“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Sydney Trains - [2022] FWC 22

[2022] FWC 22

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.739—Dispute resolution

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)

Sydney Trains

(C2021/8179)

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

Sydney Trains

(C2021/8269)

DEPUTY PRESIDENT EASTON

SYDNEY, 7 JANUARY 2022

Alleged dispute about any matters arising under the enterprise agreement - Dispute Resolution Procedure - Status quo provision - temporary fetter upon introducing changes - Work practices and procedures - genuine disputes - disputes raised in good faith - substantial compliance.

In September 2021, and in anticipation of the “roadmap” to reopening New South Wales and community vaccination rates rising, restrictions easing and more people returning to public transport, Transport for New South Wales began an extensive consultation process on new risk control measures for its workforce. The risk control measures were particularly important because health authorities were anticipating that community transmission of COVID-19 would significantly escalate as restrictions eased.

All seven unions party to Sydney Trains Enterprise Agreement 2018 (“the Agreement”) were invited to consult about proposed new risk control measures. Some but not all unions took up the invitation.

A draft policy was published on 13 October 2021 that identified mandatory vaccination for workers as a new additional risk control measure. The publishing of the draft policy marked the beginning of what the Respondent, Sydney Trains, called the “formal consultation process.”

A final version of the policy was provided to unions on 8 November 2021 in a “determination pack” and published to all staff on 9 November 2021. The finalised policy, being the “Transport COVIDSafe Measures Policy” (“the Policy”) required all Transport for New South Wales (TfNSW) staff to be vaccinated by 6 December 2021.

Three days after the Policy was finalised (11 November 2021) the Automotive, Food, Metals, Engineering Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) wrote to TfNSW raising concerns about the policy and asked to meet with representatives of TfNSW to discuss their concerns.

Approximately three weeks after the Policy was finalised (29 November 2021) the Communications Electrical Electronic Energy Information Postal Plumbing and Allied Services Union of Australia (CEPU) wrote to TfNSW in similar terms, raising similar issues, and similarly asking for a meeting.

The Respondent refused to meet and/or discuss the policy with either union because TfNSW considers that the consultation prior to the publishing of the final Policy was extensive and sufficient, that there is no dispute about the policy because it has been finalised and therefore further consultation was not required.

Unsurprisingly both unions have referred [what they regard to be] live disputes to the Commission in accordance with the dispute settlement procedure of the Agreement.

The AMWU and the CEPU, collectively referred to in this decision as “the Unions”, rely on the operation of a status quo provision within the dispute settlement procedure. If the status quo provision applies then “procedures and practices in place immediately prior to the change that gave rise to the dispute” must continue pending resolution of the dispute.

The Respondent argues that there is no genuine dispute that enlivens the dispute settlement procedure, that even if there was a dispute it is not a dispute about work procedures and practices, and that even if it was a dispute about work procedures and practices the status quo provision is invalid to the extent that it purports to preclude the introduction of the Policy which has an apparent justification in complying with State work health and safety obligations.

This decision deals with the operation of the dispute settlement procedure in the Agreement and in particular:

a)has the dispute settlement procedure been properly engaged and is there a dispute properly before the Commission?
b)if so, does the status quo provision within the dispute settlement procedure have application to the current dispute(s)?

For the reasons that follow, the answer to both questions is yes.

This decision does not deal with the lawfulness or reasonableness of the policy, the fairness of the application of the policy to any particular employee, nor does it deal with the precise consequences for the Policy and the parties that arise from the operation of the status quo provision.

Procedural History

Initially the Unions asked the Commission to make an interim decision/order under s.589(2) as follows:
“In accordance with the Dispute Settlement Procedure of the Sydney Trains Enterprise Agreement 2018, Sydney Trains was from 11 November 2021 restrained from taking steps to introduce the Transport COVIDSafe Measures Policy, including by preventing employees from attending for work on the basis of that policy, and remains so restrained until the dispute is resolved.”

At the commencement of the hearing the Unions indicated that they in fact sought a final binding determination as to the effect of the status quo provision. After an adjournment the Respondent indicated that it was content to answer the Unions’ application for a final binding determination.

In conciliation conferences and at hearing the Respondent has declined to take up my suggestion that they meet with the Unions. The Respondent is adamant that consultation has properly taken place and is now finished.

Transport for NSW(?)

In ARTBIU v Sydney Trains [2021] FWC 3468 at [6] Deputy President Bull provided the following helpful summary of relevant provisions of the Transport Administration Act 1988 (NSW):

“• Pursuant to the TAA, Sydney Trains and NSW Trains are NSW Government agencies with separate corporate status.
·   The principal objective of Sydney Trains is to deliver safe and reliable railway passenger services in an efficient, effective and financially responsible manner.
·   The principal objective of NSW Trains is to deliver safe and reliable NSW railway passenger services (including services outside NSW originating or terminating inside NSW) in an efficient, effective and financially responsible manner.
·   The affairs of Sydney Trains are to be managed and controlled by a Chief Executive in accordance with any directions of TfNSW.
·   The affairs of NSW Trains are to be managed and controlled by a Chief Executive in accordance with any directions of TfNSW.
·   The TfNSW may give directions to Sydney Trains and NSW Trains in relation to the exercise of their functions.
·   The affairs of TfNSW are to be managed and controlled by the Transport Secretary. The Transport Secretary is to be the Secretary of the Department of Transport.
·   The Transport Secretary and the Chief Executives of Sydney Trains and NSW Trains are in the exercise of their functions subject to the control and direction of the Minister.
·   The TAA provides that the Government of New South Wales may employ persons in the Transport Service to enable TfNSW to exercise its functions. The Transport Service of NSW consists of those persons employed by the Government of New South Wales in the service of the Crown.”
[footnotes omitted].

The Respondent took points in its submission that union representatives had not contacted the correct officeholder within Sydney Trains and/or TfNSW, and that words spoken by certain TfNSW officeholders (including the Minister for Transport) should not be taken as representations by Sydney Trains. I am not inclined to give any weight to such points, primarily because the Respondent’s case adopts and relies heavily upon communications by TfNSW officers and also consultation forums convened by TfNSW officers about the Policy. Jurisdictional matters cannot be and have not been ignored, but the reliance on such technical defences[1] is not to be endorsed.

The terms of the agreement

Clause 8 of the Agreement is in the following terms:
“8.      DISPUTE SETTLEMENT PROCEDURE (DSP)
8.1.     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.
8.2.     This 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.
8.3.     This procedure shall not apply to: ·
(a)Matters arising under the General Protections provisions of the Fair Work Act 2009 (Cth); or
(b)Decisions made regarding priority assessment in respect of:
i.the restructure of an employee's business unit; or
ii.in the first 3 months of implementation of organisational change.
8.4.     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 Direct or Workplace Relations, Policy and Transition Services 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 Director Workplace Relations. Policy and Transition Services being notified of a dispute involving matters 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 Chief Executive of Sydney Trains 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 the Fair Work Commission for conciliation. If conciliation does not resolve the dispute the matter shall be arbitrated by the Fair Work Commission provided that arbitration is limited to disputes that involve matters listed in sub-clause 8.2 of this procedure.

8.5. By mutual agreement confirmed in writing, Step 3 outlined above may be avoided, and the parties to the dispute may seek the assistance of the Fair Work Commission in the terms outlined at Step 4.

8.6. If it is decided to refer the matter to the Fair Work Commission, 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.
8.7. The parties to the dispute may extend the timeframe of Steps 2 - 4 by agreement. Such agreement shall be confirmed in writing.

8.8. The timeframes in Steps 1 to 4 above are exclusive of weekends and public holidays.
8.9. Safety Issues
Matters which are based on a reasonable concern by an Employee about an imminent risk to an Employee's health or safety shall be excluded from the DSP. Where a matter is raised involving such an issue, the Employee shall agree to comply with a direction by the Employer to perform other available work which is safe and reasonable and within their skills and competence with no reduction in the rostered rate of pay of the Employee while the alternative work is being performed.

Clauses 8.2, 8.3 and 8.9 define the kinds of disputes to which the settlement procedure applies and does not apply, and clauses 8.1, 8.4 to 8.8 set out the procedure itself.

It is helpful to make some observations regarding the scheme of clause 8:

a)the matters included in, and excluded from the dispute settlement procedure are described in some detail in clause 8, although many of the expressions used have broad or extensive meanings[2];
b)the procedure contains a very important quid pro quo: while the dispute procedure is being followed work must continue normally (clause 8.1) and the status quo before the emergence of the dispute shall continue (clause 8.4);
c)not all disputes are subject to the status quo provision. The scope of the status quo provision is somewhat more limited[3] than the scope of clause 8;
d)the overarching priority within the procedure is to resolve disputes as quickly as possible and therefore tight timeframes apply. Step 1 must be resolved within 48 hours, Step 2 within a further 72 hours, Step 3 within 48 hours (although Step 3 can be skipped by agreement), and finally if a party wishes to refer a dispute to the Commission they must do so within a further 72 hours.
e)faced with an obstinate opponent, a party could refer a matter to the Commission 168 hours (7 days) after first raising the dispute. With a cooperative opponent, matters can be dealt with in considerably less time;
f)the status quo provision acts as a fetter upon the Respondent’s capacity to implement change about certain matters;
g)the fetter is only temporal, insofar as the status quo provision only applies to changes while the balance of the procedure is being followed;
h)the status quo provision provides a powerful incentive for the employer to deal with matters as quickly as possible, and in particular for the employer to provide the responses contemplated in each step as quickly as possible. Quite obviously, each day that a response is delayed is another day that the status quo applies; and

the procedure requires the parties to attempt to settle disputes but more importantly, there is an end point for each dispute if agreement cannot be reached, being an outcome arbitrated before the Commission. That is, in a relatively short timeframe someone will have the final say about the matter in dispute and then the status quo provision will cease to operate.

History of Consultation on the Policy

The short version of the development and release of the Policy is:

a)TfNSW convened meetings from September 2021 onwards;
b)TfNSW released a draft policy on 13 October 2021 to all staff within TfNSW, including employees of Sydney Trains. The draft was released by email from the Transport Secretary;
c)the draft policy included a proposed direction that all employees in identified categories be vaccinated against COVID-19;
d)TfNSW invited feedback on the draft policy from all staff within seven days;
e)further consultation ensued with the unions that chose to participate; and
f)on 8 and 9 November 2021 the final policy was announced.

There was considerable evidence regarding the consultation process undertaken by TfNSW prior to the announcement of the finalised policy on 9 November 2021. For present purposes it is not necessary to recite these matters in any detail. TfNSW distributed a draft policy and invited feedback from each of the unions covered by the Agreement. The AMWU participated peripherally in some consultation processes but in substance neither applicant union engaged with the consultation invited by TfNSW prior to the announcement of the final policy.

The high-water mark of the Respondent’s case on consultation is the following submission:
“During the period 24 September 2021 to closure of the union consultation period on 29 October 2021, the AMWU officials did not engage in consultation, or send any correspondence to either TfNSW or Sydney Trains, in relation to the draft Policy.”

That said, the AMWU did express concerns about the adequacy of the consultation process to the Minister for Transport and also to the Secretary of Transport NSW prior to the policy being finalised. CEPU representatives were present at both of these meetings.

However, it was not until after the publication of the final version of the Policy that the AMWU began formally agitating their concerns about consultation and about the Policy itself. For its own reasons TfNSW decided that consultation had concluded by the publication of the Policy and that it was not prepared to engage in any further consultation.

It is not immediately apparent why TfNSW’s corporate mind was closed to any possibility of an actual dispute arising after the date of publication. At hearing the Respondent conceded that it was possible that a dispute could arise about, for example, the implementation of the policy after it was published. The Respondent submitted that if a union had concerns about the implementation of the policy (as opposed to the finalised terms of the policy or the fact that the policy was in place), such concerns could be raised under the dispute settlement procedure so long as the relevant union was clear about the subject of the dispute.

The slightly longer version of the development of the Policy is:

a)“Safety Control Review” meetings took place in September 2021 just prior to the release of the draft policy;
b)the draft policy itself contained a schedule with an analysis of specific roles within different agencies in the transport cluster. The various roles are graded into “Categories” depending on their level of interaction with other people;
c)for all workers in every category the “Required COVID-19 Controls” include:
“Vaccination control for role proposed as control would further reduce COVID-19 transmission and risk of serious illness risks in this role.”

d)additional controls measures are identified for some roles, such as “health surveillance” via testing. Rapid Antigen Testing is identified as a “required COVID-19 control” for a limited number of roles;
e)although there is literally no written correspondence from either the AMWU or the CEPU between 24 September 2021 and 29 October 2021, the evidence from the Unions is that they raised concerns around the lack of consultation in this period, from the local level to the Minister for Transport himself;
f)at the local level, such as the Engineering Maintenance Branch COVID 19 Consultation Committee Meetings on 14 October 2021 and 21 October 2021, concerns were raised about the consequences for workers who are not vaccinated, but such concerns were “taken on notice” rather than dealt with because “this was an industrial issue not a safety issue”;
g)on 25 October 2021 AMWU representatives raised concerns about consultation over the policy at a meeting regarding industrial matters (bargaining) with Minister Stokes. The Minister indicated “I’ll have someone look at it (the policy)”. The Minister or his delegate did not respond any further to the AMWU’s concerns;

h)on 27 October 2021 AMWU representatives again raised concerns about consultation over the policy, this time with the second most senior person in TfNSW, the TfNSW Secretary Mr Rob Sharp but to no avail;

the final Policy was announced on Monday 8 November 2021;

j)the AMWU wrote to the Minister on Thursday 11 November 2021 seeking an urgent response regarding its concerns about consultation and requesting a meeting;
k)on 16 November 2021, having received no response to its letter of 11 November 2021, the AMWU sent a follow-up email to TfNSW, again requesting an urgent meeting;
l)on 17 November 2021 the Chief People Officer of TfNSW wrote to the AMWU on behalf of the Secretary, refuting the assertion that consultation has been deficient and listing the various occasions that TfNSW says consultation has occurred. The AMWU’s request for a meeting were ignored;
m)at a meeting unrelated to COVID-19 on 1 December 2021 the AMWU raised concern again about consultation directly with John McAuliffe who is the Director, Employee Relations People & Culture for Transport for NSW. Emails were sent between Ms Fortescue, Assistant State Secretary of the AMWU and Mr McAuliffe under the subject line “Covid policy Sydney Trains Dispute Notification Dispute Settlement Procedure clause 8 Step 3”. The dispute was not settled on this day.

The CEPU came in very late to the process – they did not ask to consult, either formally or informally, until 29 November 2021.

The Unions’ Submissions

The Unions submit that even if Sydney Trains has complied with consultation requirements it is obliged to maintain the pre-change status quo so long as “there remain unresolved issues and a live dispute”.

The Unions rely on the decision of Justice Flick in NSW Trains v Australian Rail, Tram and Bus Industry Union [2021] FCA 883 at [152] where his Honour said:
“Although it is accepted that there are legitimate questions as to how cl 7.4 and cl 8 are to be construed harmoniously, it has ultimately been concluded that there are “unresolved matters” for the purposes of cl 7.4 and that cl 8 is thereafter engaged in its entirety, including the preservation of the “status quo” as provided for in Step 1 of cl 8.4. To so approach the construction of these two clauses, it is considered, avoids a “narrow or pedantic approach”, gives effect to the objective intent of those who framed the Agreement (Kucks v CSR Ltd (1996) 66 IR at 184 per Madgwick J) and gives effect to the presumed commercial purposes (TWU v Linfox [2014] FCA 829 at [34], (2014) 318 ALR at 59 per Tracey J) of those two clauses.”

The Unions also rely on ARTBIU v Sydney Trains [2021] FWC 3468 which they say is “materially identical to the present case”, in fact a “precise replica of what’s happening in [the present matter]”, recognising that the specific change in question before Deputy President Bull was not the same.

The union say there is plainly a live and unresolved dispute about TfNSW’s consultation with workers about its new vaccine policy, which alone justifies the determination that the status quo provision applies.

Noting the Respondent’s position that the requisite steps of the dispute settlement procedure have not been strictly followed, the Unions submit that “at the very least the Unions have substantially complied with their obligations; which is sufficient”, relying on the decision of Justice Flick in Qantas v ALAEA (No 2) [2020] FCA 951.

The Respondent’s Submissions

The Respondent relies in large part on the significant steps it took to consult with unions and employees prior to the finalisation of the Policy. The consultation process was extensive and each of the unions, as well as the wider workforce, was invited to engage in the process. In its letter of 11 November 2021 the AMWU described the consultation process undertaken by TfNSW as merely “the issuing of a survey”, which is a long way from the reality of the situation. In this regard TfNSW is entitled to be frustrated that neither the AMWU nor the CEPU substantially engaged in the consultation process from the outset.

The Respondent submits that in order to gain the benefit of the status quo obligation under the dispute settlement procedure, there must be a genuine dispute, properly notified in good faith and in accordance with the dispute settlement procedure, invoked promptly and the union must have taken steps to ensure the dispute is resolved as quickly and is close to the source as possible.

The Respondent submits that both Unions have provided only generalised assertions that the consultation process was deficient and that neither union has invoked the dispute settlement procedure in good faith. In the face of the extensive consultation activities prior to 8 November 2021 the Respondent says that the grievances raised after the “horse has bolted” have “no substance” and that even if the dispute resolution clause was properly invoked, the status quo provision only applies to “work procedures and practices”. The Respondent submits that the status quo obligation does not apply to the subject matter of the alleged dispute because the dispute does not concern work practices or procedures but concerns a direction made in order to comply with existing work health and safety obligations.

The Respondent submits that Step 1 only relates to “local issues” and therefore that the status quo provision only applies to local issues. The Respondent submits that Step 2 is the gateway step of the dispute settlement procedure that applies where a dispute involves matters other than local issues, which the Respondent submits is a deliberate drafting choice to locate the status quo obligation in Step 1 in appreciation that Step 2 disputes involving matters other than local issues are too significant or serious to be subject to a blanket status quo obligation.

The Respondent argued that the status quo provision should not be interpreted so as to operate to prevent a party from continuing in their business as they usually would while the dispute remains resolved and that it would be significant for the Agreement to effectively empower one party to stop the other party from doing what they would otherwise be legally and contractually entitled to do simply by notifying a dispute.[4]

The Respondent also argues that the Policy “has nothing to do with work practices, nor work procedures” because it does not relate to the habitual or customary performance of work nor does the Policy dictate anything that would involve a change to the conduct, or manner in which work is undertaken. Rather, the Respondent says it is not just legally entitled, but legally bound, to discharge its primary duty of care under health and safety legislation to ensure, so far as reasonably practicable, the health and safety of its workers. It would be a “counterintuitive conclusion” if the Agreement prohibited the Respondent from implementing its identified risk control measures until the dispute was determined, simply by a union raising a dispute about a safety matter.

Finally, the Respondent otherwise contends that clause 8 of the Agreement has no legal effect “in the context of the Respondent complying with its obligation under WHS legislation.” The whole of the Respondent’s written submission on this point is as follows:

“The Respondent otherwise contends that cl 8 of the Agreement has no legal effect in the context of the Respondent complying with its obligations under WHS legislation. When ss 29(2) of the FW Act is read in conjunction with ss 27(1)(c) and (2)(c), it becomes clear that, where the terms of an enterprise agreement are inconsistent with a State law relating to health and safety, then the latter is the ‘dominant’ provision, and it prevails to the extent of the inconsistency.

In short, in this case, to the extent the Applicants rely on cl 8 of the Agreement to ground their application for interim relief, that provision is subservient to s 19 of the WHS Act. There is inconsistency, in that the WHS Act mandates the Respondent taking steps to reduce work health and safety risks as far as reasonably practicable, while cl 8, on the Applicants’ construction, prohibits the Respondent from taking those steps through the operation of the ‘status quo’ provisions. In those circumstances, it is the cl 8 provisions that must subside and be subservient to the dominant WHS Act provisions.”

The written submission refer by way of a footnote to the decision of Justice Flick in NSW Trains v ARTBIU [2021] FCA 883. In oral submissions counsel for the Respondent made the following submission:
“… We formally take the point that there's an inconsistency that arises, as we pointed out, on the issue of whether or not the Work Health and Safety Act and the Rail Safety National Law provides for a comprehensive regime dealing with consultation and dispute resolution of safety issues. We accept we did not succeed on that point before Justice Flick. On that point we really raised the formal issue to take it further on appeal and further on from there. However, Justice Flick as I said beforehand did not deal with the issue of whether or not this constitutes a workplace practice or procedure, and on that point there is nothing in Justice Flick's decision which is binding upon you, Deputy President, as to whether or not a decision which is made by Sydney Trains which he identifies as a result of a risk assessment as being the highest control order that amounts to workplace practice or procedure.”

The Unions’ Submission in Reply

In reply the Unions argued that Sydney Trains could not have been in any doubt as to the AMWU’s position, i.e. that it disagrees with the process by which the policy has been introduced and with its substance, because the AMWU had raised it on multiple occasions at multiple levels, in person and in writing. Sydney Trains has in fact responded, also both in person and in writing. The Unions say that every component requirement of the dispute process has, in fact and substance, been achieved. In this regard the Unions submit that:
“In both cases, the dispute remains unresolved: the issue is crystallised, and can go no further on an inter partes basis. The conversation between Mr Lang and Mr McAuliffe demonstrates that; the Step 2 and Step 3 process could, given the immutability of Sydney Trains’ position, be completed in approximately 15 seconds.”

Of the subject matter of the dispute the Unions argue:
“These are complex and novel matters involving challenging questions about which minds may genuinely differ. There is a clear contest as to the adequacy of Sydney Trains’ attempts to consult, noting that in its extensive evidence about this it fails to indicate that any of the ‘feedback’ it received was in fact considered by anyone at all, let alone at Sydney Trains.”

Of the submission by the Respondent that by ‘delay’ on the part of the Unions the status quo provision does not apply (i.e. the submission that the dispute settlement procedure must be invoked promptly and the union must have taken steps to ensure the dispute is resolved as quickly and is close to the source as possible and that the alleged failure to do so proves that the dispute is not genuine or not raised in good faith), the Unions say:
“As a starting point, the fundamental proposition is wrong. Even if it were true that the unions had engaged in delay, even improperly, the idea that this could have ‘frustrated’ anything makes no sense. Mr McAuliffe made the position entirely clear at the meeting on 1 December 2021: the dispute was not, and has never been, capable of resolution through discussions at the enterprise level.
More substantially, though, this submission is cast from mist. It has no textual support (indeed Sydney Trains suggests none). The clause itself, by defining the status quo temporally by reference to the change rather than the activation of the dispute, actively contemplates disputes being raised and Sydney Trains being restrained after it has implemented a change.
In any event … there has been no delay…”

The Unions submit that the status quo provision applies to non-local disputes, primarily because in the text of the Agreement non-local disputes are not referred to as a separate category of dispute for the purposes of clause. Moreover, the phrase “work practices and procedures in place” in the status quo provision speak to collective matters rather than local or individual disputes.

The Unions argue that TfNSW is changing work practices and procedures. The Unions suggest that the Respondent is re-agitating a point run and lost before Senior Deputy President Harrison in ARTBIU v RailCorp[2007] AIRC 318, in particular where her Honour found at [40]:
“Furthermore the word “work” has an extensive list of definitions in, for example, The New Shorter Oxford English Dictionary. It is not just confined to work in the sense of using one’s own labour or the identification of something that is to be done or completed. It can also be the place or premises where an activity is carried on. In this context, it is equally open that the reference to work procedures and practices means the procedures and practices of RailCorp or another employer party to the Agreement.”

Changing ‘the steps that employees must take’ in respect of their health and safety obligations, as it contended by the Respondent, is changing a ‘practice or procedure’ in the relevant sense.

In relation to reading down the text of the Agreement in order to avoid preventing the Respondent from doing things it is otherwise legally entitled to do, the Unions submit:
“… As well as finding no footing in the text, this has two flaws.
First, this dispute concerns, in part, a live question as to the legality of Sydney Trains’ actions. Their ability to implement this policy is what is in dispute; the answer to that question is not properly considered, let alone determined in any way, at this stage in the proceedings.
Really the contention is that, because Sydney Trains considers its conduct is lawful, it should be excused from compliance with the status quo obligations it has agreed to. This is interpretation from convenience, not from text. As Bull DP, in dealing with a similar argument in ARTBIU v Sydney Trains, said at [55]:
“While such an outcome may be seen by the respondents as a hinderance to what may be to the respondents a justifiable change to work procedures, as the Full Bench in [AMWU v Berri] stated: “The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome”
Second, it misunderstands the nature of the matters that can be part of a dispute resolution process, and the questions that arise. Industrial disputes about proposed change are not solely, or even necessarily, concerned with legality: questions of industrial merit are equally available.”

The Unions suggest that the proposition by the Respondent that the dispute settlement procedure is invalid and has no effect to the extent that it might alter the Respondent’s capacity to meet its obligations under State WHS legislation is a “presently fashionable argument but here pointless”.[5]

Consideration

I will address the matters raised by the Respondent in the following order:

a)whether or not in the present matter clause 8 must be read down because of obligations under State safety legislation;
b)whether the status quo provision can and/or should be read down in order to prevent the procedure being used to stop the employer doing things it is otherwise lawfully entitled to do;
c)whether or not the status quo provision only applies to local issues;
d)whether or not there needs to be a “genuine” dispute, and whether or not there is in fact a genuine dispute;
e)whether or not the dispute settlement procedure requires disputes to be raised in good faith, and whether or not the applicant Unions acted in good faith;
f)whether or not the dispute(s) were properly notified; and
g)whether or not the Policy is addressed to and/or changes work practices or procedures.

Is Clause 8 Invalid?

The Respondent argues that “clause 8 of the agreement has no legal effect in the context of the Respondent complying with its obligations under WHS legislation”. The argument was put by the Respondent in very broad terms. To the extent that clause 8 of the Agreement might apply “subject to” State laws dealing with occupational health and safety[6], the Respondent has not established any conflict or “collision” between clause 8 and any provision of WHS legislation or rail safety legislation.

Counsel for the Respondent explained how it was said that the Respondent was required to mandate vaccination:
“There are obviously general obligations that are placed upon all PCBUs under the Work Health and Safety Act, and in the case of Sydney Trains the Rail Safety National Law. In complying with that general obligation there are specific obligations for an employer or an operator of a business to conduct risk assessments, and if those risk assessments reveal that it's appropriate risk control measure in order to minimise risk to health and safety of individuals so far as reasonably practicable, then there is an obligation placed upon Sydney Trains to implement that control measure. So in a way, describing this as a policy perhaps is misleading, because what it really is, properly understood, is the introduction of a control measure in accordance with Sydney Trains' legal obligations, both under the Work Health and Safety Act, the Rail Safety National Law, and for reasons which I'll explain shortly clause 35 of the enterprise agreement, which mirrors a number of those obligations contained under state and territory work health and safety legislation.
It's in that context, in my respectful submission, it's inapt to describe what is being sought to be done here as a work procedural practice. What really is being sought to be done here is to implement a mandate which is consistent with, and pursuant to, legal obligations which are placed upon Sydney Trains, and once that is properly understood, in our respectful submission, understanding the harmonious operation of these various obligations consistently with the status quo obligation, because the expression, 'work procedures and practices', as used in the status quo provision does not apply to steps taken which are mandated under legislation in an enterprise agreement.”

Two observations can be made in this regard: firstly, if TfNSW thought that it was compelled by WHS/Rail legislation to mandate vaccination then much of the consultation it undertook was a fiction. Secondly, TfNSW allowed unvaccinated workers to continue in employment until 5 December 2021 - which materially calls into question how it can be said that the Respondent was required to exclude unvaccinated workers from the workplace on 6 December 2021 but not required to exclude the same workers on 5 December 2021.

In this regard the following exchange at hearing records the high point of the Respondent’s argument:
“[MR SECK]: ….. So in that way, in my respectful submission, Sydney Trains once it forms the view that this is the appropriate control to address that particular risk to health and safety it's obliged to implement it. That's how we put it.
THE DEPUTY PRESIDENT: Let me rephrase the question in light of that answer. I hear what you say, that it's so far as the employer is concerned the most appropriate way to address the risks, but that's not the same as the necessary way or the mandatory way to address the risk. The follow on question about that is what do you say about the risks prior to 6 December? As soon as the policy was announced if you thought it was mandatory upon you and there was a legal requirement upon Sydney Trains to not allow an unvaccinated worker to attend work, then at least from 8 November one would have expected everybody would be stood down who wasn't vaccinated.
MR SECK: To answer your last question first, Deputy President, obviously the Work Health and Safety Act as we know from Mount Arthur requires that there be consultation that takes place before the implementation of the control measures. So the Work Health and Safety Act does contemplate, we would accept, a stage process where one doesn't just simply implement it, there has to be some form of consultation before that. Can I make that clear upfront.
Secondly, it is true that prior to 8 November there wasn't that particular policy in place, but once that risk assessment was undertaken and the obligations were followed under the … work health and safety legislation to conduct that risk assessment, if the view was formed based on medical advice that this is a necessary step to take to ensure the work health and safety of employees and others within a workplace so far as reasonably necessary, then in my respectful submission there is an obligation that's enlivened. It's after those particular steps have been taken.”

The Respondent has not shown how, for example, the consultation and dispute settlement procedures in clauses 7 and 8 of the Agreement, as read “subject to”[7] the consultation requirements under WHS Legislation, are inconsistent or invalid.

In substance the Respondent’s submissions only rise as high as generalised notions of needing to ensure the health and safety of various persons and do not establish that it was compelled by State legislation to introduce the Policy in a way that conflicted or collided with its obligations under the dispute settlement procedure.

The broader proposition that clause 8 of the agreement has no legal effect in the context of the Respondent complying with its obligations under WHS legislation, as put by the Respondent in these proceedings, has been put and rejected in other matters and I do not need to consider it any further.

Status Quo v Otherwise lawful conduct

I do not accept the Respondent’s submission that the status quo provision can and/or should be read down so that it does not prevent the Respondent from doing things it is otherwise lawfully entitled to do.

The status quo provision is a fetter on the employer’s capacity to change work practices or procedures. Significantly, it is a fetter to which the employer has agreed to be bound.

To state the matter more clearly and broadly: I accept that the operation of the status quo provision in the Agreement might be, in certain circumstances, to temporarily prevent the employer from bringing about changes to work practices and procedures that are otherwise lawful, justifiable, logical, fair, important or even merely reasonable.

The Respondent relies heavily on a decision of a Full Bench of the IRCNSW in NSW Nurses and Midwives’ Association v Health Secretary on behalf of Western NSW Local Health District[8] (“NSWNMA’s Case”). In NSWNMA’s case the Commissioner at first instance found that the status quo provision in the relevant dispute settlement procedure only applied to disputes about changes to existing work procedures or practices. The Full Bench dismissed the appeal, reasoning that it would be wrong to apply the status quo provision when no change in procedure or practice has actually occurred. The Full Bench’s comments about the status quo provision allowing “business as usual” and not preventing the Respondent from doing things “it is otherwise lawfully entitled to do” are references to the Respondent exercising rights within existing, unchanged, work procedures or practices. The NSWNMA’s Case does not support any broader principle or proposition that the status quo provision can or should be read down if it would prevent the employer from doing something it is otherwise lawfully entitled to do.

Implicit in the Respondent’s submission is the notion that it would be more practical, or fairer, to read down the status quo provision so as not to unreasonably interfere with the employer’s contractual rights. Understood this way, the Respondent’s submission is squarely at odds with established jurisprudence.

More so, the submission is squarely at odds with the observation of Deputy President Bull in ARTBIU v Sydney Trains[9] in relation to the operation of the same clause of the Agreement:
“While such an outcome may be seen by the respondents as a hinderance to what may be to the respondents a justifiable change to work procedures, as the Full Bench in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (known as the Australian Manufacturers Workers Union (AMWU) v Berri Pty Ltd[10] stated: “The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome”.
[Emphasis added]

Locals only?

I do not accept the proposition that the status quo provision only applies to local issues. There is some force in the Unions’ submission that the very phrase “work procedures and practices” speaks to collective matters. The words of clause 8.4 are reasonably clear in their terms and describe the steps to be taken, in sequence, to progress disputes about local issues as well as disputes that involve matters “other than local issues”.

Several problems arise with the Respondent’s interpretation that only matters first raised at Step 1 engage the status quo provision.

The words used in the Agreement to describe Step 1 do not make any distinction between disputes about local issues and disputes about other kinds of matters. There are no words of limitation in the description of Step 1 that prevent a dispute about matters “other than local issues” being first raised at Step 1.

There are words used in the description of Step 2 that refer to disputes about matters “other than local issues” being notified directly to the Director Workplace Relations, Policy and Transition Services without having to go through Step 1. These words in Step 2 are relied upon by the Respondent to differentiate between local disputes and non-local disputes. In my view these words in Step 2 are included to ensure that disputes are resolved “as quickly and is close to the source of the issue as possible” (per clause 8.1) by allowing disputes about matters other than local matters to be fast-tracked by commencing at Step 2.

On the Respondent’s construction it is crucially important whether a dispute commences at Step 1 (which contains the status quo provision) or at Step 2. If a dispute about matters “other than local issues” is in fact first raised at Step 1, then on the Respondent’s construction the status quo provision will apply. If the same dispute about the same matter is first raised at Step 2 (i.e. to the Director Workplace Relations, Policy and Transition Services or their nominee) then the status quo provision will not apply.

In my view this is an example of a narrow or pedantic approach to the interpretation of an Agreement that his Honour Justice Madgwick described as “misplaced” in his often–quoted decision in Kucks v CSR Ltd.[11] The distinction is artificial. If the clause was intended to operate with such an artificial distinction then (1) non-local disputes will be raised at Step 1 in order to engage the status quo provision, (2) the option to fast-track disputes by commencing at Step 2 will be ignored and (3) the fetter of the status quo provision will apply for longer while disputes unnecessarily work through Step 1.

Only Genuine Disputes

The Respondent submits that in order for the dispute settlement procedure to be properly engaged there must be a “genuine” dispute. There are a number of difficulties with this proposition.

As pointed out by the Unions, the text of the Agreement does not contain any qualification about the genuineness of a dispute.

The Respondent has not explained how it says the genuineness of any particular dispute is to be determined, nor who can decide whether a dispute raised is sufficiently genuine to require a response, nor whether a dispute has to be a genuine dispute for the duration of the dispute settlement procedure, nor what to do if a genuine dispute loses its genuineness part way through.

The root of issue in the present matter is that the Respondent thinks that the matters raised by the Unions have no substance. Recognising that clause 8 provides a procedure to [try to] resolve disagreements between parties, what the Respondent really seems to be suggesting is that it only has to take the provisions of clause 8 seriously if it thinks that the dispute raised by another party is genuine. This is directly at odds with the terms of the Agreement itself. Steps 1, 2 and 3 each require the Respondent to take specific action: provide a written response (Step 1), confer and take appropriate action (Step 2) and advise in writing of their respective position and then meet (Step 3). None of these requirements for action are expressed to be conditional upon a nominated officer (or anyone) forming a view that the dispute raised is genuine.

There is no basis to read into the words of clause 8 any requirement that a dispute be genuine. There must be an actual dispute, but it is not open for the Respondent to simply decide that a dispute raised by an employee or a union is not genuine and therefore can be disregarded. It may be, for example, that a dispute that is raised without much substance requires only a short written response. Even if such a dispute was to reach the Commission it is likely to be dealt with swiftly.

In any event I do not accept the proposition that the current dispute is not a genuine dispute. As the Unions argue, the matters raised by the Unions are significant matters, novel questions about which minds can genuinely differ.

One certainty over the duration of the current global pandemic is that very little can be taken for certain. The Policy was developed and introduced in anticipation of a dramatic change in community vaccination rates and infection rates. Despite the extensive consultation prior to 8 November 2021, the Policy itself should not be beyond review, nor can the implementation of the Policy be beyond review. In this regard I note that counsel for the Respondent conceded, properly, that it was possible for the AMWU or the CEPU to raise a dispute about the Policy after 8 November 2021 and that it the obligations to consult would apply:
“If it's about further steps to be taken to implement the policy at some future stage which has yet to occur, then I concede there's a possibility [the Commission] could be arbitrating that dispute.”

Only disputes in good faith

For the same reasons that I have rejected the proposition that only genuine disputes activate the dispute settlement procedure, I similarly do not accept the submission that only disputes raised in “good faith” can be progressed through the dispute settlement procedure.

Lest these two conclusions be interpreted as endorsing disingenuous conduct or the raising of disputes in bad faith, I need to restate some earlier observations and conclusions:

a)the dispute settlement procedure in the Agreement is an agreed procedure that includes a significant but temporary fetter on the Respondent’s capacity to change work practices and procedures;
b)the dispute settlement procedure in the Agreement is intended to facilitate the resolution of disputes as quickly as possible;
c)the Respondent has some significant control over how quickly a dispute progresses through the Steps but does not, on the words of the Agreement, have a discretion to decide whether any particular dispute is a genuine dispute or a dispute commenced in good faith; and
d)each dispute has an endpoint, being the endpoint agreed between the parties that the Commission can arbitrate the matter(s) in dispute.

Whilst these factors do not provide insulation from the possibility that bad faith or disingenuous disputes are raised, they minimise the deleterious effects of any such disputes.

The Respondent “infers” that the Unions have not brought their dispute to the Commission in good faith:
“It can be inferred that, absent any proper basis for complaint, the Applicants have not invoked the DSP and the status quo provision in good faith and it appears to have done for the improper collateral purpose of frustrating and delaying the introduction of the Policy.”

As above, I do not accept Respondent’s submission that either union has raised their dispute in bad faith or even in the absence of good faith.

After 8 November 2021, and during WHS consultation on COVID-19, the Respondent refused to engage with the AMWU’s concerns about the Policy because the Policy was said to be an industrial issue and not a safety issue.
In the same period since 8 November 2021, but in the industrial context, the Respondent refused to engage in consultation about the Policy because, it said, the [industrial] matter was finalised.

Before the Commission the Respondent argued that:
“.. the dispute does not concern work practices or procedures but a direction made in order to comply with existing work health and safety obligations consistent with cl 35 of the Agreement, the Rail Safety National Law and the Work Health and Safety Act 2011 (NSW) (WHS Act). Moreover, the status quo obligation is invalid to the extent that it purports to preclude the introduction of the Policy which has an apparent justification in complying with State work health and safety obligations.”

The politest summary available is that the various characterisations adopted by the Respondent since 8 November 2021 do not comfortably sit together. Whether by way of a co-ordinated roll-out program or by accident, the end result of the various responses to date is that no-one at all within TfNSW has been prepared to talk to the AMWU or the CEPU about the Policy since 8 November 2021, in either the WHS realm or the industrial realm.

The Respondent’s submission that the Unions have not progressed their disputes in good faith is somewhat bold.

A properly notified dispute?

The Respondent also argues that neither applicant union has properly engaged the dispute settlement procedure.

In Qantas v ALAEA (No 2) [2020] FCA 951 Justice Flick considered the operation of a different dispute settlement procedure provision in an enterprise agreement and found that there need not be “strict compliance” with the graduated steps of a dispute settlement procedure, but that “substantial compliance” is required and sufficient. The key parts of his Honour’s decision are as follows:

“55. Difficulty is expressed in reaching a conclusion that there need not be any compliance – be it strict or substantial compliance – with cll 6.1.1 and 6.1.2 of the Qantas Agreement or cll 20.1 and 20.2 of the Jetstar Agreement. Although both Enterprise Agreements contain a power to stand down employees and thus contemplate that “disputes” may arise in respect to both a single or a small number of employees and also a more substantial number of employees, cll 6 and 20 nevertheless remain drafted in a manner more readily suscepti you ble of application to a more confined dispute than has arisen in the present case. Even so, any argument that there need not be even substantial compliance with those clauses where a large number of employees have been stood down for a common reason is not self-evidently correct. To attempt to construe those terms as meaning that a matter may be referred to the Commission if it cannot be resolved through the staged process expressly set forth “or otherwise” is, with respect, to blatantly and impermissibly “give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award”: Kucks (1996) 66 IR at 184 per Madgwick J.
56. It is concluded that both cl 6 of the Qantas Agreement and cl 20 of the Jetstar Agreement impose pre‑conditions which must be satisfied before a “dispute” or “matter” can be referred to the Commission. So much, it is respectfully concluded, follows simply from the manner in which each of the clauses is drafted. Each of the clauses presents a staged process of dispute resolution.
…

61. In very summary form, it is concluded that each of these requirements must be construed with a degree of flexibility consistent with the industrial context in which the two clauses were drafted: cf. Kucks (1996) 66 IR at 184 per Madgwick J; Wanneroo [2006] FCA 813 at [57], (2006) 153 IR at 440 per French J.
62. Self-evidently, central to both cl 6 of the Qantas Agreement and cl 20 of the Jetstar Agreement is the necessity for there to be a “dispute”.

…

63. There is no reason why the word should be given anything other than its ordinary English meaning when employed in each of the two Agreements.

…
67. Qantas and Jetstar nevertheless did contend that there was some degree of formality or inflexibility required – the “dispute”, it was said, had to be “properly articulated” and at any “meeting” there had to be at least some understanding that those participating knew they were in a “dispute meeting”. “Casual conversations”, Qantas and Jetstar contended, were not sufficient.

68. Qantas and Jetstar readily embraced, not surprisingly, a characterisation of the Engineers Association’s case as one of “reverse engineering”. So approached, on the facts of the present case, Qantas and Jetstar contended that there never had been a “Stage 1 meeting” (or a meeting which complied with cl 6.1.1 or cl 20.1) in which those participating knew that that was what was occurring. In order to satisfy the requirement imposed by those provisions, on the case advanced by Qantas and Jetstar, the search was on for the Engineers Association to “reverse engineer” from the facts some occasion which could arguably fall with the terms of those provisions.

69. The necessity for some degree of formality in the construction and application of the two clauses, on the approach of Qantas and Jetstar, necessarily followed not only from the language employed in those two provisions but also from the prospect that non-compliance with these provisions potentially exposed the airlines to the imposition of a pecuniary penalty.

70. Notwithstanding a more generally expressed conclusion that the relevant clauses are to be construed with some degree of informality and flexibility, the submission advanced on behalf of Qantas and Jetstar that there needed to be some minimum content to these provisions is accepted. That minimum content, it is concluded, is that there needed to be an occasion on which those participating in the meetings had to know that there were opposing views being expressed and that those opposing views needed to be resolved. It is not necessary, with respect, for those participating in the meeting or discussion to know that they were participating in a meeting which formed part of a dispute resolution procedure. To fall within cl 6 of the Qantas Agreement or cl 20 of the Jetstar Agreement, there needed to be the raising by an employee or a group of employees of an “opposing view” to that of their employer and that view had to be raised at a meeting (however flexibly that term is to be construed) at which it was known or could reasonably be inferred that each of the “opposing” sides knew that there was a dispute in need of resolution.”

The letter from the AMWU to the Secretary, Transport for NSW sent on 11 November 2021 includes the following:

“I write with reference to the Determination and associated information issued to all employees on the afternoon of 8^th November 2021.

Whilst the information/presentation stated there had been consultation with Unions and elected HSRs AMWU was not consulted at any stage of the process, nor were elected HSRs. The issuing of a “survey” is not consultation as required under Section 47 of the NSW WHS Act (2) which address consultation. Failure to do so is a civil penalty offence. The manner of consultation, as set out in s48 requires meaningful engagement with workers with the opportunity to contribute to the decision-making process, this has not occurred. It also prescribes that where there are HSR’s at this workplace, they must also be consulted, which has also not occurred.
AMWU seeks that the consultation on a Covid Safe Workplace commence without delay and that both Unions and HSRs be included. Consultation must include all Covid-19 related risk assessments and controls. We bring your attention to the guidance provided by Safework NSW which notes that the implementation of vaccination must be considered against the range of factors including, but not limited to:
·Any health order that mandates public vaccines in the industry
·The individual circumstances of workers including eligibility for a vaccine, medical history and any contraindications to a COVID-19 vaccine.

The stated intention of the Department to stand down unvaccinated workers with the potential of termination post 8^th February 2022 whatever the status of the individual is deeply concerning and not a lawful and reasonable direction. This is particularly so as there has been no Health Order mandating that the action embarked upon by Transport for NSW must occur. We do not accept that workers should lose their living based on this policy.

…
AMWU reiterates that we seek that consultation commence without delay on Covid Safe Workplace Risk Management.”

The Respondent says that this letter did not constitute the raising of a dispute within the meaning of clause 8 of the Agreement.

Applying the reasoning of Justice Flick extracted above, I am satisfied that the dispute raised by the AMWU was properly articulated in the letter of 11 November 2021. What should have happened after 11 November 2021, i.e. what Step 2 required the Respondent to do, was that the Respondent confer with the AMWU and take appropriate action to arrive at a settlement within 72 hours. The Respondent did not do so.

On 16 November 2021 the AMWU, quite reasonably, sent a follow up message because of the looming deadline for staff to be vaccinated and because the Respondent had not replied. The follow-up email was as follows:
“The urgency remains for consultation on this matter.
I am aware the bus division of the RTBU is in Dispute. AMWU has not as yet gone down this path as we believe at this stage at least that the consultation process can address the concerns we, and other unions have in relation to the policy.
Can you advise if Transport will consult and if so when?
AMWU has members affected across the Department: trains, buses, Harbour Bridge.”

The Respondent submits that this email, specifically the words “AMWU has not as yet gone down this path”, reveal that the AMWU had not engaged the dispute settlement procedure at this stage. In my view this submission is wrong. It is possible that the AMWU was too polite and too co-operative in its correspondence and its follow-up email, noting that the Respondent was by then already in default of its obligations under the dispute settlement procedure.

On 17 November 2021 the Respondent eventually replied to the letter of 11 November 2021. The reply was a detailed explanation of the steps taken to consult with stakeholders. The reply ignored the AMWU’s requests to further consult.

The submission that the AMWU was acting outside of the dispute settlement procedure when it articulated its concern and asked twice to consult, fails against the words of clause 8 of the Agreement.

It is not seriously in contest that the discussions and emails between AMWU and TfNSW representatives on 1 December 2021 met the requirements of Steps 2 and 3 of the dispute settlement procedure.

As such I find that the dispute settlement procedure in clause 8 of the Agreement has been properly engaged by the AMWU.

By the same reasoning I am satisfied that the correspondence between the CEPU and TfNSW in late November and early December 2021 properly engaged the dispute settlement procedure in relation to the dispute raised by the CEPU.

Work Practices or Procedures

The final consideration is whether the Policy was a change in work practices or procedures. If it is a change then the status quo provision would apply to temporary suspend the change.

Two previous decisions of the Commission are materially on point.

In Australian Rail, Tram and Bus Industry Union v Rail Corporation New South Wales (RailCorp)[2007] AIRC 318 SDP Harrison found that changes to the employer’s ‘Selection Policy’ and the selection process for Duty Manager and Station Manager positions were changes to [at least] work procedures. SDP Harrison found (at [41]):
“The Selection Policy is, in my opinion, in terms that regulate and prescribe rights and obligations of applicants, in this case existing employees, and the Selection Panel, two of whom are employees. In this respect it appears that the advertisements for these positions were placed in the internal RailCorp “Your Career” booklet. There was no suggestion that they were advertised externally. The applicants are entitled to and can assert that the Agreement and the recruitment and selection policies applicable to them are work procedures and arguably work practices also.”

More broadly her Honour considered that “work” in the context of the status quo provision captured more than using one’s labour (at [40]):
“Furthermore the word “work” has an extensive list of definitions in, for example, The New Shorter Oxford English Dictionary. It is not just confined to work in the sense of using one’s own labour or the identification of something that is to be done or completed. It can also be the place or premises where an activity is carried on. In this context, it is equally open that the reference to work procedures and practices means the procedures and practices of RailCorp or another employer party to the Agreement.”

In ARTBIU v Sydney Trains [2021] FWC 3468 Deputy President Bull found that the restructure of roles within corporate functions of the Respondents, whereby certain staff were to be made redundant but offered positions with a different employer, was a change in work procedures. His Honour found (at [52]):
“The word ‘work’ is given an extensive meaning in the Macquarie Online Dictionary to include ‘employment, a job, productive or operative activity, a task or undertaking.’ The change that has given rise to the dispute is the identification by the respondents of corporate roles within the respondents’ businesses that will result in those roles being considered redundant as they will no longer be required to be performed by anyone within the respondents’ businesses. This change has resulted in the respondents consulting with the affected employees and commencing the processes as set out in the Deed titled: Managing Excess Employees in the Rail Entities 2018 and holding Determination briefings and sending affected employees a Decision on Change letter. This, in the Commission’s view, is a change in relation to work procedures for the purposes of the status quo provisions in the DSPs.”
[Emphasis added]
It is difficult to understand how a Policy that affects an employee’s capacity or entitlement to attend for work is not a work practice. If ‘work’ includes the place or premises where an activity is carried on, and I don’t understand the Respondent to have submitted that it does not, then regulating access to the workplace by reference to vaccination status fits comfortably within the notion of a work procedure. If the making of certain roles redundant is a work procedure, and again I do not understand the Respondent to have submitted that it does not, then potentially forcing the cessation of employment based on vaccination status, or even just the standing down of workers because of their vaccination status, is a work procedure.

In oral submission the Unions described the changed work practice in the following was and I agree:
“Here what the union say the work practice is previously there was a practice and a procedure work could be performed by an unvaccinated person. An unvaccinated person could enter the site. Vaccination was not considered, as Sydney Trains now puts it, an inherent requirement of the job. That has changed. I do not make any comment at this stage, it is not appropriate to do so, as to the merit of the change. The point is that it has for today's purposes. That change gives rise to the dispute the alteration of those practices.
The previous practice is as follows; with one caveat what that is Sydney Trains retains any previous ability it had to tell employees without any loss of pay that they were simply not required for work on a particular day. We don't say that that is affected by this because it existed previously.”

The Policy is a risk control measure that impacts on work practices and procedures in numerous ways. The impacts are by way of changes to the practices and procedures. The dispute settlement procedure has been properly engaged and the status quo provision impacts upon any changes to the work practices and procedures that arise from the introduction of the Policy.

Concluding observations

I am genuinely reluctant to make a determination that will interfere with TfNSW and the Respondent’s attempts to control the risks of Covid-19 in their workplaces and in the wider community. TfNSW has consulted widely prior to 8 November 2021, and the AMWU and the CEPU were unhelpfully late in raising their concerns.

The terms of the dispute settlement procedure are longstanding and reasonably clear and it is important that parties are held to the bargains they make. I have rejected all of the arguments advanced by the Respondent as to why the status quo provision does not apply to the present dispute. Many of the propositions advanced by the Respondent are squarely against the well-established authorities.

The fact that the Respondent pressed on with its objections, and has consistently refused to consult with either the AMWU or the CEPU about the Policy since 8 November 2021, and since the disputes were referred to the Commission has still refused to engage with the dispute settlement procedure, means that the temporary status quo provision has and will operate far longer than it ought in the circumstances.
Nonetheless my determination is that the dispute settlement procedure in the Agreement has been properly engaged by the AMWU and the CEPU and that the status quo provision applies to the present dispute regarding the Policy because the Policy implements changes to work practices and procedures.

DEPUTY PRESIDENT

Appearances:

Ms L Saunders of Counsel for the Applicants.
Mr M Seck of Counsel and Mr M Watts of Counsel for the Respondent.

Hearing details:

2021.
Sydney (By Video using Microsoft Teams)
December 13.

[1] Liao v New South Wales [2014] NSWCA 71 at [356-7].

[2] ARTBIU v Sydney Trains [2021] FWC 3468 at [32].

[3] Ibid [33].

[4] Relying on a decision of the Full Bench of the Industrial Relations Commission of NSW in NSW Nurses and Midwives’ Association v Health Secretary on behalf of Western NSW Local Health District [2019] NSWIRComm 1025 at [44]-[47].

[5] Referring to NSW Trains v RTBU [2021] FCA 883 at [74] and [99] and Sydney Trains v CEPU (No 2) [2020] FWCFB 3089 at [39].

[6] See Fair Work Act 2009 (Cth) ss.27 and 29 and NSW Trains v ARTBIU [2021] FCA 883 at [166]-[173].

[7] Fair Work Act 2009 (Cth) ss.27 and 29

[8] [2019] NSWIRComm 1025

[9] [2021] FWC 3468 at [55].

[10] (2017) 268 IR 285 at 310, [2017] FWCFB 3005 at [114].

[11] (1996) 66 IR 182 at 184, [1996] IRCA 166.

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