Australian Rail, Tram and Bus Industry Union v Sydney Trains

[2019] FWC 8472

[2019] FWC 8472

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 739—Dispute resolution

Australian Rail, Tram and Bus Industry Union
v
Sydney Trains
(C2019/6407)

DEPUTY PRESIDENT SAMS SYDNEY, 23 DECEMBER 2019

Alleged dispute about a matter arising under an enterprise agreement - Clause 35 - Workplace Health, Safety Representative Elections – Clause 8 - Dispute Settlement Procedure (‘DSP’) – application for interim orders – steps in the DSP not followed – no jurisdiction of the Commission – interim orders otherwise refused.

[1] The following is a final edited version of a decision issued in transcript on 6 December 2019.

[2] In view of the urgency of this matter, I propose to issue a short, ex tempore decision. The decision will not be as detailed or expansive as I would prefer, but I consider it captures the essence of the issues to be decided in the matter, in accordance with the Commission’s relevant principles and authorities.

[3] On 17 October 2019, the Australian Rail, Tram and Bus Industry Union (‘RTBU’ or the ‘Union’) filed a dispute, pursuant to s 739 of the Fair Work Act 2009, with Sydney Trains.  Shortly stated, the dispute concerns the election process for Health and Safety Representatives (‘HSRs’) and Deputy Health and Safety Representatives (‘DHSRs’) in several designated work group areas of Sydney Trains’ operations, but specifically in respect to the customer service areas.

[4] The dispute was listed for two conferences before Deputy President Bull on 30 October 2019 and 27 November 2019.  However, due to interstate Commission commitments, His Honour was unable to deal with this urgent application for interim orders, requested by the Union on 22 November 2019. The matter was subsequently reallocated to me for that purpose. The matter was listed for hearing on Wednesday 4 December 2019, but due to the unavailability of the Union representatives, it was adjourned until 6 December 2019.

[5] The relief originally sought by the Union is that Sydney Trains is not to continue with the process of conducting HSR elections until such time that the dispute between the parties is resolved, in accordance with Clause 8 of the Sydney Trains Enterprise Agreement 2018 (the ‘Agreement’). Clause 8 is the Dispute Settlement Procedure.

[6] At the hearing Mr T Warnes and Mr T Hunter appeared for the Union and Mr T Reaburn, Solicitor, appeared for Sydney Trains, with permission being granted, pursuant to s 596 of the Act, noting that Mr Warnes did not oppose Mr Reaburn’s appearance. The parties had filed short outlines of submissions, and witness statements were tendered from Mr Mark Rolfe and Mr Terry Johnson, both existing Union delegates and HSRs. Sydney Trains relied on a statement of Mr Tomos Reaburn, Solicitor, McCullough Robertson Lawyers.  None of the witness were required for cross-examination.

[7] I have considered and taken into account the parties’ submissions and the largely uncontested facts surrounding the dispute.

[8] While the scope of the Dispute Settlement Procedure in the Agreement is very broad and general, that does not mean such generality extends to compliance with the steps in the procedure.  The Commission is only conferred with jurisdiction by the express terms of the DSP agreed to by the parties as set out under the Agreement.  Compliance with the steps under the DSP are not mere technicalities or trivialities; see: The Australian Workers’ Union v MC Labour Services Pty Ltd [2017] FWCFB 5032.

[9] In my view, the dispute before the Commission lacks jurisdiction, as the DSP at Cl 8 of the Agreement has not been followed.  This is not the same dispute which was raised by the Union in October 2018. It is clear on its face, that the DSP has not been followed.   This is notionally acknowledged by the Union’s attempt to correct the missing step, or steps.  Attempts at retrospectively curing any deficiency in a DSP is impermissible.  Moreover, if there is a claim that Sydney Trains has not complied with the status quo provisions in the DSP, or are otherwise in breach of the Agreement, then the Union well knows it has rights to pursue such matters in a court of competent jurisdiction.

[10] However, even if I am wrong about the jurisdictional impediment to the dispute being determined by the Commission, I would decline to make the interim orders sought by the Union.

[11] The well-established principles applicable to interim relief applications regularly applied by the Commission in this context, were explained by the High Court, in Australian Broadcasting Corporation v O’Neill [2006] HCA 46:

‘(1) There must be a serious question to be tried as to the applicant's entitlement to relief.

(2) The applicant is likely to suffer injury, for which damages will not be an adequate remedy, and

(3) The balance of convenience favours the granting of an interlocutory order.’

[12] Distilled by Bromberg J, in Quinn v Overland [2010] FCA 799 into two main inquiries, incorporating the test of whether damages would be an adequate remedy into the wider test of balance of convenience, His Honour said:

‘In determining an application for interlocutory relief, the court addresses two main inquiries; first, whether the applicant has made out a prima facie case in the sense that if the evidence remains as it is there is a probability that, at the end of the trail, that the applicant will be held entitled to relief.  Second, whether the inconvenience or injury which the applicant would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the respondent would suffer if an injunction were granted.’

[13] However, the Full Court in Samsung Electronics Company Ltd v Apple Inc [2011] FCAFC 156, relevantly cautioned against considering the two main inquiries in isolation:

‘When considering whether to grant an interlocutory injunction the issue of whether the plaintiff has made out a prima facie case and whether the balance of convenience and justice favours the grant of an injunction are related inquiries.  The apparent strength of the parties’ substantive cases will often be an important consideration to be weighed in the balance.’

[14] These considerations must be assessed when having regard to the nature of the substantive application, the jurisdictional context in which the application is being considered, and the circumstances of the parties.

[15] Both of the tests enunciated by Bromberg J above, must be satisfied before the Commission’s exercise of a discretion to grant interim relief.  Given that:

(a) the election process for HSRs and DHSRs commenced with the calling of nominations on 7 October 2019 and the ballot has been underway since 18 November 2019, and closes next Monday;

(b) the application for interim orders was made on 22 November 2019, well after nominations had opened, and after the voting had actually commenced, on 18 November, 32 per cent of employees have already voted;

(c) thirteen HSR and 15 DHSRs have already been elected unopposed, including one of the witnesses in this case;

(d) the significant cost and inconvenience of conducting fresh elections;

(e) the fact the external provider is the same provider conducting the ballot for the enterprise agreement;

(f) Sydney Trains has sought the views of the relevant 1500 employees as to any concerns with the use of the external provider, and apart from the employees in this dispute, none were received, save for one who supported it; and

(g) the Union itself said in a letter dated 13 August 2019, ‘We cannot see any concerns with the use of an external provider to conduct the election’;

the balance of convenience does not fall in favour of the interim orders being granted.

[16] Accordingly, it is unnecessary for me to determine the second test of whether an arguable case has been established.  However, I would add that the Union’s arguments as to an arguable case, are not persuasive.  There has been no compelling rationale advanced as to why an external provider, conducting a secret ballot for the HSR and DHSR elections, is not appropriate, let alone in breach of Sydney Trains’ obligations under the Work Health and Safety Act 2011 (NSW) (the ‘WHS Act’).

[17] Further, I consider the Union’s argument that the work groups must determine the election process, to be misconceived. Section 61 of the WHS Act provides:

‘The workers in a work group may determine how an election of an HSR for the work group is to be conducted.’

[18] It is trite that the word ‘may’, used in a statute, does not connote ‘compulsion’ or ‘obligation’. It is a word of discretion.  The operative word is ‘may’, not ‘must’.  Moreover, the Union could not point to any other breach, or alleged breach of the WHS Act. If there was some view that the WHS Act had not been followed or complied with, then it seems to me that the agency responsible for that Act - SafeWork NSW - should have been asked for a ruling on the matter long before this. In any event, alleged breaches of the WHS Act are not matters which can be in addressed, let alone determined, by the Fair Work Commission. If there is to be a challenge to the results of the ballot, then so be it.  However, this possibility is not a relevant consideration for this Commission.

[19] I would refuse the application for interim orders sought by the Union. Moreover, if there is a claim that Sydney Trains has not complied with the status quo provisions of the DSP or are otherwise in breach of the Agreement, then the Union well knows it has rights to pursue such matters in a court of competent jurisdiction.

DEPUTY PRESIDENT

Appearances:

Mr T Warnes, Director of Organising, and Mr T Hunter, RTBU Organiser, for the Union.

Mr T Reaburn, Lawyer, McCulloch Robertson Lawyers, for Sydney Trains.

Hearing details:

2019.

Sydney:

6 December.

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