Australian Rail, Tram and Bus Industry Union v Rail Corporation of New South Wales
[2013] FWC 2447
•30 MAY 2013
[2013] FWC 2447 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Australian Rail, Tram and Bus Industry Union
v
Rail Corporation of New South Wales
(C2012/2261)
Rail industry | |
SENIOR DEPUTY PRESIDENT HAMBERGER | SYDNEY, 30 MAY 2013 |
Dispute under the terms of an a dispute settlement procedure in an enterprise agreement; introduction of competency based training and assessment for CountryLink Drivers; interaction between enterprise agreement and rail safety legislation.
The Dispute Application
[1] The Australian Rail, Tram and Bus Industry Union (NSW Branch) (RTBU) applied to FWA on 17 January 2012 to deal with a dispute in accordance with the dispute settlement procedure (DSP) in the RailCorp Enterprise Agreement 2010 (the 2010 Agreement). The application described the dispute in the following terms:
‘1. The dispute is ongoing over several years in relation to the adequacy of the training and assessment systems development relating to CountryLink Drivers, and the consultation processes, dispute resolution processes, and agreement requirements under the RailCorp Enterprise Agreement 2010 being ignored or frustrated on a regular basis.
2. Employees and union representatives have attempted to address a range of matters relating to training and assessment measures used in CountryLink as failing to meet national standards and requirements of the Rail Safety legislation.
3. Despite the legislative requirements to meet the standards within the Australian Quality Training Framework (AQTF), and the fact that RailCorp is an active participant in the national system as an accredited Registered Training Organisation and Board member on the Transport and Logistics Industry Skills Council, it persists with developing training and assessment outside of these systems and contrary to compliance obligations to the national regulator, the Australian Skills Quality Authority.
4. Principal Drivers, who have responsibility for training in CountryLink have raised concerns relating to the limitations of the training and assessment processes in regard to knowledge and competency acquisition in areas such as Route Knowledge and traction training. Concerns relate also to technical adequacy and accuracy, and compliance with the Rail Safety legislation and RailCorp’s own Quality Training Management System.
5. RailCorp continually refuses to develop a Competency Standard/Profile for the role of CountryLink Driver identifying the tasks a Driver is expected to perform as part of their employment, as well as corresponding performance criteria which are based on RailCorp, Industry or National Standards.
6. Employees and their representatives have had numerous meetings with RailCorp to attempt to resolve the issues, and have made detailed proposals to attempt to reconcile and rectify the identified, and often agreed deficiencies.
7. The issues raised have been wide-ranging and cover many aspects of the training and assessment system. These would be the subject of a detailed submission to Fair Work Australia.
8. RailCorp has failed to adequately or genuinely consult with employees and their union around the training and assessment developments under the provisions of Clause 8 of the Enterprise Agreement, with developments either presented to employees once they have been developed, or with meetings with restrictions on what may be discussed in relation to the developments.
9. RailCorp has failed to follow the dispute settlement procedure in Clause 9 of the Enterprise Agreement, to the extent that it has agreed to meet with employees and their representatives, then proceeded to progress the disputed matters without resolution.
10. Alternatively, when meetings have been held with RailCorp and employees and their representatives, for clarification of the matters in dispute, undertakings have been made by management to respond to the matters in writing as a means of resolving the disputes. These undertakings were subsequently ignored or never honoured.
11. Subclause 133.1 of the RailCorp Enterprise Agreement requires agreement from the union on training and assessment developments. This agreement has not been sought or granted.’
Relevant Provisions of the 2010 Agreement
[2] The relevant provisions of the DSP in the 2010 Agreement are as follows:
‘DISPUTE SETTLEMENT PROCEDURE (DSP)
9.1. The purpose of this procedure is to ensure that disputes are resolved as quickly and as close to the source of the issue as possible. This procedure requires that there is a resolution to disputes and that while the procedure is being followed, work continues normally.
9.2. This procedure shall apply to any dispute that arises about the following:
(a) matters pertaining to the relationship between the Employer and Employees;
(b) matters pertaining to the relationship between the Employer and the Employee organisation(s), which also pertain to the agreement and/or the relationship between the Employer and Employees;
(c) deductions from wages for any purpose authorised by an Employee who will be covered by the agreement;
(d) the National Employment Standards; and
(e) the operation and application of this Agreement.
9.3. This procedure shall not apply to matters arising under the General Protections provisions of the Fair Work Act 2009 (Cth).
9.4. Any dispute between the Employer and Employee(s) or the Employee’s representative shall be resolved according to the following steps:
STEP 1: Where a dispute arises it shall be raised in the first instance by the Employee(s) or their union delegate directly with the local supervisor/manager. The local supervisor/manager shall provide a written response to the Employee(s) or their union delegate concerning the dispute within 48 hours advising them of the action being taken. The status quo before the emergence of the dispute shall continue whilst the dispute settlement procedure is being followed. For this purpose “status quo” means the work procedures and practices in place immediately prior to the change that gave rise to the dispute.
STEP 2: If the dispute remains unresolved, or if the dispute involves matters other than local issues, the General Manager Employee Relations or their nominee, a divisional management representative and the Employee(s) and/or the Employee(s) representative, union delegate or official shall confer and take appropriate action to arrive at a settlement of the matters in dispute within 72 hours of the completion of Step 1 or the General Manager Employee Relations being notified of a dispute involving other than local issues.
STEP 3: If the dispute remains unresolved, each party to the dispute shall advise in writing of their respective positions and negotiations about the dispute will be held between the Employee representative(s) or union official, the CEO of RailCorp or their nominee who will meet and conclude their discussions within 48 hours. The matter may be referred to Unions NSW for resolution of the dispute by any of the parties involved provided Unions NSW is chosen by the Employees as their representative.
STEP 4: If the dispute remains unresolved any party may refer the matter to Fair Work Australia for conciliation. If conciliation does not resolve the dispute the matter shall be arbitrated by Fair Work Australia provided that arbitration is limited to disputes that involve matters listed in subclause 9.2 of this procedure.
9.5. By mutual agreement confirmed in writing, Step 3 outlined above may be avoided, and the parties to the dispute may seek the assistance of Fair Work Australia in the terms outlined at Step 4.
9.6. If it is decided to refer the matter to Fair Work Australia, the referral must take place within 72 hours, excluding weekends and public holidays, of completing Step 3. A copy of the notification must be forwarded to all relevant parties to the dispute....’
[3] Subclause 133.1 of the 2010 Agreement states:
‘Competency based training and assessment for CountryLink Drivers will be developed and introduced by agreement with the applicable Union.’
[4] There has been a similar clause in all previous agreements for drivers in CountryLink and its predecessor organisations since 2000.
[5] Clause 3 sets out the objectives of the parties to the 2010 Agreement. It includes the following:
‘3. OBJECTIVES OF THE PARTIES TO THIS AGREEMENT
3.1. The following are the objectives of this Agreement. They form a guide for the parties should there be a dispute relating to the interpretation of a clause or clauses within this Agreement.
3.2. To provide a mechanism for ongoing change, where required, in order for the Employer to meet its strategic objectives of a safe, reliable, efficient, financially responsible and customer focused service.
3.3. To recognise safety as a fundamental contributor to successful operations and to ensure that employment conditions and practices provide a framework within which the Employer can achieve a safety environment.
3.4. To commit to reform, continuous improvement and to promote a culture of continuous improvement, benchmarking and learning.
3.5. To ensure that all Employees are treated with trust, dignity and concern for their rights and individual needs.
3.6. To provide equality of opportunity with respect to recruitment, training, redeployment and promotion.
3.7. To assist the organisation to develop its capabilities by implementing competency based classification structures, where appropriate, which support organisational needs and provide career paths for Employees, as well as providing opportunities for Employees to attain and use all relevant nationally recognised skills, competencies, and qualifications as the business may require.’
The Scope of the Dispute
[6] In his initial statement, Mr Leonard, one of the RTBU’s witnesses, described the dispute as relating broadly to RailCorp’s failure to gain the agreement of the RTBU in relation to competency-based training and assessment for CountryLink train drivers. He stated that:
‘The dispute affects all training and assessment for CountryLink train drivers, including, but not limited to, the following four areas that have been subject to recent changes by the Respondent:
a) Driver Assurance Assessments
b) 48 Class Locomotives
c) XPT; and
d) Route Training’ 1
[7] The RTBU objects to what it sees as the unilateral development and implementation of training and assessment programs without its consent. It is seeking that the Commission resolve the dispute by way of a formal finding that in applying the terms of the 2010 Agreement “subject to” relevant parts of the rail safety legislation:
‘ a) RailCorp is required to develop and introduce competency-based training;
b) the competency-based training that is developed and introduced must nonetheless be with the consent of the RTBU;
c) RailCorp is required to develop and introduce competency-based assessment;
d) The competency-based assessment that is developed and introduced must be with the consent of the RTBU.’ 2
The Course of the Dispute since the Application
[8] Following receipt of the application, a conciliation conference was held on 20 February 2012. Arising out of that conference two meetings took place, on 23 February and 2 March 2012 involving, inter alia, Mr Devitt (General Manager, Learning and Development), Mr Coates (at that time General Manager, Safety Systems), Mr O’Connor (RTBU Industrial Officer), Mr Proctor (Senior Vice President of the Locomotive Division of the RTBU) and Mr Leonard (CountryLink Driver). As part of that process RailCorp provided the RTBU with a series of documents, including the CountryLink Driver System Guide (system guide), CountryLink Driver Driving Standards (driving standards) and the Driver Assurance Assessment Checklist and Assessor Reference Manual. 3 The purpose of the first meeting was to review these documents.4 A number of changes to the system guide were agreed to at the first meeting.5 According to the minutes, it was also agreed that Mr Leonard and Mr Proctor would review the driving standards and provide feedback at the next meeting. A trial of the driver assurance process would commence on 19 March 2012, and a process for reaching further agreement on training issues was to be determined.6
[9] According to the minutes of the second meeting, Mr Proctor and Mr Leonard failed to provide feedback on the driving standards. There was further discussion about an “agreement process” with Mr Devitt suggesting a Steering Committee along the lines used by other RailCorp business units. While the minutes recorded that there was still agreement for the driver assurance process to commence on 20 March 2012, the RTBU representatives advised that all curriculum and learning and development for CountryLink was on hold “and that status quo remains.” 7
[10] A further conciliation conference took place at FWA on 5 March 2012. At that conference, RailCorp’s understanding was that there was agreement to roll out the assurance assessment process. 8 On 10 March 2012 the RTBU wrote to RailCorp and stated:
‘With respect to the proposed CountryLink Driver Competence Management System Guide, the RTBU gives “in principle” agreement to the implementation of a Competence Assurance Model. This “in principle” agreement identifies that there needs to be further discussion and agreement on a number of aspects of the proposed model, including (but not limited to) the detail of the Initial Authorisation of CountryLink Drivers, the identification of competencies and performance standards, the “On Job” acquisition of skills and competencies component of any training structure, the structure and content of assessment tools and the validity and accuracy of the assessment process.’
[11] The letter further indicated that the related documentation provided by RailCorp was subject to further negotiation and discussion between the parties. Attached to the letter was a ‘proposed structure and process of consultation and agreement’. This involved the establishment of a Training and Development Consultative Committee to oversee, monitor and improve competency training and assessment developments within CountryLink. The Committee would consist of equal numbers of RTBU and management nominees. It was proposed that any new training and assessment development initiatives, changes to existing training and development in CountryLink and/or requirements relating to the development of a competence schedule etc would be referred to the Committee for their input and feedback. Developments or changes would be worked through by the various committees and processes referred to in the Quality Training Management System (QTMS). Proposals would then be referred to the Training and Development Consultative Committee for approval. Changes would not be implemented without the approval of the Committee. If agreement was unable to be reached matters would be referred to FWA for conciliation, and/or arbitration where both parties agree. 9
[12] On 16 April, the RTBU wrote to RailCorp stating the dispute was not resolved and that the RTBU did not agree that the Competence Assurance tools could be used from 23 April 2012. It said that there remained a number of unresolved issues and RailCorp had failed to respond to the concerns expressed in its letter of 10 March 2012. It suggested a further meeting and asked for a copy of the CountryLink Driver Competency Profile/Standard, and its associated performance standards. 10
[13] On 20 April 2012 Mr Proctor met with Mr Coates informally. According to Mr Proctor, Mr Coates said words to him to the effect of:
‘We need to have an assessment tool in place to carry out Periodical Workplace Assessments (“PWAs”) as the Regulator has raised concerns with the existing assessment tool. “I said to him words to the effect of: “I understand that you are in an awkward position. While the RTBU doesn’t agree with the new Competency Assurance tool in any way, shape or form we won’t stop you from using it to meet regulatory requirements”. I further stated to him words to the effect of “... this does not constitute agreement under the terms of the current dispute”’. 11
[14] On 16 May 2012, the RTBU wrote to RailCorp stating that while it had given ‘in principle’ agreement to the implementation of the CountryLink Driver Assurance Assessment, it considered that the documentation currently offered by RailCorp fell way short of providing a robust process to measure performance against defined standards and units of competency. The RTBU expressed concern that RailCorp was continuing to push implementation of processes and documentation without consultation and without agreement, and foreshadowed returning to Fair Work Australia. 12
[15] On 4 June 2012, the RTBU once again wrote to RailCorp criticising the driving standards document for allegedly failing to include any measurable performance requirements for the stated elements of competence. The letter included the following:
‘All matters relating to training and assessment for CountryLink Drivers are in dispute and remains so. The RTBU has been constantly requesting meetings to try and commence to work through matters pertaining to the Driver Assurance and Assessment documentation and the various traction training courses and processes. The establishment of a Steering Committee to manage CountryLink Training issues in the future is a positive step but that does not resolve any immediate issues that are under dispute now.’ 13
[16] RailCorp responded to this letter on 15 June 2012. It stated that:
‘RailCorp remains committed to the principle of continuous improvement for all training, and as has been previously stated, is prepared to make amendments to the Driver Assurance process where substantive issues are identified.’
[17] The letter went on to indicate that RailCorp was establishing the proposed Steering Committee, set down dates for the first six meetings and asked the RTBU to nominate a representative on the Steering Committee by close of business 22 June 2012. 14
[18] RailCorp commenced using the new assessment forms for Driver PWAs in June 2012. 15
[19] On 21 June 2012 the RTBU wrote to RailCorp. The letter raised a number of issues with the proposed terms of reference for the Steering Committee. The letter stated:
‘The RTBU believes that forming the Steering Committee is a positive step. However, the Steering Committee is not a substitute for formal acceptance of the many documented shortcomings relating to CountryLink Driver training and assessment, or proper resolution of the current dispute. Only after all shortcomings are accepted and resolved, can the Steering Committee be constituted in a situational context that will allow it to function effectively.
Can RailCorp please advise whether it accepts or rejects the issues raised by the RTBU? If issues are rejected, can RailCorp provide reasons for its position, and how its position meets with various policies, legislation, and the RailCorp Enterprise Agreement?
Once we have received adequate assurances on the concerns raised in relation to the Terms of Reference for the Steering Committee, we will be happy to discuss the most appropriate way forward. Similarly, we do not believe it is helpful to proceed with the formation and meeting schedule of the Steering Committee until such time as the current dispute is resolved. This has the potential to add further confusion to this process, and it would be preferable if any new Steering Committee commenced and was able to conduct its business in the absence of the current matters in dispute.’ 16
[20] RailCorp responded on 8 August 2012 noting the specific concerns raised by the RTBU and indicated the management of these issues would be part of the responsibilities of the proposed Steering Committee. RailCorp again asked for the RTBU to nominate a representative to the committee. The letter indicated that RailCorp had received legal advice that its obligations under the Rail Safety Act took primacy ‘at the point where the ‘agreement’ required under subclause 133.1 takes away or impedes steps RailCorp must take to comply with the RSA.’
[21] On 10 August 2012 RailCorp wrote once again to the RTBU providing responses to the issues it had raised about the draft Terms of Reference for the Steering Committee. It stated:
‘RailCorp notes your organisation’s position that it considers the establishment of a Steering Committee to be premature. However, RailCorp’s position is that the creation of the Committee is in accordance with the Quality Training Management System and previous precedent with CityRail, and that it will support training development and quality assurance. As such, RailCorp will continue with the establishment of the Steering Committee.’ 17
[22] In a letter dated 20 August 2012, the RTBU declined to participate in the Steering Committee on the basis that the formation of the committee was premature, particularly given RailCorp’s failure to comply with subclause 133.1 of the 2010 Agreement. The letter added:
‘Given that much of the underlying structure in relation to the development of an underpinning competency profile for CountryLink Drivers has still not been developed and given that RailCorp still refuses to discuss these matters, the RTBU has referred the matter back to Fair Work Australia.’ 18
[23] The matter was re-listed on 22 August 2012 and hearing dates set down for arbitration. Nevertheless, further conciliation conferences were held to try and resolve or at least narrow the issues in dispute. Ultimately arbitration hearings were held in Sydney on 12 October, 26 and 27 November 2012, and 21, 22, 27 and 28 February 2013. The RTBU was represented at these hearings by Mr M Easton, of counsel and RailCorp by Mr P Ginters, of counsel. Evidence was given on behalf of the RTBU by Mr Leonard and Mr Proctor. Both men are experienced CountryLink drivers who have been actively involved in matters relating to driver training. Evidence was given on behalf of RailCorp by Mr Coates (now General Manager, CountryLink) and Mr Devitt.
Relevant Legislation
[24] Section 739 of the Fair Work Act 2009 (the Act) provides that where an enterprise agreement includes a term that provides a procedure for dealing with disputes, the Commission has jurisdiction to deal with the disputes in accordance with that term. Subsections (3), (4) and (5) state:
‘(3) In dealing with a dispute, the FWC must not exercise any powers limited by the term.
(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.
Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).
(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.’
[25] The dispute application also referred to Section 21 of the Rail Safety Act 2008 (NSW) (RSA). Section 21 of the RSA provided that:
‘Competence of rail safety workers
21 Competence of rail safety workers
(1) A rail transport operator must, so far as is reasonably practicable, ensure that each rail safety worker who is to carry out rail safety work in connection with railway operations for which the operator is required to be accredited has the competence to carry out that work.
Maximum penalty:
(a) in the case of a corporation-3,000 penalty units, or
(b) in the case of an individual-300 penalty units.
(2) For the purposes of subsection (1), the competence of a rail safety worker to carry out rail safety work must be assessed:
(a) by reference to:
(i) any qualification or unit of competence applicable to the work being carried out that is recognised under the Australian Qualifications Framework overseen by the Ministerial Council on Education, Employment, Training and Youth Affairs, or
(ii) if subparagraph (i) does not apply, the prescribed provisions applicable to the rail safety work to be carried out, and
(b) by reference to the knowledge and skills of the rail safety worker that are needed to enable the worker to carry out the rail safety work safely.
(3) For the purposes of subsection (2), a certificate purporting to have been issued under the Australian Qualifications Framework to a rail safety worker certifying that the worker has certain qualifications or units of competence is evidence that the worker has those qualifications or units of competence.
(4) Nothing in this section prevents a rail transport operator from requiring a rail safety worker to undertake further training before carrying out rail safety work.
(5) A rail transport operator must maintain records in accordance with the regulations of the competence of rail safety workers who carry out rail safety work in connection with railway operations for which the operator is required to be accredited.
Maximum penalty (subsection (5)): 25 penalty units.’
[26] The RSA gave operators until 1 January 2011 to transition to the new arrangements for assessment and certification of competency. 19
[27] Section 27 of the RSA has since been replaced (with only a few minor amendments) as s.117 of the Rail Safety National Law (NSW). Section 117 is as follows:
‘Assessment of competence
117 Assessment of competence
(1) A rail transport operator must ensure that each rail safety worker who is to carry out rail safety work in relation to railway operations in respect of which the operator is required to be accredited has the competence to carry out that work.
Maximum penalty:
(a) in the case of an individual-$50 000;
(b) in the case of a body corporate-$500 000.
(2) For the purposes of subsection (1), the competence of a rail safety worker to carry out rail safety work-
(a) must be assessed-
(i) in accordance with the provisions of the AQTF and any qualification and units of competence recognised under the AQF applicable to that rail safety work; or
(ii) if subparagraph (i) does not apply-in accordance with any qualifications or competencies prescribed by the national regulations; and
(b) must be assessed by reference to the knowledge and skills of the worker that would enable the worker to carry out the rail safety work safely.
(3) A certificate purporting to have been issued under the AQF to a rail safety worker certifying that the worker has certain qualifications or units of competence is evidence that the worker has those qualifications or units of competence.
(4) Subsection (2) does not apply if-
(a) it is not reasonably practicable for a rail transport operator to assess the competence of a rail safety worker to carry out rail safety work in relation to the operator’s rail infrastructure or rolling stock in accordance with that subsection; and
(b) the operator satisfies the Regulator that-
(i) the worker has otherwise acquired the necessary qualifications and competencies applicable to that rail safety work; and
(ii) the worker has the knowledge and skills that would enable the worker to carry out the rail safety work safely.
(5) Nothing in this section prevents a rail transport operator from requiring a rail safety worker to undertake further training before carrying out rail safety work.
(6) A rail transport operator must maintain records in accordance with the national regulations of the competence of rail safety workers who carry out rail safety work on or in relation to the operator’s rail infrastructure or rolling stock.
Maximum penalty:
(a) in the case of an individual-$10 000;
(b) in the case of a body corporate-$50 000.’
[28] The relationship between the Rail Safety National Law (NSW) (RSNL) (and the previous Rail Safety Act 2008) and the 2010 Agreement is an important consideration in this case.
[29] In general an enterprise agreement (such as the 2010 Agreement) made under the Fair Work Act2009 (the Act) prevails over a law of the State, to the extent of any inconsistency 20. However the Act provides that a term of an enterprise agreement applies subject to any law of a State or Territory dealing with occupational health and safety.2122
[30] The RSNL and the previous Rail Safety Act 2008 (collectively ‘rail safety legislation’) are clearly such laws. Thus Clause 133.1 of the 2010 Agreement applies subject to the provisions of the RSNL.
[31] The main purpose of the RSNL is ‘to provide for safe railway operations in Australia’. ‘Rail safety work’is definedas including the driving of rolling stock.A ‘rail safety worker’is an individual who has carried out, is carrying out, or is about to carry out, rail safety work. The work of CountryLink Drivers is clearly therefore rail safety work performed by rail safety workers. As a ‘rail transport operator’ under the RSNL, RailCorp must, so far as is reasonably practicable, ensure that its CountryLink drivers are competent to undertake their work 23.
The Evidence
[32] A large amount of evidence was provided during the course of proceedings, both orally and in writing. I do not propose to summarise all that evidence, though it has all been taken into account. Instead I will focus on certain key points.
[33] RailCorp employs around half a dozen new CountryLink drivers each year. Each new CountryLink driver must have at least five years train driving experience. All CountryLink drivers must demonstrate competence in three key components:
a) Operation of the type of train;
b) Safe working (that is knowledge of the “rules of the road”); and
c) Route knowledge. 24
[34] The RTBU, and in particular Mr Leonard and Mr Proctor, have sought the development and implementation of competency based training and assessment for CountryLink Drivers for many years. The desire to introduce competency based training and assessment has been shared by RailCorp management, particularly since the passage of the Rail Safety Act 2008. Despite this shared objective, there has been a series of differences about the way in which training and assessment should be conducted - including disagreement about what is required for training and assessment to be genuinely ‘competency based’. 25 Mr Leonard described these differences as ‘fundamental’.26 There have also been differences between the RTBU and management concerning the process for developing and implementing competency based training and assessment. In particular, management have tended to seek input from RTBU representatives at the ‘pre-pilot’ and ‘pilot’ stages of developing particular courses, in accordance with RailCorp’s Quality Training Management System (QTMS), as well as proposing the establishment of a Steering Committee whereas the RTBU has been of the view that the process should be treated in an ‘industrial context’. This has to some extent reflected the RTBU’s view that it has the right to have the final say concerning training and assessment issues for CountryLink drivers as a result of the provisions of Clause 133.1 of the 2010 Agreement.
[35] One point of difference between the parties has been in relation to the application of ‘national standards’. Under the relevant rail safety legislation, RailCorp is required to assess the competence of a rail safety worker to carry out rail safety work in accordance with the provisions of the Australian Quality Training Framework (AQTF) and any qualification and units of competence recognised under the Australian Qualifications Framework (AQF) applicable to that rail safety work; and by reference to the knowledge and skills of the worker that would enable the worker to carry out the rail safety work safely. 27 RailCorp has accordingly taken the approach that competency based training and assessment is not determined solely upon national units of competency, but also upon the operational and safety requirements of RailCorp. RailCorp has where necessary departed from, modified or added to the national units of competency. In many areas the national units of competency are generic, from which RailCorp develops the detail necessary with operational and safety requirements.
[36] Part of RailCorp’s process has been the conduct of a risk based training needs analysis (RBTNA). Mr Leonard criticised this approach on the basis that it only prioritised risk-based tasks at the expense of underpinning knowledge. 28 However during cross-examination he agreed that it is fundamentally important to give priority to the training and assessment in relation to tasks that have been assigned a higher risk rating.
[37] The CountryLink Driver Driving Standards document 29 forms the basis upon which specific competency-based training and assessment are developed within RailCorp. That document refers to the units of competence from the national standards TLI07 Transport and Logistics (Rail Operations) and TLI10 Transport and Logistics (Rail Operations)30. There is a national qualification for train drivers, called Certificate IV in the Transport and Logistics (Rail Operations). RailCorp’s CountryLink operational requirements do not need drivers to be trained and assessed in all of the courses necessary in order to attain this certificate. Consequently RailCorp does not train and assess drivers by reference to all of the modules required to attain the Certificate IV qualification.31
[38] The Driving Standards document was rejected by the RTBU in its letter to RailCorp dated 4 June 2012. That letter stated:
‘The CountryLink Driver Driving Standards is not a standard. Rather, it is a list of actions or duties that RailCorp refers to as a standard. The document fails to include any measurable performance requirements (standards) for the stated elements of competence....’
The driving standards document has been revised since that time. During his cross examination Mr Leonard agreed that the most recent version of the driving standards document had addressed some of the RTBU’s concerns. 32 Moreover he appeared to have difficulty under questioning showing how that the latest version of the driving standards document failed to include measurable standards.33 I am satisfied that the latest version of the driving standards document does contain measurable standards and refers appropriately to relevant national standards.
[39] Another issue about which the RTBU expressed concern in its dispute application was driver assurance assessment. RailCorp or its predecessors have conducted periodic workplace assessments of train drivers for about 20 years. These assessments have developed over time. They now consist of an assessment that is done on the job where the driver is required to demonstrate a range of skills and knowledge. The driver is assessed by a workplace assessor 34. In his statement, Mr Leonard criticised the process used to conduct the assessments:
‘During the assessment the assessor makes observations to determine competence. Some elements of the assessment may not eventuate during the trip so the assessment is often supplemented by questioning by the assessor during the trip. However, the practical limitations concerning questioning, given that the driver is fully engaged in driving a train, interpreting and responding to signals and signs, and responding to radio and intercom communications. In addition, the subjective nature of the Assessment Checklist places and assess or in a position to competence can only be determined through questioning. Many of these items would require five to ten minutes to explain, because they refer to processes that occupies several pages in rule books and manuals. As the operating environment does not permit extensive questioning, many of the elements are not assessed.’ 35
[40] Mr Leonard also complained that there was no standardised list of questions, which would be required to ensure a consistent assessment of each candidate. 36
[41] Mr Leonard acknowledged that RailCorp had made some changes to the document it uses for conducting assessments; however he considered it remained unacceptable because it included no measurable standards of performance. 37 The overall absence of measurable performance standards meant in Mr Leonard’s opinion ‘that the training being provided by the Respondent is ... not competency-based.’38
[42] The current system of driver assurance assessment commenced on 23 April 2012. It was introduced without the agreement of the RTBU. 39 As of October last year, 43 CountryLink drivers had been assessed under the system. All had been assessed as competent. It was planned to assess all other CountryLink drivers over the next few months. There have clearly been some teething issues with the introduction of the assessment process; however I am satisfied that the process is genuinely ‘competence based’.
[43] Another source of disputation between the parties has concerned the process of development of training and assessment courses. In RailCorp these are prepared in accordance with its Quality Training Management System (QTMS). The QTMS does allow for employees and union representatives to be involved in the development of training courses. 40 However, the RTBU considers that the QTMS process reduces the role of the union ‘to one who is to be consulted but no more.’41 Mr Leonard also stated that RailCorp had failed to comply with the QTMS42. RailCorp is a Registered Training Organisation in relation to its development and conduct of its competency based training and assessment. Compliance with the QTMS is essential to the maintenance of this registered status.43
[44] RailCorp has sought to establish a CountryLink Driver Training Steering Committee. Terms of reference were proposed and a series of proposed dates for meetings were set out in a letter from RailCorp to the RTBU on 15 June 2012. RailCorp invited the RTBU to nominate representatives on the proposed Steering Committee. In a letter dated 20 August 2012, the RTBU declined to participate on the basis that the formation of the committee was premature, particularly given what it saw as RailCorp’s failure to comply with Clause 133.1 of the 2010 Agreement. Mr Leonard indicated that one concern with the proposed steering committee was that the chairperson was given the casting vote if the committee was otherwise tied. 44 It appears based on the evidence that the RTBU initially saw the establishment of the Steering Committee as a positive step but then raised a number of issues it had with, for example, the competence assurance process and the driving standards. The response of RailCorp was that those were the very matters that the Steering Committee was designed to address and deal with. Mr Leonard accepted during his cross-examination that the parties had again reached a deadlock as to the way forward.45
[45] Another area of concern referred to in the dispute application is in relation to the 48 class locomotive. RailCorp’s Learning and Development division prepared a competency-based training and assessment package for the 48 class locomotive. The RTBU was invited to participate in the development of the training and assessment package at the course committee pre-pilot phase and at the pilot phase; however the RTBU declined to nominate a representative. 46 It appears that the RTBU directed one of its members, Mr Craig Stevens, to stop assisting RailCorp with information in relation to the development of training and assessment tools for the 48 class47. A number of CountryLink drivers have received training in accordance with the course developed by RailCorp.48 Mr Leonard’s evidence was that the RTBU had sought copies of the course material from RailCorp but had not been allowed to examine the material. On that basis he said that he was unable to comment on the courseware relating to the training.49
[46] Commencing in July 2009, RailCorp’s Learning and Development division commenced preparation of an updated and improved XPT conversion course for new drivers. 50 Mr Proctor and Mr Leonard had some involvement in the preparation of course materials during 2009-10.51 Mr Leonard, in his evidence, indicated that he had a number of concerns with the courseware that was developed and it did not have his endorsement.52 In 2012, the RTBU was invited to participate at the course committee pre-pilot phase and at the pilot phase for the development of the XPT training and assessment package; however the RTBU declined to nominate a representative to participate in both of these phases.53 RailCorp has been using the XPT competency-based training and assessment package to train new drivers.54
[47] Mr Leonard expressed concern at the lack of alignment by RailCorp with the “National Standards” in relation to XPT training. He criticised the CountryLink Driver Driving Standards document on the basis that the standards ‘are not measurable’. 55 While RailCorp claimed to have based its standards on the relevant training package, in his opinion they did not comply. He considered the document to be ‘grossly defective and ineffective’.56
[48] As of October 2012, RailCorp’s Learning and Development division was developing a package of route knowledge training aids and new route knowledge workbooks for CountryLink drivers in relation to each route. This training package is not at the implementation stage. 57 Mr Leonard criticised the current approach to route training as lacking measurable performance standards.58 He indicated that he had declined to attend meetings in relation to route knowledge training ‘in an effort to deliberately distance [himself] from involvement in the development of the new system because the Respondent would not accept, acknowledge or discuss the need for compliance with the RSA [Rail Safety Act] and SMS [Safety Management System].’
[49] I am satisfied based on the evidence that RailCorp has sought to develop and introduce the competency-based training and assessment that it considers is necessary to satisfy its obligations under the relevant rail safety legislation, and to do so by agreement with the RTBU. It has considered itself bound by its obligations under the rail safety legislation to proceed with the development and implementation of competency-based training even where such agreement has not been reached. I am not persuaded by the RTBU’s allegation that RailCorp has failed to meet its obligations under the rail safety legislation. I note in particular that the regulatory agency responsible for ensuring compliance with the rail safety legislation in NSW (The Independent Transport Safety Regulator - ITSR) appears satisfied with RailCorp’s compliance. The evidence discloses that most of the elements of a competency based system of assessment is indeed now largely in place, though there s some further work to do. 59
Consideration and conclusions
[50] Clause 133.1 provides that RailCorp will develop and introduce competency-based training and assessment for CountryLink train drivers by agreement with the applicable union (that is, the RTBU). A difficulty arises with clauses such as this, as agreement by its very nature involves ‘a mutual understanding’ 60. Parties cannot be forced to reach a mutual understanding with each other. The courts for good reason will not enforce contracts that involve parties agreeing to agree at some time in the future.61 It is not in dispute that the parties have been unable to reach an agreement on the development and implementation of competency based training and assessment. Indeed Mr Leonard agreed that there is ‘a fundamental disagreement between the parties.’62 The question is, given this lack of agreement what is the obligation on the parties?
[51] The position of the RTBU is that until such time that RailCorp agrees to the competency-based training and assessment that the union wants, RailCorp cannot implement competency-based training and assessment. However, the rail safety legislation imposes certain obligations on RailCorp. These obligations override the 2010 Agreement to the extent of any inconsistency. That legislation requires RailCorp to ensure CountryLink Drivers are competent to perform their work. It must also assess those Drivers having regard to national competency standards and the knowledge and skills required to perform that work. That in effect requires the development and implementation of competency based training and assessment of CountryLink Drivers.
[52] The RTBU contends that there is no need for conflict between compliance with the 2010 Agreement and the rail safety legislation. RailCorp simply needs to agree with the RTBU as to how to comply with the rail safety legislation. The problem arises however given the actual failure of the parties to reach agreement.
[53] RailCorp cannot simply defer meeting its obligations under the rail safety legislation until agreement is reached with the RTBU on all aspects of training and assessment. As Mr Coates put it:
‘... where agreement cannot be reached with the RTBU as to the development and introduction of the competency-based training and assessment that RailCorp considers is necessary to satisfy its obligations under the RS Act, it is not possible for a RailCorp to continually defer the development and introduction of such training and assessment pending the agreement of the RTBU.’ 63
[54] Indeed the evidence discloses that most of the elements of a competency based training and assessment system for CountryLink Drivers is now in place. Given this, does Clause 133.1 have any work to do? I would be reluctant to conclude that a clause such as 133.1 is a complete nullity. If one looks at the general approach of the RTBU throughout the dispute it is clear that it considers in practice that no changes can be made in relation to the development or competency based training or assessment of CountryLink Drivers without its agreement. That is a misreading of Clause 133.1, especially when read in context. The RTBU conceded that there was no obligation on RailCorp to agree to something unreasonable, merely in order to reach agreement 64. Moreover, as I have already noted, one cannot compel a person to reach agreement - yet RailCorp must be able to meet its obligations under the rail safety legislation, whether the actions it takes to meet those obligations have the consent of the RTBU or not. However I think it is reasonable given the existence of Clause 133.1 that RailCorp at least make a genuine effort to reach agreement with the RTBU with regard to the development and introduction of competency based training and assessment for CountryLink Drivers.
[55] The RTBU contends that RailCorp has not tried to reach agreement with the union. 65 Instead it has - according to the RTBU - adopted an approach where it has, by and large, failed to engage with the union.66 In particular, it has developed training courses etc using the QTMS system and then presented them to the RTBU, rather than involving the union at the start of the process. When ‘the RTBU say, “Well, that’s not acceptable”, RailCorp at that point in time isn’t entitled to be upset by that. They aren’t entitled to complain about that because they agreed in 2010 and in earlier emanations that they would introduce these things by agreement.’67
[56] While RailCorp has not adopted the process proposed by the RTBU it has, based on a fair reading of the evidence, made an extensive effort to engage the RTBU in the development and implementation of competency based training and assessment. RailCorp has repeatedly sought the involvement of RTBU representatives at the pre-pilot and pilot phase of the development of courses etc in accordance with the QTMS, as well as proposing the establishment of a Steering Committee to oversee training issues. It has also engaged with the union since the filing of the dispute application and agreed to make numerous changes to the relevant documentation. While both Mr Leonard and Mr Proctor have contributed at various times, on many other occasions they have declined to participate - and indeed on at least one occasion sought to prevent other union members from participating in the development of training. Moreover, while RailCorp has often agreed to take account of suggestions made by the RTBU representatives, the latter seem almost incapable of giving their final approval to anything RailCorp presents. Indeed when I asked Mr Easton for examples of where the RTBU had actually agreed to anything specific he was unable to come up with anything of substance, relying instead on areas where there were ‘positive steps’ 68 or ‘hopeful progress’69.
[57] I am satisfied that RailCorp - at least since the approval of the 2010 Agreement - has done its best to meet its obligations under rail safety legislation. I am also satisfied that it has genuinely tried to reach agreement with the RTBU - while not giving the union the final veto over changes in assessment and training.
[58] It is desirable that RailCorp continue to try and reach agreement, where possible, with the RTBU over issues concerning the assessment and training of CountryLink Drivers. I consider that the proposed Steering Committee would provide a suitable mechanism for dealing with issues that cannot be resolved through specific course committees. However it is ultimately a matter for RailCorp how it meets its obligations under the rail safety legislation - and that takes precedence over any obligations that arise under the 2010 Agreement. In the circumstances, the RTBU does not have a veto over training and assessment matters in relation to CountryLink Drivers. The RTBU should also, wherever practical, participate in the processes provided for in the QTMS, such as course committees.
SENIOR DEPUTY PRESIDENT
Appearances:
Mr Michael Easton,Counsel and Mr M Barnes, Solicitor for Australian Rail, Tram and Bus Industry Union
Mr R Ginters, Counsel and Mr D Lloyd, Solicitor for RailCorp
Hearing details:
Sydney
2012
22 August
12 October
26 November
27November
2013
21 February
22 February
27 February
28February
1 Paragraph 12, Exhibit RTBU 1
2 Paragraph 33, Outline of the Applicant’s Submissions, 12 September 2012
3 PN959-960
4 Exhibit RailCorp 2, PN965
5 Exhibit RailCorp 2, PN975
6 Exhibit RailCorp 2
7 Exhibit RailCorp 3
8 PN1019
9 Exhibit RTBU 3, Attachment 37
10 Exhibit RTBU 3, Attachment 38
11 Exhibit RTBU 3, paragraph 73
12 Exhibit RTBU 3, Attachment 40
13 Exhibit RTBU 3, Attachment 46
14 Exhibit RTBU 1, Attachment Q
15 Exhibit RTBU3, paragraph 46
16 Exhibit RailCorp 6
17 Exhibit RTBU 3, Attachment S
18 Attachment T, Exhibit RTBU 1
19 Exhibit RTBU 3, paragraph 38
20 S.29(1)
21 S. 29(2), s. 27(1) (d) (iii) and s.27(2) (c).
22 S.3(1) of the RSNL
23 S. 117 of RSNL
24 Paragraphs 28-29 RailCorp 15
25 PN773, 787
26 PN486
27 S.117 RSNL
28 PN1570
29 Tab D Exhibit RailCorp 14
30 Paragraphs 34-35, Exhibit RailCorp 15
31 Paragraph 36, Exhibit RailCorp 15
32 PN653
33 PN870-914
34 Paragraphs 28-31, Exhibit RailCorp 15
35 Paragraph 24, Exhibit RTBU 1
36 Paragraph 30, Exhibit RTBU 1
37 Paragraph 27, Exhibit RTBU 1
38 Paragraph 29, Exhibit RTBU 1
39 Paragraph 33, Exhibit RTBU 1
40 Paragraphs 38-39, Exhibit RailCorp 15
41 PN355
42 PN470
43 Paragraph 40, Exhibit RailCorp 15
44 PN1117
45 PN1515
46 PN1197, 1220
47 Exhibit RailCorp 5, PN1210
48 Paragraphs 51-54, Exhibit RailCorp 15, PN3330
49 Paragraph 42, Exhibit RTBU 1
50 Paragraph 56, Exhibit RailCorp 15
51 Paragraph 57, Exhibit RailCorp 15
52 Paragraphs 53-57, Exhibit RailCorp 1
53 Paragraph 59, Exhibit RailCorp 15
54 PN3333
55 Paragraph 50 Exhibit RTBU 1
56 Paragraphs 51-52, Exhibit RTBU 1
57 Paragraphs 65-66, Exhibit RailCorp 15
58 Paragraph 63, Exhibit 1
59 See PN4798-4836
60 The Shorter Oxford English Dictionary
61 Booker Industries Pty Ltd v Wilson Parking (Qld) Pty Ltd (1982) 149 CLR 600
62 PN614
63 Paragraph 27, Exhibit RailCorp 15
64 PN372-373
65 PN370-371
66 PN385
67 PN388
68 PN5296
69 PN5302
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