Australian Rail, Tram and Bus Industry Union v Sydney Trains, NSW Trains T/A NSW Trainlink
[2022] FWC 2615
•28 SEPTEMBER 2022
| [2022] FWC 2615 |
| FAIR WORK COMMISSION |
| REASONS FOR DECISION |
Fair Work Act 2009
s.437—Protected action
Australian Rail, Tram and Bus Industry Union
v
Sydney Trains, NSW Trains T/A NSW Trainlink
(B2022/1412)
| DEPUTY PRESIDENT EASTON | SYDNEY, 28 SEPTEMBER 2022 |
Proposed protected action ballot of employees of Sydney Trains & NSW Trains Trading As NSW Trainlink.
On Monday 26 September 2022 I made a protected action ballot order[1] under s.437(1) of the Fair Work Act 2009 (Cth). In making this order I declined the Respondents’ application to extend the notice period referred to in s.414(2)(a).
I am satisfied that there is an exceptional circumstance in this matter, being that the proposed industrial action could result in some employees engaging in action that could place themselves at risk of harm and the Respondents may need to take defensive action to ameliorate that risk.
However, I am not satisfied that the exceptional circumstance justifies extending the notice period and I therefore have no discretion to extend the notice period as sought.
I now provide my detailed reasons.
The Application
On Monday 19 September 2022 the Australian Rail, Tram and Bus Industry Union (RTBU) applied for a protected action ballot order (PABO) under s.437(1) of the Fair Work Act 2009 (Cth) (FW Act). The RTBU is a bargaining representative for the proposed Sydney Trains and NSW Trains enterprise agreements.
The question that the RTBU proposes to put in the ballot is as follows:
“In support of reaching an enterprise agreement with your employer, do you endorse the taking of protected industrial action by RTBU members against your employer, which may involve taking separately, concurrently and/or consecutively any or all of the actions set out below:
1. Interrupting work periodically, indefinitely, or for specified periods for one or more of the following purposes and/or performing work in a manner different from that in which it is customarily performed by doing one or more of the following things:
a. deactivating opal readers and gates;
b. ensuring that opal readers and gates remain deactivated;
c. opening ticket gates at train stations;
d. ensuring that ticket gates at train stations remain open.
[yes/no]”
The Respondents, Sydney Trains and NSW Trains, did not oppose the making of a PABO. I shall refer to the Respondents collectively in this decision as “Sydney and NSW Trains”. Sydney and NSW Trains say that that the proposed action for which authorisation is sought does not attract legal immunity, and they “reserve rights to take appropriate action if such action is taken”. In the present matter I do not need to determine the immunity point.
Sydney and NSW Trains applied for an order under s.443(5) that the period of written notice for proposed industrial action in s.414(2)(a) of the FW Act be extended to seven working days. Sydney and NSW Trains’ application was opposed.
The application was heard three working days after it was lodged in order to accommodate the filing of evidence and submissions and the availability of counsel. Mr Seck of Counsel appeared for Sydney and NSW Trains, instructed by Ashurst Australia and with permission under s.596 of the FW Act. Mr Matthews appeared for the RTBU.
The Law
Section 414 of the FW Act includes the following:
“414 Notice requirements for industrial action
Notice requirements--employee claim action
(1) Before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.
(2) The period of notice must be at least:
(a) 3 working days; or
(b) if a protected action ballot order for the employee claim action specifies a longer period of notice for the purposes of this paragraph--that period of notice.
Notice of employee claim action not to be given until ballot results declared
(3) A notice under subsection (1) must not be given until after the results of the protected action ballot for the employee claim action have been declared.”
Section 443(5) allows the Commission to extend the required notice in exceptional circumstances:
“If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.”
The principles for dealing with the application to extend the notice period can be summarised as follows:
(a)the Commission must make a discretionary evaluative judgment about whether the requirements for such an order have been met (CFMMEU v DP World Sydney Ltd [2019] FCAFC 99 at [14] (DP World));
(b)the Commission will ordinarily take a three-stage approach (National Tertiary Education Industry Union v Charles Darwin University [2018] FWCFB 4011 at [23]-[25] (Charles Darwin University)) by:
i)determining whether the circumstances in a particular case are exceptional;
ii)if so, determining whether the identified exceptional circumstances justify a longer period; and
iii)if so, determining whether the Commission should exercise its discretion and the additional period of notice that should be given;
(c)the onus is on the Respondent to demonstrate that exceptional circumstances exist (TWU v Cobham Aviation Services Engineering Pty Ltd[2022] FWC 2114 at [11]);
(d)in considering whether circumstances are “exceptional” the Full Bench in Charles Darwin University at [21] endorsed the following approach:
“In summary, the expression “exceptional circumstances” requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.”
(e)In DP World at [8] the Full Court noted that the above observations “are consistent with the observations in Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 353 ALR 600 at [30] per Gageler, Keane and Nettle JJ that “exceptional circumstances” “need not be unique, or unprecedented, or very rare; but … cannot be … regularly, or routinely, or normally encountered”;
(f)“justifying” in s.443(5) signifies that the identified exceptional circumstances must show or prove that it is reasonable or necessary, or the circumstances warrant or provide good reason to require a longer period of written notice (Charles Darwin University at [24]); and
(g)matters of relative bargaining power arise when considering whether the exceptional circumstances “justify” a longer notice period (DP World at [18]);
(h)making an order under s.443(5) interferes with the right of a bargaining representative to otherwise give three working days’ written notice of industrial action. This right should not lightly be curtailed by the imposition of a longer period of notice (Charles Darwin University at [18]);
determining whether the exceptional circumstances “justify” a notice period longer than the statutory default inevitably requires balancing the interests of the employer and third parties in having a greater opportunity to take defensive action, against those of the employees which may be adversely affected by a diminution in the effect of their industrial action, and hence their bargaining power (CFMMEU v Patrick Stevedores Holdings Pty Ltd T/A Patrick Terminals[2020] FWC 3751 at [36]);
(j)it would not be a relevant exercise of discretion to grant additional notice simply to allow the employer to neutralise the impact of the industrial action (TWU v KINETIC (Melbourne) Pty Ltd T/A Kinetic[2022] FWC 536 at [40] (Kinetic));
(k)there might be exceptional circumstances that justify extending the notice period for some but not all the proposed forms of industrial action (Kinetic at [49] and PR739196); and
(l)even if there are exceptional circumstances that justify an extension of the notice period, the Commission must consider whether, as a matter of discretion, to grant an extension and positively consider the duration of any extension granted.
The Evidence
The Respondent filed and tendered three statements from management employees.
Mr John Brogan provided the following evidence:
(a)Mr Brogan is employed by Transport for NSW (TfNSW) in the position of Director – Facilities Management in the Sydney Trains and NSW Trains joint Facilities Management Team;
(b)customers pay for fares when using trains by "tapping on" to an Opal reader on a gate (at gated stations) or at an Opal pole (or Fixed Location Readers) prior to a trip commencing, and then "tapping off" on another Opal reader after the end of a trip;
(c)there are approximately 165 stations in the Sydney Trains network and approximately 40 of those stations are gated stations. NSW Trains has only four gated stations being Central, Woy Woy, Newcastle and Gosford. All other NSW Trains stations are ungated;
(d)Opal machines always remain powered on. Station staff are not required to turn Opal gates or poles (readers) on or off at the commencement or end of the day;
(e)station staff are not authorised to power off Opal poles and gates except in limited emergency situations;
(f)station staff can activate a manual emergency to open all gates by pressing an emergency red button at the station rendering the gates inoperative;
(g)Opal poles can be made inoperative by switching off the circuit breaker in the electrical distribution board for the station, or at a separate location for that circuit breaker if it is not located in the electrical distribution board;
(h)gates can also be made inoperative through turning off a power switch within each individual gate or switching off the circuit breaker in the electrical distribution board at the station;
the switches for the circuit breaker and electrical distribution boards are generally held in cabinets or communications rooms at each station. These cabinets and switchboards may also have live or spare wires and are therefore inherently dangerous because of the risk of electrocution if the wires are touched. For these reasons, circuit breakers and electrical distribution boards are only accessed by electricians or trained technicians within the Facilitates Management team or contractors;
(j)there are no duties which require Sydney Trains or NSW Trains station staff to access the electrical distribution boards, any separate circuit breaker for Opal poles, or to open a cabinet containing circuit breakers, on any occasion, nor are they trained to do so;
(k)there is no ability for Sydney Trains or NSW Trains to turn the power off to all Opal gates and readers remotely;
(l)to avoid employees being exposed to the safety risk as described above, Sydney Trains and NSW Trains would be required to consider, plan for and implement a controlled power off and shut down of all Opal readers and gates across the entire network;
(m)to turn the power off in a safe manner by electricians or trained technicians, members of the Facilities Management team or contractors engaged by that team would be required to attend all stations across Sydney Trains and NSW Trains. They would be required to locate the circuit/s and isolate and danger tag them out;
(n)these tasks are likely to take, on average, two hours plus travel time at each station with further time being required at large stations with more gates (for example, Central and Town Hall);
(o)there are currently 4 members of the Facilities Management team and 20 contractors trained to safely operate the electrical boards providing power to the Opal gates and readers; and
(p)for all stations to be accessed across NSW Trains and Sydney Trains, to safely turn off power to the Opal readers and gates, Mr Brogan anticipates this would take likely between 7 to 12 days given the small number of team members, the time required to engage contractors and provide them with instructions, and the time take by the team and/or contractors to move from station to station.
Mr Lewis Clark gave the following evidence:
(a)Mr Clark is employed by TfNSW in the position of Executive Director – Customer Systems and Operations, within Customer Strategy and Technology;
(b)the public transport system across the Greater Sydney area uses the Opal system for customers to pay for fares;
(c)where a customer taps on but does not tap off, there is no "pair" to determine the distance travelled on the network, and to calculate the fare the customer is to be charged. In these circumstances, the customer will be charged a default fare. The current default fare is $9.31 for an Adult, peak fare for the train network. In addition, when using the International or Domestic Airport stations a Station Access Fee is charged on top of the rail fare;
(d)for a customer to receive an adjustment to their Opal Card balance to ensure they are charged only the correct amount for the relevant trip, customers can call the 13 OPAL contact centre or submit a request via TfNSW digital channels;
(e)if some but not all Opal readers were deactivated, TfNSW staff would not be able to process all the fare adjustments that would arise for customers who do not have a “pair”;
(f)TfNSW (on behalf of Sydney Trains and NSW Trains) will need to design, validate and implement an alternative fare structure. That system would need to remain in place while some Opal Readers remain inoperative;
(g)the process of designing, validating and implementing a new system requires cooperation with a third-party provider, Cubic, who is contracted by TfNSW to operate and maintain the Opal system, and who are responsible for implementing any new charging system into the Opal Readers; and
(h)Mr Lewis anticipates that it may take five to seven calendar days to design, validate and implement a new charging system in the circumstances where the first system designed and tested works successfully.
Mr Chris Walsh gave the following evidence in his written statement:
(a)Mr Walsh is employed by TfNSW in the position of Head of Service Experience, Customer Experience Branch for Sydney Trains;
(b)Mr Walsh has ultimate responsibility for every railway train station on the Sydney Trains Network;
(c)In the normal course of their duties station staff are not required or authorised to turn off gates at gated stations or to turn off Opal poles. Staff can open gates temporarily for a customer who is unable to pass through the gate, or in emergency situations;
(d)At gated stations all gates are connected to a station emergency evacuation system. If a station moves to evacuation status all gates will be automatically rendered open and powered off;
(e)many of the associated infrastructure at gate-lines, electrical distribution boards and circuit breakers have high voltage warning labels affixed; and
(f)Mr Walsh has serious concerns for the health and safety of station staff turning off Opal readers at gate-lines, electrical distribution boards or at circuit breakers because, he says, it is not an activity station staff are trained to do and there is no safe work instruction which can be followed.
Only Mr Walsh was required for cross-examination. Mr Walsh gave evidence about the kinds of occasions in which station staff might be required or authorised to open Opal gates, such as crowding incidents and emergencies. Mr Walsh was also asked about arrangements made during recent “Fare Free Days” and indicated that station staff were instructed to place signs or barriers over the Opal readers to dissuade customers from tapping on or off. Mr Walsh’s understanding is that on these Fare Free Days no Opal poles were deactivated.
The Submissions
Sydney and NSW Trains’ written submissions identified the following to be exceptional circumstances:
Sydney Trains and NSW Trains provide an essential public service of public transportation throughout a significant part of the state of NSW including metropolitan Sydney, the Central Coast, Newcastle, the Blue Mountains and the South Coast.
The Respondents are responsible for maintaining rail facilities, including Opal readers and gates across all stations across the Sydney Train and NSW Trains (Intercity) network.
Opal readers and gates contain specialised technology to allow passengers to enter and exit rail stations by 'tapping on/off'. The Respondents have engaged third party providers namely, Cubic and Prosegur, to service, maintain and repair the Opal readers and gates.
Employees of the Respondents are not required (and consequently not trained), as part of their normal duties, to deactivate Opal readers and gates, save for temporarily in emergency situations.
Deactivation of Opal readers and gates may only be undertaken by the Transport for NSW Facilities Management team, or by personnel from third party providers. Deactivation of Opal readers and gates by any employees of the Respondents poses a real safety risk to employees of the Respondents.
The Opal system managing payment for transit across the Sydney Trains and NSW Trains (Intercity) network requires that passengers both 'tap on' and 'tap off' to calculate the correct fare. As Opal readers at gates and poles at Sydney Metro and Airport Link stations will not be deactivated, this will result in a maximum fare being charged to travellers (due to there being no 'tap on/'tap off' pair).
The type and nature of the industrial action for which authorisation is sought under the PABO is of a kind which would very likely result in the Respondents making an appropriate application to the Commission for orders, or elsewhere for appropriate relief, to deal with the notified industrial action.
Sydney and NSW Trains acknowledge that even though they provide an essential service, there is no risk that the essential services to the public will be compromised from the proposed industrial action.
The RTBU properly submitted that exceptional circumstances will not exist merely because adverse consequences will (or may) flow from the industrial action to the employer or third parties (including customers of the employer).
The RTBU also submitted that the fact that protected industrial action will impact third parties and requires an employer to take ameliorative steps is not ‘out of the ordinary course’, ‘rare’ or ‘uncommon’, is not an exceptional circumstance, and is entirely ordinary. I accept this submission to be literally correct. However, there are many instances recorded in earlier decisions of the Commission where the specific impact on particular third parties, or even on employers, have amounted to exceptional circumstances for the purposes of s.443(5).
The RTBU also relied on the fact that Sydney and NSW Trains have instigated “fare free days” in recent times that have apparently not caused the same difficulties that Sydney and NSW Trains say they now fear will arise if the proposed industrial action is taken.
The RTBU also gave the following precis of Sydney and NSW Trains’ evidence:
“Trains own evidence plainly establishes that it can safely execute a so-called ‘controlled’ shutdown in three days. The totality of Mr Brogan’s evidence is that there are 24 people in his team who can safely operate the electrical boards. Assuming there is roughly 140 stations that those individuals would be required to visit to shutdown machines at the switch board, noting that the larger stations all have gates that can be shut down by station staff, it would require each individual to visit 2 stations per day to complete the task within three days. Mr Brogan gives evidence some time is needed to brief contractors, but no explanation is given for why this has not already been done or why the content of this briefing cannot be delivered in 5 minutes.”
Is the conduct regarding Opal readers relevant?
The proposed industrial action to be put to ballot is specific and limited in its terms. The PABO does not propose a stoppage or interruption of work at large. The proposed stoppages or interruptions are only:
“… for one or more of the following purposes and/or performing work in a manner different from that in which it is customarily performed by doing one or more of the following things…”
[Emphasis added].
The stopping of, or interruption to, normal duties fit comfortably within the definition of industrial action in s.19 of the FW Act. In the ordinary course the immunity provisions of s.415 of the FW Act will attach to protected industrial action in the form of stopping or interrupting normal duties.
However, it is quite possible that the other conduct relating to the Opal readers, being the deactivating of opal readers and gates, ensuring that opal readers and gates remain deactivated and so on, is not industrial action and the immunity of s.415 does not apply to this conduct.
By analogy the observations of Justice Tracey in Ambulance Victoria v United Voice (2014) 245 IR 375, [2014] FCA 1119 at [23] are apposite:
“It is, therefore, necessary to identify work normally performed by the relevant employees and the manner in which it is customarily performed. The duties of the managers include the collection and analysis of information relating to response times of ambulances in their areas. It is not part of their duties to provide such information to persons outside Ambulance Victoria, including reporters and others engaged by media outlets. It cannot, in my opinion, be said that making response time data available to the media, in breach of their contracts of employment, involves the performance of their normal work in a manner different from that in which it is customarily performed. It may be different if their work involved the provision of material to the media through certain approved channels and the employees chose to distribute the information by other means. That is not this case. The fact that the proposed action is contrary to contractual terms which are binding on the employees does not, for that reason, amount to the performance of duty in a manner different from the norm. Rules, policies and contractual provisions which proscribe conduct of certain kinds by employees regulate the conduct of those employees in the course of their employment. They do not impinge directly on the manner in which work is performed. A breach of such a proscription cannot, in my opinion, be regarded as a departure from the customary manner of performance of an employee’s work. Were it otherwise, contraventions by employees of policies which prohibit sexual harassment or discrimination of various kinds could be regarded as departures from the customary manner of performance of work and thereby amount to industrial action.”
I do not need to decide anything about the immunity under s.415, but I do need to consider whether the threatened conduct that is arguably separate to the protected industrial action, and Sydney and NSW Trains’ proposed response to that separate conduct, is relevant to the immediate question of the extension of the notice period to take protected industrial action.
In my view, based on the specific wording of the proposed question for the ballot and as a matter of expediency, the conduct regarding the Opal readers and gates are relevant considerations.
By the wording of the question to be put, the conduct in relation to the Opal readers and gates is inseparable from the conduct that could be understood to be the industrial action. The only stoppages or interruptions to work that are identified in the proposed question are stoppages/interruptions that will occur while employees are deactivating Opal readers and so on. Stoppages or interruptions for other purposes or for other activities are not covered by, or protected by, the proposed industrial action.
Findings – Exceptional circumstance
Some staff are proposing to take industrial action by way of stopping or interrupting their normal duties in order to undertake an activity that is potentially dangerous.
The only way that workers can deactivate Opal readers on Opal poles is to access the electricity distribution board at the station and switch off a circuit breaker. On the materials before me I must assume that the proposed action will increase the risk of harm or injury for some workers.
It is necessary to assume that at least some staff have access to the electricity distribution boards, otherwise Sydney and NSW Trains would know that employees are not able to carry out the threatened deactivations. Sydney and NSW Trains say that:
“Station staff may be exposed to risk of electric shock or electrocution if they access electrical distribution boards, circuit board of gate cabinets. Not being trained or authorised to access them they may cause damage to equipment in incorrectly removing power, or may inadvertently take power off other essential electrically powered systems at the station.”
I am prepared to assume for present purposes that accessing an electrical distribution board and switching off a circuit breaker is contrary to the terms of employment of those who are not authorised to do such a task. I am also prepared to accept that a mere direction to station staff that they must not access the distribution board will be ignored despite the apparent risk to employees’ own safety.
Sydney and NSW Trains say that if they are given notice that employees are about to place themselves at risk they may choose to intervene and engage qualified electricians and contractors to access each electricity distribution board and switch off the circuit breakers. Sydney and NSW Trains do not say that they are required to take this action but say it is something they may choose to do to eliminate the identified risk.
In my view there are exceptional circumstances insofar as the proposed industrial action contemplates the taking of action that might cause harm or injury to the employees taking the action and may cause Sydney and NSW Trains to take action to eliminate the risk.
I do not find that any of the other matters raised by Sydney and NSW Trains are exceptional circumstances.
I do not find Mr Lewis’ evidence that it may take five to seven calendar days to design, validate and implement a new charging system to be evidence of an exceptional circumstance. Firstly, it appears that Sydney and NSW Trains have applied “fare free days” without deactivating Opal readers across the rail network and perhaps without designing, validating and implementing a new charging system for those days. Secondly, there is ample time to design, validate and test (but not implement) a new charging system between now and the taking of any protected industrial action resulting from this PABO. I accept that time and money spent designing, validating and testing could well be wasted but the alternative, being that Sydney and NSW Trains decide to take no preparatory steps until notice is given, does not constitute an exceptional circumstance.
Findings – “Justifying” an extension
Sydney and NSW Trains’ evidence does not establish that the above exceptional circumstance justifies an order that the notice period be extended.
In this matter there is no concern that allowing Sydney and NSW Trains extra time to make preparations will nullify the effect of the industrial action or weaken the RTBU’s bargaining position. In fact, Sydney and NSW Trains plan to engage electricians to perform the threatened action instead of the employees. Moreso, Sydney and NSW Trains’ plan of progressively deactivating Opal poles over several days will exacerbate rather than negate the deleterious effects of the RTBU’s proposed action.
Mr Brogan says it is likely to take between 7 to 12 days “to engage contractors and provide them with instructions, and [for] the team and/or contractors to move from station to station.”
This case is similar to the circumstances described in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Essential Energy[2021] FWC 6128 at [46] where the evidence before the Commission was that if the employer started taking steps straight away to deal with the consequences of the industrial action, it would only require three days’ notice of industrial action to execute those contingency arrangements.
The engaging of contractors and providing them with instructions can occur prior to any notice of industrial action. As above, I recognise that these activities could be for nought if no notice is ever given.
To the extent that Sydney and NSW Trains intend to deploy the 24 authorised employees and contractors to attend all stations, Sydney and NSW Trains have not established that they cannot do so within the standard three-day notice period.
By the RTBU’s analysis of Sydney and NSW Trains’ evidence (cited above), the 24 employees and contractors would only be required to visit two stations per day to cover each of the 140 ungated stations. Even if the 24 people referred to in Mr Brogan’s statement were required to attend all 160 stations, each person would still only need to attend 2.2 stations per day to complete the task in three days.
I note parenthetically that it may not be necessary for Sydney and NSW Trains to actually deactivate the Opal readers at each station if they simply apply the same arrangements that were applied on the fare free days. The interaction between the two key countermeasures, being the deactivation of the Opal readers by electricians and the implementation of a new charge system, was not fully explored at the hearing. I have determined the application on the assumption that the Respondent will take steps to deactivate the Opal readers.
Findings - Discretion
Having found that there are no exceptional circumstances that justify an order to extend the notice period, there is no discretion for me to do so.
Order(s) made
On Monday 26 September 2022 I made a PABO in amended terms as sought by the RTBU (PR746176). Later that day the RTBU sought further changes to the PABO as made.
On Tuesday 27 September 2022 the RTBU made the necessary application under s.447 to vary the order made the day before. Sydney and NSW Trains did not oppose the variation and the original order was varied on the same day.[2]
DEPUTY PRESIDENT
Appearances:
Mr P Matthews for the Applicant
Mr M Seck of Counsel instructed by Ms K Hollings of Ashurst Australia
Hearing details:
2022.
Sydney.
September 24.
[1] PR746176.
[2] PR746247.
Printed by authority of the Commonwealth Government Printer
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