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

[2020] FWC 3727

[2020] FWC 3727

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Sydney Trains
(C2019/6213)

COMMISSIONER MCKENNA SYDNEY, 31 JULY 2020

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)].

[1] On 22 November 2019, I issued a decision 1 (“Decision”) concerning the proposed field trial by Sydney Trains of a new sequential switching system. That trial of the new system was opposed by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (“Union”) on, compendiously-described, risk-related and/or safety-related grounds. The dispute is about Sydney Trains’ proposal to trial the changes to the work undertaken by employees in the classification of Electrical Systems Operator (“ESO”), relevantly, for example, as it may impact upon the safety of Field Operators. The Union is concerned that the trial will put the Field Operators at risk to their health and safety whilst at work. It is unnecessary to recount the background to the dispute, because the background was detailed in both the Decision and a decision of the Full Bench concerning an appeal that followed the Decision.

[2] In relation to a series of questions that had been posed for determination, I relevantly concluded in the Decision in favour of one of the Union’s contentions concerning the operation of a certain rule 2, in what I shall refer to as the “Safety Rules”. I also concluded that it was, for example, unnecessary or inappropriate to answer, or to purport to answer, the balance of the questions. In an appeal from my conclusions thereto in the Decision, a Full Bench3 considered my answer to the question was correct, but that I was in error in concluding that this answer resolved the dispute in accordance with the relevant dispute settlement procedure. The Full Bench also considered that it was appropriate to grant permission to appeal and to uphold the appeal, and to remit the matter to me for the determination of the following question (“the Question”):

“Can Sydney Trains lawfully and reasonably direct relevant Electrical Systems Supervisors and Electrical System Operators to perform work in connection with the trial of the proposed sequential switching procedure having regard to its obligation under clause 35.2 of the Sydney Trains Enterprise Agreement 2018?”

[3] Following the remit to me, the submissions for the Union and for Sydney Trains concerning this question were, by consent, subsequently made in writing. Arising from an unresolved matter which had been raised in my initial decision concerning personal protective equipment (“PPE”) and subsequent discussion in the proceedings following the remit, the parties filed a joint note (“Joint Note”). The Joint Note read:

“1. Sydney Trains currently requires all persons performing switching operations on its 1500V network to wear appropriate personal protective equipment (Mandatory PPE), as follows.

a. Arc-rated base garments consisting of either a long-sleeved shirt with placket front and trousers, or one-piece coveralls, which:

i. are labelled stating the fabric or garment complies with NENS 09 – 2014 and are arc-rated not less than 4 cal/cm2;

ii. are labelled stating the fabric or garment has been tested in accordance with either IEC61482-1-1 or ASTM F1959;

iii. are constructed from arc-rated medium-weight, pre-shrunk natural fibres (such as 100% cotton or wool);

iv. are worn so that the body is covered from neck to wrist to ankle. The shirt, coat or jacket, and/or overalls must be fastened at both the wrist and neck area; and

v. have non-metallic fasteners or have fasteners protected by a layer of the same material as that of the garment on both the top and undersides.

b. Safety footwear with toe protection and ankle support compliant to AS/NZS 2210.3 and maintained to AS/NZS 2210.1.

2. Sydney Trains also makes a face shield with chin guard (Optional PPE) available to persons performing switching operations on its 1500V network, but does not mandate the use of the Optional PPE.

3. For the purposes of engaging in a field trial of the proposed sequential switching and the current switching process, Sydney Trains will require the field officers performing switching operations on its 1500V network to wear both the Mandatory PPE and the Optional PPE during the field trial.

4. To avoid doubt, Sydney Trains does not believe or admit that the Optional PPE is required to be used in the sequential switching process in order to comply with its work health and safety obligations. Sydney Trains considers that the use of the Optional PPE for all purposes of this trial will address concerns, including changing from one process to the other.

5. The ESO’s and Union do not agree or admit that any PPE to be used in the sequential switching process makes the new process safe.

6. The face shield and chin guard are depicted below. [Photographic image]”

Submissions for the Union

[4] In proposing that the Question should be answered “No”, the Union submitted it would be neither lawful nor reasonable for Sydney Trains to give a direction to employees in the terms contemplated because to do so “would be abhorrent to cl.35.2 of the Agreement in that it would be in contravention of Sydney Trains promise to employees who voted on the agreement that it would guarantee or make certain their safety whilst at work”. The Union contextualised its submission in such respects by reference to highlighted aspects of cll. 2.1, 2.4 and 35 of the Sydney Trains Enterprise Agreement 2018 (“Agreement”).

[5] The Union referred to various aspects of the evidence before the Commission and some of the findings in the Decision. The Union noted that Sydney Trains put into evidence two consultants’ reports. As to date of issue, the first report was authored by Professor David Sweeting, namely, “Inspection and test report on 1500V DC switching procedures and arcing hazards” (“Sweeting Report”). The second report was authored by Dierk Hartmann, namely, “EIIP [Electrical Isolation Improvement Project] Sequential Switching - Independent Safety Assessment” (“Axess Report”). As to the two consultants’ reports, the Union submitted:

“Apart from the competing opinions of employees and management the consultants’ reports were the battleground on which the matter was fought. It is relevant that there was no challenge at all to the Sweeting Report. It was allowed to go through to the keeper. The Axess Report was more controversial and as the Commission found … it did not withstand the testing it received.”

[6] The Union referred to extracts of the Decision, concerning the Sweeting Report, at paragraphs [24]-[29]. The Union referred also to extracts of the Decision, concerning the Axess Report, at paragraphs [30]-[32] and [54]-[55].

[7] The Union’s submissions turned next to that part of the Agreement which specifies, at cl.35.2, that Sydney Trains “must ensure the health, safety and welfare at work of all its Employees”. The Union postulated that the relevant first question is: “What do the words of clause 35.2 of the Agreement mean?”. On the Union’s submission, the words of cl.35.2 “have their ordinary English meaning which is clear and unambiguous and means that Sydney Trains is obliged to guarantee or secure the health and safety of its employees at work by creating and securing a risk-free work environment. In guaranteeing or securing a safe work environment it is obliged to eliminate (not just minimise) all risks to health and safety. If it does not do that it is breaking the promise it made to its employees when it asked them to vote for the Agreement.” The Union referred to a number of familiar authorities concerning construction and submitted (references omitted) that:

“So far as those cases are concerned, they speak in one voice when they proclaim that the starting point is the ordinary English words of the clause. The word ‘ensure’ has an ordinary English meaning which means to ‘secure’, ‘make certain’ and ‘guarantee.’ That the words contextually have this meaning is confirmed by the seminal case in occupational health and safety law that interpreted precisely the same words in s.15 of the Occupational Health & Safety Act 1984 [sic] (NSW), namely, Carrington Slipways v Callaghan. Likewise ‘health, safety and welfare at work’ have a very clear and obvious meaning: you should be able to go to work without any risk being present that means you will not do so or will do so with injury. Thus viewed the clause is fairly simply obliging Sydney Trains to make sure that employees at work are not exposed to the possibility that they will be damaged when they are at work.”

[8] The submissions for the Union continued:

“Nor, despite the very brave attempts to date by Sydney Trains to suggest otherwise, does the context of cl.35.2 lead to some conclusion that there is to be inferred some other or different obligation such as to ‘take reasonable steps’ to ensure or ‘to do that which is reasonably practicable to’ ensure or; to do anything else that qualifies, minimises, negatives or reverses the word ‘ensure’. Apart from the obvious fact that the words chosen by the draftsperson (and voted on by employees when the Agreement was made) did not include those words or anything like them, note the terms of cl. 35.4 which confines or qualifies the duty of employees to take only ‘reasonable care.’ Likewise, the words of cl.35.5 to ‘co-operate … so far as is necessary’ suggests, like cl.35.4, that where the Agreement intended to qualify or refine a duty imposed by the Agreement it did so in clear and unambiguous terms by using words of qualification.”

[9] In re-emphasising aspects of earlier submissions, the Union submitted there is no sound basis for introducing some qualification upon words of clear and unambiguous meaning simply because one party to the Agreement wishes they were present. Employees who voted for the Agreement are entitled to the full benefit of the Agreement for which they voted; the words of cl.35.2 are not in “some way qualified”.

[10] The Union submitted that the words in cl.35.2 of the Agreement were introduced at a time when the parties, through their respective representatives, should be presumed to have known that the words they chose for inclusion in the Agreement were the words that had been found “for a very long time” in both s.15 of the Occupational Health and Safety Act 1983 (NSW) (“1983 OHS Act”) and s.8 of the Occupational Health and Safety Act 2000 (NSW) (“2000 OHS Act) (being words which had been “overtaken by the completely different and qualified words” in s.19 of the Work Health and Safety Act 2011 (NSW)) (“WHS Act”). The Union submitted that, as a wider contextual indicator concerning the meaning of the words in cl.35.2, the fact the parties used the words from predecessor legislation contextually indicates that they were intending “to do something much different from that which existed anyway” in s.19 of the WHS Act. The submissions for the Union, on this topic, concluded with the proposition that: “They chose not to qualify the obligation to make certain that they were safe: employees who voted on the Agreement were entitled to expect that Sydney Trains would keep to its word and guarantee their safety at work.”

[11] On the Union’s submissions, “Once it is accepted that cl.35.2 imposes an obligation to guarantee or secure safety it follows that the introduction of sequential switching as proposed by Sydney Trains would be in breach of the Agreement.” The submissions elaborated matters as follows: “This is because in introducing the proposal, whether as a trial or not, Sydney Trains would not be guaranteeing or making certain the health safety and welfare of employees. It is not necessary to gainsay where along the continuum to absolute safety the proposal lays because one thing is transparently clear, if nothing else, and that is there will be risks associated with the introduction of the proposed method of sequential switching and on any view the trial introduces two new risks” - as identified in extracts of the consultants’ reports as set out in the Decision and reproduced within the Union’s submissions. The Union’s submissions highlighted aspects of such matters to emphasise propositions including: the consequence is credible and not theoretical, and is of some significant effect; that the proposed sequential switching process introduces two incremental risks; the nature of the risk and its “rather significant consequences”; and that certain measures involves the risk being minimised, not eliminated, such as would guarantee safety.

[12] In conclusion, the Union submitted that the Commission should determine the dispute by finding that Sydney Trains cannot lawfully and reasonably direct relevant ESOs (and their supervisors, who undertake the role of Electrical Systems Supervisor (“ESS”)) to perform work in connection with the trial of the proposed sequential switching procedure having regard to its obligation under cl.35.2 of the Agreement because to do so would be contrary to that obligation.

Submissions for Sydney Trains

[13] In relation to the question of lawful and reasonable directions, Sydney Trains submitted it is inherent in every contract of employment that an employer has a right to give such directions as it chooses, qualified in only one respect, and that is if the direction is to do something which is positively illegal. As to the Question, Sydney Trains submitted that cl.35.2 of the Agreement will operate to render unlawful the direction by Sydney Trains to ESOs to perform work on the sequential switching trial only if, on its proper construction, it prohibits such a direction being made.

[14] As to the proper construction of cl.35.2 of the Agreement, Sydney Trains submitted as follows.

1. To construe cl.35.2 as erecting a guarantee or an absolute obligation such that the existence of any risk to health or safety would render Sydney Trains in breach of its obligations under the Agreement would self-evidently lead to absurd results and could not have been objectively intended. By way of illustration, Sydney Trains submitted that if a risk to safety actually materialised anywhere in its network regardless of whether there was an injury and notwithstanding that the risk was not reasonably foreseeable, or that Sydney Trains took all reasonably practicable steps to control or avoid a foreseeable risk, it would have no answer to an enforcement/contravention proceeding.

2. Considered in context, cl.35.2 (when read with cl.35.5) is concerned with correlative obligations on employees in respect of compliance requirements in certain legislation, associated regulations and/or codes of practice relevant to Sydney Trains in the interests of health, safety and welfare. None of those requirements imposes an absolute obligation on Sydney Trains to ensure (or guarantee) safety. The submissions for Sydney Trains continued that it would make “no sense” for cl.35.5 to impose an obligation on employees to cooperate with Sydney Trains only so far as is necessary for Sydney Trains to comply with its safety obligations under legislation and the like if cl.35.2 was intended to create stricter obligations than the legislative obligations; and cll.35.3 and 35.7 also provide a strong indication that cl.35 of the Agreement was not intended to create safety obligations “overriding or exceeding the scope” of those imposed by legislation.

3. Sydney Trains noted the Union’s submissions that referred to the wording of the 2000 OHS Act and its 1983 predecessor. While Sydney Trains accepts that the language in cl.35.2 can be said to resemble the language in the former statutes the submissions for Sydney Trains also noted that similarly-worded defences were available (under s.53(a) of the 1983 OHS Act and s.28 of the 2000 OHS Act) that it was not reasonably practicable for the person to comply with the provision of the relevant statute or the regulations the breach of which constituted the offence. These defences allowed that not all measures that may have guaranteed against the risks in question eventuating had to be taken by the employer. The measures which were required to be taken were those which were reasonably practicable; and the former NSW legislation erected no absolute duty to ensure or guarantee safety. In its overall context in cl.35 of the Agreement, including cl.35.3 as to ensuring statutory obligations are met, the inclusion of cl.35.2 (which had its provenance in earlier agreements) appears, Sydney Trains submitted, likely to have been included to reflect the duty in the prevailing legislation - but with inadvertent omission of the qualification to the duty by reference to “reasonable practicability” found in the legislation.

4. Sydney Trains submitted that cl.35.2 of the Agreement is of no legal effect to the extent it is inconsistent with the obligations imposed upon Sydney Trains under the Rail Safety National Law (“RSNL”) or the WHS Act, given the combined operation of ss.27(1)(c), 27(2), 27(2)(c), 29(2), s.29(3) of the Fair Work Act 2000 (Cth) (“FW Act”) and where no relevant regulation has been made pursuant to s.29(3) to displace the operation of s.29(2)(b) in respect to State and Territory laws dealing with occupational health and safety.

5. As cl.35 of the Agreement applies subject to the RSNL and the WHS Act, and to the extent that cl.35.2 would operate in a way that is inconsistent with the RSNL (as applied in modified form in NSW by the Rail Safety (Adoption of National Law) Act 2012 (NSW)) or the WHS Act, it has no legal effect and cannot apply, and must be interpreted accordingly: Lend Lease Project Management and Construction (Australia) Pty Limited v Construction, Forestry, Mining and Energy Union. (“Lend Lease Decision”) 4

6. The duty to ensure health and safety under the RSNL and the WHS Act is qualified by the words “so far as is reasonably practicable”. Sydney Trains submitted that the importance of those words lies in the fact that they were chosen by Parliament to mark out the boundary/limitation of the duty. Sydney Trains further submitted that an enterprise agreement that purports to impose a duty to ensure health and safety, which is, borrowing from a descriptor in the Union’s submissions, “much stricter” is relevantly inconsistent with the RSNL and the WHS Act and to that extent, of no legal effect, because of the operation of s.29(2) of the FW Act.

[15] Sydney Trains’ submissions on the topic of the proper construction of cl.35.2 of the Agreement culminated in the proposition that read: “Thus the issue for determination framed by the [Union] by reference to what it submits is a guarantee of safety is misconceived and the task of the Commission is not to concern itself with the mere identification of some risk to health and safety (however remote) but whether, having regard to the proposed Field Trial of the sequential switching process and the steps taken by Sydney Trains to control or mitigate identifiable risks, there is any basis for the Commission to intervene in the decision of Sydney Trains to proceed with the Field Trial and require its employees to perform work in accordance with that process.”

[16] In addressing the submissions made by the Union following the remit of the Question, Sydney Trains noted that part of the Union’s submissions which contended that the words of cl.35.2 have “clear and unambiguous meaning, namely to guarantee or secure the health and safety of its employees by creating and securing a risk-free work environment” and that Sydney Trains “is obliged to eliminate (not just minimise) all risks to health and safety.” As to those submissions, Sydney Trains effectively reiterated its submissions which are summarised above. Sydney Trains also submitted that the interpretation of cl.35.2 contended for by the Union has been “implicitly rejected” in Australian Rail Tram and Bus Industry Union v Sydney Trains 5 (“RTBU Decision”).

[17] In contending that the Union’s submissions cannot be reconciled with other provisions in the Agreement, Sydney Trains drew attention to certain monetary allowances paid for “disabilities” associated with, for example, working at heights and in confined spaces without proper ventilation. The fact of the allowances/compensation for such work, Sydney Trains submitted, showed the bargaining parties “clearly recognised that work in potentially dangerous environments” can be performed in accordance with the Agreement, despite cl.35.2. Moreover, a schedule to the Agreement concerned with “Rostering and Fatigue Management – Policy and Guidelines” deals with design principles for scheduling work to eliminate or minimise potential health and safety risks. If the Union’s interpretation of cl.35.2 was correct, Sydney Trains’ submissions continued, then design principles for scheduling work directed to the minimisation of risk, rather than its elimination, would be misconceived. Sydney Trains added, including by reference to the RTBU Decision, that it is “obvious from the nature of Sydney Trains’ business that employees work in a multitude of work environments which require the operation of controls to minimise risks” and that risks “arise from the nature of the operations, including because members of the public over whom Sydney Trains has limited control regularly interact in many of those environments”.

[18] Sydney Trains noted that the RSNL is focused on the fundamental importance of safety and puts the obligation as being that “A rail transport operator must ensure, so far as is reasonably practicable, the safety of the operator’s railway operations”. Sydney Trains submitted “it is not difficult to conclude” that the drafters of cl.35.2 had in mind “a common objective of achieving and maintaining a safe work environment”. Those matters noted, Sydney Trains also submitted the Commission should not, however, conclude that the objective purpose of cl.35.2 was to erect a standard of obligation in the nature of a guarantee that self-evidently would render Sydney Trains incapable of operating the rail network efficaciously without contravening the obligation created by the clause.

[19] Sydney Trains referred to the familiar principles described in Kucks v CSR Ltd 6 in relation to questions of interpretation (as did the Union in its submissions concerning a range of familiar cases on the same topic) - of an award, as opposed to an enterprise agreement. Sydney Trains also submitted that guidance as to the construction of enterprise agreements may be obtained by reference to principles which courts apply to the construction of commercial contracts in that an interpretation which accords with business common sense will be preferred to one which does not. As to that, Sydney Trains submitted that the interpretation for which the Union contended “is too narrow, unyielding and incapable of sensible adaptation to the circumstances of Sydney Trains’ business”. Sydney Trains asked rhetorically: How is the Union’s case for retaining the current switching procedure compatible with cl.35.2 in the face of the uncontradicted evidence that a risk presently exists in the current procedure from an overhead wire section being energised from an external source such as a train entering the dead section from a live section just as the switch is being opened from rail? Sydney Trains similarly asked, by way of further illustration drawn essentially from matters addressed in the Axess Report, whether it follows that employees currently working on switching tasks are doing so in accordance with an unlawful direction by reason of cl.35.2?

[20] In noting certain submissions for the Union that the employees considered the existing procedures to be safe, Sydney Trains submitted it was implicit there is an acceptance by the Union “that the touchstone for Sydney Trains’ safety obligations is the implementation of measures to avoid or minimise risk that are reasonably practicable” - whereas the Union otherwise has chosen to “fasten upon the two new risks” in the proposed new procedure, and has avoided engaging on the elimination of all risks, including risk identified in the current switching procedure. The Union, Sydney Trains submitted, does not suggest that cl.35.2 precludes work in accordance with the current switching process, despite the existence of risk.

[21] Sydney Trains, relying on the reasons it outlined, submitted the Commission would reject the interpretation of cl.35.2 contended for by the Union. Sydney Trains also characterised the disposition of matters in the following way:

1. If the Commission concludes that cl.35.2 will be contravened if any risk to safety (no matter how remote or how minor the potential consequences) is identifiable in respect of undertaking the proposed sequential switching process, Sydney Trains accepts it would follow as a matter of reasoning, based upon the expert evidence, that directing its employees to perform sequential switching during the trial would not be a lawful and reasonable direction, because there are two incremental risks.

2. If the Commission accepts Sydney Trains’ interpretation of cl.35.2, it is necessary to consider whether Sydney Trains would be ensuring the health safety and welfare at work of its employees, so far as reasonably practicable, if the employees are directed to perform the sequential switching procedure during the trial. As to such matters, Sydney Trains’ submissions identified, relied upon and emphasised various aspects of the evidence and earlier submissions in support of its contention that the implementation of a trial of the proposed sequential switching process would not be contrary to cl.35 of the Agreement.

[22] Among the matters emphasised were certain conclusions and/or recommendations variously advanced by the consultants, including the following.

•  That the proposed sequential switching process is at least as safe, so far as is reasonably practicable, as the existing electrical isolation process.

•  The current practice of separating switching operations on the low mounted ART three position switches, so that there is a delay between (a) operating the switch to open and (b) operating the switch to rail, should be phased-out and replaced with sequential switching procedures.

•  Sydney Trains’ current operating practice on the low-mounted ART three-position switches should be phased-out (as not being able to test for dead immediately prior to closing to rail under the current operating practice does not follow the safe so far as is reasonably practicable principles, whereas the proposed sequential switching process allows the test for dead immediately prior to closing to rail – with the resultant recommendation to implement the sequential switching process in place of the current process).

•  When using the ART three position isolator, testing the overhead wire (“OHW”) for dead while it is connected to the circuit breaker and then transferring it through open to the rail in one operation meets the requirements of the Model Work Health and Safety Regulations (“Model WHS Regulations”) at 155 and 157 (testing for dead prior to the operation prevents an arcing incident and the authorised person is not exposed to an electrocution incident).

[23] Additionally, Sydney Trains submitted:

•  The consensus opinion of Sydney Trains’ two consultants in propositioning that the proposed sequential switching process is appropriate for introduction in place of the current process is entitled to significant weight.

•  The Commission should give material weight to the importance attributed by the experts to testing for dead prior to switching as is secured in the proposed sequential switching procedure to prevent an arcing incident and the AP is not exposed to an electrocution incident.

•  The Commission should recognise that the worst-case credible consequence of an arcing fault developing while switching could arise only by the failure of two, identified layers of overlapping controls.

•  The Decision expressed reservations as to the reliability of the assessment by Axess as to the likelihood of an incident occurring once in 14,000 to 15,000 years; the assessment by the Electrical Isolation Improvement Program of risk associated with the existing process and the proposed process was “Medium – tolerable” risk rating “C”, included an assessment of the likelihood of an incident occurring as once in every 10 to 100 years. The evidence establishes that the likelihood of an incident occurring is remote.

•  The worst credible consequence will occur when PPE is ignited and does not self-extinguish; this risk is mitigated by the PPE provided by Sydney Trains as identified in the Joint Note.

[24] Sydney Trains submitted that, given the reservations expressed in the Decision in relation to the prospect of having to make an evaluation on contested matters of a technical, micro-detail nature based upon the evidence as presented, where the expert reports are at one in concluding that the proposed procedure should be implemented in place of the current procedure, I should defer to the expert opinion based upon the consultants’ specialised knowledge and experience.

[25] In conclusion, Sydney Trains submitted the Union had not made any submission to the effect that if the Commission is not satisfied that cl.35.2 precludes, and thus renders unlawful, the implementation of sequential switching, the direction to employees to perform that work is otherwise unreasonable. The Commission should reject the contentions advanced by the Union and conclude that: (a) for the purpose of rule 6 of the Safety Rules, arrangements have been made for the work to be carried out in a safe manner; and (b) grounds for intervention by the Commission have not been demonstrated by the Union in relation to the implementation of the proposed trial of the sequential switching procedure. The Commission should be positively satisfied that the proposed procedure is at least as safe, as far as reasonably practicable, as the existing procedure.

The Union’s reply submissions

[26] In its reply to the submissions for Sydney Trains, the Union noted that the Question is concerned with whether Sydney Trains lawfully and reasonably can direct its employees to perform work in connection with its proposed trial of sequential switching having regard to its obligation under cl.35.2 to ensure the safety of its employees. The Question is not directed to Sydney Trains’ wider operations and its compliance with the obligation under cl.35.2 or, indeed, the current procedure for switching and whether it conforms to the obligation in cl.35.2. As such, the Union noted, its reply submissions were limited to the matters raised in Sydney Trains’ submissions that address the Question remitted by the Full Bench for consideration.

[27] The Union submitted Sydney Trains’ contentions were wrong in suggesting that an “unlawful” direction, when used in the phrase “lawful and reasonable direction”, is a reference to a direction to do something that is positively illegal. The Union said that this was demonstrated by “the most cursory reading” of Dixon J’s judgment in R v Darling Island Stevedoring & Lighterage Co Ltd; ex parte Halliday and Sullivan, 7 as referred to Catholic Education Office Diocese of Parramatta v King8 by a Full Bench of the Commission when summarising the principles relevant to “lawful and reasonable directions”. The use of the word “lawful” is referable not to directing an employee only to do things that she might be legally entitled to do, but, the Union submitted, is directed to the direction being something that is within the scope of the employment and something that the employer is legally permitted to direct. Clause 35.2 of the Agreement does not in itself make the direction illegal or unlawful. It requires that Sydney Trains must ensure the health, safety and welfare at work of all its employees in the context of the factual circumstances. Here, it is clear that a direction to do work that exposes an employee to the risk of injury would not only be contrary to the obligation under cl.35.2 (in the sense that it is something that would involve Sydney Trains in doing something unlawful) but would, in any event, be unreasonable.

[28] The Union’s reply submissions indicated that, contrary to the characterisation in Sydney Trains’ submissions, the Union does not say cl.35.2 of the Agreement erects a guarantee or an absolute obligation such that the existence of any risk to health or safety would render Sydney Trains in breach of its legal obligations under the Agreement. Rather, the Union clarified, its submissions are that cl.35.2 of the Agreement requires that there is a strict duty to ensure the safety of its employees as well as the requirement to guarantee safety. To conclude whether it would result is an absurd outcome requires a consideration of the facts. This is not just a theoretical exercise about “a risk to safety actually materialised anywhere in Sydney Trains network (whether or not it caused an injury)”, as posited by Sydney Trains. Here, the Union submitted, there are clear and relevant facts. That is, it is accepted in both Sydney Trains’ expert reports that the proposed new process adds a new risk or risks with severe consequences. Christopher Newton and Andrew Radford, two Electrical Systems Supervisors, having been apprised of the expert reports, said the proposed process is not safe; and Ken Owen, an experienced Electrical Systems Operator, said the same. There is no evidence that any of those witnesses was not genuine about the concerns expressed or in the belief the new process was unsafe.

[29] The Union submitted that Sydney Trains “seeks to read into the plain ordinary English words of cl.35.2 the statutory defence that was found in s.28 of the OHS Act”, whereas the fact that the parties to the Agreement did not provide for any such defence “is powerful evidence that they intended to impose a very such obligation on Sydney Trains so far as safety of employees was concerned”. As to that, the Union postulated the question: “What would an employee of Sydney Trains voting to approve the Agreement have thought those words to mean?”. In effectively answering its own question, , the Union submitted that “the only rational thought process that would be engaged would be one that was comforted by the fact that Sydney was agreeing that it would guarantee the safety of employees (so that they would be able to return home from work every day).”

[30] In what the Union characterised as “[h]ypothetical and fanciful suggestions about how Sydney Trains can, or should, operate its business in the light of the ordinary meaning of cl.35.2” of the Agreement “do not help much”. The Union developed this submission by adding, for one thing the suggestion that Sydney Trains cannot operate because to do so would be in contravention of cl.35.2 is not supported by any evidence; to make good such a suggestion Sydney Trains would have needed to bring evidence of all the things it does and the measures that it has, and could potentially have, in place to eliminate risks to safety. The Union submitted that such a suggestion “is, with respect, absurd especially when the kinds of risks that Sydney Trains wishes to expose its employees to by reason of the direction in this case are considered.” The Unions further submitted, as to one aspect of the submissions for Sydney Trains, that a “suggestion that people’s safety cannot be guaranteed when working at height or when working in confined spaces is, with respect, absurd”.

[31] As to the submissions for Sydney Trains concerning the RTBU Decision, the Union submitted the suggestion that in that decision the Commission had earlier rejected the interpretation contended for by the Union in this case is “misleading and wrong”. In support of that proposition, the Union submitted that the passage quoted from the RTBU Decision makes no reference to cl.35.2 at all and nor does it appear that the interpretation of cl.35.2 was in issue in that case. Moreover, the Union continued, there is nothing in the RTBU Decision that would suggest the interpretation or competing interpretations of the clause were argued and far less decided upon.

[32] Turning next in its reply submissions to those for Sydney Trains concerning invalidity, the Union submitted there is no basis for the submission that cl.35.2 of the Agreement is invalid having regard to the RSNL or the WHS Act. The Union noted it may be accepted that a term of an enterprise agreement that is inconsistent with a State occupational health and safety law is of no legal effect, but, the Union submitted “that begs the question as to whether there is any inconsistency in the first place.” The Union developed matters by noting that a term of an enterprise agreement cannot diminish but may supplement rights and obligations under occupational health and safety laws. Here, the WHS Act and/or the RSNL continue to have full force and effect. There is nothing in the obligation “to ensure health and safety of employees” in cl.35.2 of the Agreement that operates to diminish the rights and obligations under State laws; rather, the duty in cl.35.2 supplements them.

[33] The Union submitted that Sydney Trains’ submission wrongly read the words “subject to” in s.29(2) of the FW Act as somehow meaning “invalidate” when those words do not mean that at all: Lend Lease Decision at [36] (including the reference in [36] to the Explanatory Memorandum for the for the Fair Work Bill 2008).

[34] As to Sydney Trains’ suggestion that introducing sequential switching will ensure safety as far as reasonably practicable, the Union submitted, it is presently only “a matter of passing observation” that the Full Bench did not remit that question for consideration. Nonetheless, the Union’s submissions continued, accepting that “somehow it is relevant here” presumably because “somehow the words ‘so far as reasonably practicable’ are to be read into cl.35.2” the Union’s submissions advanced the following:

•  Sydney Trains conceded in the initial hearing and in its evidence that the current work method for electrical switching is reasonably practicable. The effect of this is that it carries with it the consequential conclusion that there is a reasonably practicable means of ensuring (and if not ensuring, minimising) the relevant risks associated with switching - namely the current procedure. This, the Union submitted, is the starting point for assessing whether sequential switching ensures safety so far as reasonably practicable.

•  In the Decision, the Commission rejected as unreliable the findings of the Axess Report so far as the likelihood of what the worst possible consequence would be. As such, it is not possible to use Axess as a basis for assessing reasonable practicability, given a key ingredient in the assessment of what is reasonable impracticability will always be the likelihood of the occurrence of the relevant risk. Without that element in play, the Axess Report, to the extent that it dealt with reasonable practicability, is flawed and must be rejected.

•  The finding in the Axess Report that “the proposed sequential switching is at least as safe, so far as reasonably practicable, as the existing isolation process”, as relied upon by Sydney Trains, fails because of the flaws in the assessment of the likelihood of the risk. Cavilling with that finding does Sydney Trains no credit. The suggestion that the Commission should give weight to the Axess Report, in circumstances where the Commission has rejected a major aspect of it, is counterintuitive. It should not be forgotten, as the Commission noted in the Decision, the Axess Report acknowledges that sequential switching involves the introduction of two new risks.

•  Professor Sweeting did not assess the reasonable practicability of the existing procedure at all, even though he expressed an opinion about it. He did not express any opinion about the likelihood of someone being exposed to a risk under the current procedure. There is no reasoning or analysis provided as to how the Commission could conclude that the existing procedures “so far as reasonably practicable controls the risk” as against the admitted introduction of risk (incremental or not) associated with sequential switching. The Union submitted it should also be noted that Professor Sweeting’s opinion is premised on personal protective equipment being correctly worn, the wearing of which is not a requirement of the present procedure.

•  While it is correct that the “experts” both favour a particular outcome (one on the basis of an analysis found by the Commission to be flawed and the other on a basis where the very issues the Commission is required to assess, reasonable practicability, has not even been considered in any way that would greatly assist the Commission), the Commission is left with the evidence as to the substantial risks that inhere in sequential switching if introduced, as against a process which has stood the test of time and which was considered by all concerned as safe and reasonably practicable in ensuring safety.

•  Even if the words “so far as reasonably practicable” can be read into cl.35.2 of the Agreement, Sydney Trains cannot lawfully and reasonably direct employees in the manner suggested because the current process demonstrates that more can be done to ensure safety.

[35] In conclusion, the Union submitted that the Commission should determine the dispute by finding that Sydney Trains cannot lawfully and reasonably direct relevant ESSs and ESOs to perform work in connection with the trial of the proposed sequential switching procedure having regard to its obligation under cl.35.2 of the Agreement because to do so would be contrary to that obligation.

Consideration

[36] In this matter before me, there is no contest in the cases presented by the Union and Sydney Trains, and I otherwise noted earlier in the Decision, what those new introduced risks in this case identified in the Axess Report are:

“The proposed sequential switching process introduces two incremental risks:

1. uncontrolled closure of a DCCB just prior to opening an isolation switch from the OHW on isolation of power when the far end is already rail connected; and

2. uncontrolled closure of a DCCB just prior to opening an isolation switch from Rail on restoration of power.”

[37] The Axess Report noted that, in addition to the introduction of two new incremental risks, another risk (being a risk which, it was noted, is equally present in the existing process) is an overhead wire section being energised from an external source such as a train entering the dead section from a live section just as a switch is being opened from rail, and such “external energisation events have occurred on average one per year”. A further risk (being a risk which, it was again noted, is equally present in the existing process) is an operator unintentionally opening a switch passing traction load current.

[38] Similarly, there is no contest in the cases presented by the Union and Sydney Trains, and I otherwise also noted earlier in the Decision, as to the nature of the consequences that may ensue for a workplace victim as a result of these introduced risks. Consider one of the scenarios exampled in the Sweeting Report – as was outlined in paragraph [28] the Decision:

“[28] The Sweeting Report otherwise elaborated upon such matters later in the body of the report, under various “Specific hazard scenarios”. The descriptions varied, but the flavour of them - that is, what may occur as to severe burns under the four hazard scenarios - generally was as set out over certain passages of the text at pages 16-27 of the Sweeting Report. In one in the Sweeting Report, for example, matters are described in the following way:

“5.2.2 Closing onto a fault case

Case 2 involves closing the OHW to the rail connection when it is live from the other end.

While testing may show that the three-dimensional disconnector (Isolator) can make a load current, it is only likely to survive a fault current making operation if the (non- backed up) DCCB clears within 20ms.

When closing the OHW to rail connection whilst the OHW is live from the other end, the current from the OHW will drive an arc root to the end of the rotating contact, which is pointing at the head of the operator. This will send a plasma jet directly at the Lexan screen and out the bottom, where it will hit the floor and back wall and be deflected through the side mesh or forwards onto the operator. A second stream of plasma will be directed upwards off the fixed rail contact.

Under fault currents, the Lexan screen will only survive for seconds but will give the operator some time to leave the immediate vicinity. Without testing the duration cannot be reliably estimated.

The Lexan screen will also concentrate decaying plasma and copper spray over the insulators of the switch but an earth fault in the switch is not very different to direct connection to rail and therefore will not cause a trip.

After the Lexan screen disintegrates, the plasma stream, driven by the plasma jet, from the rotating OHW contact, will be directed at the head of any AP who has not moved. For this reason, it is recommended that switching includes hard hats with face shields that have been tested.

The plasma stream that is directed forwards below the Lexan screen will impinge on the lower half of the AP. If the AP’s PPE is not correctly specified to self-extinguish after being ignited by arc plasma, it will catch alight and continue to burn. The flames will go both up the front and the rear of the person causing severe burns over the victim’s whole torso.

Some plasma will pass through the expanded metal and may cause flashovers to earth on neighbouring switches. The arc roots of these flashovers will travel away from the source of supply and settle on the OHW cable terminations and expanded metal screens. This would produce horizontal arc jets along the switchgear and not necessarily on the operator.

If the AP’s PPE is correctly specified to self-extinguish after being ignited by arc plasma, it will self-extinguish when the AP leaves the immediate vicinity of the arc plasma.

Current arc hazard however, when impacted by arc plasma ablates off a flammable gas which is often ignited by the arc plasma. The burning ablated gas rises vertically from the clothing being impinged by the plasma and rises up under the chin of the operator.”

[39] It is against the background of these matters of common ground in the parties’ cases that I turn to the Question. While I have considered all of the evidence and submissions, both in the initial proceedings and on the remit, the consideration as follows focusses on matters which are considered to have greater relevance to the determination of the Question.

The Appeal Decision and the Question

[40] While I do not reproduce the text, paragraphs [16]-[17] of the Appeal Decision summarised what was advanced in Sydney Trains’ appeal grounds and submissions, and paragraph [18] summarised the Union’s appeal submissions. Considering the Question the subject of the remit, it is apposite to set out extracts of what the Full Bench said in the “Consideration” section in the Appeal Decision. The consideration in the Appeal Decision is relevantly set out over five paragraphs. Given the brevity of that consideration, the relevant paragraphs thus conveniently may be reproduced in full in this decision:

“[19] Our view concerning this appeal may shortly be stated: we consider that the Commissioner’s answer to question 9(b) was correct, but the Commissioner was in error in concluding that this answer resolved the dispute in accordance with Step 4 of clause 8.4 of the Agreement.

[20] In relation to the proper construction of question 9(b), the penultimate sentence of Rule 6 of the Safety Rules turns on whether the relevant employee “considers” that the work cannot be done or completed in a safe manner. This necessarily focuses attention on the relevant employee’s subjective belief, state of mind or thought process concerning the safety or otherwise of the work in question, and is not on the ordinary meaning of the language used concerned with whether the work is, objectively considered, unsafe. We accept Sydney Trains’ submission that a requirement of reasonableness must be implied into the provision since the parties cannot have intended that work might stop or not commence on the basis of a subjective consideration of safety which is irrational, fanciful, illogical or not held for a bona fide purpose. However that is of course a long way from saying that the employee’s view of the matter must be objectively correct: a person may reasonably hold a belief about something but ultimately be proven to be wrong in objective terms - because, for example, the employee is not in possession of all the relevant information or lacks the technical knowledge to come to a correct appreciation of the situation. We do not read the Commissioner’s decision as taking any different approach to that advanced by Sydney Trains in the appeal, since she assessed the views of the employees who resisted participating in the trial of the sequential switching procedure as being bona fide, not unreasonably held and not objectively unreasonable. Therefore acceptance of Sydney Trains’ proposed construction of the penultimate sentence of Rule 6 of the Safety Rules does not take the matter any further.

[21] However it is clear, we consider, that the answer given to question 9(b) did not resolve the dispute not least because the question only addresses part of Rule 6 and ignores the final sentence. Rule 6 does not proceed on the basis that if an employee reasonably considers that undertaking a given work task is unsafe, the work ceases or does not commence and that is the end of the matter. There is a further step required in the last sentence of the rule: arrangements must then be made for the work to be carried out in a safe manner. This last requirement does not proceed on the basis of what any individual considers to be the case; what constitutes the carrying out of the work “in a safe manner” is expressed in entirely objective terms. It is necessarily implicit in this last step that an inquiry is required in order to determine the extent to which the employee’s reasonably-held concern has objective validity and what is necessary, if anything, to permit the work to proceed in an objectively safe manner. Therefore answering question 9(b) did not determine the dispute, because the next question which necessarily arose in the application of the last sentence of Rule 6 to this dispute was whether the position held by the affected employees was, objectively speaking, right or wrong. That question, which is determinable by reference to Sydney Trains’ obligation under clause 35.2 of the Agreement, was simply not addressed in the decision and remains unresolved.

[22] Under s 739(5) of the FW Act, the Commission is prohibited from making a decision in the exercise of dispute resolution powers conferred by (relevantly) an enterprise agreement that is inconsistent with (relevantly) that applicable enterprise agreement. In this case, clause 8.1 of the Agreement provides that “This procedure requires that there is a resolution to disputes”with the consequence that the purpose and result of the exercise of arbitration powers in Step 4 of clause 8.4 (which is the last step of the procedure) must be a final resolution of the dispute. The Commissioner’s decision was not consistent with that requirement and accordingly infringed the s 739(5) prohibition.

[23] We note the Commissioner’s comment that she considered that the matters before her were “indeterminable”. We agree that a number of the questions raised by the CEPU were excessively technical and not appropriately directed to the proper resolution of the dispute (such as questions 5, 6 and 7). We also consider that it may not have been useful for the Commissioner to provide her opinion concerning the matters in questions 3(b) and (c), since any arbitration conducted pursuant to clause 8 of the Agreement cannot bind the regulators under the Work Health and Safety Act 2011 (NSW) or the Rail Safety National Law nor affect the rights and obligations of Sydney Trains and its employees under those Acts. The essential question in the dispute was whether Sydney Trains could lawfully and reasonably direct ESOs and, to the extent necessary, ESSs to participate in the trial having regard to its obligation under clause 35.2 of the Agreement. That question was embodied in the CEPU’s questions 3(a) and 4 and in Sydney Trains’ identification of the issue to be resolved (as recorded in paragraph [48] of the decision). We consider that the obligation to resolve the dispute under clause 8 of the Agreement required that question to be answered.

[24] We accept that answering the question involves some difficulty. It requires in the first instance that any questions concerning the proper construction of clause 35.2 (such as whether it contains the implicit qualification that health and safety must be ensured only so far as is reasonably practicable) be resolved. More significantly, it requires a detailed evaluation of the expert and lay evidence to be undertaken so that the correct conclusion may be identified. We do not consider that the Commissioner was assisted in this case in making the required decision by the parties’ insistence that the dispute had to be resolved as a matter of urgency. The difficulty of the question which the parties’ nominated arbitrator had to resolve required a considered and detailed process of deliberation, not a quick decision produced pursuant to an artificial deadline.”

[41] As to what was set out above in the paragraphs [19]-[24] of Appeal Decision, and among other matters, the following may be distilled:

•  The answer in the Decision to question 9(b) in the Union’s List of Issues was correct, but there was error in concluding that the answer resolved the dispute.

•  The penultimate sentence of Rule 6 of the Safety Rules necessarily focuses attention on the relevant employee’s subjective belief etc., and is not, on the ordinary meaning of the language used, concerned with whether the work is, objectively considered, unsafe.

•  A requirement of reasonableness must be implied into rule 6 of the Safety Rules since the parties cannot have intended that work might stop or not commence on the basis of a subjective consideration of safety which is irrational, fanciful, illogical or not held for a bona fide purpose. The Decision, in any event, assessed the views of the employees who resisted participating in the trial as bona fide, not unreasonably held and not objectively unreasonable.

•  Rule 6 does not proceed on the basis that it is the end of the matter if an employee reasonably considers that undertaking a given work task is unsafe, the work ceases or does not commence. A further step is required in the last sentence of Rule 6, whereby arrangements must then be made for the work to be carried out in a safe manner; and what constitutes the carrying out of the work “in a safe manner” is expressed in entirely objective terms.

•  It is necessarily implicit in this last step of rule 6 that an inquiry is required in order to determine the extent to which the employee’s reasonably-held concern has objective validity and what is necessary, if anything, to permit the work to proceed in an objectively safe manner.

•  Answering question 9(b) did not determine the dispute, because it did not address or resolve whether the affected employees’ position was, objectively speaking, right or wrong.

•  The essential question in the dispute was whether Sydney Trains could lawfully and reasonably direct ESOs and, to the extent necessary, ESSs to participate in the trial having regard to its obligation under cl.35.2 of the Agreement.

•  Answering the question involves some difficulty. It requires: (a) that any questions concerning the proper construction of cl.35.2 be resolved (such as whether it contains the implicit qualification that health and safety must be ensured only so far as is reasonably practicable); and (b) a detailed evaluation of the expert and lay evidence so that the correct conclusion may be identified.

[42] Before turning to a consideration of the Question, some observations may be made. The Full Bench wrote that: “We accept Sydney Trains’ submission that a requirement of reasonableness must be implied into [Rule 6 of the Safety Rules] since the parties cannot have intended that work might stop or not commence on the basis of a subjective consideration of safety which is irrational, fanciful, illogical or not held for a bona fide purpose”. It may be noted that, unlike the Agreement, which was the product of enterprise agreement bargaining, the Safety Rules are not the parties’ creation. That is, the Rules concern unilaterally-imposed obligations. In the initial proceedings, for example, counsel for Sydney Trains noted 9:

“… rule 6 is not a consensual document, it’s not an industrial instrument.  It’s not a contract, it’s not a contract of employment.  It’s a rule that has been, or provision or rule that has been drafted internally, by Sydney Trains.  …”

[43] As noted in the Decision, 10 Sydney Trains’ Associate Director, Network Operations (Network Maintenance Division of the Engineering and Maintenance Directorate), Dale Curran, acknowledged that, so far as Sydney Trains was concerned, the operation of rule 6 ultimately operates at a level of individuals’ own responsibilities. In any event, as the Appeal Decision noted11, in the Decision I assessed “the views of the employees who resisted participating in the trial of the sequential switching procedure as being bona fide, not unreasonably held and not objectively unreasonable” – and that finding was not disturbed by the Full Bench in the Appeal Decision.

Safe – entirely objective terms

[44] As to what was said by the Full Bench in respect to the further step required in the last sentence of rule 6 of the Safety Rules, whereby arrangements must then be made for the work to be carried out in a safe manner and in relation to work being conducted in a safe manner being expressed in “entirely objective terms”, the evidence indicates this much: In entirely objective terms, the field trial involving its proposed change to the work procedure is, self-evidently, not without risk and/or is unsafe, or both. This is for the equally self-evident reason that two new risks would be introduced by the implementation of the proposals during the field trial (in addition, it may be noted in passing, to the prevailing risks under the current arrangements of: (a) an overhead wire section being energised from an external source such as a train entering the dead section from a live section just as a switch is being opened from rail; and (b) an operator unintentionally opening a switch passing traction load current). In consequence, the proposed field trial cannot, in entirely objective terms, be conducted in a safe manner. There is nothing equivalent to, for instance (and however described), failsafe or similar mechanisms to protect Field Officers conducting the work in the field; and nothing proposed that perhaps might be perhaps described as protective “back-up measures”, even of as an interim measure, during the field trial.

[45] The risks are described, in part, as relevantly involving closures which are “uncontrolled”. The dire immediate consequences for a victim who had the unfortunate happenstance of being involved in such a workplace incident were described in the evidence. I have already extracted one of the scenarios from the Sweeting Report, but other scenarios describing similarly-dire immediate consequences for a victim were also exampled in the evidence.

[46] That the work under the proposed field trial cannot be conducted “in a safe manner” is, on one view of it, reinforced by the fact that Sydney Trains proposes, hand-in-hand with the field trial of the proposal, to put in place certain measures concerning PPE, being PPE arrangements which represent a departure from the existing arrangements.

[47] Sydney Trains now proposes that the field trial should be implemented with arrangements concerning PPE which are more stringent than those presently applying under the existing arrangements. I say “now proposes” because there was no evidence in the initial proceedings that Sydney Trains had turned its corporate mind to the question of the differing opinions in the Sweeting Report and the Axess Report about the nature and extent of PPE, if any, recommended to be used in conjunction with the proposed changes. The matter of PPE was left entirely unaddressed in the evidence of the managerial employees of Sydney Trains in the initial proceedings - in circumstances when the field trial was then proposed to have commenced within a matter of days. I raised the matter in the Decision. To contextualise this, it is relevant to extract parts of the Sweeting Report:

“A worker's PPE melting into the skin and continuing to burn after the arcing fault has extinguished causes the most severe injuries from arcing faults. It is essential that the PPE does not increase the severity of the incident. In order to achieve this the PPE must ablate (solid to gas) and not melt (solid to liquid) when subjected to direct impact from the decaying plasma cloud ejected from arcing fault.

The ablated gas from the PPE should also not burn. (It may be difficult to satisfy this requirement at present because it may not yet be offered by PPE suppliers and is not yet in any standards. The decaying plasma cloud passes around the victim due to its momentum. The ablated gas from most PPE catches alight and rises up (It is usually orange in colour) under face shields without a chin guard and burns all around the face causing severe facial burns.

Ignited PPE must extinguish immediately after the arc is removed. (It is the PPE burning for many seconds not only on the contact surface but all over the person that causes the most severe burns.)

In order to achieve the above requirements it will be necessary to purchase PPE that has been tested for an arc rating to IEC 61482-1 or ASTM 1959. PPE that is only Fire Rated may not burn in a fire (around 1000⁰K) but can catch alight and continue to burn after being subject to an arc (up to 6000⁰K).

The PPE needs to have a CAT I or CAT II arc rating, however it is more important that it is comfortable and that it is worn at all times. It is extremely difficult to ensure over time that uncomfortable PPE is always worn.

Face shields with chin guards and arc tested gloves are recommended when performing switching operations.

The Sydney Trains document D2013/80874 issued 12/11/2015 does not align with the above.

Under the heading “compliance” it lists many standards, some of which are fire retardant standards.

Under base garment it requires natural fibres such as cotton. 100% cotton garments can be ignited by arc generated plasma and once alight will continue to burn all over the body.

Under additional PPE part a), it includes a face shield as optional and does not specify a chin guard or that the face shield needs to also comply with IEC61482.1.

Under additional PPE part d), it allows the orange jacket to be flame retardant and not arc rated, which means it is likely to support combustion once lit.”

[48] Sydney Trains indicated in the Joint Note that a greater level of PPE than presently is mandated will be mandatory in the field trial. To repeat what was outlined in the Joint Note arising from the previously unresolved issue between the expert consultants on the matter of PPE, that note relevantly outlined that Sydney Trains requires all persons performing switching operations on its 1500V network to wear PPE. That is, the Joint Note described what was termed as “Mandatory PPE”, concerning the nature and wearing of safety-related garments and footwear. The Joint Note included information that Sydney Trains also makes a face shield with chin guard, termed as “Optional PPE”, available to persons performing switching operations on its 1500V network, but does not mandate the use of the Optional PPE. The Joint Note explained that, for the purposes of the field trial of the proposed sequential switching and the current switching process, Sydney Trains will require the field officers performing switching operations on its 1500V network to wear both the Mandatory PPE and the Optional PPE.

[49] To avoid doubt, the Joint Note pointed-out, Sydney Trains does not believe or admit that the Optional PPE is required to be used in the sequential switching process in order to comply with its work health and safety obligations; and Sydney Trains considers that the use of the Optional PPE for all purposes of this trial will address concerns, including changing from one process to the other.

[50] It may be noted that the Joint Note does not make any reference to the wearing of arc-tested gloves, being a matter which was the subject of comment and recommendation in the Sweeting Report, together with its recommendations concerning chin/face/head protection. It is unclear to me why Sydney Trains considers that the (mandatory) use of Optional PPE for all purposes of this trial “will address concerns”, given, for example, as the Joint Note further pointed-out, the ESOs and Union “do not agree or admit that any PPE to be used in the sequential switching process makes the new process safe”. Considered in the context of the Question and the consideration of the Full Bench, I conclude that the mandatory use of Optional PPE for all purposes in tandem with the field trial does not, considered in the context of the aforementioned “entirely objective terms”, make the proposed process for the field trial safe. I am surprised by the seemingly blithe approach of Sydney Trains in propositioning that making Optional PPE mandatory during the trial “will address concerns”. In contemporary approaches to the hierarchy of work health and safety measures - and these really are first principles - the imperative is to take steps to remove risk itself. Here, it simply cannot go unremarked, new risks would be introduced as an overlay of risks by the implementation of Sydney Trains’ proposals as to the field trial. If that is not otherwise clear, the fact of newly-introduced risk was confirmed in the cross-examination by counsel for the Union of Peter Griffin: 12

“The report first.  I’ll come to the statement in a moment, but page 4 of the report, under the heading ‘Executive Summary’, in paragraph 3:

The proposed sequential switching process introduces two incremental risks -

and then you identify them?---Yes.

Correct?---Yes.

And they are not risks that you understood or you considered were present in the existing process of switching that was undertaken?---Correct.

They were being introduced by reason of changing the process?---Correct.

And they are not risks that you understood or you considered were present in the existing process of switching that was undertaken?---Correct.

They were being introduced by reason of changing the process?---Correct.”

[51] To the extent the Joint Note indicates that Sydney Trains “does not believe or admit that Optional PPE is required to be used in the sequential switching process in order to comply with its work health and safety obligations”, both the Sweeting Report and the Axess Report described burns to, among other body parts, the burns victim’s face – albeit the Reports and/or other evidence espoused different opinions concerning the use of face shields with chin guards to protect the face and head. In such respects, I note that the Sweeting Report indicated as follows (at page 10):

“Safe Work Australia’s WHS Act and Regulations (Appendix 2) require identification of the reasonably foreseeable electrical hazards of electrocution, electric shock and burns from arcing hazards. The Model WHS Regulations require the risks to be minimised So Far As Is Reasonably Practical [sic] (SFAIRP) using Safe Work Australia’s hierarchy of hazard control measures:

(1) Eliminate risk

(2) Implement risk controls

(3) Minimise risk

(3.1) Substitute with lesser risk

(3.2) Isolate the hazard from the person

(3.3) Use engineering controls

Then (4.4) Use administrative controls

Finally (4.5) Provide suitable PPE

(Note: The numbering above comes from the WHS Regulations.)”

[52] It is unclear to me what is meant in the extract from the Sweeting Report where it identifies, for example, that “The numbering above comes from the WHS Regulations”. Matters asserted about the model WHS Regulations are similarly unclear in the Appendix to which the preceding quote refers. The Model Work Health and Safety Regulations to which reference appears to be made in the Sweeting Report (and which of themselves have no legal effect, but have largely been adopted in NSW in its own Work Health and Safety Regulation 2017) in fact read as follows:

“35 Managing risks to health and safety

A duty holder, in managing risks to health and safety, must:

(a) eliminate risks to health and safety so far as is reasonably practicable; and

(b) if it is not reasonably practicable to eliminate risks to health and safety—minimise those risks so far as is reasonably practicable.

36 Hierarchy of control measures

(1) This regulation applies if it is not reasonably practicable for a duty holder to eliminate risks to health and safety.

(2) A duty holder, in minimising risks to health and safety, must implement risk control measures in accordance with this regulation.

(3) The duty holder must minimise risks, so far as is reasonably practicable, by doing 1 or more of the following:

(a) substituting (wholly or partly) the hazard giving rise to the risk with something that gives rise to a lesser risk;

(b) isolating the hazard from any person exposed to it;

(c) implementing engineering controls.

(4) If a risk then remains, the duty holder must minimise the remaining risk, so far as is reasonably practicable, by implementing administrative controls.

(5) If a risk then remains, the duty holder must minimise the remaining risk, so far as is reasonably practicable, by ensuring the provision and use of suitable personal protective equipment.

Note

A combination of the controls set out in this regulation may be used to minimise risks, so far as is reasonably practicable, if a single control is not sufficient for the purpose.”

[53] My detailed evaluation of the expert and lay evidence leads me to conclude that the proposed field trial cannot, in entirely objective terms, be conducted in a safe manner.

Health and safety must be ensured only so far as is reasonably practicable?

[54] The Full Bench said a matter that is required to be resolved concerning the proper construction of cl.35.2 is whether the clause contains the implicit qualification that health and safety must be ensured only so far as is reasonably practicable. Before turning to the proper construction of cl.35.2 of the Agreement, it is appropriate to deal first with those parts of the submissions for Sydney Trains which contended, in effect, that cl.35.2 of the Agreement is “of no legal effect” having regard to the operation of the WHS Act and the RSNL. It is appropriate to deal with that contention first – because if cl.35.2 is of no legal effect, it would seem otherwise otiose to consider the proper construction of the clause against the background of the other competing submissions of the parties in such respects.

[55] My conclusion concerning Sydney Trains’ “no legal effect” arguments is that I do accept the submissions for Sydney Trains that cl.35.2 of the Agreement is of no legal effect. It is, I would think, clear beyond argument that in an enterprise agreement made between an employer and its employees under the FW Act properly, lawfully and validly they may agree in their bargain to something that is above and beyond legislated minima in relation to matters which are, within the meaning of s.172(1)(a) of the FW Act, (permitted) matters pertaining to the employment relationship. I need to take the matter of Sydney Trains’ submissions concerning no legal effect/invalidity no further than, for example, to note that I accept the submissions for the Union that a term of an enterprise agreement cannot diminish but may supplement rights and obligations under occupational health and safety laws. The WHS Act and/or the RSNL continue to have full force and effect and there is nothing in the obligation “to ensure health and safety of employees” in cl.35.2 of the Agreement that operates to diminish the rights and obligations under those laws. Despite the submissions for Sydney Trains, there is no relevant “inconsistency” such as to render cl.35.2 of the Agreement as having no legal effect.

[56] The principles conventionally relevant to the task of construing an enterprise agreement were summarised in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited 13(“Berri”) as follows:

“1. The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:

(i) the text of the agreement viewed as a whole;

(ii) the disputed provision’s place and arrangement in the agreement;

(iii) the legislative context under which the agreement was made and in which it operates.

2. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.

3. The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.

4. The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.

5. The FW Act does not speak in terms of the ‘parties’ to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are ‘covered by’ such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement ‘with the employees who are employed at the time the agreement is made and who will be covered by the agreement’. Section 182(1) provides that an agreement is ‘made’ if the employees to be covered by the agreement ‘have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement’. This is so because an enterprise agreement is ‘made’ when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.

6. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.

7. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.

8. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.

9. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.

10. If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.

11. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.

12. Evidence of objective background facts will include:

(i) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;

(ii) notorious facts of which knowledge is to be presumed; and

(iii) evidence of matters in common contemplation and constituting a common assumption.

13. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.

14. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was.

15. In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.”

[57] Beginning, as Berri instructs, with a consideration of the ordinary meaning of the relevant words in the Agreement the words of cl.35.2 read: “The employer must ensure the health, safety and welfare at work of all of its employees”. These words are not qualified in any way such as, appositely, with a proviso that this obligation shall apply only so far as reasonably practicable. Arguably, and certainly the Union in effect argued this much, a plain reading of the words of the Agreement is the end of the matter. Nonetheless, Berri also instructs that the resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose, which may include the legislative context under which the agreement was made and in which it operates.

[58] The immediate relevant legislative backdrop for the Agreement, which made in 2018, was (and is) the WHS Act and the RSNL (the Rail Safety (Adoption of National Law) Act 2012 (NSW), among other matters, applied as a law of NSW a national law that makes provision for a national system of rail safety).

[59] Section 19 of the WHS Act describes the “primary duty of care” in the following terms including its references to “so far as is reasonably practicable”:

“19   Primary duty of care

(1)  A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of—

(a)  workers engaged, or caused to be engaged by the person, and

(b)  workers whose activities in carrying out work are influenced or directed by the person, while the workers are at work in the business or undertaking.

(2)  A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.

(3)  Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable—

(a)  the provision and maintenance of a work environment without risks to health and safety, and

(b)  the provision and maintenance of safe plant and structures, and

(c)  the provision and maintenance of safe systems of work, and

(d)  the safe use, handling, and storage of plant, structures and substances, and

(e)  the provision of adequate facilities for the welfare at work of workers in carrying out work for the business or undertaking, including ensuring access to those facilities, and

(f)  the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking, and

(g)  that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking. …”.

[60] As to the reference to the primary duty of care in s.19 of the WHS Act, the following definition is provided in s.18 concerning the meaning of “reasonable practicability”:

“18   What is “reasonably practicable” in ensuring health and safety

In this Act, reasonably practicable, in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including—

(a)  the likelihood of the hazard or the risk concerned occurring, and

(b)  the degree of harm that might result from the hazard or the risk, and

(c)  what the person concerned knows, or ought reasonably to know, about—

(i)  the hazard or the risk, and

(ii)  ways of eliminating or minimising the risk, and

(d)  the availability and suitability of ways to eliminate or minimise the risk, and

(e)  after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.”

[61] To overall generally similar effect, the RSNL provides in part as follows, again including its references to “so far as is reasonably practicable”:

“46 Management of risks

A duty imposed on a person under this Law to ensure, so far as is reasonably practicable, safety requires the person—

(a) to eliminate risks to safety so far as is reasonably practicable; and

(b) if it is not reasonably practicable to eliminate risks to safety, to minimise those risks so far as is reasonably practicable.

47 Meaning of reasonably practicable

In this Part—

“reasonably practicable”, in relation to a duty to ensure safety, means that which is (or was at a particular time) reasonably able to be done in relation to ensuring safety, taking into account and weighing up all relevant matters, including—

(a) the likelihood of the hazard or the risk concerned occurring; and

(b) the degree of harm that might result from the hazard or the risk; and

(c) what the person concerned knows, or ought reasonably to know, about—

(i) the hazard or the risk; and

(ii) ways of eliminating or minimising the risk; and

(d) the availability and suitability of ways to eliminate or minimise the risk; and

(e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk—the cost associated with available ways of eliminating or minimising the risk (including whether the cost is grossly disproportionate to the risk).”

[62] Clause 35.2 of the Agreement, in specifying that “The employer must ensure the health, safety and welfare at work of all of its employees”, does not use the types of formulations contained in the WHS Act and the RSNL. None of the qualifying words I have reproduced above from the WHS Act and the RSNL as to the duty to ensure feature in Agreement. This may be a relevant consideration, given the comments in Berri that the resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose, including the legislative context under which the agreement was made and in which it operates.

[63] As effectively has been contended by Sydney Trains, the specification in cl.35.2 is to have read-into the clause that the obligation to ensure is to be (however described, read-down, conditioned or similar) to mean that duty applies only so far as is reasonably practicable.

[64] On the other hand, the Union pointed to the fact that the wording effectively replicated words – involving language different from that used in the WHS Act and the RSNL - that had applied in earlier NSW occupational health and safety legislation. That is, the 1983 OHS Act provided as follows at s.15(1):

“15   Employers to ensure health, safety and welfare of their employees

(1)  Every employer shall ensure the health, safety and welfare at work of all the employer’s employees.”

[65] Section 15 of the 1983 OHS Act continued, as to contraventions, as follows:

“(2) Without prejudice to the generality of subsection (1), an employer contravenes that subsection if the employer fails:

(a)  to provide or maintain plant and systems of work that are safe and without risks to health,

(b)  to make arrangements for ensuring safety and absence of risks to health in connection with the use, handling, storage or transport of plant and substances,

(c)  to provide such information, instruction, training and supervision as may be necessary to ensure the health and safety at work of the employer’s employees,

(d)  as regards any place of work under the employer’s control:

(i)  to maintain it in a condition that is safe and without risks to health, or

(ii)  to provide or maintain means of access to and egress from it that are safe and without any such risks,

(e)  to provide or maintain a working environment for the employer’s employees that is safe and without risks to health and adequate as regards facilities for their welfare at work, or

(f)  to take such steps as are necessary to make available in connection with the use of any plant or substance at the place of work adequate information:

(i)  about the use for which the plant is designed and about any conditions necessary to ensure that, when put to that use, the plant will be safe and without risks to health, or

(ii)  about any research, or the results of any relevant tests which have been carried out, on or in connection with the substance and about any conditions necessary to ensure that the substance will be safe and without risks to health when properly used.

(3)  For the purposes of this section, any plant or substance is not to be regarded as properly used by a person where it is used without regard to any relevant information or advice relating to its use which has been made available by the person’s employer.

(4)  If in proceedings against a person for an offence against this section the court is not satisfied that the person contravened this section but is satisfied that the act or omission concerned constituted a contravention of section 16, the court may convict the person of an offence against that section.

Maximum penalty: 5,000 penalty units in the case of a corporation or 500 penalty units in any other case.”

[66] The 1983 OHS Act provided a defence which referred to “reasonably practicable”, as follows:

“53   Defence

It shall be a defence to any proceedings against a person for an offence against this Act or the regulations for the person to prove that:

(a)  it was not reasonably practicable for the person to comply with the provision of this Act or the regulations the breach of which constituted the offence, or

(b)  the commission of the offence was due to causes over which the person had no control and against the happening of which it was impracticable for the person to make provision.”

[67] Reference was also made in the submissions to the 2000 OHS Act. Similarly to the 1983 OHS Act, the 2000 OHS Act, at least as made/originally enacted, addressed matters in the following way:

“8 Duties of employers

(1) Employees

An employer must ensure the health, safety and welfare at work of all the employees of the employer. That duty extends (without limitation) to the following: …”.

[68] As to defences, the 2000 OHS Act, again as made/originally enacted, referred to “reasonably practicable” as follows:

“28 Defence

It is a defence to any proceedings against a person for an offence against a provision of this Act or the regulations if the person proves that:

(a) it was not reasonably practicable for the person to comply with the provision, or

(b) the commission of the offence was due to causes over which the person had no control and against the happening of which it was impracticable for the person to make provision.”

[69] While this was the wording used at the time the 2000 OHS Act was enacted, s.8 was subsequently amended such that it subsequently was to read:

“8   Duties of employers

(1) Employees 

An employer must, so far as is reasonably practicable, ensure the health, safety and welfare at work of all the employees of the employer.

That duty extends (without limitation) to the following, so far as is reasonably practicable,: …”.

[70] Moreover, the 2000 OHS Act was also amended to introduce a new s.7A, which described the concept of ensuring health and safety in the following way:

“7A   The concept of ensuring health and safety

(1)  A duty imposed on a person by this Division (or by any other provision of or made under this Act) to ensure, so far as is reasonably practicable, health and safety requires the person:

(a)  to eliminate risks to health and safety so far as is reasonably practicable, and

(b)  if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable.

(2)  For the purposes of this Division (or of any such other provision), in determining what is (or was at a particular time) reasonably practicable in relation to ensuring health and safety, all relevant matters are to be taken into account and weighed up, including:

(a)  the likelihood of the hazard or the risk concerned occurring, and

(b)  the degree of harm that might result from the hazard or the risk, and

(c)  what the person concerned knows, or ought reasonably to know, about:

(i)  the hazard or the risk, and

(ii)  ways of eliminating or minimising the risk, and

(d)  the availability and suitability of ways to eliminate or minimise the risk, and

(e)  after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.”

[71] Sydney Trains contended that a “reasonably practicable” criterion should condition the duty in cl.35.2 of the Agreement and the Full Bench in the Appeal Decision said it was necessary to resolve whether the clause contains the implicit qualification that health and safety must be ensured only so far as is reasonably practicable. The words of the Agreement do not contain a “so far as is reasonably practicable” qualifier; those words simply are not there. Having regard to the words chosen for the Agreement, it is relevant to note aspects of submissions made, respectively, for the Union and Sydney Trains.

[72] The Union submitted that the words in cl.35.2 of the Agreement were introduced at a time when the parties, through their respective representatives, should be presumed to have known that the words they chose for inclusion in the Agreement were the words that had long been found in both the 1983 OHS Act and the 2000 OHS Act, being words which had been “overtaken by the completely different and qualified words” in the WHS Act. The Union submitted that, as a wider contextual indicator concerning the meaning of the words in cl.35.2, the fact the parties used the words from predecessor legislation contextually indicates they were intending “to do something much different from that which existed anyway” in the WHS Act (and the RSNL). I accept the submissions for the Union in such respects; the representatives for a major employer and employees, at least some of whom would have been represented by employed union officials, in the bargaining for the Agreement, should be presumed to have had an appreciation of the words chosen (i.e. representatives in the bargaining for the Agreement may be considered to be what are sometimes described as “sophisticated industrial parties”). In so accepting, all that followed in the wake of a judgment of the High Court to which reference was made in the proceedings, namely Kirk v Industrial Commission of New South Wales 14, cannot be overlooked or forgotten in such respects.

[73] Sydney Trains accepts that the language in cl.35.2 can be said to resemble the language in the former NSW OHS laws and referred also to defences that were available under those statutes to the effect that the measures which were required to be taken were those which were reasonably practicable. Clause 35.2, it was noted in Sydney Trains’ submissions, had its provenance in earlier agreements; as to that, Sydney Trains submitted it was likely cl.35 was intended to have been included to reflect the duty in the prevailing legislation - but with “inadvertent omission” of the qualification to the duty by reference to reasonable practicability found in the legislation.

[74] However it may have been that the wording of cl.35.2 came to pass (an informed decision on the Union’s submissions or an inadvertent omission on Sydney Trains’ submissions), the words provide as they do.

[75] I prefer and accept the submissions for the Union concerning the proper construction of cl.35.2 of the Agreement and, collaterally, do not accept the submissions for Sydney Trains which contended for a contrary conclusion.

[76] On the question of construction of the Agreement concerning the effective importing of the words “so far as is reasonably practicable”, I note that that particular phrase - and that particular phrase alone - has, as it were, been cherry-picked by Sydney Trains for inherent inclusion in cl.32.5. That is, Sydney Trains does not contend that all other components of the relevant sub-sections set out in the WHS Act and the RSNL are also imported into cl.35.2, albeit Sydney Trains submitted that the Agreement generally requires cooperation with respect to WHS matters – and I accept that the latter is the case.

[77] If I am wrong about the proper construction of cl.35.2 with the result that the sub-clause must, as a matter of proper construction, be conditioned by the words “so far as is reasonably practicable”, then I say the following. What is being proposed by Sydney Trains for the field trial does not ensure safety so far as is reasonably practicable. That much is clear from – and I re-emphasise it is common ground that the proposed arrangements introduce two new risks (in addition to the continuation of at least two identified prevailing risks) of significant work health and safety potential consequences. Paraphrasing an observation that was made in the Sweeting Report, significant safety incidents usually involve more than one thing going wrong; minimising risk so far as is reasonably practicable is best achieved using a mixture of control measures rather than attempting to achieve an outcome by relying on only one. Moreover, it was acknowledged that such an incident, although considered statistically unlikely in the probability scheme of things in the Axess Report (albeit I did not accept such analyses as being reliably based – and that finding was not disturbed in the Appeal Decision) could have occurred in the week that the field trial was then proposed to have proceeded.

Conclusion

[78] Having regard to the fact of the introduction of risk, I conclude that Sydney Trains cannot lawfully and reasonably direct relevant the ESOs (and to the extent relevant ESSs) to perform work in connection with the trial of the proposed sequential switching procedure having regard to its obligation under cl.35.2 of the Agreement. It is antithetical to contemporary notions of workplace health and safety that processes proposed to be implemented by an employer for efficiency-related reasons would introduce new and or additional risks that could result in catastrophic injury or death at the workplace.

[79] I note that Sydney Trains’ own case, in the initial proceedings and also in Sydney Trains’ submissions following the remit, variously referred to what it identified as deficiencies concerning the existing arrangements it now has in place. For instance, in the most recent, post-remit submissions, Sydney Trains advanced the following (references omitted):

“34. Guidance as to the construction of enterprise agreements may also be obtained by reference to principles which courts apply to the construction of commercial contracts. An interpretation which accords with business common sense will be preferred to one which does not. The interpretation contended for by the Applicant is too narrow, unyielding and incapable of sensible adaptation to the circumstances of Sydney Trains’ business.

35. One way in which the Commission might test the merit of the Applicant’s submission is to ask (rhetorically) how the Applicant’s case for retaining the current switching procedure is compatible with clause 35.2 in the face of the uncontradicted evidence that a risk presently exists in the current procedure from an overhead wire section being energised from an external source such as a train entering the dead section from a live section just as the switch is being opened from rail.

36. By way of further illustration, there is a risk inherent in the current procedure whereby at the last stage in the isolation process the Field Operator is required to move the switch at END 1 from open (position 2) to rail connect (position 3). This final switch operation at END 1 is preceded (and in that respect interrupted) by the isolation and rail connecting of the switch at END 2. There is no capacity to test for dead immediately prior to that last switching operation at END 1. As the Axess Report indicates, where multiple switching operations occur at END 1 (as they currently do), the risk of rail connecting the wrong switch exists under the existing process.

37. Does it follow that the employees currently working on switching tasks are doing so in accordance with an unlawful direction by reason of clause 35.2.”

[80] The question posed rhetorically in paragraph 37 of Sydney Trains’ submissions is not one to be answered by me; the Question before me is specific to what is being proposed in the field trial. To the extent that Sydney Trains has itself identified deficiencies concerning the existing arrangements, I can only but reiterate what was said in the Decision:

“[60] On a final note, and putting aside the proposed changes, some of the evidence suggested that safety-related improvements might be made in relation to the existing arrangements or that certain practices should be phased-out. Sydney Trains may wish to review the evidence in the proceedings in such respects, if it has not done so already. Moreover, Sydney Trains’ own outlines of opening and closing submissions identify that there may be certain risk issues with current arrangements, albeit the employees otherwise apparently consider the current arrangements to be safe. One way or the other, if the current arrangements are deemed by Sydney Trains to involve risk in the manner described in its case, Sydney Trains is, of course, bound to address that risk. It may be noted, in such respects, that the Union’s evidence and reply submissions suggested a number of ways to address perceived risk - albeit Sydney Trains’ evidence and submissions were to the effect that circumstances militated against adoption of such suggestions or there were reasons why such matters would not be an “attractive/viable” option for Sydney Trains.”

[81] There was nothing in the evidence before me which would permit me to opine about how the proposed field trial could be made safe or, indeed, as safe as far as is reasonably practicable. Perhaps this is a matter for further consideration and consultation, including with a WHS regulator.

[82] As to the Question remitted to me by the Full Bench, namely, “Can Sydney Trains lawfully and reasonably direct relevant Electrical Systems Supervisors and Electrical Systems Operators to perform work in connection with the trial of the proposed sequential switching procedure having regard to its obligation under clause 35.2 of the Sydney Trains Enterprise Agreement 2018?”, I answer “No”. Moreover, that answer informs outstanding matters concerning rule 6 of the Safety Rules.

[83] The proceedings are now concluded.

COMMISSIONER

Hearing details:

On the papers.

Final written submissions:

4 June 2020.

Printed by authority of the Commonwealth Government Printer

<PR721026>

 1   Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Sydney Trains[2019] FWC 7871 (“the Decision”).

 2   The question posed for determination was: “[9. (b)] Does Rule 6 of the Rules – PR D 78101 General requirements for Electrical Work entitle an authorised person or person in a working party who considers that work in accordance with the Proposal [concerning the new switching system] cannot be done safely, or completed in a safe manner, to not commence or stop the work as the case may be?”.

 3   Sydney Trains v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia[2020] FWCFB 1315 (“the Appeal Decision”).

 4   Lend Lease Project Management and Construction (Australia) Pty Limited v Construction, Forestry, Mining and Energy Union[2015] FWCFB 1889 (“Lend Lease Decision”).

 5   Australian Rail Tram and Bus Industry Union v Sydney Trains [2020] FWC 1457 at [77] (“RTBU Decision”).

 6   Kucks v CSR (1996) IRCA 166; (1996) 66 IR 182 at 184.

 7   R v Darling Island Stevedoring & Lighterage Co Ltd; ex parte Halliday & Sullivan (1938) 60 CLR 601 At 621-622.

 8   Catholic Education Office Diocese of Parramatta v King [2014] FWCFB 2194.

 9   Transcript PN 2281.

 10 The Decision at paragraph [56].

 11 Appeal Decision at paragraph [20].

 12   Transcript PN1651-PN1656.

 13   Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited[2017] FWCFB 3005 at [114].

 14   Kirk v Industrial Commission of New South Wales [2010] HCA 1; 239 CLR 531.