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

[2010] FCA 591

FEDERAL COURT OF AUSTRALIA

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Limited [2010] FCA 591

Citation:

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Limited [2010] FCA 591

Parties:

COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA, AUSTRALIAN RAIL, TRAM AND BUS INDUSTRY UNION, AUSTRALIAN MUNICIPAL, ADMINISTRATIVE, CLERICAL AND SERVICES UNION, AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION and AUSTRALIAN FEDERATED UNION OF LOCOMOTIVE EMPLOYEES, QUEENSLAND UNION OF EMPLOYEES v QR LIMITED, QR PASSENGER PTY LTD and QR NETWORK PTY LTD

File number:

QUD 33 of 2010

Judge:

LOGAN J

Date of judgment:

11 June 2010

Corrigendum:

13 July 2010

Catchwords:

INDUSTRIAL LAW – Workplace Agreements – Obligation to “consult” with employees in respect of proposals to be implemented that will impact on “terms and conditions of employment” – Whether changes as a result of restructuring after announcement of the partial privatisation of businesses operated by government owned and controlled corporations will impact “terms and conditions of employment” – Consideration of whether and when obligation to “consult” arises – Consideration of content of the obligation to “consult”

Held:  Obligation to consult arose and was contravened by government owned corporations

Words and Phrases:

“consult” – “impact” – “proposal to be implemented” – “terms and conditions of employment” 

Legislation:

Constitution (Cth) s 51
Australian National Railways Commission Sale Act 1997 (Cth)
Corporations Act 2001 (Cth)
Fair Work Act 2009 (Cth) ss 539, 546, 784, 786
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)
Industrial Relations Act 1988 (Cth) s 170GA
Judiciary Act 1903 (Cth) s 39B
Property Law Act 1974 (Qld) s 48
Workplace Relations Act 1996 (Cth) s 668

Government Owned Corporations Act 1993 (Qld) ss 5, 6, 76, 88, 89, 114, 115, 438
Railways Act 1863 (Qld)
Railways Act 1914 (Qld) ss 6, 8
Transport Infrastructure Act 1994 (Qld) s 219
Transport Infrastructure Amendment (Rail) Act 1995 (Qld)
Transport Infrastructure (Railways) Act 1991 (Qld) ss 2.1, 2.7, 3.3, 3.4, 8
Anti-Discrimination Act 1977 (NSW)
Rail Company Act 2009 (Tas)

Railways Act 1921 (UK)
Railways Act 1993 (UK)
Transport Act 1947 (UK)
CN Commercialization Act 1995 (Can)

Government Owned Corporations Regulation 1993 (Qld)
Government Owned Corporations Regulation 2004 (Qld)
Government Owned Corporation Amendment Regulation (No. 1) 2007 (Qld)
Government Owned Corporations (Bundaberg Port Authority Wind-Up) Regulation 2007 (Qld)
Government Owned Corporations (QR Limited Restructure) Regulation 2008 (Qld) ss 10, 11

Cases cited:

Allders International Pty Limited v Anstee (1986) 5 NSWLR 47 considered
Amcor Ltd v Construction, Mining, Forestry and Energy Union (2005) 222 CLR 241 cited
Australian Meat Industry Employees Union v Coles Supermarkets Australia Pty Ltd (1998) 80 IR 208 cited
Bonella v Wollongong City Council [2001] NSWADT 194 considered
Kucks v CSR Ltd (1996) 66 IR 182 applied
Construction, Forestry, Mining and Energy Union v Newcastle Wallsend Coal Company Ltd (C2758 Dec 1533/98 S Print R0234) cited
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Vodafone Network Pty Ltd (C2001/5570 PR911257) cited
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Optus Administration Pty Ltd (AW791910 Print L4596) cited
Food Preservers’ Union v Wattie Pict Ltd (1975) 172 CAR 227 considered
Port Louis Corporation v Attorney-General of Mauritius [1965] AC 1111 applied
Sinfield v London Transport Executive [1970] 1 Ch 550 applied
Termination, Change and Redundancy Case (1984) 294 CAR 175 considered
Termination, Change and Redundancy Case (No 2) (1984) 295 CAR 673 considered
TVW Enterprises Ltd v Duffy (No 2) (1985) 7 FCR 172 considered

Quick & Garran, The Annotated Constitution of the Australian Commonwealth (1901 ed, Legal Books Reprint, 1976)

Date of hearing:

23, 27, 28 and 30 April 2010
4 and 10 May 2010

Date of last submissions:

7 May 2010

Place:

Brisbane

Division:

FAIR WORK DIVISION

Category:

Catchwords

Number of paragraphs:

155

Counsel for the Applicants:

Mr R Kenzie QC with Mr W Friend

Solicitor for the Applicants:

Hall Payne Lawyers

Counsel for the Respondents:

Mr J Murdoch SC with Mr D Pratt

Solicitor for the Respondents:

Minter Ellison Lawyers

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
FAIR WORK DIVISION	QUD 33 of 2010

BETWEEN:

COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA
First Applicant

AUSTRALIAN RAIL, TRAM AND BUS INDUSTRY UNION
Second Applicant

AUSTRALIAN MUNICIPAL, ADMINISTRATIVE, CLERICAL AND SERVICES UNION
Third Applicant

AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
Fourth Applicant

AUSTRALIAN FEDERATED UNION OF LOCOMOTIVE EMPLOYEES, QUEENSLAND UNION OF EMPLOYEES
Fifth Applicant

AND:

QR LIMITED
First Respondent

QR PASSENGER PTY LTD
Second Respondent

QR NETWORK PTY LTD
Third Respondent

JUDGE:	LOGAN J
DATE OF ORDER:	11 JUNE 2010
WHERE MADE:	BRISBANE

CORRIGENDUM

1.On page 55 of the Reasons for Judgment at paragraph 148, it should read “The detailed nature and extent of the consultation required under these clauses will vary” instead of “The detailed nature and extent of the consultation required under these clauses”.

I certify that the preceding one (1) numbered paragraph is a true copy of the Corrigendum to the Reasons for Judgment herein of the Honourable Justice Logan.

Associate:

Dated:        13 July 2010

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
FAIR WORK DIVISION	QUD 33 of 2010

BETWEEN:

COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA
First Applicant

AUSTRALIAN RAIL, TRAM AND BUS INDUSTRY UNION
Second Applicant

AUSTRALIAN MUNICIPAL, ADMINISTRATIVE, CLERICAL AND SERVICES UNION
Third Applicant

AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
Fourth Applicant

AUSTRALIAN FEDERATED UNION OF LOCOMOTIVE EMPLOYEES, QUEENSLAND UNION OF EMPLOYEES
Fifth Applicant

AND:

QR LIMITED
First Respondent

QR PASSENGER PTY LTD
Second Respondent

QR NETWORK PTY LTD
Third Respondent

JUDGE:	LOGAN J
DATE OF ORDER:	11 JUNE 2010
WHERE MADE:	BRISBANE

THE COURT DECLARES THAT: on or about but not later than 22 January 2010 each respondent contravened a civil remedy provision for the purposes of s 539 of the Fair Work Act 2009 (Cth) in that each contravened a term of a transitional instrument or instruments applicable to it, the said term and respectively applicable instrument or instruments being that or those particularised in the Schedule.

THE COURT ORDERS THAT:

1.The applications are adjourned to 21 June 2010 at 10:15 for further hearing.

THE SCHEDULE

LIST OF APPLICABLE AGREEMENTS AND TERMS AND RELATED RESPONDENTS

Name of Agreement	Employer	Consultation Clause
QR Limited Traincrew Union Collective Workplace Agreement 2009	QR Limited	36
QR Ltd Coal and Regional Freight Logistics Union Collective Workplace Agreement 2009	QR Limited	74
QR Limited Regional Freight and Coal Rollingstock Production Union Collective Workplace Agreement 2009	QR Limited	79
QR Regional Freight and Coal Support Union Collective Workplace Agreement 2009	QR Limited	13
QR Corporate - Shared Services Union Collective Workplace Agreement 2009	QR Limited	13
Civil Maintenance Union Collective Workplace Agreement, Asset Services Group, QR Limited	QR Limited	5.1
Electric Control Operators Union Collective Workplace Agreement 2009	QR Limited	9.1
Facilities Union Collective Workplace Agreement 2009	QR Limited	5.1
Infrastructure Projects Union Collective Workplace Agreement 2009	QR Limited	24
QR Services - Support Union Collective Workplace Agreement 2009	QR Limited	5.1
Rollingstock and Component Services Union Collective Workplace Agreement 2009	QR Limited	47
Trackside Systems Union Collective Workplace Agreement 2009	QR Limited	76
QR Passenger Pty Ltd Citytrain Network Stations Union Collective Agreement 2009	QR Passenger Pty Ltd	74
QR Passenger Pty Ltd Customer Service Union Collective Workplace Agreement 2009	QR Passenger Pty Ltd	55
QR Passenger Pty Ltd Long Distance Train (On Board Services Technician) (“OBST”) Union Collective Workplace Agreement	QR Passenger Pty Ltd	75
QR Passenger Pty Ltd - Passenger Operations Union Collective Workplace Agreement 2009	QR Passenger Pty Ltd	77
QR Passenger Pty Ltd Rollingstock Assets Union Collective Workplace Agreement 2009	QR Passenger Pty Ltd	84
QR Passenger - Traincrew Union Collective Workplace Agreement 2009	QR Passenger Pty Ltd	41
QR Passenger Pty Ltd Transit Services Union Collective Agreement 2009	QR Passenger Pty Ltd	72
QR Network Pty Ltd “Start Up” Union Collective Workplace Agreement 2009	QR Network Pty Ltd	2.3

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
FAIR WORK DIVISION	QUD 33 of 2010

BETWEEN:

COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA
First Applicant

AUSTRALIAN RAIL, TRAM AND BUS INDUSTRY UNION
Second Applicant

AUSTRALIAN MUNICIPAL, ADMINISTRATIVE, CLERICAL AND SERVICES UNION
Third Applicant

AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
Fourth Applicant

AUSTRALIAN FEDERATED UNION OF LOCOMOTIVE EMPLOYEES, QUEENSLAND UNION OF EMPLOYEES
Fifth Applicant

AND:

QR LIMITED
First Respondent

QR PASSENGER PTY LTD
Second Respondent

QR NETWORK PTY LTD
Third Respondent

JUDGE:	LOGAN J
DATE:	11 JUNE 2010
PLACE:	BRISBANE

REASONS FOR JUDGMENT

Introduction

1. This case has its origin in an announcement made by the Queensland Premier, the Honourable Anna Bligh MP, on behalf of the State Government, on 8 December 2009. The Premier announced that day that the freight and coal businesses presently operated within a group of government owned rail corporations were to be transferred to a new company to be known as “Queensland National” shares in which were to be offered to the public in mid 2010. At the same time it was announced that the existing business known as “QR Passenger” would remain in government ownership with that business to be operated in the future by a newly created, government owned corporation, called “Queensland Rail”. It was also stated that this new Queensland Rail would retain ownership of the existing publicly owned track network and that, “those employees who construct and maintain the non-network will remain in the government owned Queensland Rail business”.

2. Collectively, the respondent corporations (the QR employers) are the employers of the many thousands of employees (the better part of 15,000) who work for them within the rail businesses described in the Premier’s announcement. The QR employers are respectively parties to various federally registered union collective agreements (the QR Agreements) made under the then Workplace Relations Act 1996 (Cth). Those agreements each contain a clause which obliges the employer “to consult with affected employees and, at their election, their nominated representatives, over any proposed changes that will have an impact on employees’ terms and conditions of employment”.

3. The applicant trade unions are each registered organisations of employees under the Fair Work Act 2009 (Cth) (Fair Work Act). They allege that, in the interval which passed between 8 December 2009 and 22 January 2010:

   (a)there were proposed changes evidenced by and flowing from the State Government’s announcement of 8 December 2010 which will have an impact on employees’ terms and conditions of employment;

   (b)the QR employers had, by 22 January 2010, determined to implement those proposals;

   (c)the QR employers did not consult, as they were in the circumstances obliged, with their employees; and

   (d)as a consequence, the QR employers have breached the QR agreements respectively applicable to them such that they should be ordered to pay pecuniary penalties pursuant to s 546 of the Fair Work Act (s 39B of the Judiciary Act 1903 (Cth) is also called in aid insofar as declaratory relief is sought).

4. For their part the QR employers allege:

   (a)no obligation to consult had by 22 January 2010 arisen because there had not by then been a proposal that would have an impact on employees’ terms and conditions; and

   (b)if, which is denied, they were under any such obligation:

   (i)they did consult with employees during that period in a way which discharged that obligation; and

   (ii)this proceeding is, in any event, premature in that, at the time of its commencement in February this year, the processes of consultation were not then complete such that it cannot be held that they have failed, at the time alleged, to comply with their consultation obligation.

5. The applicant trade unions contend that 22 January 2010 is a critical date because on that day some thousands of employees received an individual letter from their existing employer inviting them to terminate their existing employment and offering them alternative employment each with effect from 1 July 2010 or such other date as may be determined in the context of the Queensland Government’s public share float.

6. Section 546 of the Fair Work Act provides for the imposition of a pecuniary penalty by the Court in respect of a contravention of a “civil remedy provision”. Section 539 of the Fair Work Act defines what constitutes a “civil remedy provision”. Items 2 and 16 of Sch 16 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (the Transitional Provisions Act) have the effect that each of the QR Agreements now operates, for the purposes of the Fair Work Act, as a transitional instrument. Item 2 of Sch 16 to the Transitional Provisions Act provides that a person must not contravene a term of a transitional instrument. Item 16 in that Schedule makes that Item 2 obligation a “civil remedy provision” for the purposes of s 539 of the Fair Work Act. Those Items operate so as to permit an application to be made by a registered organisation to the Court under s 546 for a contravention of a civil remedy provision constituted by the alleged contravention of the QR Agreements.

7. These reasons for judgement address whether or not it should be concluded that the QR employers have breached the union collective agreements as alleged. If breaches are established it will then be necessary separately to hear submissions from the parties with respect to penalty and ancillary orders.

   Queensland Rail

8. A study of Queensland legislation since the time of Queensland’s being constituted in 1859 as a body politic separate from the then colony of New South Wales discloses that the ownership and operation of railways has historically been regarded by its Parliament as an activity of government. The extent to which these have been regarded as exclusive activities of government has varied. Historically, exceptions to exclusivity were to be found in the ownership and operation of light rail networks associated with the sugar industry. In more recent years there has been provision for accreditation of non-Queensland government related rail operators under legislative manifestations of national competition policy agreements between Commonwealth and State governments.

9. That Queensland and other States were, at the time of Federation, owners and operators of railways is an assumption which underlies two provisions of The Constitution, s 51(xxxiii) (the acquisition, with the consent of a State, of any railways of the State on terms arranged between the Commonwealth and the State) and s 51(xxxiv) (railway construction and extension in any State with the consent of that State). In describing the background to these provisions at the time of the Federation debates, Quick & Garran noted, inter alia, that, “[i]t was also perceived that the railways were valuable assets, associated with and forming the main tangible security for the public debts of the colonies” (Quick & Garran, The Annotated Constitution of the Australian Commonwealth, (1901 ed, Legal Books reprint, 1976), pp 643-644, §220).

10. It is instructive in light of the current Queensland partial privatisation announcement to contrast the prevailing position in Queensland and the other then Australian colonies at Federation with the then prevailing position in the United Kingdom, which had seen the development of railways by a myriad of private sector companies. By 1921 there were 120 of them which were grouped into four by the Railways Act 1921 (UK). Not until 1948 with the nationalisation of those four companies pursuant to the Transport Act 1947 (UK) did railways pass into public ownership in the United Kingdom. The resultant British Rail was, in turn, progressively privatised under the Railways Act 1993 (UK).

11. The CN Commercialization Act 1995 (Can) provided for the continuance of the Canadian National Railway Company under the Canada’s business corporations legislation and for the issuance and sale of the shares in that company, hitherto held by a Minister on behalf of the Canadian Government, to the public

12. The Australian National Railways Commission Sale Act 1997 (Cth) offers an Australian legislative example of the disposal of a publicly owned railway operator. The Rail Company Act 2009 (Tas) is a recent Australian legislative example of the converse, an acquisition by a State of a hitherto privately owned and operated rail business.

13. These legislative examples from elsewhere in Australia and from abroad assist in keeping a sense of proportion about the Queensland Government’s announcement of 8 December 2009. Viewed through the prism of the Queensland experience to that date in relation to rail operation and management, evident from the legislative history I set out below, the State government’s decision did harbinge radical change. The type of change proposed was not unknown. In a relative sense, that change, though radical enough, was less so than the legislative examples I have given in that it did not presage the complete withdrawal either of government from railway operation or the converse.

14. The legislation to which I have referred, as with, to give another example, Queensland’s legislative manifestation of national competition policy agreements in respect of rail industry competition, each represent political value judgements. So, too, does Queensland’s partial privatisation decision. This case is not concerned with the wisdom or otherwise of that political value judgement.

15. The means by which public ownership and operation of railways has been effected in Queensland has changed over the years according to trends in public sector administration.

16. The earliest Queensland legislative provision in respect of railways is the Railways Act 1863 (Qld). This and other colonial and early post-Federation legislation with respect to the public ownership and operation of railways were repealed and their various provisions were consolidated by the Railways Act 1914 (Qld). That Act provided (s 6) for the appointment by commission by the Governor-in-Council of a Commissioner for Railways. The Commissioner for Railways was answerable to a Minister administering the legislation and responsible for the operation, maintenance and development of the State’s railway system. For that purpose, the Commissioner was constituted as a corporation sole representing the Crown (s 8).

1. This position prevailed for most of the twentieth century. The Railways Act 1914 was repealed by the Transport Infrastructure (Railways) Act 1991 (Qld) (Transport Infrastructure Act) but the corporation sole constituted under s 8 of that Act was, by s 2.1, continued in existence as a body corporate under the name “Queensland Railways”. That body corporate represented the Crown (s 2.7). Responsibility for the exercise and discharge by Queensland Railways of the powers conferred and the functions and duties imposed on it by the Transport Infrastructure Act was, under Part 3 of that Act, consigned to a Board. I note that the Board was obliged “to consult with the Minister on matters of policy of or affecting Queensland Railways” (s 3.3(a)), (emphasis added). Where the Minister was satisfied that it was in the public interest to give a direction, the Board was subject to Ministerial direction (s 3.4).

2. The regime established by the Transport Infrastructure Act had a comparatively short life. That Act was repealed by the Transport Infrastructure Amendment (Rail) Act 1995 (Qld) (Transport Infrastructure Amendment (Rail) Act). The Transport Infrastructure Amendment (Rail) Act 1995 made extensive amendments to the Transport Infrastructure Act 1994 (Qld) in relation to rail infrastructure planning and the management and operation of railways. The amendments also made provision for the accreditation of railway managers and for the operation of rolling stock by accredited railway operators.

3. The amendments followed the establishment under the Government Owned Corporations Regulation 1993 (Qld) made under the Government Owned Corporations Act 1993 (Qld) (GOC Act) of “Queensland Rail” as a “candidate GOC”. As amended by the Transport Infrastructure Amendment (Rail) Act, the Transport Infrastructure Act 1994 gave the following functions to Queensland Rail:

   Functions

   76.      The functions of Queensland Rail are—

   (a)to establish, maintain, manage and operate, or arrange for, rail transport services and infrastructure; and

   (b)to provide or arrange for ancillary services or works that are necessary or convenient for the effective and efficient maintenance, management and operation of—

   (i)rail transport services; and

   (ii)rail transport infrastructure; and

   (iii)other rail infrastructure; and

   (c)to do other things that are incidental or complementary to the performance of its functions or are likely to enhance the provision

   of—

   (i)rail transport services; and

   (ii)rail transport infrastructure; and

   (iii)other rail infrastructure; and

   (d)to perform any other functions conferred on it under an Act or a regulation.

4. The Transport Infrastructure Amendment (Rail) Act 1995 also contained elaborate transitional provisions in relation to the previous regime under which these functions had been undertaken. One of these, which became s 219 of the Transport Infrastructure Act 1994, granted interim accreditation to Queensland Rail as a railway manager and railway operator in the following way:

   (1)Queensland Rail is taken to be accredited as the railway manager for a railway that—

   (a)was, immediately before the commencement, built or being maintained by the previous rail corporation; or

   (b)is built or maintained by Queensland Rail before this section expires.

   (2)Queensland Rail is taken to be accredited as a railway operator for a railway on which—

   (a)immediately before the commencement, the previous rail corporation was operating rolling stock; or

   (b)rolling stock is operated by Queensland Rail before this section expires.

   The “previous rail corporation” for the purposes of this provision was Queensland Railways.

5. By 2010 and following further amendments to the Transport Infrastructure Act 1994 and much subordinate legislation under the GOC Act the functions given to Queensland Rail in 1995 by the then s 76 of that Act had, by the present s 438, come to be given to a public company known as QR Limited, the first respondent in these proceedings. Section 438 of the Transport Infrastructure Act 1994 provides:

   438     Function

   (1)The function of QR Limited is to provide comprehensive transport services and services ancillary to those services, whether in or outside Queensland or Australia.

   (2)Without limiting subsection (1), the function includes—

   (a)the provision of passenger and freight transport services; and

   (b)the provision of consultancy and training services relating to transport services; and

   (c)establishing, maintaining and arranging for the provision of transport infrastructure; and

   (d)doing anything likely to complement or enhance the function or something mentioned in paragraphs (a) to (c).

   (3)QR Limited is taken to have had the function from when Queensland Rail became a GOC.

   (4)This section does not limit the functions of QR Limited.

6. Now, QR Limited is declared to be a GOC under Schedule 2 of the Government Owned Corporations Regulation 2004 (Qld) (Government Owned Corporations Regulation 2004). The process by which QR Limited came to be declared under that regulation requires an analysis of various amendments made to the Government Owned Corporations Regulation 2004 during 2007. Prior to 29 June 2007, Queensland Rail was recognised as a statutory GOC under Div 8 of the Government Owned Corporations Regulation 2004. This regulation was amended in 2007 by the Government Owned Corporation Amendment Regulation (No. 1) 2007 (Qld), which changed the name of "Queensland Rail" to "QR" by inserting a new s 28A. On 27 September 2007, through the Government Owned Corporations (Bundaberg Port Authority Wind-up) Regulation 2007 (Qld), Div 8 was deleted and “QR Limited ACN 124 649 967” was inserted into Schedule 2 of the Government Owned Corporations Regulation 2004 as a GOC for the purposes of the Government Owned Corporations Act, where it remains in the current reprint.

7. QR Passenger Pty Ltd (QR Passenger) and QR Network Pty Ltd (QR Network) are each subsidiaries of QR Limited. The parent company and its subsidiaries are each Government Owned Corporations (GOC). A GOC, as defined by s 6 of the GOC Act:

   is a government entity that is:

   (a)established as a body corporate under an Act, or the Corporations Act 2001 (Cth); and

   (b)declared by regulation to be a GOC.

8. A “government entity” is defined by s 5 of the GOC Act in the following way:

   A government entity is—

   (a)a government company or part of a government company; or

   (b)a State instrumentality, agency, authority or entity or a division, branch or other part of a State instrumentality, agency, authority or entity; or

   (c)a department or a division, branch or other part of a department; or

   (d)a GOC Act entity; or

   (e)an entity prescribed by regulation.

   In turn, a “government company” is defined by s 2 of the GOC Act to mean “a corporation incorporated under the Corporations Law all the stock or shares in the capital of which is or are beneficially owned by the State”.

9. The origins of QR Passenger and QR Network appear to lie in a restructuring of QR Limited in 2008 so as to transfer its hitherto passenger and network business units to separate, subsidiary legal entities. This change was effected by the Government Owned Corporations (QR Limited Restructure) Regulation 2008 (Qld). Interestingly, that regulation made changes to the employment status of those QR Limited employees hitherto employed within those business units by deeming them to become employees of QR Network or, as the case may be, QR Passenger: see s 10 and s 11 respectively.

10. The mechanism under the GOC Act for the State’s beneficial ownership of the stock or shares in the capital of a “government company” is to vest those shares equally between the Minister administering that Act (the Treasurer) and the relevant “portfolio Minister”. A “portfolio Minister” is nominated to that role by the Premier with the general position being that the portfolio Minister will be the Minister for administrative responsibility for the field in which the GOC will operate: see s 6, GOC Act. In this fashion, a duarchy of ultimate Ministerial control of a GOC is established. As a consequence, currently, the Honourable Andrew Fraser, Treasurer and Minister for Employment and Economic Development and the Honourable Rachael Nolan, Minister for Transport are the shareholding Ministers of QR Limited

11. The Board of a GOC consists of persons nominated by the Governor in Council: s 89 GOC Act. While that Board is given broad managerial powers in respect of the GOC (s 88), it is, in respect of both the GOC and its subsidiaries, in exceptional circumstances and in the public interest, of which the shareholding Ministers are the arbiters, subject to Ministerial direction, see s 115 GOC Act. The Board may also be directed by the shareholding Ministers to cause the GOC and its subsidiaries to comply with State public sector policies: see s 114 GOC Act. A “consultation” obligation with the Board is imposed on the shareholding Ministers prior to the giving of such directions.

12. It was no part of the applicant trade unions’ case that the GOC Act obliged the State Government directly to consult with the workforce of the QR employers. As is evident from the foregoing analysis, such consultation obligation as the State Government had under the GOC Act in respect of the decision announced by the Premier on 8 December 2009 was an obligation to consult with the Board of QR Limited.

13. The QR employers contended that neither their status as a GOC nor the fact that the motivation for their actions after 8 December 2009 was that State Government decision (and therefore a decision of the shareholding Ministers) had any relevance to such consultation obligation, if any, as they had under the QR agreements. The correctness of this submission depends upon the level of abstraction at which one views any such obligation.

14. The submission is correct in this general sense. Subject to the GOC Act, all obligations and rights arising from the Corporations Act 2001 (Cth) apply to a GOC. Similarly, subject to considerations arising from the extent to which QR Limited and its subsidiaries can be said to represent the State for the purposes of The Constitution (a subject unnecessary to consider in this case) all applicable rights and obligations arising under Federal law, including those under the Fair Work Act, apply to a GOC.

15. Having regard to the announcement made on 8 December 2009 and in the events which transpired, it does not follow from this general position that the present status of each of the QR employers as a GOC is necessarily irrelevant to a consideration of whether a consultation obligation under the QR agreements arose before 22 January 2010.

16. The announcement made that day contemplated the breaking up, either for sale to private investors or, as the case may be, for retention in exclusive public ownership, of the various businesses presently operated by QR Limited and its subsidiaries as a group. As the foregoing historical analysis demonstrates, QR Limited and its subsidiaries are the direct successors in law of a State government official, the Commissioner for Railways, first appointed almost 150 years ago. Further, that succession was not just a legal entity succession but also a functional succession. Corollaries of the announcement, made manifest by the letters sent on 22 January 2010, were that thousands of workers presently employed by entities under the ultimate control and direction of the State were invited to cease that employment and to take up new employment with a different, private sector employer which was to undertake functions hitherto undertaken in the public sector. The announcement therefore represented, for Queensland, a radical break with the past. The present status of QR Limited and its subsidiaries forms a necessary part of the background matrix of facts and legal relationships to the allegations made by the trade union applicants. The relevance of that status cannot be dismissed out of hand. Rather, it depends on the true construction of the consultation clauses in the QR agreements, particularly the phrase, “proposed changes that will have an impact on employees’ terms and conditions of employment”.

    The QR Agreements

17. There are, in all, 20 union collective agreements referred to in the statement of claim. A table which lists those agreements and identifies both the consultation clause concerned and which of the QR employers is a party to that agreement is Annexure 1.

18. Each of these agreements is federally registered. They are what might be termed “stand alone” agreements in the sense that they do not specifically refer to an underlying award. The industrial instrument which applied in the absence of the QR agreements was the Queensland Rail Award – State 2003 (State Award). At the time when the QR agreements were registered federally, this award took effect as what was known as a “Notional Agreement Preserving a State Award”.

19. Because the consultation clause in each of the QR agreements was identical and because other clauses also regarded as material in the agreements were in substantially similar form the parties chose to focus their attention on one particular agreement on the understanding that conclusions reached as to its construction would have application across the whole range of the QR agreements. I agree that this is a convenient way to approach that subject.

20. The agreement selected was the QR Limited Traincrew Union Collective Workplace Agreement 2009 (the Traincrew Agreement). Such provision as that agreement makes in respect of consultation is found in cl 36.

21. The clause which makes provision in respect of consultation is cl 36, which is in these terms:

    36       Consultation

    36.1     For the purposes of this Agreement, consultation is a process:

    §Aimed at getting individuals or groups to suggest or response to proposals to be implemented without at the same time giving up management’s rights to make the final decision in these matters.  It provides an opportunity to present a point of view or state an objection; and

    §involves the timely exchange of relevant information so that the parties have the actual and genuine opportunity to influence the outcome.

    The Company will not be obliged to disclose confidential information if that disclosure is contrary to the Company’s interests.

    36.2The Company will consult with affected employees and, at the employees’ election, their nominated representatives, over any proposed changes that will have an impact on employees’ terms and conditions of employment.  The matters over which the Company will consult include, but are not limited to:

    §termination of employment

    §changes in the composition, operation or size of the Company’s workforce, or in the skills required

    §the elimination or reduction of promotion opportunities, job opportunity or job tenure

    §the alteration of hours of work

    §the need for retraining or transfer of employees to other work or locations

    §the restructuring of jobs.

    36.3However, the Company is not required to consult over individual workplace/performance issues (see Clause 38).

    36.4The Company will consult:

    §At the local level, if the proposed change is not expected to affect any other part of the Company

    §At the business group or Company level where the change is expected to impact on employees more broadly.

    36.5     The process of consultation will include:

    §The timely provision in writing of all relevant information, including details of the change, the likely effects on employees, the reasons for the proposed change and, where relevant, a proposed implementation date

    §Discussion on measure to avert or mitigate any adverse effects on employees

    §Provision of reasonable resources, including work time, for employees to fully participate in the consultation process

    §Genuine consideration of employees’, and at the employee’s election, their representatives’ suggestions, ideas and contributions

    §Genuine opportunity for employees and, at the employee’s election, their representatives to affect the outcome.

    36.6Where the Company makes a final decision in relation to the matter subject to consultation, the Company will notify the affected employees and, at the employee’s election, their representatives in writing.  This notification will include final details of the proposed change and an implementation date.  The implementation date will not be earlier than 5 working days from the date of the notification, unless safety concerns demand otherwise.  In such cases, the notification will be signed by senior Company management.

    36.7If, however, at the conclusion of this consultative process, concerns continue to exist regarding the matter subject to consultation, the employees, and at the employee’s election, their representatives will have 5 working days in which to issue a notice of dispute.  This notice of dispute will be issued in accordance with Step 3 of the Dispute Resolution Procedure.

    36.8Traincrew Agreement Consultative Committee

    A Freight Traincrew Agreement Consultative Committee will be established to review the implementation of the Agreement at regular intervals.

22. In the course of submissions, reference was made to two other clauses in the Traincrew Agreement, cl 41 and cl 42:

    41       Managing Surplus Employees

    41.1The Company is committed to maximising permanent employees’ security of employment, but it operates in a rapidly changing, competitive environment where security of employment is increasingly linked to winning and retaining work.

    41.2This requires a continuous review and re-alignment of how we deliver products and services to our customers.  The objective is to maximise the application of available resources including staffing and infrastructure, while considering changing customer needs or organisational priorities.

    41.3This may mean changes to employment arrangements.  Where this occurs it is the parties’ intent to pursue security of employment for permanent employees through re-skilling and/or retraining and/or redeployment opportunities.  The intent is to provide long-term sustainable employment for employees whilst acknowledging that the flexibility the Company requires may often require changes to people’s jobs.

    41.4To support these commitments the parties agree that where there is a reduction in staffing requirements not associated with natural attrition, then there will be no forced redundancies and no forced relocation.

    41.5An employee will not unreasonably reject retraining, transfer and/or redeployment.  Transfer will apply as defined in the relevant Company policies as amended from time to time.

    41.6Where a fixed-term engagement extends for more than 2 years or involves more than 5 consecutive fixed-term engagements at the same location, the employee is to be engaged/converted to permanent employment with the condition that the employee will be subject to involuntary redundancy and termination payments as provided in the relevant Comp any policies as amended from time to time.

    41.7Where an engagement as set out above extends more than 4 years the employee is to be engaged/converted to permanent employment without involuntary redundancy.

    42       Transmission Of Business

    42.1The parties acknowledge that Part 11 – Transmission of Business Rules, of the WRA sets out the legislative framework with respect to how this Agreement will be bind a successor, assignee or transmittee of the Company’s business.

    42.2Where a business is transmitted from the Company to another employer, as contemplated by the WRA (in this clause called the “transmittee”) and an employee who:

    (a)At the time of such transmission was an employee of the Company in the business transmitted; and

    (b)Was covered by the provisions of this Agreement; and

    (c)Who immediately becomes an employee of the transmittee;

    Then where:

    (d)The employee’s service and accrued and unused leave entitlements with the Company are assumed by the transmittee; and

    (e)The employee is offered employment on terms and conditions no less favourable than the employee currently enjoys;

    the employee will not be entitled to payment on account of any leave, severance, redundancy, period of notice or any other entitlement on termination of their employment with the Company.

1. There was no disagreement between the parties as to the principles which attend the construction of an industrial agreement. The following observation made by Madgwick J in Kucks v CSR Ltd (1996) 66 IR 182 at 184, which is frequently cited with approval, encapsulates those principles:

   It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand. (Emphasis added)

   Though Madgwick J had made these observations in relation to the construction of an award, Northrop J in Australian Meat Industry Employees Union v Coles Supermarkets Australia Pty Ltd (1998) 80 IR 208 at 212, having cited them with approval, considered that they applied even more strongly in the case of the construction certified agreements. Why this remark of Northrop J is so apt in the case of an industrial agreement is, in my opinion, underscored by the passage which I have emphasised in the observations made by Madgwick J. The starting point must always be the language employed by the parties to an industrial agreement but industrial context and purpose are always relevant when construing that language, as Gleeson CJ and McHugh J highlighted in their joint judgement in Amcor Ltd v Construction, Mining, Forestry and Energy Union (2005) 222 CLR 241 at [2].

2. I commence first with the text of cl 36 and the ordinary meaning of the word “consult”.

3. The Oxford Dictionary gives the primary meaning of “consult” when, as the agreement does, used as a verb as, “[t]o take counsel together, deliberate, confer; also said of a person deliberating with himself” (Oxford English Dictionary, 2^nd Edition, Online version). No different meaning for the word is supplied by Australian idiom, (q.v. the definition in Macquarie Dictionary Online). The word is plainly not used in cl 36 in the sense of deliberating with one’s self.

4. The imposition of a requirement for one party to consult with another is hardly unique to industrial instruments. I have already made passing reference to coincidental examples of requirements to “consult” in the course of setting out the history of legislative provision in Queensland with respect to railways. A search of current Commonwealth legislation discloses no less than 572 provisions imposing a requirement on a Minister or other official or agency to “consult”. In turn, as a study of reported cases discloses, these are but Australian exemplars of a requirement widely employed in a range of public administration applications by the parliaments of the United Kingdom and elsewhere in the Commonwealth of Nations.

5. Thus, in Port Louis Corporation v Attorney-General of Mauritius [1965] AC 1111 at 1124 the Judicial Committee observed of a consultation obligation in an ordinance in respect of measures to alter local government boundaries that: “[t]he nature and object of consultation must be related to the circumstances which call for it” and “The requirement of consultation is never to be treated perfunctorily or as a mere formality. The local authority must know what is proposed; they must be given a reasonably ample and sufficient opportunity to express their views or to point to problems or difficulties; they must be free to say what they think.” These observations as to what was entailed in a requirement to consult commended themselves, in the different context of their use in broadcasting legislation, to Toohey J when a judge of this Court in TVW Enterprises Ltd v Duffy (No 2) (1985) 7 FCR 172. His Honour pithily remarked (at 178), “Consultation is no empty term.” That same sentiment is evident in the following passage from the judgement of Sachs LJ in Sinfield v London Transport Executive [1970] 1 Ch 550 at 558 concerning a consultation obligation which attended a power to alter bus routes:

   It is apposite first to mention that Mr Francis emphasised not once but several times that whatever be the true construction of section 22(3) [which contained the consultation requirement] and whatever order this court might make, it was in the end the executive and no one else who made the decision. If that was intended to intimate that the executive merely looked on consultations as being an opportunity for those consulted to make ineffective representations, it would represent an approach that, to put it mildly, cannot be supported. Consultations can be of very real value in enabling points of view to be put forward which can be met by modifications of a scheme and sometimes even by its withdrawal. I start form the viewpoint that any right to be consulted is something that is indeed valuable and should be implemented by giving those who have the right an opportunity to be heard at a formative stage of proposals – before the mind of the executive becomes unduly fixed.

6. Such cases have proved influential in the Australian Industrial Relations Commission (industrial commission) for the guidance they offer as to what a requirement to “consult” entails: Construction, Forestry, Mining and Energy Union v Newcastle Wallsend Coal Company Ltd (C2758 Dec 1533/98 S Print R0234) (Full Bench); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Vodafone Network Pty Ltd (C2001/5770 PR911257) (Cmr Smith); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Optus Administration Pty Ltd AW791910 Print L4596) (Cmr Smith). The apprehension in the industrial commission that these cases were of assistance was not, with respect, misplaced. They serve to confirm an impression as to the content of an obligation to “consult” evident from the dictionary meaning of the word. A key element of that content is that the party to be consulted be given notice of the subject upon which that party’s views are being sought before any final decision is made or course of action embarked upon. Another is that while the word always carries with it a consequential requirement for the affording of a meaningful opportunity to that party to present those views. What will constitute such an opportunity will vary according the nature and circumstances of the case. In other words, what will amount to “consultation” has about it an inherent flexibility. Finally, a right to be consulted, though a valuable right, is not a right of veto.

7. To elaborate further on the ordinary meaning and import of a requirement to “consult” may be to create an impression that it admits of difficulties of interpretation and understanding. It does not. Everything that it carries with it might be summed up in this way. There is a difference between saying to someone who may be affected by a proposed decision or course of action, even, perhaps, with detailed elaboration, “this is what is going to be done” and saying to that person “I’m thinking of doing this; what have you got to say about that ?”.  Only in the latter case is there “consultation”. That this is the sense in which “consultation” is used in the QR Agreements is evident from cl 36.1 of the Traincrew Agreement.

8. On the authorities in relation to the construction of industrial instruments, the context in which a word is used, whatever may be its ordinary meaning, is an important consideration. As to that, the QR employers submitted that, “the vast, geographically spread nature of [their] workforce and the fact of its government ownership and implications of that ownership – can be taken to be well known to all of the negotiating parties when the QR agreements were negotiated, and is therefore part of the ‘industrial context’ which can be taken into account”. I agree. Yet even though these factors were well known, the Traincrew Agreement provided for consultation.

9. For the applicant trade unions the submission was made that the “industrial context” against which cl 36 fell to be construed also included that it was a clause addressing the subject of change in the workplace. So it is. Such clauses, it was submitted, had a heritage in Australian industrial law which could be traced to the Termination, Change and Redundancy Cases (TCR Cases) in the industrial commission – Termination, Change and Redundancy Case (1984) 294 CAR 175 and Termination, Change and Redundancy Case (No 2) (1984) 295 CAR 673 (TCR Case (No 2).

10. The applicants did not submit that this heritage meant that the clause should be construed as if its wording was the same as commended itself to the industrial commission in the TCR Cases. Rather, recalling that the concept about consultation about change was at the heart of cl 36, the origins of such clauses in Australian industrial law assisted, they submitted, in deciding whether the clause has a narrow or a broad scope. The applicant unions’ submission was that it would be antithetical to the heritage of a clause of this type to afford it a narrow scope of operation.

11. As to this submission, the QR employers acknowledged that the Queensland Industrial Commission had, in 1987, declared a policy of supporting the introduction into State awards of the same TCR clause as had been settled federally in the TCR Cases. In conformity with that Queensland Industrial Commission policy decision the State Award had included a standard TCR clause (cl 4.10). However, the QR employers drew attention not only to the stand alone nature of the QR agreements but also to differences in the wording as between that standard TCR clause and cl 36.

12. These differences were summarized in the following way:

    (a)a difference in the quality of the proposed change which is required before the obligation is triggered:

    (i)under the standard TCR clause, what is required is a proposal for major change in production, program, organisation, structure or technology which is likely to have a significant effect on employees;

    (ii)under the QR agreements the obligation is triggered when there is a proposed change that will have an impact on employees’ terms and conditions of employment.

    (b)       the clause require consultation with different classes of employees:

    (i)under the TCR clause, the obligation requires the employer to notify the employees who may be affected by the proposed changes and the union or unions);

    (ii)under the QR agreements the obligation is to consult with affected employees (and, if they elect, their nominated representatives).

    [Emphasis by the QR employers in their submissions]

13. The QR employers acknowledged that there were also similarities between cl 36 and the TCR clause in the State Award such that it was likely that the parties to the Traincrew Agreement had consulted that award when negotiating the terms of cl 36 (eg the definition of “significant effects” as defined in the TCR clause seems to have provided the inspiration for the various dot point items which appear in cl 36.2).

14. It is not necessary for the purpose of construing cl 36 of the Traincrew Agreement to engage in comparative linguistic analysis as between that clause and a standard TCR clause to the end of determining whether the reach of each clause is identical. Especially that is so having regard to the level of abstraction at which the applicant trade unions put their submission in relation to the utility of the TCR Cases. That there were differences in language as between a standard TCR clause and cl 36 was a given in that submission. The point made was that the TCR Cases represented a watershed in Australian industrial law.

15. Prior to the TCR cases, there had not been any general, formal provision in respect of the management of change in the workplace in Australian industrial instruments, as opposed to isolated examples (TCR Case at 194-195). The final form of what became the standard TCR clause was settled following further submissions to the industrial commission and reflected an acceptance by the commission that there should be an express obligation for employers to discuss with employees and their union or unions measures to avert or mitigate the adverse effects of the employer’s decision: TCR Case (No 2) at 688.

16. Now, such kind of provision, in one way or another, is routine. In that routine and with the passage of time there is a risk that the reasons why it was considered both necessary and desirable that there should be general provision in modern times in industrial instruments with respect to the management of change in the workplace may be forgotten. The applicant trade unions’ submission was that a recollection of these reasons was important in understanding the industrial context in which cl 36 fell for consideration and hence in construing that clause. As I understood it, a further and not unrelated reason for the reference to the TCR Cases was that they assisted also in understanding the purpose of clauses making provision with respect to the introduction of change in the workplace.

17. The claim advanced by the Australian Council of Trade Unions (ACTU) in the TCR Case, as the name by which that case is popularly known indicates, extended beyond the question as to whether there should be general provision in Federal awards in respect of the introduction of change in the workplace. It also addressed the subjects of provision in respect of termination of employment and redundancy. One of the authorities upon which the ACTU relied, which the industrial commission chose to cite (TCR Case at 177) in describing the general background to the claim as a whole, was Food Preservers’ Union v Wattie Pict Ltd (1975) 172 CAR 227 (Wattie Pict Case) in which Gaudron J, then a presidential member of the commission, had made the following statement:

    Primarily employment is the chief source of income for Australian families. Its interruption must be attended either by financial hardship or the fear of it. Employment is also part of a worker’s daily routine and society; disruption of that routine and social contact necessitates a reorganization of an important aspect of a person’s life. Long term employees may also find themselves with a competitive disability as a result of opportunities foregone in the continuous service of their employers.

18. In the TCR case the industrial commission made further reference to the Wattie Pict Case when addressing the subject of whether there should be general provision in awards in relation to unfair dismissals. That is only to be expected for the Wattie Pict Case was decided in that context. What is significant for present purposes in understanding the industrial context in which a clause like cl 36 falls for consideration and also its purpose is that the sentiments evident in her Honour’s statement were regarded by the industrial commission as desirably noted as part of the general background to all of the claims made in TCR Case. While, in the TCR Case, the ACTU did not succeed in the detailed breadth of its claims, it did succeed, materially, in securing acceptance by the industrial commission that there should be some general provision, against the background which the commission had noted, in respect of the introduction of change in the workplace.

19. What I take from this is that, in construing any clause in an industrial instrument which addresses the subject of change in the workplace, the industrial context, having regard to their heritage of such clauses in the TCR Case, necessarily includes an understanding of the central importance of employment as a source of income for most Australian families. It is not just in the interruption of employment that at least the fear of financial hardship and loss of settled daily routine and the society of the workplace described by Gaudron J may arise. The introduction of change in a workplace, be it occasioned by advances in technology, restructuring, reorganisation or otherwise can also engender such fears in workers.

20. It is evident from that part of the TCR case in which the industrial commission expressly addressed the subject of  “Introduction of Change” (TCR Case at 194 -196) that the commission regarded provision for consultation and the resultant exchange of views between employer and employees or their representatives as a way of ensuring that such fears were not held in ignorance and that such changes, if introduced, took into account the views of employees as to how this might be done, including done with the minimum possible disruption to their lives. In this fashion, the purpose of such clauses is also exposed.

21. Then National Labour Advisory Council (NLAC) Guidelines played an influential role in persuading the industrial commission that there was a need to make some general provision in respect of consultation in the event of decisions to implement change in the workplace. Those guidelines had been formulated with particular reference to technological change but the industrial commission cited them with approval in support of the decision it made to introduce a clause which, “covers not only technological change, but any change in an enterprise which is likely to significantly affect employment, irrespective of the cause of that change” (TCR Case at 194). Included in the passages from the NLAC guidelines which the industrial commission chose to quote was this (TCR Case at 196):

    As to consultation, those same Guidelines state:

    The arrangements for consultation may vary with regard to the type and extent of the change being made, or the needs of particular situations, but the employer should always seek to afford the appropriate trade union officials and/or other recognized employees’ representatives an opportunity to express their views on the employment effects associated with a technological change.

    These consultations might include proposals for the possible transfer of employees, training and retraining arrangements, methods and conditions of restructuring jobs. It will also be necessary to discuss the best method of informing employees of the results of the discussions.

    The point of setting out this passage is not that it can in any way serve as a substitute for the language employed in cl 36 of the Traincrew Agreement for it plainly cannot. Rather, having regard to the ordinary meaning of the word “consult”, already discussed, it serves to demonstrate that the industrial commission was not, in the TCR case, adopting an idiosyncratic meaning of that word. Nor, having regard to cl 36.1 especially, did the parties to the Traincrew Agreement use the word “consult” in any idiosyncratic way.

22. Neither the applicant trade unions nor the QR employers submitted that separate assistance was to be gained in the construction of cl 36 of the Traincrew Agreement by reference either to Article 13 of the International Labour Organisation (ILO) Convention (No. 158) concerning Termination of Employment at the Initiative of the Employer (Australian Treaty Series 1994, No 4 – ILO Convention No 158) or to the related ILO Termination of Employment Recommendation, 1982 (No 166 – ILO Recommendation No 166). ILO Recommendation No 166 was adopted by the ILO at the same conference which adopted ILO Convention No 158.

23. Article 13 of ILO Convention No 158 is directed to the situation where an employer contemplates terminations for reasons of an economic, technological, structural or similar nature. In that situation, it provides, inter alia, that the employer is to “give, in accordance with national law and practice, the workers' representatives concerned, as early as possible, an opportunity for consultation on measures to be taken to avert or to minimise the terminations and measures to mitigate the adverse effects of any terminations on the workers concerned such as finding alternative employment” (emphasis added).

1. Regard to the TCR Case discloses that ILO Convention No 158 and ILO Recommendation No 166 formed part of the material upon which the ACTU generally relied as supporting its claim for the introduction generally into Federal awards of provisions in respect of termination, change and redundancy. Further, in reciting the particular submissions made by the ACTU in support of a clause in respect of the introduction of change in the workplace, the industrial commission noted (TCR Case at 195) that one of the indicia relied upon by the ACTU as to a need to introduce such a clause in Federal awards in Australia was “ILO standards”. However, it was from the NLAC guidelines, rather than from any ILO standard, that the industrial commission chose to quote in explaining why it proposed to approve the introduction of the standard TCR clause with respect to the introduction of change in the workplace.

2. At the times when the TCR cases were decided ILO Convention No 158 had not entered into force in Australia. That did not occur until 26 February 1994. Thereafter, it has been variously taken up into Federal industrial legislation prevailing from time to time q.v. s 170GA and Schedule 10, Industrial Relations Act 1988 (Cth): s 668 and Schedule 4, Workplace Relations Act 1996 (Cth) and ss 784 and 786, Fair Work Act 2009 (Cth). ILO Convention 158 had also been taken up in Queensland industrial legislation in relation to termination of employment at the time when the QR agreements were made: Div 2 of Pt 4 of ch 3 of the Industrial Relations Act 1999 (Qld).

3. It was submitted on behalf of the QR employers that there is no evidence that either ILO Convention 158 or ILO Recommendation 166 played any particular role in the negotiations that led to the Traincrew Agreement and, in particular, in the drafting of cl 36. That is true, although I doubt that it is just coincidence that resulted in “termination of employment” being the first of the circumstances instanced under cl 36.2 in which the parties to the Traincrew Agreement envisaged that such “consultation” for which that agreement provided would occur.

4. On 10 March 2009, the ILO published a document entitled Note on Convention No. 158 and Recommendation No. 166 concerning termination of employment (ILO Note; copy available online at the ILO website: The ILO Note offers guidance with respect to the meaning and intended purpose of provisions of ILO Convention No 158 and ILO Recommendation 166. Included (at p 12) in the commentary in the ILO Note in respect of article 13 of ILO Convention 158 is the following statement:

   In August 2005, the International Finance Corporation’s Good Practice Note on Managing Retrenchment stressed the importance of consultations to both the development and the implementation of a retrenchment plan. The Good Practice Note states that “without consultation, companies run the risk of not only getting key decisions wrong, but also of breaching legal rules and collective agreements and alienating workers and the community. Workers can often provide important insights and propose alternative ways for carrying out the process to minimize impact on the workforce and the broader community”
   [Footnote reference omitted, emphasis added]

5. In the result though, there is no direct link between cl 36 of the Traincrew Agreement and ILO Convention 158 and ILO Recommendation 166 such as would counsel construction of cl 36 in accordance with the interpretation of Art 13 of ILO Convention 158. Nonetheless, each is a provision with respect to consultation in the context of a contemplated or proposed termination of employment (although the consultation obligation in cl 36 ranges more widely than just proposed terminations). The observation which I have emphasised in the passage quoted from the ILO Note offers, by analogy, a compelling rationale in relation to the importance of consultation.

6. Having regard to that rationale, to the purpose of the clause and to the industrial context of cl 36, especially in light of its heritage in Australian industrial law, it would be inappropriate to construe that clause narrowly.

7. It was submitted on behalf of the QR employers that a feature of cl 36 was that consultation was not required unless the employer had made a definite decision to bring about change.

8. There is a distinct difference between a “proposal” to bring about change and a “definite decision” to bring about change. The former has about it a provisional quality; the latter does not. Regard to dictionary definitions of the word “proposal” bears this out. As used as a noun and in the context of cl 36, the definitions which are most apt for “proposal” are “a suggested or intended plan, scheme, or course of action; spec. one submitted formally for consideration” (Oxford English Dictionary, Online Edition) and “a plan or scheme proposed” (Macquarie Dictionary, Online edition). Insofar as “proposed” is an element of the latter definition, it carries with it the meaning of “put forward or suggested as something to be done” (Macquarie Dictionary, Online edition). So understood, the use of the word “proposal” is in complete accord with a clause directed to the subject of “consultation”. The construction for which the QR employers contend is not. A definite decision of one sort or another should follow consultation, not precede it (as to this, see also cl 36.6).

9. Further, a “proposal” is not to be equated with a detailed plan. A detailed plan may certainly amount to a proposal but something well short of that, as the dictionary definitions of the word bear out, may constitute a proposal. The word admits of a level of generality, of a strategic concept, not just operational plans.

10. A definite quality is not, as the QR employers also submitted, supplied by the words “to be implemented” in cl 36.2. These form part of a composite phrase “proposals to be implemented”. I readily accept that the word “proposal” must not be read in isolation. The words “to be implemented” distinguish the class of proposal with which cl 36 is concerned from “proposals” which have not progressed, and may never have progressed, to the point of being proposed for implementation. Further, “to be implemented” introduces an element of futurity, not finality. One of the purposes of consultation is to receive suggestions not only about how to implement a proposal but also whether, on reflection, it should be implemented at all.

11. It is evident from the first sentence in cl 36.2 that the obligation to consult arises in respect of “proposed changes that will have an impact on employees’ terms and conditions of employment”. In the first sentence is to be found the general consultation obligation to which the employer is subject.

12. The second sentence of cl 36.2 appears to have been inserted to alert the reader in a non-exhaustive way to types of proposed changes which might give rise to the consultation obligation for which the first sentence of cl 36.2 provides. However, the mere existence of a proposal in respect of one of those examples will not give rise to a consultation obligation unless the other elements of that obligation, as specified in the first sentence are present, ie the proposal must be one “to be implemented” and also one which “will have an impact on employees’ terms and conditions of employment”.

13. The use of the possessive plural “employees’” in cl 36.1 in relation to “election” and “terms and conditions” ought also to be noted. So far as drafting practice is concerned, the general contemporary position in respect of deeds, contracts and other instruments is that, subject to any contrary intention, the singular includes the plural and vice versa: s 48 Property Law Act 1974 (Qld). A contrary intention is evident in cl 36, in my opinion. Clause 36.3 expressly excludes from the scope of the consultation obligation “individual workplace/performance issues”, referring the reader to cl 38. Clause 38 is concerned with individual workplace issues. There is a consistent use of the plural elsewhere in cl 36 (the references to “employee’s” in cll 36.5, 36.6 and 36.7 are each, in context, typographic errors). Further, the references to consultation at “local level” or, as the case may be, “business group” or “Company” level in cl 36.4 suggest an ascending order of plurality, not an obligation that commences with an individual.

14. It is envisaged in cl 36.6 that the process of consultation will be brought to an end when the employer has made a final decision with respect to the matter which was the subject for consultation. Inferentially, another way in which consultation would be brought to an end is if, having been invited to consult, either the employees concerned or, at their election, their representatives either notify that they do not wish to express any view or, having done so and the employer wishes to consult further, signify that they do not wish further to be heard. Another way in which, inferentially, the process of consultation for which the clause provides would end would be if, having provided information and provided reasonably for consultative discussions (or some other means of consultation), neither the employees nor, if they so elected, their representatives attended those discussions.

15. It is clear from the way the clause is cast that cl 36 is concerned only with proposals to be implemented which emerge from the employer, not with any which are instigated by an employee or an industrial organisation representing that employee.

16. It was common ground between the parties that the expression “terms and conditions of employment” should be read broadly. I agree. Having regard to the purpose and to the industrial context, that is consistent with the beneficial ends, discussed above, to which this clause and those of its type are directed.

17. In support of their submission that the expression should be broadly construed, the QR employers referred to a decision of the New South Wales Administrative Decisions Tribunal, Bonella v Wollongong City Council [2001] NSWADT 194 in which it fell to that tribunal to construe the expression as it appeared in s 25(2)(a) of the Anti-Discrimination Act 1977 (NSW). The use of the expression in that Act and in cl 36 is similar in the sense that each is used in provisions directed to beneficial ends. The case does therefore provide assistance by analogy. The tribunal (at [39] – [41]) made the following observations with respect to the expression “terms and conditions of employment”:

    39It is necessary to determine what is meant by the words "terms or conditions of employment" in section 25(2)(a). Employment relationships are legally complex. Whilst the core of every employment relationship is a contract of employment, it is rare for that contract alone to be the source of all legal rights and obligations possessed by an employer and an employee (see ConcutPty Ltd v Worrell  (2001) 75 ALJR 312 at 315). As Professors McCallum and Pittard indicate: "The sources of legal obligation in an employment relationship in Australia can include express and implied terms under a contract of employment, collective agreements, statutes, industrial awards and even custom and practice" (R McCallum and M Pittard, Australian Labour Law: Cases and materials 3rd ed, Sydney: Butterworths, 1995 at page 15).

    40At common law, the terms of a contract are "the components of obligation assumed by the parties" under, and to, the contract (N Sneddon and M Ellinghaus, Cheshire and Fifoot's law of contract, 7th Australian ed, Sydney: Butterworths 1997 at page 324). There can, of course, be express and implied terms. There are two sub-categories of terms: conditions and warranties. A condition is an essential term (a breach of which justifies termination), whereas a warranty is a non-essential or subsidiary term (see Sneddon and Ellinghaus at page 743). Thus, it appears that the phrase "terms or conditions of employment", as used in section 25(2)(a), should be given its everyday meaning, rather than its technical meaning in contract law, for if these words are to be given their technical legal meaning it does not appear to make a lot of sense to refer, in the alternative, to all of the components of obligation under a contract (the terms), and then only to those components of obligation which are essential (the conditions). This construction is supported by observations made by Lee J in Allders International Pty Limited v Anstee [1986] 5 NSWLR 47 at 55 when considering the breadth of an earlier, and slightly differently worded, form of section 25(2)(a). He stated:

    In my view the Tribunal was correct in its finding, the expression "terms and conditions of employment which he affords him" being not restricted to the matter of the terms of contract of employment, but being designed to encompass as well, all those demands and requirements, and benefits and concessions in the actual employment which the employee must comply with or can accept as the case may be.

    41What is intended, we believe, by the words "the terms or conditions of employment which the employer affords the employee" is all of the legal rights given to an employee, and all of the legal obligations cast upon employer, by the various sources identified by Professors McCallum and Pittard in the quotation reproduced in paragraph 39. To limit the operation of section 25(2)(a) to the actual contract which underpins every employment relationship would be to ignore the reality that the contract alone is rarely (if ever) the source of all rights and obligations possessed by an employer and an employee. As the High Court decision in Byrne v Australian Airlines Limited; (1995) 185 CLR 410 reveals, the provisions of an industrial instrument, which by force of statute may govern a particular employment relationship, do not automatically become terms of the individual contract of employment which also governs that relationship. Consequently, to limit the words "the terms or conditions of employment" to the actual contract which exists between an employer and an employee would be to exclude most of the provisions of relevant awards and enterprise agreements from the ambit of section 25(2)(a). We do not believe that was the intention of the legislature, for section 25(2) as a whole appears designed to extend to all instances of the employment relationship where the parties have legal rights and obligations.

18. “Terms and conditions of employment” in cl 36.2 of the Traincrew Agreement is, in my opinion, to be similarly construed. I am particularly attracted to the observation made by Lee J in Allders International Pty Limited v Anstee (1986) 5 NSWLR 47 at 55, quoted by the tribunal. His Honour observed of the expression that, apart from the terms of the contract, it was “designed to encompass as well, all those demands and requirements, and benefits and concessions in the actual employment which the employee must comply with or can accept as the case may be”. To this I would add that the source of those “demands and requirements, and benefits and concessions” may be nothing more than custom and practice, rather than a term of a contract or applicable industrial instrument but it would nonetheless fall within the expression “terms and conditions of employment”, given that the clause is not to be construed narrowly. Further, inherent features of the employment to which the Traincrew Agreement relates would likewise and for the same reason fall within the expression. Materially, those features presently include that the employment is with an employer within the public sector, an employer wholly owned by the State and managed by a board ultimately subject to political direction is an inherent feature of that employment.

19. Reference needs also to be made to the phrase “will impact on” which appears in cl 36.2. “Impact” when used as a verb can have the meaning “to have a (pronounced) effect on” (Oxford English Dictionary, Online Edition). This, in context, is the sense in which the word is used in cl 36.2. That the obligation is to consult with “affected employees” confirms this. Part of the context in which “impact” appears is that it is juxtaposed between “will” and “upon” in cl 36.2. The word “will” lends both a definite element and an element of futurity, the latter already present from the fact that the clause is concerned with a “proposal”. Insofar as there is a definite quality in the phrase, derived from the use of the word “will”, it carries with it a requirement for a correspondingly greater likelihood of effect on employees’ terms and conditions than if the word “may” had been used.

20. “Will” is separately used in conjunction with “consult” in cl 36.2. When so used it is used in an imperative sense. The first sentence of cl 36.2 is cast in the language of obligation, not aspiration.

    The period in question – 8 December 2009 to 22 January 2010

21. To understand how events evolved after the partial privatization announcement was made by the Premier on behalf of the State government on 8 December 2009 it is necessary to go back in time to June of that year. Further, though, on the applicant trade unions’ case, 22 January 2010 is a critical date in terms of manifesting an alleged finality of decision-making, the QR employers contend that it is but a point on a continuum, not the end of a period during which such consultation obligation, if any, to which they were subject ought to have been discharged.

22. The parties agreed on a chronology of events relevant to their respective arguments. This chronology details events which occurred before, during and after the period in question. That chronology forms Annexure 2 to these reasons for judgment. I refer in the body of these reasons only to the more significant of these events in the body of these reasons.

23. I had the benefit of hearing from a number of senior officers of the QR employers who played key roles in the reaction of those companies first to the June 2009 announcement and then to the December 2009 announcement. While the ultimate questions as to whether the QR employers were subject to a consultation obligation as provided for in the QR Agreements and, if so, whether they breached that obligation were controversial the actual course of events as related by these witnesses and as revealed by their affidavits the contemporaneous documents exhibited to their affidavits was not. I have drawn extensively on these in making the following findings. I have also drawn upon the evidence which I received from a number of QR employees who gave evidence in the applicant trade unions’ case.

24. On 2 June 2009 the Premier had announced that the State government was planning to sell the coal business and was investigating options to sell the bulk freight, inter-modal, retail and regional freight businesses then operated within the group of government owned corporations of which the QR employers were members. It was also announced that the QR passenger business would not be privatized.  A degree of imprecision then attended precisely what was to comprise the “coal business” and the “passenger business”.

25. This announcement might be termed a “proposal” but it was not then one “to be implemented”. There was, correctly, no suggestion by the applicant trade unions that the announcement triggered a consultation obligation on the part of the QR employers arising under the QR Agreements.

26. The announcement of 2 June resulted in the initiation of contingency planning within the QR employers as well as the participation of certain senior staff in what was known as the Passenger Rail Assessment Working Group (PRAWG).

27. The PRAWG comprised members from QR Passenger, the Queensland Department of Transport and the Queensland Treasury. QR Passenger was represented at a managerial level (Mr Paul Scurrah, the then Executive General Manager of QR Passenger was one member) only. There was no representation on this committee either from the workforce generally or from their representatives, eg from any of the applicant trade unions. The PRAWG met weekly between 11 November 2009 and 16 December 2009. Its purpose was to work through issues associated with the restructure both as foreshadowed in June and then as announced in December 2009 and related distribution of assets.

ANNEXURE 2

DETAILED CHRONOLOGY OF EVENTS

Date

Event

02.06.09

Queensland Government announces intention to privatise parts of QR business

02.06.09

Email from Lance Hockridge to QR staff

Subject: Major announcement: sale of QR assets

02.06.09

Email from Paul Scurrah to 'PDL QR Passenger Services (Restricted)'

Subject: Message from QR Passenger EGM – re sale of QR assets

06.10.09

Email from Lance Hockridge to QR staff

Subject: Sale update

13.10.09

RTBU Circular – 'Queensland Not For Sale/Rail Not For Sale Campaign Update'

26.10.09

Australian Services Union News – 'ASU Survey Confirms Members Opposition to Privatisation'

29.10.09

Email from Lance Hockridge to QR staff

Subject: Sale update

29.10.09

Australian Services Union News – 'QCU calls for halt to government sell off spin'

November 2009

People Resource Team (PRT) endorsed by QR to consider and manage employee issues arising out of the proposed asset sale

06.11.09

Email from Wendy Green (RTBU) to members

Subject: Queensland Not for Sale

20.11.09

Australian Services Union News – 'QR Corporate & Shared Services ASU Update'

24.11.09

Australian Services Union News – 'Unions Officially Launch the "Qld Not Sale" Campaign "Walker Report"'

November 2009 – March 2010

'Change group' meetings began

December 2009

Issue 14 'Fusion' – Shared Services Group GGM's Column advising employees about where to obtain further information about sale announcement

08.12.09

Martin Moore end-of-year briefing to SSG staff  in Rockhampton

08.12.09

Queensland Government announcement of privatisation of parts of QR business

08.12.09

Letter from Anna Bligh to Lance Hockridge enclosing Government Announcement

08.12.09

Email from Lance Hockridge to QR staff

Subject: Government announces QR decision (enclosing Premier's letter)

08.12.09

Special Management Committee Meeting convened in response to the Government Announcement - attendees of the meeting received Management Committee Information Pack

08.12.09

Sale Website went 'live'

08.12.09

Lance Hockridge posted a video on the QR Intranet regarding the Government Announcement

08.12.09

Tim Conroy telephoned David Smith (ASU) to advise of the Government Announcement - discussion of proposed Ipswich relocation

08.12.09

Meeting between Kathrina Bryen, Darren Hooper, Carol-Anne Nelson and Employee Hotline Operators to brief them on prepared Q&A script

08.12.09

Project Management Group Meetings begin

08.12.09

Meeting between Darren Hooper and Brendon Gibson to discuss provisional identification of roles within QR National and Queensland Rail

08.12.09

RTBU Circular – 'Re: Government thinks privatisation can be sold with a bribe'

08.12.09

Australian Services Union News – State Government Announces Its Decision For The Sale Of Queensland Rail

09.12.09

Employee Hotline commenced

09.12.09

Email from Allyson Madsen to 'PDL QR Network Level 4 Mgrs'

Subject: Information Kit for Managers (enclosing Management Information Kit)

09.12.09

Email from Gavin Reynolds to various employees

Subject: CEO Visit

09.12.09

CEO Roadshow begins

09.12.09

CEO Roadshow – presentation in Rockhampton  (RACS depot and Office of station)

09.12.09

Email from Michael Carter to QR Network staff

Subject: Message from EGM - QR Business Sale

09.12.09

Email from Lance Hockridge to QR staff

Subject: Paul Scurrah endorsed as interim CEO of the new Queensland Rail

09.12.09

Video presentation by Paul Scurrah uploaded on QR Intranet

09.12.09

Email from Paul Scurrah to 'PDL QR Passenger Services (Restricted)'

Subject: EGM Update: Government announced QR decision

10.12.09

CEO Roadshow – presentation at Redbank

10.12.09

CEO Roadshow – Lance Hockridge and John Stephens presentation at Brisbane Convention Centre - Q&A included discussion of allocation process and Ipswich relocation

10.12.09

Presentation by Paul Scurrah at Mayne Depot in Bowen Hills to deliver a briefing to QR Passenger employees

10.12.09

Weekly Notice (number 48 of 2009) enclosing Lance Hockridge message to staff about the Government decision and a copy of the Premier's letter

10.12.09

Email from Gordon Leech to Tracy Holmes

Subject: RE: Sale Process/Announcement Meetings with Staff

10.12.09

Email from Lance Hockridge to QR staff

Subject: Update from staff briefings (enclosing Q&A)

10.12.09

Email from Paul Scurrah to 'PDL QR Passenger Services (Restricted)'

Subject: EGM Update: Government announcement regarding Ipswich relocation

10.12.09

Email from 'Regional Freight Communications' to 'PDL Regional Freight'

Subject: QR Sale Announcement – Regional Freight Roadshow

10.12.09

Email from Robert Moffat (GGM South East Queensland QR Network) to 'PDL SEQ Division'

Subject: Arrival of Queensland Rail

10.12.09

Email from Dave Wotton to Employee Hotline

Subject: SELL OUT

10.12.09

Email from Employee Hotline to Dave Wotton

Subject:  RE: SELL OUT

10.12.09

Video conference presentation by Tim Ripper - attended by William Batten

11.12.09

CEO Roadshow – presentation at Portsmith (Cairns)

11.12.09

CEO Roadshow – presentation at Townsville

11.12.09

CEO Roadshow – presentation at Oracle House

11.12.09

Regional Freight Roadshow presentation at Rockhampton

11.12.09

Email from Dave Wotton to Employee Hotline

Subject: RE: SELL OUT

11.12.09

First meeting of PRT to discuss staff allocation

11.12.09

Paul Scurrah meets with Minister for Transport, Rachel Nolan, regarding Ipswich relocation feedback

11.12.09

Gordon Leech delivered closing address at in-service training to Network Controllers in Rockhampton - attended by Stephen Peacock.

11.12.09

Email from Gordon Leech to Tracy Holmes

Subject: RE: Sale Process/Announcement Meetings with Staff

11.12.09

RTBU Circular – Bligh Government Happy to Attack QR Workers

14.12.09 – 17.12.09

Initial meetings between PRT and EGM and HR Business leads of each business unit

14.12.09

Meeting between PRT and Martin Moore to discuss SSG and Finance people allocation process

14.12.09

CEO Roadshow – presentation at Shamrock (Mackay)

14.12.09

CEO Roadshow –  presentation at Emerald

14.12.09

CEO Roadshow – presentation at Barcaldine

14.12.09

CEO Roadshow – presentation at Gympie

14.12.09

Email from Grant Nawrath to Gracemere employees

FW: Rockhampton GM visit – Gracemere

(enclosing invitation to meeting on 15 December 2009)

14.12.09

Email from Darren Hooper to Gwen Durham in response to email from Dave Wotton to Employee Hotline

Subject: FW: SELL OUT

14.12.09

Email from Employee Hotline to Dave Wotton

Subject: FW: SELL OUT

15.12.09

CEO Roadshow – presentation at Bundaberg

15.12.09

CEO Roadshow – presentation at Mackay

15.12.09

CEO Roadshow – presentation at Maryborough West

15.12.09

CEO Roadshow – presentation at Hervey Bay

15.12.09

Email from Lance Hockridge to Tim Carroll in response to Tim Carroll email of 8 December 2009

Subject: RE: Sale of QR and Employment Guarantee

15.12.09

Email from Lance Hockridge to Steven Clare in response to Steven Clare email of 10 December 2009

Subject: RE: QR float

15.12.09

Email from Lance Hockridge to Michael Martin in response to Michael Martin email of 10 December 2009

Subject: RE: QR Sale

15.12.09

Email from Lance Hockridge to Paul Ryan in response to Paul Ryan email of 10 December 2009

Subject: RE: ARG????

15.12.09

Email from Lance Hockridge to Ian Garrad in response to Ian Garrad email of 11 December 2009

Subject: RE: Feedback on sale update

15.12.09

Email from Lance Hockridge to Dominic Fox in response to Dominic Fox email of 14 December 2009

Subject: RE: sale qr

15.12.09

Presentation by Mark Williams (GM of Travel & Tourism Sales) and Cathy Heffernan at Gracemere Depot

15.12.09

Martin Moore video message uploaded onto Sale Website

15.12.09

CEO Diary Extract – Paul Scurrah Interim CEO Queensland Rail

15.12.09

Letter from John Stephens to QR Group Apprentices about no impact on terms and conditions of apprenticeship

16.12.09

Presentation by Paul Scurrah at Mayne Depot in Bowen Hills to deliver a further briefing to QR Passenger employees

16.12.09

CEO Roadshow – presentation at Roma

16.12.09

CEO Roadshow – presentation at Toowoomba, attended by Dave Wotton

16.12.09

CEO Roadshow – presentation at Fisherman Islands

17.12.09

CEO Roadshow – presentation at Mayne

17.12.09

Paul Scurrah meets with Minister for Transport, Rachel Nolan, regarding Ipswich issues

17.12.09

Weekly Notice (number 49 of 2009) enclosing Lance Hockridge update on staff briefings held in 24 hours since Government announcement, Q&A and CEO Diary extract

17.12.09

Email from Lance Hockridge to QR staff

Subject: Staff visits continue

17.12.09

Email from Paul Scurrah to QR staff

Subject: Update on the Ipswich Relocation

18.12.09

CEO Roadshow –presentation at Gladstone

18.12.09

CEO Roadshow –presentation at Callemondah

18.12.09

Letter from John Stephens to QR Group Adult Apprentices about no impact on terms and conditions of apprenticeship

18.12.09

'the Week' Issue 49 enclosing Lance Hockridge update, Paul Scurrah update and Frequently Asked Questions

18.12.09

Email from Ian Dall (GM Coal Systems) enclosing 'Coal Systems News – Edition Ten'

18.12.09

Sunshine Depot Meeting

21.12.09

Email from Lance Hockridge to Colin Kay in response to Colin Kay email of 16 December 2009

Subject: RE: Sale regarding 25 yr pass

21.12.09

Email from Lance Hockridge to Gerard O'Donoghue in response to Gerard O'Donoghue email of 17 December 2009

Subject: RE: POSITIVE FEEDBACK FOR LANCE

22.12.09

CEO Roadshow – presentation at Newcastle

22.12.09

Frank Gabriel presentation to Banyo Depot staff (including Peter Lawrence)

22.12.09

Email from John Stephens to QR staff

Subject: Process for identifying future positions for staff

23.12.09

CEO Diary Extract – Thanks for a great year (enclosed in Weekly Notice dated 14 January 2010)

29.12.09

Email from Lance Hockridge to Mark Grandfils in response to Mark Grandfils email of 18 December 2009

Subject: RE: QR Sale Feedback

05.01.10

Meeting between John Stephens, Mike Carter (acting CEO) and David Smith and Justine Moran (ASU) (re: Employment and Industrial Relations Plan)

05.01.10

PRT meetings with EGMs and HR business leads regarding proposed allocations

Early January 2010

Presentation by John McDonald at Sunshine Depot attended by William Roach

08.01.10

Message from John Stephens, CHRO – Process for Identifying Future Positions for Staff loaded to website

12.01.10

QR National Steering Committee meeting

12.01.10

Meeting between Paul Scurrah, Theo Taifalos (GGM Customer Service) and David Smith and Justine Moran (ASU) regarding potential Ipswich relocation issues

13.01.10

EGM QR Services Update – Lindsay Cooper referring to the placement process and that letters will be sent to employees advising them of their allocation

14.01.10

Email from John Stephens to 'PDL Management Committee'

Subject: PEOPLE RESOURCING TEAM – EMPLOYEE ALLOCATIONS

15.01.10

Email from John Stephens to QR staff

Subject: Position placement nearing finalisation

15.01.10

'theWeek' Issue 1 enclosing John Stephens update 'Position placement nearing finalisation'

18.01.10

QR National Steering Committee meeting

19.01.10

Email from Stacey Luxford to 'PDL QR Network Brisbane and Toowoomba Staff'

Subject: QR Network Forum with Mike Carter

20.01.10

GGM QR Services Asset Services Update – John Pistak regarding allocation letters being sent out and where to obtain more information

21.01.10

Coal Systems Management Meeting in Brisbane

21.01.10

RTBU Circular – 'QR Management Allocation of Employees to Companies'

21.01.10

Special Management Committee Meeting.  ' Position placements – Manager's information pack' provided

21.01.10

Meeting between QR and ASU representatives

21.01.10

Update from Marcus McAuliffe (EGM Coal)

Subject: All Coal employees' to be employed by QR National, late 2010

Regarding 'transfer' of a Coal employee's employment to QR National.

21.01.10

Extract from Weekly Notice (Number 2 of 2010) enclosing John Stephens update 'Position placement nearing finalisation'

22.01.10

Email from John Stephens to QR staff

Subject: Update on placement letters

22.01.10

Email from Chae Parker to 'PDL QR Network (Restricted)'

Subject: Message from the Acting EGM [Tim Ripper]: Queensland Rail and QR National Allocation letters

Regarding allocation letters and discussions with managers

22.01.10

Meeting between QR and RTBU representatives to discuss sale and placement process

22.01.10

Meeting between QR and AFULE representatives to discuss sale and placement process

22.01.10

Meeting between QR and ETU/AMWU representatives to discuss sale and placement process

22.01.10

Letter from Allen Hicks (ETU) to Tim Conroy

22.01.10

Letter from Allen Hicks (ETU) to 'All members Queensland Rail'

Subject: Letters of Transfer to QR National & Letters of offer to QR Passenger

22.01.10

Email from Karen Arthur (AMWU) to Catherine Taggart enclosing letter from Andrew Dettmer to Lance Hockridge

22.01.10

Letters from QR sent to employees regarding their employment.  Placement letters sent

27.01.10

Letter from Lance Hockridge to Andrew Dettmer (AMWU)

27.01.10

Letter from Tim Conroy to Jason Young (ETU)

27.01.10

Email from 'Regional Freight Communications' to 'PDL Regional Freight'

Subject: Message from EGM QR Freight (Ken Lewsey)

Regarding the posting of allocation letters and where to obtain further information.

27.01.10

Email from John Stephens to Offer Group employees

Subject: Further Information for Employees with Offers of Transfer (enclosing Q&A)

27.01.10

Email from Liz Packer to Darren Hooper

Subject: Samantha Edwards

27.01.10

Group General Manager's Blog – 'Setting up for Success' providing SSG and Finance employees information on placement process

28.01.10

Extract from Weekly Notice (Number 3 of 2010) advising QR staff of allocation letters being posted to home addresses

28.01.10

Email from Michael Carter to 'PDL QR Network (Restricted)

Subject: Message from the EGM – QR Network Placement Process Union Briefing (enclosing PowerPoint presentation)

Regarding presentation to unions about placement process.

(Note - message is dated 27 January 2008)

28.01.10

Shared Services Update – More information about the placement process

28.01.10

GGM QR Services Infrastructure Projects Update – Rob Green regarding letter of offer and where to get more information about the placement process

28.01.10

GGM QR Services Asset Services Update – John Pistak regarding allocation letters being sent out and where to obtain more information

28.01.10

Meeting between QR and Joint Union representatives

29.01.10

EGM QR Services Update – Lindsay Cooper regarding allocation letters being sent out and that employees' managers will be discussing the letter with them

29.01.10

Tim Conroy and Ken Bacon meet with David Smith (ASU)

29.01.10

Queensland Council of Unions Circular entitled 'Combined Rail Unions Update for Queensland Rail Members' (enclosing template letter to QR)

29.01.10

Email from Kathrina Bryen on behalf of John Stephens to Offer Group

Subject: Ask your questions of the People Resourcing Team

29.01.10

Email from Bec Sala to Kathrina Bryen regarding allocation of Daryl Nutley.

Subject: Placement Letter: Daryl Nutley (sn 9895)

01.02.10 – 19.02.10

8am meetings commenced

February 2010

Issue 15 'Fusion' – Shared Services Group GGM's Column regarding placement process from SSG and Finance employees

01.02.10

Email from Suzanne Holt to Angela Richardson (cc Cathy Heffernan, Darren Hooper and Kathrina Bryen)

Subject: RE: Placement Letter: Daryl Nutley (sn 9895)

01.02.10

Banyo Depot Meeting conducted by Wayne Stewart

02.02.10

Email from John Stephens to Offer Group employees

Subject: Update 2 - Further Information for Employees with Offers of Transfer

02.02.10

Email from Grant Nawrath to Gracemere employees

Subject: Presentation by Senior Management 4th Feb 1900

03.02.10

Letter from William Batten to Lance Hockridge (altered template QCU letter)

03.02.10

Email from Gwen Durham to Darren Hooper in response to question to Employee Hotline from Simon Overland on 29 January 2010

03.02.10

Email from Alan Brookbanks to Cathy Heffernan, Darren Hooper and Kathrina Bryen (cc Brendan Cleaver and John Pistak)

Subject: Health and Fitness team to QLD Rail

04.02.10

Email from Paul Scurrah to Offer Group employees

Subject: Update 3 - Further Information for Employees with Offers of Transfer

04.02.10

Template letter from Lance Hockridge and Paul Scurrah in response to template QCU letter (enclosing QR response to employees' questions)

04.02.10

Email from Tony Burns to Kathrina Bryen, Darren Hooper, Michael Pullinger, Ross Graham and Martin Moore

Subject: Allocations Update

04.02.10

Presentation at Gracemere depot

05.02.10

'theWeek' Issue 4 outlining the proposed high level structure and the people who will be acting as heads of the business units of Queensland Rail

05.02.10

Tripartite Meeting between Government, QR and QCU

05.02.10

Lance Hockridge Update - Creating QR National and Queensland Rail and the establishment of an Integration Management Office

05.02.10

CEO Diary Extract – Creating QR National and Queensland Rail and the establishment of an Integration Management Office

05.02.10

Email from Susan Hurley to various employees including Frank Gabriel

Subject: Proposed Schedule – The New Queensland Rail

(enclosing timetable)

05.02.10

Letter from Lance Hockridge and Paul Scurrah to William Batten  in response to template QCU letter (enclosing QR response to employees' questions)

05.02.10

Queensland Rail Information Session – Dutton Park Depot

06.02.10

Queensland Rail Information Session – Brisbane City (3 sessions)

08.02.10

Queensland Rail Information Session – Stuart Depot

09.02.10

Letter from Tim Conroy to Barry Leahy and QCU representatives following tripartite meeting on 5 February 2010

09.02.10

Letter from Peter Simpson (ETU) to Lance Hockridge and Paul Scurrah

Re: Offers of Employment with QR Passenger Pty Ltd

09.02.10

Letter from William Batten to Lance Hockridge regarding outstanding questions raised in letter dated 3 February 2010

10.02.10

Email from Paul Scurrah to Offer Group

Subject: Further Information for employees with offers of transfer

Summarising the main points that were covered in the CEO Offer Group Roadshows and written answers to Frequently Asked Questions

11.02.10

Proceedings filed

11.02.10

Extract from Weekly Notice (Number 5 of 2010) enclosing CEO Diary extract of 5 February 2010

11.02.10

Queensland Rail Information Session – Mayne Depot

11.02.10

Queensland Rail Information Session – Toowoomba Depot

11.02.10

Email from Jane Grey (on behalf of David Smith ASU) to David Meloni

Subject: ASU response re Offers of Employment with QR Passenger

(enclosing letter dated 11 February 2010 from David Smith to Lance Hockridge and Paul Scurrah)

11.02.10

Email from David Meloni to ASU members

FW: ASU response re Offers of Employment with QR Passenger

11.02.10

Australian Services Union News – Stop Press – Unions Seek $660,000

12.02.10

Tripartite Meeting between Government, QR and QCU

12.02.10

EGM QR Services Update – Lindsay Cooper reminding employees of 19 February 2010 deadline

12.02.10

Queensland Rail Information Session – Redbank Depot

12.02.10

Queensland Rail Information Session – Ipswich Depot

12.02.10

Queensland Rail Information Session – Sunshine Depot

12.02.10

Queensland Rail Information Session – Maryborough Depot

12.02.10

CEO Diary Extract – Update on position placements

12.02.10

Email from Lance Hockridge to QR staff

Subject: Update on position placement

12.02.10

Letter from Lance Hockridge to Peter Simpson (ETU)

12.02.10

Letter from Paul Scurrah to Peter Simpson (ETU)

12.02.10

Letter from Paul Scurrah to David Smith (ETU)

12.02.10

Letter from Lance Hockridge to David Smith (ETU)

12.02.10

(Note – incorrectly dated 19.07.10)

'theWeek' Issue 5 enclosing Paul Scurrah announcement about his presentations to Offer Group employees

15.02.10

Letter from Lance Hockridge and Paul Scurrah to William Batten  in response outstanding questions

15.02.10

Email from Lance Hockridge to Offer Group regarding letters of offer

16.02.10

QCU Circular – Update on Offer Process: Important Advice to Members

16.02.10

Memorandum from David Lassen to Lance Hockridge and Paul Scurrah

Subject: Transfer of employment

16.02.10

Email invitation to attend Allocation Q&A Sessions by Martin Moore for SSG and Finance employees

17.02.10

Email from Ian Dall – GGM Coal Systems

Subject: Message from Ian Dall – Changes to Commercial Services

17.02.10

Martin Moore briefing sessions in Brisbane regarding placement process

18.02.10

Paul Scurrah Presentation to Level 3, 4 and 5 managers within QR Passenger, QR Services, QR Network and QR Corporate with letters of offer

18.02.10

Letter from Lance Hockridge and Paul Scurrah to Peter Lawrence acknowledging receipt of acceptance of transfer of employment to Queensland Rail

18.02.10

Memorandum from Warren Mallett to Lance Hockridge and Paul Scurrah

Subject: Transfer of employment

19.02.10

Response date for offer group

19.02.10

Memorandum from Eugene Maurice to Lance Hockridge and Paul Scurrah

Subject: Transfer of employment

19.02.10

Quarterly Business Consultative Forum

19.02.10

'theWeek' Issue 6 enclosing Paul Scurrah update outlining the principles for establishing the Queensland Rail structure

22.02.10

Email from Lance Hockridge to QR staff

Subject: Proposed structure for QR National

22.02.10

CEO Diary Extract – Proposed structure for QR National

23.02.10

Queensland Rail Information Session – Bundaberg Depot

24.02.10

Email from 'Organisational Communications' to various Rockhampton staff

Subject: Invitation to sales and performance update today

24.02.10

Lance Hockridge presentation entitled 'Sales and Performance Update' at Rockhampton

25.02.10

Weekly Notice enclosing CEO Diary extract of 22 February 2010.

26.02.10

Template letter to QR Limited employees who were 'conditional acceptances' from whom no rejection form was received

26.02.10

Template letter to QR Network employees who were 'conditional acceptances' from whom no rejection form was received

26.02.10

EGM QR Services Update – Lindsay Cooper regarding proposed executive structure for QR National and Queensland Rail

26.02.10

'theWeek' Issue 7 enclosing Paul Scurrah update regarding acceptance rate of Offer Group

02.03.10

RTBU Circular – Rally Against the Government Privatisation Plan: 9th March 2010 (enclosing flyer and map)

02.03.10

PRT meeting with EGMs/GGMs

03.03.10

ASU Union News – ASU Supports a Special State Conference

03.03.10

Template letter from Lance Hockridge and Paul Scurrah regarding Second Round Offer of position with Queensland Rail

03.03.10

Martin Moore briefing sessions in Rockhampton regarding placement process

03.03.10

Meeting between Darren Hooper, Des Kluck, Robert Moffat and Eugene Maurice, David Lassen and Warren Mallett

04.03.10

PRT meeting with EGMs/GGMs

04.03.10

Email from Lance Hockridge to QR staff

Subject: QR National and the Initial Public Offering (IPO)

04.03.10

CEO Diary Extract – QR National and the Initial Public Offering

04.03.10

Template letter from Lance Hockridge regarding confirmation of rejection of offer of position with Queensland Rail by QR Network employee

04.03.10

Template letter from Lance Hockridge regarding confirmation of rejection of offer of position with Queensland Rail by QR Limited employee

05.03.10

Template letter from Lance Hockridge and Paul Scurrah regarding re-offer of position with Queensland Rail

10.03.10

Martin Moore briefing sessions in Townsville regarding placement process

10.03.10

Email from Dellia Biggs to Martin Moore

Subject: Placement

11.03.10

Email from Gregory Shephard to Martin Moore regarding placement

11.03.10

Email from Martin Moore to Gregory Shephard (cc Ross Graham)

Subject: Re:

11.03.10

Email from Martin Moore to Paul Gurtner

Subject: FW: Greg Shephard Question from Townsville

11.03.10

Email from Martin Moore to Paul Gurtner

Subject: FW: Placement

11.03.10

Weekly Notice (number 9 of 2010)

Enclosing IPO Fact Sheet

12.03.10

Email from Lance Hockridge to Leon Collett in response to Leon Collett email

Subject: Response

12.03.10

Email from Lance Hockridge to David Newport in response to David Newport email of 23 February 2010

Subject: RE: Question for CEO regarding future policy of QR National

17.03.10

Email from Martin Moore to Paul Gurtner

Subject: RE: business case

17.03.10

Email from Martin Moore to Paul Gurtner

Subject: RE: business case

18.03.10

Email from John Stephens to all staff

Subject: A message from the Chief Human Resources Officer – Sale Update

26.03.10

Response date for extended offers

30.03.10

Response date for second round offers