Australian Rail Tram and Bus Industry Union v Sydney Trains

[2019] FWC 6693

[2019] FWC 6693

FAIR WORK COMMISSION

DECISION

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

Australian Rail Tram and Bus Industry Union
v
Sydney Trains
(C2019/2880)

DEPUTY PRESIDENT BULL SYDNEY, 26 SEPTEMBER 2019

Dispute about removal of enclosure at Liverpool Railway Station NSW. Whether power under enterprise agreement for Commission to deal with remedy sought.

[1] This application proceeds pursuant to s.739 of the Fair Work Act 2009 (the Act). The Australian Rail Tram and Bus Industry Union NSW Branch (the Union), requests that the Fair Work Commission (the Commission) resolves a dispute under the Sydney Trains Enterprise Agreement 2018 (the Agreement)approved by the Commission on 24 April 2018.

[2] The respondent employer, Sydney Trains, objects to the matter proceeding before the Commission in respect of the relief sought in grounds 1 and 2 of the application on the basis that the Commission has no power to make the findings sought.

[3] It is also put by Sydney Trains that sub clause 8.9 of the Agreement specifically excludes as a matter for consideration under the Agreement’s Dispute Settlement Procedure (DSP) matters based on a reasonable concern held by an employee about an imminent risk to their health and safety. Sydney Trains submit that as the dispute proceeds on the basis that the action (described below) proposed by Sydney Trains would create an imminent risk, the matter cannot be arbitrated before the Commission.

[4] The parties were directed to file any written submissions and witness statements, and the matter was listed for arbitration on 9 September 2019. Both parties were granted leave pursuant to s.596(2)(a) of the Act to be legally represented.

[5] The Union submits that the jurisdiction for the dispute to be dealt with by the Commission is contained in the Agreement’s Dispute Settlement Clause (DSP) at clause 8 which allows unresolved disputes to be dealt with by the Commission by arbitration.

[6] In dealing with Sydney Trains’ objection it is first necessary to identify the nature of dispute brought before the Commission for arbitration. The Union application filed on 3 May 2019 states under the heading (3) Relief Sought that a determination is sought from the Commission that:

1) A finding that the removal of the Garrison does not comply with the obligations on Sydney Trains in clause 35 of the Agreement.

2) Further, or in the alternative, a finding that the removal of the Garrison does not comply with Sydney Trains obligations under section 19 of the Work Health and Safety Act 2011.

3) Further, or in the alternative, a finding that the removal of the Garrison is unreasonable in the circumstances.

4) An order that Sydney Trains does not remove the Garrison from Liverpool Station until such a time that an acceptable alternative is constructed.

[7] It is also necessary to provide some background to the basis for the relief sought by the Union.

[8] The Union states that it has members that work for Sydney Trains based at the Liverpool Railway Station south-west of Sydney. In October 2017, Sydney Trains advised the Union that it intended to remove the existing Gate Array Control known as the ‘Garrison’ or GAC and install a Hub. The Garrison is an enclosed space of aluminium construction, but predominantly of glass for optimal passive surveillance, and includes a small bench/work area to accommodate computers and communication facilities.

[9] The matter was put in dispute by the Union over concerns that the Garrison’s removal would adversely impact employee safety and interfere with the operational requirements of the Liverpool Railway Station.

[10] The safety concerns raised by the Union included situations involving:

•  Evacuation of employees and vulnerable passengers;

•  Medical emergencies;

•  Degraded mode (trains not running according to timetable);

•  Out of course running; and

•  Crowd control.

[11] It is contended by the Union that the Garrison provides employees with the opportunity to quickly retreat in instances of imminent danger arising from the public, particularly at night. It also provides a cool space on a hot day while at the same time allowing for customer service to continue due to the clear glass in the Garrison.

[12] The ‘Hub’ that is intended to be installed by Sydney Trains is a stainless steel workstation which allows employees to access Sydney Trains’ information systems on the concourse of the station.

[13] Part 6-2 of the Act titled "Dealing with Disputes" at s.738(b) of the Act provides the Commission with the ability to deal with disputes arising out of an enterprise agreement which includes a term that provides a procedure for dealing with disputes.

[14] Section 739 of the Act: "Disputes dealt with by the Fair Work Commission, states at s.739(1) of the Act:

“This section applies if a term referred to in section 738 requires or allows the Commission to deal with a dispute.”

[15] Further, sub-s.739(4) states as follows:

“If, in accordance with the term, the parties have agreed that the Commission may arbitrate the dispute, however described, the Commission may do so.”

[16] It is therefore necessary to ascertain whether the Agreement includes a term that provides a procedure for dealing with the dispute described above, and whether such a procedure requires and allows the Commission to deal with the dispute, including by arbitration under ss.738 and 739 of the Act.

[17] The Agreement at clause 8 Dispute Settlement Procedure (DSP) states at 8.2 that the procedure shall apply to any dispute that arises about the following:

(a) matters pertaining to the relationship between the Employer and Employees

(including workload changes);

(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.

[18] While ss.186(6)(i) and (ii) of the Act mandate that an agreement dispute settling procedure must provide a procedure to settle disputes ‘about any matter arising under the agreement’ and ‘in relation to the National Employment Standards’, the Sydney Trains procedure provides for a greater range of matters that can be dealt with, well beyond the scope of disputes over the application of the Agreement.

[19] The DSP provides that following the exhaustion of attempts to resolve a dispute at the workplace level and via Unions NSW, a party may refer the dispute to the Commission for resolution by conciliation and if necessary arbitration.

[20] Sydney Trains submit that the relief sought by the Union requires the Commission to make a finding that it has breached s.19 of the Work Health and Safety Act 2011 (NSW) (the WHS Act) and that the Commission has no power to make such findings. In summary, s.19 of the WHS Act requires Sydney Trains to ensure, so far as is reasonably practicable, the health and safety of its workers.

[21] As put by Griffith CJ in Federated Engine-Drivers and Firemen’s Association of Australasia v Broken Hill Pty Co Limited 1it is incumbent upon the Commission that “the first duty of every judicial officer is to satisfy himself that he has jurisdiction, if only to avoid putting the parties to unnecessary risk and expense”.

[22] While considered under the Act’s predecessor legislation, the Commission’s role arising under a dispute settlement clause of an agreement was explained by the High Court in CFMEU v AIRC, 2 where the High Court stated:

“29. … As already indicated, it is incidental to the conciliation and arbitration power for the Parliament to permit parties to an industrial situation to agree on the terms on which they will settle the matters in issue between them conditional upon their agreement having the same legal effect as an award. So, too, it is incidental to that power for the Parliament to give legal effect to agreed procedures for maintaining a settlement of that kind and, also, for it to authorise the Commission to participate in those procedures.

30. There is, however, a significant difference between agreed and arbitrated dispute settlement procedures. As already indicated, the Commission cannot, by arbitrated award, require the parties to submit to binding procedures for the determination of legal rights and liabilities under an award because Ch III of the Constitution commits power to make determinations of that kind exclusively to the courts. However, different considerations apply if the parties have agreed to submit disputes as to their legal rights and liabilities for resolution by a particular person or body and to accept the decision of that person as binding on them.

31. Where parties agree to submit their differences for decision by a third party, the decision maker does not exercise judicial power, but a power of private arbitration. Of its nature, judicial power is a power that is exercised independently of the consent of the person against whom the proceedings are brought and results in a judgment or order that is binding of its own force. In the case of private arbitration, however, the arbitrator's powers depend on the agreement of the parties, usually embodied in a contract, and the arbitrator's award is not binding of its own force. Rather, its effect, if any, depends on the law which operates with respect to it.

32. To the extent that s 170MH of the IR Act operates in conjunction with an agreed dispute resolution procedure to authorise the Commission to make decisions as to the legal rights and liabilities of the parties to the Agreement, it merely authorises the Commission to exercise a power of private arbitration. And procedures for the resolution of disputes over the application of an agreement made by parties to an industrial situation to prevent that situation from developing into an industrial dispute are clearly procedures for maintaining that agreement. Parliament may legislate to authorise the Commission to participate in procedures of that kind. Accordingly, s 170MH of the IR Act is valid.”

[23] As the Full Bench stated in Metropolitan Fire and Emergency Services Board v United Firefighters’ Union of Australia; Garth Duggan at [38], “the Act now permits arbitration of disputes that the parties allow to be arbitrated under an enterprise agreement, limited only by the dispute settlement clause itself.”

[24] The legal consequences of a determination by the Commission pursuant to a dispute resolution procedure and s.739 of the Act were stated by a Full Court of the Federal Court in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v ALS Industrial Australia Pty Ltd (2015) 235 FCR 305, where Dowsett, Tracey and Katzmann JJ at [35] stated:

“Thus it is well settled that “arbitration” by FWC pursuant to a term in an enterprise agreement is a private arbitration, based upon the consent of the parties, and not upon the coercive authority of the Australian state.”

[25] In support of its application, and the Commission’s jurisdiction to deal with the application, the Union referred to the High Court decision in Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd. 3 This decision concerned the power of the Australian Communications and Media Authorityto make a finding under 8(1)(g) of the Broadcasting Services Act 1992 which states that a licensee will not use the broadcasting service or services in the commission of an offence against another Act or law of a State or Territory. The Full Court below had relied on what they apprehended as a general principle that an administrative body is not normally expected to determine whether or not particular conduct constitutes the commission of a relevant offence.

[26] The High Court held that more generally, and contrary to that expressed by the Full Court, it is not offensive to principle that an administrative body is empowered to determine facts which establish that a person has committed a crime. Satisfaction in such a case is upon the balance of probabilities. Further, it was permissible for an administrative body to determine whether a person has engaged in conduct that constitutes a criminal offence as a step in the decision to take disciplinary or other action. 4

[27] Enforcement of the WHS Act in a competent court requires the identification of an alleged offence having occurred and is subject to evidential requirements and a burden of proof at a level beyond what the Commission exercises in dealing with disputes.

[28] However, in this matter we are dealing with private arbitration and the generous scope of disputes that may be dealt with under the Agreement’s DSP and, in particular, the reference to matters pertaining to the relationship between the employer and employees. The power of enquiry and determination takes its legal character the purpose for which it is undertaken and a determination for an arbitral purpose can encompass formation and expression of an opinion about an existing right or obligation. 5 Any finding by the Commission is not binding other than on the parties themselves.

[29] On this basis I do not accept the submission of Sydney Trains that the Commission is unable to make a determination on its liability under the the Work Health and Safety Act 2011(NSW)in resolving the dispute referred to the Commission for private arbitration as per the Agreement’s DSP.

[30] While no submissions were made a question arises whether compliance with s.19 of the WHS Actis a matter pertaining to the relationship between the employer and employeesand not between the employer and a third party on the basis thatenforcement of the Work Health and Safety Act 2011 is not available to employees.Section 230 of the Act restricts enforcement of the Act to the regulator, an inspector and, in limited cases, the secretary of an industrial organisation.

[31] In any event the Union’s claim is also put in the alternative in requesting that a finding be made that the removal of the Garrison is unreasonable in the circumstances. This does not appear to be an attempt to enforce the WHS Act as opposed to asking the Commission to find that the proposed action of the employer is unreasonable. Disputes concerning the reasonableness of an employer’s actions are routinely brought before the Commission and, as in this case, routinely objected to by employers including on the ground of managerial prerogative.

[32] In respect of the exclusion contained at 8.9 of the Agreement of matters based on a reasonable concern by an employee about an imminent risk to an employee’s health or safety from the DSP, I do not consider that the union’s claim is founded on the existence of an imminent risk as opposed to the creation of a risk to health and safety including there being no safe place to quickly retreat in instances of imminent danger arising from the public. The word “imminent” in this context means ‘likely to occur at any moment’ 6. There can be no imminent risk where the proposed action of Sydney Trains remains in the planning stage as a proposal that Sydney Trains wishes to implement should this dispute be resolved in their favour.

[33] I am thus satisfied that it is well within the scope of the DSP for the Union claim to be arbitrated by the Commission and in particular its assertion that the employer is attempting to embark on what it considers to be unreasonable action, being the removal of the Garrison at the Liverpool Railway Station.

[34] The matter will now be listed for further hearing on the merits of the application.

DEPUTY PRESIDENT

Appearances:

Applicant: Mr A Guy of counsel and Mr T Hunter Organiser for the ARTBIU

Respondent: Ms R Gall of counsel and Ms M Garcia Solicitor for Sydney Trains.

Hearing details:

2019

Sydney

9 September

Printed by authority of the Commonwealth Government Printer

<PR712810>

 1 12 CLR 398 at 415

 2   Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission (2001) 203 CLR 645; see also Endeavour Energy v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2016] FCAFC 82.

 3 [2015] HCA 7

 4   Ibid at [32-33] French CJ, Hayne, Kiefel, Bell and Keane JJ

 5   Ibid at [104] Gageler J

 6   Macquarie Dictionary Online 2019