action. Mr Angelos stated in his role, he would expect to be immediately notified of any concerns.
Mr Angelos gave evidence that the path for Train 3164’s movements on 26 July 2023 was approved by UGL and ARTC on 22 July 2023 and by Sydney Trains on 23 July 2023. Mr Angelos gave evidence about the delays experienced by Train 3164 on 26 July 2023. Mr Angelos states he concluded there was nothing unsafe about the events associated with the delay and that the operation of red signals had their intended effect of preventing a collision.
Mr Angelos gave evidence about reviewing Qube’s Customer Service Centre audio tapes relating to Train 3164 on 25 and 26 July 2023. Mr Angelos stated these tapes indicate there was a miscommunication between the control rooms of Qube, Sydney Trains and ARTC regarding the train’s route. Mr Angelos stated the evidence suggested Sydney Trains had rejected a request from Qube but ARTC may have been under a misapprehension.
Mr Angelos was adamant in his evidence that the industrial action did not cause the relevant delays and that the relevant rail crew observed all signals as required.
Mr Angelos also provided evidence in response to some of the issues raised by Mr George and Mr Priestley in their statements. The effect of the responses was to reiterate his view that nothing unusual or untoward occurred on 26 July 2023 in relation to Train 3164. Mr Angelo also attached the approved train path for Train 3164 to his statement.
Statutory framework
Division 6 of Part 3-3 of the FW Act sets out when the Commission may or must make orders to terminate or suspend protected industrial action. Relevantly, s 424 provides:
424 FWC must suspend or terminate protected industrial action—endangering life etc.
Suspension or termination of protected industrial action
(1) The FWC must make an order suspending or terminating protected industrial action for a proposed enterprise agreement that:
(a) is being engaged in; or
(b) is threatened, impending or probable;
if the FWC is satisfied that the protected industrial action has threatened, is threatening, or would threaten:
(c) to endanger the life, the personal safety or health, or the welfare, of the population or of part of it; or
(d) to cause significant damage to the Australian economy or an important part of it.
(2) The FWC may make the order:
(a) on its own initiative; or
(b) on application by any of the following:
(i) a bargaining representative for the agreement;
(ii) the Minister;
(iia) if the industrial action is being engaged in, or is threatened, impending or probable, in a State that is a referring State as defined in section 30B or 30L—the Minister of the State who has responsibility for workplace relations matters in the State;
(iib)if the industrial action is being engaged in, or is threatened, impending or probable, in a Territory—the Minister of the Territory who has responsibility for workplace relations matters in the Territory;
(iii) a person prescribed by the regulations.
Application must be determined within 5 days
(3) If an application for an order under this section is made, the FWC must, as far as practicable, determine the application within 5 days after it is made.
Interim orders
(4) If the FWC is unable to determine the application within that period, the FWC must, within that period, make an interim order suspending the protected industrial action to which the application relates until the application is determined.
(5) An interim order continues in operation until the application is determined.
Consideration
The relevant action
As identified by the Federal Court in Australian and International Pilots Association v Fair Work Australia,[16] separate consideration must be given to each of the protected industrial actions which is to be terminated or suspended – i.e. each which has been notified.
In this case, Qube argued the only protected action I should consider is the RTBU’s proposed indefinite strike, which has now been formally notified.[17]
The RTBU initially submitted the protected industrial action the subject of the application is the partial work bans notified by the RTBU, along with the resulting direction by Qube under s.471(4A) of the Act, and the indefinite strike.[18] During reply submissions, I understood the RTBU conceded that the indefinite strike was the only form of protected action for me to consider but that the earlier action was relevant in terms of assessing the impact of the indefinite strike. I think that is the correct approach given the evidence establishes that the partial work bans ceased on 29 July 2023, and hence would need to be the subject of a new notification from the RTBU, either pursuant to s.414(2) or (4). I therefore intend to apply the test in s.424 of the FW Act by reference to the RTBU’s indefinite strike which I am now aware commenced at 12:01am on 1 August 2023.
I accept the RTBU’s submission that evidence about what occurred following the notification of its partial work bans may be relevant to assessing the impact of the indefinite strike, given the practical consequence of the notification of the partial work bans appears to be that the RTBU have largely ceased working in the same manner that would occur with a strike.
Threatened, impending or probable industrial action?
It is not in dispute, and I find, that the RTBU’s indefinite strike constitutes protected industrial action, in the form of employee response action for a proposed enterprise agreement, that is threatened, impending or probable. This engages the prerequisite in s.424(1)(b) of the FW Act.
It is therefore necessary to consider whether I am satisfied of the matter specified in s.424(1)(c). This requires an evaluative assessment of a discretionary nature.[19]
Endangerment of the life, the personal safety or health, or the welfare, of the population or of part of it?
The terms “endanger” and “welfare” used in s 424(1)(c) are not defined in the FW Act, however they bear their ordinary meaning, and it is a matter for the Commission, in each case before it, to determine whether or not it is satisfied that industrial action is threatening to endanger the welfare of the population, or a part of it.[20]
In Coal & Allied Operations v CFMEU,[21] Giudice J stated the following regarding the operation of the relevantly same statutory test appearing in s.424(1) of the FW Act:
“6.4 Causative of harm to specified public interests: ‘‘. . . is threatening to . . . endanger . . . or to cause damage to . . .’’
In the context, the verb ‘‘is threatening to’’ may be given its ordinary meaning in the sense of giving an ominous indication of being the source or cause of a relevant danger or damage. The industrial action must itself be giving ominous indication of being the direct or reasonably proximate cause of effects that are productive of, or are likely to be productive of a relevant danger, peril or damage to welfare or the economy. The phrase imports the temporal element of the circumstance by using the present continuous to require satisfaction as to there being a threatening situation contemporaneous with the exercise of jurisdiction.
In the context, the words ‘‘to endanger’’ and ‘‘to cause’’ each import a direct relationship, and a relatively high degree of causative impact in producing the specified danger or damage. Construction of the phrases in this manner is consistent with the constructions applied in a number of cases to similar expressions used in Commonwealth anti-dumping legislation (ICI Australia Operations v Fraser (1992) 34 FCR 564 at 568-522 per Black CJ, Neaves and von Doussa JJ; Swan Port Land v Minister for Small Business and Customs (1991) 28 FCR 134 at 144-145 per Lockhart J).”
I am not satisfied on the evidence presented by the RTBU that the indefinite strike by its members has threatened, is threatening, or would threaten to endanger the life, the personal safety or health, or the welfare, of the population or of part of it.
The RTBU has primarily relied on the following evidence to establish that s.424(1)(c) is enlivened in this case:
· An allegation that a Qube employee, John Edwards Senior, drove Train 9461 on 14 July 2023 in breach of route qualification standards. The RTBU relied primarily on evidence from Mr Woods in relation to this incident; and
· An allegation that Train 3164 entered the Sydney Trains network on 26 July 2023 without approval from Sydney Trains. The RTBU relied on evidence from Mr Priestly and Mr George in relation to this incident.
I understand the RTBU’s case to be that these events demonstrate that the consequence of the RTBU members ceasing work has been that Qube has implemented operational arrangements that have created the requisite threat to the safety or welfare of part of the population of New South Wales, being the train travelling public.[22]
However, Qube has filed documentary evidence[23] to establish that Mr Edwards Senior was qualified to drive on the relevant routes that Train 9461 used on 14 July 2023. This evidence was not significantly undermined in cross-examination. I note the RTBU advised the ONRSR in writing on 27 July 2023 of the allegation concerning Mr Edwards Senior. I was not provided with any evidence by the RTBU to establish that the ONRSR had deemed it necessary to take any steps in relation to this incident. Further, Mr Hudd gave evidence that he had provided Mr Edwards Senior’s competency information to the ONRSR in response to their request. There is no evidence of the ONRSR raising any further concerns.
Mr Angelos gave evidence, that was not significantly undermined in cross-examination, that he did not become aware of the alleged incident on 26 July 2023 until he reviewed the RTBU’s evidence in this matter. Mr Angelos gave evidence that he has not been contacted by Sydney Trains or ARTC in relation to the incident on 26 July 2023 and that his investigation indicated nothing unsafe occurred. I have no evidence of the ONRSR, Sydney Trains or ARTC formally raising any concerns about this incident, although I acknowledge the evidence of Mr Priestly.
I cannot be satisfied on the evidence before me that the indefinite strike is threatening, or would threaten, to endanger the safety or welfare of the train travelling public in New South Wales. The evidence provided by the RTBU has not demonstrated that either of the incidents relied upon by the RTBU constitute breaches of safety that could enliven the operation of s.424(1).
I also consider there is merit to Qube’s submission that the evidence in this case does not meet the description of ‘being the direct or reasonably proximate cause of effects that are productive of, or are likely to be productive of a relevant danger, peril or damage to welfare or the economy.’[24] In this case, the threat relied upon by the RTBU will only eventuate if Qube decides to adopt, or based on the RTBU’s case, continues adopting, unsafe operating procedures in response to the RTBU’s indefinite strike. Given there are strict laws regulating the operation of the rail network across Australia, I do not consider the evidence establishes it is ‘probable’[25] that this will occur.
For these reasons, I am not satisfied that I must make an order suspending or terminating the RTBU’s indefinite strike and I dismiss the RTBU’s application.
Despite arriving at this conclusion, it is clear that the RTBU has genuine concerns about the safety of some actions that have occurred since the industrial action commenced. It would be expected that the raising of these issues will have at the very least prompted Qube to review what has occurred and to ensure adequate protocols are in place to ensure all safety procedures and rules are fully complied with in the future, despite the impact of the industrial action.
Bargaining issues
Given I do not need to assess whether it is appropriate to suspend or rather terminate the protected industrial action, it is not strictly necessary for me to comment on the state of bargaining. However, I intend to do so.
The events following the conference I conducted on 26 June 2023 are extremely disappointing. The RTBU and Qube reached an in principle agreement during this conference which was recorded in writing by the Commission. The parties were provided with this document and agreed to its terms before the conference concluded. The RTBU provided an undertaking around not taking industrial action as part of the agreement. There is no doubt Qube’s representatives were provided with an unsealed version of the RTBU’s Federal Court claim during the conference and provided with an opportunity to review the document before the in principle agreement was finalised.
To renege on this in principle agreement is highly problematic, but that is one thing. The situation was then made dramatically worse because Qube circulated a Memorandum to employees which suggested ‘the RTBU has used an 11th hour legal manoeuvre to undermine a generous in-principle agreement it had reached with Qube’.[26] That is simply not what occurred. Qube’s conduct has no doubt agitated RTBU members and has contributed significantly to the current industrial situation.
Despite my comments above, I accept Qube is faced with having to try and deal with an underpayment claim concerning the interpretation of existing and predecessor terms while also negotiating a new agreement and that the outcome of the Federal Court claim could result in significant financial costs for its business.
Further, I consider the proposals offered by Qube to the RTBU on 12 July 2023 were productive and may provide a conceptual framework for the resolution of this bargaining dispute. That may particularly be the case if some further movement can be achieved.
Qube’s s.240 bargaining dispute notification is still before me. I intend to list a conference for this matter in Sydney at 11am on 4 August 2023. I encourage Qube and the RTBU to reflect on their bargaining positions and conduct the necessary consultations to enable a meaningful and productive conference to occur.
Conclusion
I dismiss the RTBU’s application.
COMMISSIONER
Appearances:
P Boncardo for the Applicant.
M Follet for the Respondent.
Hearing details:
2023.
Sydney
31 July.
[1] Attachment KP5 to Mr Pryor’s statement - Exhibit A1.
[2] [2023] FWC 1417 and PR763117.
[3] AE509003.
[4] Attachment KP1 to Mr Pryor’s statement – Exhibit A1.
[5] Attachment KP6 to Mr Pryor’s statement – Exhibit A1.
[6] Attachment KP7 to Mr Pryor’s statement – Exhibit A1.
[7] Mr Pryor’s statement at [41] – Exhibit A1.
[8] Application, part 5.1[4].
[9] Attachment KP8 to Mr Pryor’s statement – Exhibit A1.
[10] Mr Pryor’s statement at [46] – Exhibit A1.
[11] Attachment KP10 to Mr Pryor’s statement – Exhibit A1.
[12] Mr Pryor’s statement at [50].
[13] Section 414(4) of the FW Act.
[14] Attachment KP3 to Mr Pryor’s statement.
[15] Attachment KP4 to Mr Pryor’s statement.
[16] (2012) 202 FCR 200 at [128].
[17] Qube outline of submissions at [13].
[18] RTBU outline of submissions at [33].
[19] Coal and Allied v Australian Industrial Relations Commission [2000] HCA 47, 203 CLR 194 at [20].
[20] Ambulance Victoria v Liquor, Hospitality and Miscellaneous Union[2009] FWA 44, 187 IR 119 at [32]-[33].
[21] (1998) 80 IR 14 at 32.
[22] RTBU outline of submissions at [40].
[23] Attachments SH1 to SH5 of Mr Hudd’s statement.
[24] Coal and Allied Operations v CFMEU (1998) 80 IR 14 at 32.
[25] Ambulance Victoria v Liquor, Hospitality and Miscellaneous Union[2009] FWA 44, 187 IR 119 at [29].
[26] Attachment KP4 to Mr Pryor’s statement.
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