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

[2019] FWC 7871

[2019] FWC 7871

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, 22 NOVEMBER 2019

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

Background

[1] It is apposite to outline some background to the application now before the Commission.

[2] On 27 August 2019, two Sydney Trains executive directors announced to certain staff that a trial of a proposed new switching system would take place over three nights commencing on 24 September 2019. On 5 September 2018, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (“the Union”) initially advised Sydney Trains that it was lodging a dispute within the meaning of the relevant enterprise agreement, namely the Sydney Trains Enterprise Agreement 2018 (“the Agreement”). The dispute notification letter referred to safety-related concerns about the trialling by Sydney Trains of proposed new sequential switching arrangements, relevantly as this would involve a new work procedure for isolating electrical equipment. As noted in the Union’s submission, employees consider the new procedure is unsafe and creates an (unacceptable) risk to health and safety of employees and therefore cannot be implemented.

[3] Steps in relation to such changes had been under consideration and/or development by Sydney Trains for at least a couple of years prior to that proposed field trial, and as early as what was described as the “2014 Solutions Workshop” when long-term solutions were discussed to address key issues that had caused a spate of then-recent significant delays across the rail network.

[4] The Union invoked the status quo provisions of clause 8 (Dispute Settlement Procedures) of the Agreement in connection with scheduled trialling of the new switching arrangements. Subsequently, various written communications were exchanged; and meetings, discussions and workshops were also held. The written communications included a more formal dispute notification from the Union on 24 September 2019 elaborating more particularly certain matters of concern.

[5] Among other communications, in an emailed response dated 28 September 2019 in answer to certain questions posed earlier by the Union, Sydney Trains advised that it had not accepted all the findings in two Sydney Trains-commissioned consultants’ reports (to which I will later return) concerning the proposed new switching arrangements - known as the “Sweeting Report” and the “Axess Report”.

[6] There were various written communications which issued, including correspondence from Sydney Trains to the Union and individual employees foreshadowing proceedings concerning unprotected industrial action absent agreement to participation in the field trial. The letters to the employees attached a document which they were to sign and date indicating whether the individual employee was willing to “participate in the rescheduled Field Trial of Sequential Switching as required”. For its part, the Union sent correspondence to Sydney Trains on 4 October 2019 seeking, among other matters, that Sydney Trains withdraw the letters to the individual employees and seeking confirmation that the dispute would be dealt with in accordance with the dispute procedure in the Agreement; the Union foreshadowed that if a “satisfactory response” was not received by 4.00pm on 9 October 2019 the Union may lodge an urgent application in the relevant tribunal or court.

[7] On 9 October 2019, the Union sent correspondence to Sydney Trains inquiring as to which findings in each of the consultants’ reports had not been accepted it, and requesting a copy of each report highlighting which findings had not been accepted by Sydney Trains. Shortly after the Union’s request for that information, Sydney Trains, at 4.28pm on Tuesday 9 October 2019, made an application pursuant to s.418 of the Fair Work Act 2009 (“the Act”) for an order that unprotected industrial action stop, not occur or not be organised. In its s.418 application, Sydney Trains identified it was seeking an order which would bind the Union and employees of Sydney Trains who: (a) are members, were members as at 9 October 2019, or are eligible to be members of the Union; and (b) are engaged by Sydney Trains in the role of Electrical System Operator (“ESO”) in accordance with the Agreement. The s.418 application also identified 18 individually-named employees.

[8] Among other matters, the s.418 application lodged by Sydney Trains contained the following text:

“4. Sydney Trains operates and maintains the rail infrastructure and operational rail network bounded by the Newcastle interchange, Lithgow and Bomaderry. It operates passenger services on lines bounded by Berowra, Richmond, Emu Plains, Leppington, Macarthur and Waterfall.

5. Sydney Trains employs ESOs to remotely control and monitor the flow of electricity across Sydney Trains’ electrical train network.

…

9. The Employees are refusing to participate in a field trial that Sydney Trains has informed them will occur in November 2019, which requires the Employees to perform work in accordance with the proposed sequential switching procedures.

10. Such refusal is threatened, impending or probable “industrial action”within the meaning of section 19 of the FW Act, in the form of:

a. the performance of work in a manner different from that in which it is customarily performed, being not performing work in accordance with Electricity Network Safety Rules (ENSR), as varied by the waiver approval number DSYD2019/13460[v2], the result of which is a restriction or limitation on the performance of work; and/or

b. a ban on the performance of work in relation to sequential switching procedures during a field trial, as directed by Sydney Trains; and/or

c. a refusal to perform work, specifically in accordance with the proposed sequential switching procedures during a field trial, as directed by Sydney Trains.

11. The Employees are being represented by the Union in relation to the proposed sequential switching procedures and field trial.

12. The industrial action by the Employees that is threatened, impending or probable will not be “protected industrial action” within the meaning of the FW Act as the requirements of Division 2 of Part 3-3 of the FW Act will not have not been met in relation to any such action.

13. Sydney Trains, as the employer of the Employees, is likely to be affected by the threatened, impending or probable industrial action. The threatened, impending or probable industrial action will impact Sydney Trains’ ability to maintain and upgrade its network, which will have a direct impact on the NSW public.”

[9] In circumstances where the Union had earlier invoked the status quo provision of the Agreement, the draft order proposed by Sydney Trains that was lodged with the s.418 application read in part:

“3. Industrial action to stop, not occur or be threatened

3.1 Each Employee must not engage in Industrial Action while this Order is in force.

3.2 The Union must take all reasonably practicable steps necessary and available to it under its Rules, or otherwise, to immediately advise Employees who are members of the Union that any Industrial Action must not be engaged in while this Order is in force.

3.3 By no later than 16:00 on [blank] October 2019, the Union must:

(a) provide a copy of this Order to its delegates engaged by Sydney Trains performing, or connected with, work in accordance with the Sequential Switching Procedure; and

(b) take all reasonably practicable steps necessary and available to it under its Rules to ensure delegates covered by this Order comply with this Order.

3.4 The Unions must advise Sydney Trains’ representative in writing by facsimile or by email by 16:00 on [blank] October 2019 of the steps taken to comply with paragraphs 3.2 and 3.3 of this Order, including: the form of notification (and, if written, its content), and the further steps it intends to take (if any) it intends to take to comply with the Order in respect of any Employee who, by that time, has not been notified.

4. Definition of Industrial Action

4.1 For the purposes of this Order, “Industrial Action” means any of the following:

(a) the performance of work by the Employees in a manner different from that in which it is customarily performed, by not performing work in accordance with the Electrical Network Safety Rules (ENSR) as varied by the waiver approval number DSYD2019/13460[v2], the result of which is a restriction or limitation on the performance of work;

(b) a ban, limitation, or restriction, by Employees on the performance of work in accordance with the Sequential Switching Procedure; or

(c) a ban, limitation, or restriction, by Employees on the acceptance of work in accordance with the Sequential Switching Procedure,

but does not include:

(d) protected industrial action within the meaning of section 408 of the Fair Work Act 2009;

(e) action by employees that is authorised or agreed to by or on behalf of Sydney Trains;

(f) action by an Employee if:

(i) the action was based on a reasonable concern by the Employee about an imminent risk to his or her health or safety; and

(ii) the Employee did not unreasonably fail to comply with a direction of Sydney Trains to perform other available work, whether at the same or another workplace, that was safe and appropriate for the Employee to perform. …”

[10] At 10.58am on Thursday 10 October 2019, namely the day following the lodgement of the s.418 application, the Union lodged an application of its own. The Union’s application was one made pursuant to s.739 of the Act to deal with a dispute with Sydney Trains under the dispute provisions of the Agreement.

[11] The Union characterised matters as to its views as to what the dispute was about in short form in the initiating process for its s.739 application, as follows:

“1. The Respondent (Sydney Trains) has proposed to implement a new Sequential Switching procedure in a series of Field Trials under an Electrical Network Safety Rules Waiver No. DSYD2019/13460[v2]. The CEPU disputes the implementation of the Sequential Switching procedure and the preparation of the waiver on the basis that a direction to perform the sequential switching procedure is not a reasonable direction and it is inconsistent with clause 35 and clause 2 of the Sydney Trains Enterprise Agreement 2018 (the Agreement.)

2. The proposed Sequential Switching procedure involves removing the existing ‘Isolate Prior to Rail Connect Control’ for switched rail connections. The change in procedure is described in 1500Vdc Switching Procedures and Arcing Hazards (Switching Procedure s Report) dated 14 November 2017.

3. Employees of Sydney Trains raised concerns in consultation about the proposed new Sequential Switching procedure including the validity of the Waiver under Sydney Trains’ Electrical Network Safety Rules (ENSR), reduced safety controls for human error, the application of the ENSR to the procedure, the duration of the waiver, and other concerns which the Applicant says were not adequately addressed under clause 7 of the Agreement.

4. On 24 September 2019, the Applicant gave Sydney Trains written notice of a dispute under clause 8 of the Agreement. In that letter the Applicant invoked the status quo provision in clause 8 of the Agreement. Attached and marked E is a copy of that letter.

5. On 25 September 2019, Sydney Trains emailed its employees in the Maintenance Engineering Electrical Switching Team; the EOC Operator; and the ICON Duty Manager; advising that the scheduled Field Trial of Sequential Switching was postponed to an unspecified date. Attached and marked F is a copy of that correspondence.

6. Later on 25 September 2019, Sydney Trains sent a letter to the Applicant, advising that it did not consider the dispute falls within the scope of clause 8 of the Agreement and that it disputes the concerns raised by the Applicant. Attached and marked G is a copy of that correspondence.

7. On 30 September 2019 the Applicant responded to Sydney Trains’ correspondence. Attached and marked H is a copy of that correspondence.

8. On 1 October 2019, Sydney Trains responded to the Applicant’s notice of dispute with two letters of the same date. Sydney Trains also wrote to each impacted employee and advised both that it would not comply with the status quo provisions of the Agreement. Attached and marked I is a copy of that correspondence.

9. Sydney Trains has postponed the Field Trial to an unspecified date in November 2019. The Sequential Switching process scheduled to be trialed [sic] in November remains in dispute.”

The interaction of the s.418 and s.739 applications

[12] As may be seen from what has been set out above, matters about the proposed trial were escalating in circumstances where there was no agreement about the proposed field trial. The Union had invoked the status quo provisions of dispute settlement procedures of the Agreement concerning the trial (albeit Sydney Trains advised it did not accept the dispute was one to which the dispute settlement procedure applied). Sydney Trains lodged a s.418 application - one effect of which was to characterise the invocation of the status quo provision of the Agreement and the employees’ refusal to participate in the field trial as unprotected industrial action. For its part, the Union then lodged a s.739 application to deal with the dispute.

[13] Both the s.418 and s.739 applications were allocated to me, and listed together initially on Thursday, 10 October 2019. Following discussions between the parties themselves, the s.418 application was withdrawn by Sydney Trains in proceedings later that same day. The parties advised me it was their joint position that certain matters should be the subject of proposed directions for a hearing in connection with the related s.739 dispute matter. Further, Sydney Trains agreed not to take steps concerning any field trial (scheduled to commence on 26 November 2019) pending the determination of the s.739 dispute.

[14] While directions were made by me by consent and arbitration timetabling arranged, the s.739 matter was separately and subsequently the subject of a number of conferences and/or site inspections by another member of the Commission, to whom I am indebted, namely Commissioner Riordan - albeit, as would be clear from the fact the matter proceeded to hearing before me, resolution was not reached.

[15] The determination of the dispute before the Commission is time-sensitive. Final oral submissions were made on Monday of this week; and final written materials were filed yesterday - in circumstances where Sydney Trains wishes to commence field trials next Tuesday, 26 November 2019.

The s.739 application

[16] It is common ground between the parties that the Commission is relevantly empowered by the dispute settlement procedure of the Agreement to determine key issues in dispute and, moreover, should do so (with the exception of certain questions about two items of legislation, where there is no common ground). This is so notwithstanding:

•  that Sydney Trains had earlier written various items of correspondence to the Union and/or the ESOs personally, the effect of which was to advise that it did not accept the dispute settlement procedure applied and foreshadowing urgent proceedings concerning unprotected industrial action absent confirmation of agreement by 4.00pm on 4 October 2019 to participate in the November 2019 field trial; and

•  certain expressions of concern canvassed by me, including that the Commission is not a workplace health and safety regulator. In response to questions raised by me, I was informed in proceedings that SafeWork NSW has determined to await consideration of certain matters pending the outcome of these proceedings before the Commission. Subsequently, I was provided with more detailed, written advice about such matters in a note that was jointly-prepared by the parties. Shortly stated, that note confirmed that SafeWork NSW has advised it would investigate the proposed new switching arrangements, but would not take any further steps pending the decision in these proceedings.

[17] Relevantly, in its final written submissions, Sydney Trains accepted that the Commission is entitled to deal with the competing contentions of the parties about Rule 6 in Sydney Trains’ “PR D 78101 General Requirements for Electrical Work” as part of the determination of these proceedings.

The evidence

[18] In the proceedings, each party adduced multi-layered evidence and made detailed submissions concerning their competing contentions. That evidence was, in turn, the subject of close cross-examination as to the detail of certain matters.

[19] The Union led evidence from the following three employees of Sydney Trains:

•  Christopher Newton, Electrical Systems Supervisor (“ESS”), whose current role is to supervise ESOs and make the final decisions of the network;

•  Andrew Radford, ESS at Infrastructure Control Centre in Green Square, and who would have responsibility for the ESOs who would implement the procedure proposed to be introduced by Sydney Trains; and

•  Ken Owen, an ESO who works in Sydney Trains Operating Centre and who has responsibility for controlling the entire Sydney Trains electrical network, including the matters detailed in his witness statement.

The Union also led evidence from Phillip Oswald, who has had a varied employment history in the electrical/electrical engineering area, most recently (prior to his retirement in 2015) with Ausgrid.

[20] Sydney Trains led evidence from the following two employees of Sydney Trains:

•  Dale Curran, Associate Director, Network Operations within the Network Maintenance Division of the Engineering and Maintenance Directorate; and

•  Paul Swift, Technical Specialist on the Electrical Isolation Improvement Program, including the project known as Sequential Switching.

[21] Sydney Trains also led evidence from Peter Griffin, who works as a senior consultant with Arup Pty Ltd (and was formerly employed by Sydney Trains). Mr Griffin had involvement as one of the two reviewers of a report authored by Dierk Hartmann titled “EIIP [Electrical Isolation Improvement Project] Sequential Switching - Independent Safety Assessment” (“the Axess Report”). Axess Advisory is a risk management business which considered matters associated with changes to switching arrangements. Mr Griffin was engaged independently by Sydney Trains to provide technical advice to Axess.

[22] An “Inspection and test report on 1500 DC switching procedures and arching hazards” was also in evidence before the Commission (“the Sweeting Report”). The final version of the Sweeting Report had been prepared for Sydney Trains on 14 November 2017 by Professor David Sweeting of Sweeting Consulting Pty Ltd (i.e. before the final, 4 June 2018, Axess Report). While Professor Sweeting did not prepare a witness statement or otherwise give evidence in the proceedings, his report featured in various aspects of the evidence and submissions.

The consultants’ reports

[23] Mr Curran’s evidence succinctly described what would be involved in the proposed sequential switching as follows:

“40. … Sequential switching involves the following process:

(a) ESOs will remotely open all supplying circuit breakers, cutting the flow of power to the network;

(b) the Field Staff will, under instruction from the ESO prove dead the wire at the switch at the first end of the section and, if the test confirms that there is no electricity, will Isolate and then Rail Connect that section at the switch; and

(c) if the team of Field Staff is working alone, they will then drive to the other end of the section and repeat step (b) for the opposite end of the section. Alternatively, the ESO will call the Field Staff stationed at the other end of the section and direct them to perform step (b) to the switch at that end.”

[24] The kernel of some technical and operational matters was otherwise conveniently set out in the executive summary of the Sweeting Report as follows:

“Historically, Sydney Trains’ operating procedures for the removal and restoration of 1500 DC overhead wiring (OHW) supply have involved step-by-step switching operations being carried out at the two ends of the section to be isolated. Sydney Trains is now proposing to streamline these procedures so that switching operations can be carried out sequentially. This proposed sequential switching procedure will allow authorised field staff to operate isolating switches from closed to open to rail in a single sequence, without first isolating the other end(s) of a 1500V OHW.”

[25] The operational context was described in the Sweeting Report the following way:

“When Sydney Trains takes out a train line for maintenance or project work, a series of operating tasks are performed that makes the line safe for mandated maintenance and construction activities.

Sydney Trains feeds each section of the OHW from both ends on all main lines. When power needs to be removed from a section, an electrical system operator (ESO) first de-energises the OHW at both ends by tripping circuit breakers remotely. An authorised person (AP) then manually disconnects, or isolates, the OHW at the end where they are standing, leaving that end isolated and the other end only de-energised. The current procedure is that the other end is then isolated and earthed by connecting to rail, before the first end is also rail-connected.

The Model WHS Regulations require electrical equipment to be tested dead by a competent person before electrical work is carried-out. They also require all exposed parts to be treated as energised until they are isolated and any high-voltage exposed part to be earthed after being de-energised. While 1500V DC is nominally low voltage, Sydney Trains use the high voltage practice of earthing the OHW to the rail in each line section.”

[26] The Sweeting Report described the purpose of advice in the report, including the areas of particular interest, namely:

“•  an expert opinion on the safety risk between the current and proposed methods of making the rail section safe for work, along with recommendations to control the risk

•  the safety and equipment impacts of opening the isolator switch under load and closing the isolating switch onto a fault

•  review of the failure modes associated with switching, including hazards, their causes and proposed controls, together with an assessment of the resultant worst case credible consequences.” (My emphasis)

[27] The “resultant worst case credible consequences” described in the findings of the Sweeting Report, as to individuals, was as follows:

“•  The worst case credible consequence caused by the failure of multiple layers of overlapping controls resulting from an arcing fault incident is severe burns over the torso of the victim when the PPE [personal protective equipment] is ignited and does not self-extinguish.”

[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.”

[29] The Sweeting Report recommended that the risk is minimised so far as is reasonably practicable by:

•  the Lexan screen providing time for the authorised person to leave;

•  the personal protective equipment self-extinguishing;

•  a face shield with chin guard to protect the face and head.

[30] In its executive summary, the Axess Report described certain matters as follows:

“The Electrical Isolation Improvement Project (EIIP) is proposing the removal of the existing ‘Isolate Prior to Rail Connect Control’ for switched rail connections. Under the proposed electrical isolation process the overhead wire (OHW) will be switched to rail within one sequence at both ends of a section instead of the current process of isolating the first location, rail connecting the second connection and the rail connecting the first location.

…

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.”

[31] The reference in the Axess Report to “incremental risks” means the effectively simultaneous occurrence of a combination of certain events. Following some discussion of relevant matters, various matters were identified in the executive summary. These included the following:

“We conclude that the likelihood of the associated risks occurring simultaneously with the proposed sequential switching process is “Almost Unprecedented” respectively incredibly unlikely”[sic].

In the incredibly unlikely event of an arcing fault developing whilst switching, there could be a risk of injury to the operator. The worst credible consequence is “Major Consequences”. The Almost Unprecedented likelihood means there is a statistical likelihood of one occurrence of an arc burn in approximately every 14,000 to 15,000 years with the worst credible consequence of severe burns to the switch operator’s torso, arms and face. In accordance with Transport for NSW’s risk assessment T MU MD 20002 ST, the Risk Rating for the proposed sequential switching process is assessed as “Broadly Acceptable”, risk rating “D”.

The risk rating of “D” represents a reduction from the EIIP’s assessment, according to which both the existing electrical isolation process and the proposed sequential switching process are assess as carrying a risk rating of “Medium - Tolerable” risk rating “C”, with a likelihood of an incident occurring every 10 to 100 years.

According to the calculation provided in section 3.1.2 of this report, the likelihood of an event is significantly smaller than once every 10 to 100 years, which reduces the risk rating from “C” to “D”.

…

A key recommendation of our safety assurance assessment is that self-extinguishing PPE should be worn by Field Operators to improve the safety of both the existing electrical isolation process and the proposed electrical isolation. On account of the incredibly low likelihood of an incident with the worst credible consequences to occur, it appears overly conservative to recommend the mandatory wearing of face masks with chin guards. We recommend Field Operators are made aware of the worst possible consequences and actions to minimise them and that face mask and chin guards are made available to those Field Operators who opt to wear them.”

[32] Axess and Arup concluded that, subject to adherence to certain identified matters, Sydney Trains’ proposed sequential switching process is safe so far as is reasonably practicable to proceed to trial. Information in materials that were in evidence as to what would happen after the field trial indicates that “Subject to the outcome, the business will proceed to a full scale deployment.”

[33] It may be noted that Mr Griffin, for the reasons he described in his evidence before the Commission, disagreed with, among other matters, some of Professor Sweeting’s analyses of, or opinions about, what would occur in certain scenarios. The Axess Report identifies, for example at page 21, certain differences in the assessments of Mr Griffins and Professor Sweeting. That is, Sydney Trains’ two experts are not at one on the scenario outcome(s), albeit, it must squarely also be noted, they are otherwise at one in propositioning that the proposed sequential switching process is appropriate for introduction in place of the current process. Separately, as noted earlier, in an emailed response dated 28 September 2019 in answer to certain questions posed earlier by the Union, Sydney Trains advised that it had not accepted all the findings in either the Sweeting Report or the Axess Report. On 31 October 2019, Sydney Trains later advised the Union as follows:

“Sydney Trains obtains expert reports such as these two reports to inform its decision-making. It does not accept or reject the reports once received, but include their contents in its consideration. As such, Sydney Trains has noted the contents of these reports.”

[34] I am bound to note that, in the end, it remained unclear to me which parts of the Sydney Trains’ own consultants’ (at times conflicting) reports were accepted by it, and which parts were not accepted - other than, and I do not say this facetiously, those parts of the consultants’ reports which favoured the introduction of its proposed changes. There is nothing before me to indicate, for instance, whether the trial Sydney Trains wishes to commence next Tuesday (26 November 2019) is also proposed to involve Field Operators wearing arc-rated clothing and gloves (as recommended in both reports) or, alternatively, arc-rated clothing and gloves, and a face shield with chin guard to protect the face and head (as recommended in the Sweeting Report but not in the Axess Report). Alternatively, is Sydney Trains proposing, as the Axess Report recommended, that “Field Operators should be made fully aware of the worst credible consequence and the events that can cause an incident that results in such an incident [sic] and face masks with chin guard should be made available to those Field Operators who wish to wear it [sic].”?

[35] Neither the Sweeting Report nor the Axess Report concluded that fatality could be a worst credible consequence - being conclusions (or the omission of conclusions) which I, for one, question - given the other conclusions including, for example, serious body and facial burns, and burning clothing. For example, there is reference in the Axess Report to fatality caused by burns to the lungs as a result of the pressure wave from an electric arcing incident – but seems to discount this in an open-air environment as opposed to enclosed, non-ventilated environments – and in so doing relied on confirmation given by Professor Sweeting to EIIP. Although not addressed in the consultants’ reports what, perhaps, as to burns-related sight impairment or blinding for an employee not wearing face protection, or a burns-related death or injury-triggered cardiac arrest resulting in death? For its part, the Union in its correspondence to Sydney Trains of 24 September 2019 expressed concern about “potential vision loss, hearing loss, heat burns shock and/or death.”

[36] The Axess Report postulates that the likelihood of an incident is so remote that it should be optional for Field Operators to minimise the risk to facial/head injury (i.e. in the manner propounded by Professor Sweeting, namely, a face shield with chin guard to protect the face and head), whereas the report otherwise recommends, as noted earlier, that as a protective measure Field Operators “should wear the recommended arc rated clothing and gloves”. That is, the Axess Report indicates “Field Operators should be made fully aware of the worst credible consequence and the events that can cause an incident that results in such an incident [sic] and face masks with chin guard should be made available to those Field Operators who wish to wear it [sic].”). I also consider it internally inconsistent to recommend that PPE in the nature arc-rated clothing and arc-rated gloves should be worn if the risk is indeed, as the Axess Report describes matters, so “incredibly unlikely” - but not chin/face/head PPE. I consider it a surprising proposition that the use of any PPE should be treated as an optional matter. In passing, I would also venture the observation (and I put it no higher than that) that Sydney Trains’ WHS obligations would not be met merely by making Field Operators fully aware of the worst credible consequences - and, hand-in-hand with that advice, making PPE available to them as an option. In such respects, I note that the Axess Report indicates that Endeavour Energy makes arc-rated clothing mandatory for staff and contractor staff working near or on its installations as a result of burn injuries while working on or near energised network apparatus; and Ausgrid similarly requires all people who work on or near its network to wear arc-rated clothing to protect them in the event of exposure to an electrical arcing fault.

[37] If the risks under the proposed changes are so “incredibly unlikely”, one might ask why should any form of PPE be needed by the Field Operators or otherwise be differentiated as between clothing/gloves and chin/face/head? In that regard, Professor Sweeting described that it was the gases emanating from burning PPE (before self-extinguishment when the employee leaves the immediate vicinity of the arc plasma) which would create the hazard which resulted in the recommendations for a face shield to protect the face and head. The Sweeting Report put matters in this way, for example: “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”. Elsewhere in the Axess Report, observations are made that: “This plasma could cause severe burns over the torso, arms and face of a Field Operator if PPE is ignited and does not self-extinguish. Whilst the PPE is exposed to plasma, it may continue to burn and emit hot gases which will rise towards the operators [sic] face until the arc is extinguished or the operator moves away.” Similarly, towards the end of the Axess Report, there is discussion of the use of self-extinguishing PPE which is, for example, tested for ignition by arc plasma of up to 6000 degrees centigrade and includes a face shield with chin guard in compliance with IEC61482.1 to protect the face and head. Those involved in the Axess Report stated:

“Following reassessment of the likelihood of an unintended energisation event of a section under authority, we think it is defensible that the above PPE is worn without the face mask and chin guard.

We note that this is a departure from the recommendations of the Sweeting report. We understand that the Sweeting report makes the recommendation for wearing the face mask with chin guard in consideration of the worst credible consequence only, without assessment of the likelihood of such an event.”

[38] The Axess Report outlines certain “Controls to be implemented for the Field Trial”. Included as the third control of the self-extinguishing PPE as earlier described (without a face mask and chin guard); and as the sixth control:

“6. Ensure Field Operator’s awareness of the safety change introduced by the proposed sequential switching process, including instructions to minimise arc hazards should a switch be opened under load or closed to a fault:

a. Switching without hesitation; and

b. Opening or closing switches swiftly without reversing the commenced switching action; and

c. In the unlikely event of arcing occurring, immediately move from the area;”

[39] As to these controls recommended above in the Axess Report, Mr Newton commented in paragraph 31 of his evidence-in-chief (which I have bolded):

“a. Switching without hesitation: this is normal procedure.

b. Opening or closing switches swiftly without reversing the commenced switching action: A Field Operator only ever opens a switch and never reverses it without speaking to an ESO first.

c. In the unlikely event of arcing occurring, immediately move from the area: by the time this happens especially for low mounted switches it is too late to move away.”

[40] While Sydney Trains objected to Mr Newton’s evidence at paragraph 31(c), I note that it is concordant with aspects of the Sweeting Report, for example, in its references to sending 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. The Axess Report notes the Sweeting Report points out that the energy can hit the operator from below the Lexan screen (i.e. before the Lexan screen disintegrates in a indeterminable matter of seconds) and cause the operator’s clothing to catch fire.

Reasons for the proposed changes

[41] For its part, Sydney Trains wishes to conduct a trial or trials in the first instance and, subject to the outcome of the trial, implement the new processes for, compendiously-described, efficiency-related reasons. The reasons thereto were outlined in, for instance, the evidence-in-chief of Mr Curran, which also touched-upon certain safety-related matters. That evidence read:

“45. The benefits of the PSSP [Proposed Sequential Switching Process] as compared to the current switching procedure includes:

(a) time savings, because it reduces the number of steps in the process, including phone calls and/or travel;

(b) less room for error during conversations between ESOs and Field Staff and subsequent switching operations;

(c) if the team of Field Staff is working alone, there will be less trips from one end of the section to the other - less trips between switches means less risk of harm while driving between switches; and

(d) more closely aligns with the ENSR [Electrical Network Safety Rules] operating procedures requiring the section to be proven dead immediately prior to rail connecting.

46. In relation to the benefit that PSSP has less room for error during conversations between ESOs and Field Staff and subsequent switching operations, of the four incidents that have occurred in relation to switching since July 2017, all of these were caused by a miscommunication or human error in relation to a misunderstanding of the communication between ESOs and Field Staff. Given that there are a reduced number of communications required, it follows that there are less opportunities for miscommunication and misunderstanding to occur. It follows that less chances for miscommunication reduces overall risk of miscommunication.

47. In terms of time savings, PSSP has been calculated to provide at least a one third reduction of time required, regardless of how many teams of Field Staff are working on the switching, simply because it removes one of the three switching, communications and travel events when compared to the existing process. Simulations of the process involving ESOs and Field Staff indicated that this benefit could actually be even greater in a real-life situation depending on how the switching is performed. This benefit could enable Sydney Trains to perform more work within the outage time, or reduce staff require[d] for the switching, allowing them to be redeployed to perform electrical maintenance work, a choice which the business does not currently have[.]

48. Sequential switching is an interim step before Sydney Trains is able to move to a switching process that is entirely remote controlled by the ESOs from the EOC. However, remote switching will take a decade or more to roll out across the network, and the rail industry needs faster access for upgrade and maintenance sooner to deliver for our customers. Sequential switching can be implemented immediately, with efficiency benefits being realised from that time onwards. Remote switching would eliminate the safety risk associated with electrical operating work to Field Staff altogether and make the process the most efficient it can be.”

[42] The Sweeting Report did not address efficiency considerations of the type to which Mr Curran referred; and the Axess Report considered analysis of economic efficiencies to be “out of scope” (p 24) except as they may potentially impact, for example, on certain hazards. The Axess Report also noted that during a “stakeholder workshop, ESOs and Field Operators where [sic] of the opinion that these incidental benefits of the proposed sequential switching system should not be considered in the safety process as they do not have a direct impact on the safety of the switch operations.” In the end, the Axess Report described matters in the following way: “This assessment remains agnostic to the potential time savings of the proposed sequential switching process. While there are human factors implications regarding the overall process, they are deemed to have no direct impact on the argument whether the proposed process is safe so far as is reasonably practicable.” Hence, some of the matters referred to in Mr Curran’s evidence about extracted above about safety-related matters are his own opinion - they are not derived from either of the consultants’ reports. Sydney Trains was, in effect, critical of the Union’s witnesses giving their opinion about matters.

[43] The evidence led by the Union questioned matters which were advanced in the case for Sydney Trains as resulting in safety enhancements that would be brought about by the sequential switching process. For example, Mr Newton’s evidence was:

“28. In the Conclusion of section 5 of the Axess report it states that the sequential switching process reduces the number of communications between ESOs and Field Operators and thus reduces the potential for misunderstanding. In my experience I don’t see how it reduces the potential for misunderstandings.”

The evidence

[44] The employees of Sydney Trains called by the Union in the proceedings gave evidence of their safety-related concerns about the proposals, as did Mr Oswald (albeit Ausgrid, which was where he was most recently employed, uses electrical operating methods different from those used by Sydney Trains; unlike Sydney Trains’ 1500V direct current system, Ausgrid uses a high voltage alternating current system). Mr Oswald also gave evidence about an Ausgrid employee whom he knew personally who survived an arc flash albeit with burns to about 80 percent of his body and who, among other consequences, was continually in-and-out of hospital for skin grafts.

[45] Sydney Trains’ witnesses addressed reasons why it was appropriate, indeed desirable, to introduce the new proposals.

[46] Apart from those matters which were common ground, each of the witnesses expressed their own views about general matters. There was also micro-detail about specific processes and outcomes, much of it in dispute. The evidence was, put colloquially, “all over the place” in terms of what it said about, for example, existing and proposed processes and procedures, and outcomes. I do not say “all over the place” that in any pejorative sense; this was, writ large, a case of reasonable, well-informed minds reasonably - and sharply - differing about matters of substantial safety significance. As noted earlier, even Sydney Trains’ own expert consultants differed in their views about certain matters. I will return to matters touched upon in this paragraph in my conclusions concerning the matters sought to be determined.

List of issues

[47] In advance of the hearing, the Union prepared a “List of Issues”. Relevantly, the Union identified certain matters which it nominated as arising for determination by the Commission. In the end, the Union pressed for the determination of the smaller number of matters below which are not in strike-over:

“1. Is a dispute over:

(a) the implementation of a new Sequential Switching Procedure under the Electrical Network Safety Rules Waiver No. DSYD2019/13460[v2];

(b) the implementation of a proposal to remove the existing ‘Isolate Prior to Rail Connect Control’ for switched rail connections; and

(c) the introduction of a field trial in relation to (a) and (b)

(collectively referred to as the Proposal) a dispute about matters pertaining to the relationship between an employer and its employees or a dispute about the operation and application of the Sydney Trains Enterprise Agreement 2018 (Agreement) to which cl.8 of the Agreement applies?

2. If the answer to issue 1 is yes, then is Sydney Trains obliged to maintain the status quo by refraining from implementing the Proposal until such time as the dispute is resolved under clause 8?

3. Will the implementation of the Proposal mean that Sydney Trains will be failing to:

(a) ensure the health, safety and welfare at work of all its employees, contrary to clause 35.2 of the Agreement?

(b) ensure so far as reasonably practicable the health and safety of all its employees contrary to ss.19(1) of the Work Health & Safety Act (NSW) 2011 (Act)?

(c) ensure so far as is reasonably practicable the safety of Sydney Trains railway operations contrary to ss.52(1) of the Rail Safety National Law (Law)?

(d) conform to the provisions of the Electrical Safety Rules (Rules) that are applicable to its railway operations?

(e) consult with employees contrary to:

(i) clause 7 of the Agreement

(ii) clause 47 of the Work Health and Safety Act 2011 (NSW)

(iii) the conditions of Waiver No DSYD2019/13460[v2]

4. If the answer to 3 or any part of 3 is yes, is Sydney Trains entitled to introduce the Proposal?

5. Is the risk of being exposed to live electrical current or flash over eliminated or minimised by completely isolating energised power lines to the same extent as when a 1500V Direct Current Circuit Breaker is used?

6. In particular, is the risk of using a 1500V Direct Current Circuit Breaker in order to work on switches greater than if energised power lines are completely isolated because in using a 1500V Direct Current Circuit breaker the possibility of accidental closure of the circuit breaker or of incorrect indications is always in prospect whereby those possibilities are not present when energised lines are completely isolated?

7. Is the new Sequential Switching Procedure under Waiver No. DSYD2019/13460[v2] as safe as the ‘Isolate Prior to Rail Connect Control’ for switched rail connections?

8. If the answer to 6 or 7 is no, then do the Rules permit Sydney Trains to implement the Proposal?

9. In particular:

(a) does Rule 3 of the Rules – PR D 78101 General Requirements for Electrical Work permit Sydney Trains to implement Waiver No. DSYD2019/13460[v2]?

(b) Does Rule 6 of the Rules – PR D 78101 General Requirements for Electrical Work entitle any authorised person or person in a working party who considers that work in accordance with the Proposal cannot be done safely, or completed in a safe manner, to not commence or stop the work as the case may be?

10. Is Waiver No. DSYD2019/13460[v2] sufficiently specific as to the location of the Proposal?”

[48] For its part, Sydney Trains submitted that the ultimate issue for determination is properly concerned with whether the Agreement prevents Sydney Trains from requiring employees to perform work in accordance with the sequential switching process as part of a Field Trial, and, if the answer is “no”, whether such a requirement is reasonable having regard to considerations of safety. The Union did not agree with that characterisation.

Consideration of the List of Issues

[49] Notwithstanding all that was advanced in the proceeding by each of the parties, matters fall, and indeed properly must fall, in my view, on the question posed in 9(b) of the List of Issues.

[50] Rule 6, to which question 9(b) refers, is set out in a document titled “PR D 78101 General Requirements for Electrical Work”. Rule 6 reads as follows:

“6 Safety first

At all times and in all workplaces, workers have a duty to take reasonable care of their own health and safety while at work and also to take reasonable care so that their conduct does not adversely affect the health and safety of other persons at the workplace.

As most accidents result from lack of care by the worker injured or by some other person, workers are cautioned not to allow familiarity with the work to give rise to carelessness.

Workers must keep their mind focussed on the work, particularly when:

•  operating electrical equipment;

•  working on, near or in the vicinity of live equipment;

•  working near cables, cable pits or cable chambers; or

•  when working aloft.

If for any reason:

•  an Authorised Person;

•  any person in the work party; or

•  a Manager directly associate with the work who has currency of knowledge about the project, people, processes, tasks, hazards and work site conditions,

considers that the work cannot be done or completed in a safe manner, then the work shall not be commenced or the work shall stop as the case may be. Arrangements shall then be made for the work to be carried out in a safe manner.”

[51] Rule 6 reads as it does in specifying that if, for any reason, a relevant employee considers that the work cannot be done or completed in a safe manner, then the work shall not be commenced or the work shall stop as the case may be. Sydney Trains submitted that these words should, in effect, be conditioned to mean other than as written. That is, the submissions for Sydney Trains were to the effect that if Sydney Trains considered, or the Commission considered (or perhaps a consultant considered), that the work could be undertaken in a safe manner then the individual employee-focussed obligation would not operate: but that is not what Rule 6 provides.

[52] To the extent Sydney Trains submitted that a type of “objectively reasonable” criterion must be read into that part of Rule 6 which reads “If for any reason”, I say the following. No part of Sydney Trains’ case contended that the employees’ concerns are not bona fide. As the Axess report noted, “the ESOs, who give the switching instructions to the Field Operators and thereby accept a high degree of responsibility for the well-being of Field Operators, believe the proposed electrical isolation process is less safe than the present process.” It is apposite to note, in such respects, that there is nothing in the background, as it were, to this safety dispute or the concerns held by the employees. Put another way - and this was a matter of common ground in the proceedings - there is no “hidden agenda” here for the employees or the Union. There are, for example, no enterprise agreement negotiations on foot involving pay and conditions, no separate background disputation between the employees or the Union and Sydney Trains about workplace matters, no contentions that the proposed arrangements would involve additional work for the employees or additional uncompensated work, and no redundancies or the like envisaged as a result of the introduction of Sydney Trains’ proposed changes. The ESO’s concerns are for the safety of the Field Officers.

[53] Moreover, there is nothing to indicate that the employees’ concerns are unreasonably-held or otherwise objectively unreasonable. Two observations may be made in such respects, The first observation is that the Axess Report itself notes that new risks would be introduced with the implementation of the proposals. That is, the Axess Report identifies that:

“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.” (my emphasis)

[54] The second observation that may be made, or perhaps more accurately, a finding made, is that I do not accept as being reliably-based those parts of the Axess Report which propositioned that the likelihood of an incident with the potential of causing the worst credible consequence is once in 14,000 to 15,000 years. The Axess Report notes that it was following discussion with David Stewart-Smith of Arup between 24 May and 4 June 2018 the likelihood of unintended or accidental energisation of the section under isolation was calculated in the manner described in the pages 11 to 13 of that report. There was no evidence as to what Mr Stewart-said in such respects. The Axess Report noted that the likelihood assessment was based on advice from the technical advisers - one of whom, apparently, was Mr Griffin also of Arup. Mr Griffin’s evidence indicated that he and Mr Hartmann prepared the Axess Report and Mr Stuart-Smith provided a peer review of his input.

[55] Some of the assumptions that fed into arriving at this likelihood and associated assessment of risk rating did not fare at all well in the glare of cross-examination of Mr Griffin. The Axess Report notes that the assessment by those involved in Sydney Trains’ Electrical Isolation Improvement Project (i.e. people who actually work at Sydney Trains) was that the likelihood of an incident was once in 10 to 100 years, whereas the Axess Report concluded the likelihood was once in 14,000 to 15,000 years. Regardless of whether the likelihood is once in 10 to 100 years or once in 14,000 to 15,000 years, the proposals, if implemented, introduce (at least) two new risks which could potentially result, for Field Operators, in catastrophic injury or death; and even if it were the case that the likelihood of an incident occurring was only once in 14,000 to 15,000 years, it was conceded that such incident could occur in, for instance, the “next week” (being the first week of the trial implementation of the proposals). The Sweeting Report described in dry, technical-type words - which are nonetheless still startlingly dramatic - how the severe burns would likely occur in the hazard scenarios outlined in that report; Mr Oswald described some of the more personal impacts of such burns on a former work colleague who had survived an arc flash. Separately, it emerged in the proceedings that the bases for Mr Griffin’s differences of opinion with aspects of Professor Sweeting’s opinion included, for instance, events he had watched in 1969 at a time when he was an undergraduate cadet with a predecessor to what is now known as Sydney Trains. I do not say this to in any way disparage Mr Griffin’s opinion based on matters including work-related experiences; he is entitled to his own opinion based on work-related experiences, and, equally, so are the witnesses who gave evidence in the Union’s case.

[56] The is no proper basis to conclude that the views of, for instance, this Commission, the views of Sydney Trains’ management or the views of Sydney Trains’ consultant/s could supplant or displace the obligations in Rule 6 that repose individually in ESOs concerning undertaking their work in a way identified in the proposals. In this regard, it may be noted that evidence of Mr Curran fairly acknowledged that the operation of Rule 6 ultimately operated at a level of individuals’ own responsibilities.

[57] As noted earlier, question 9(b) asks: “Does Rule 6 of the Rules – PR D 78101 General Requirements for Electrical Work entitle any authorised person or person in a working party who considers that work in accordance with the Proposal cannot be done safely, or completed in a safe manner, to not commence or stop the work as the case may be?”. I answer this question “Yes”, and also add this: Not only does Rule 6 entitle an authorised person not to commence or to stop the work, Rule 6 requires that result. This is because Rule 6 specifies, in mandatory language, that the work shall not be commenced or the work shall stop as the case may be. No discretion - none at all - is bestowed by Rule 6 upon an employee to commence or continue the work if the employee has formed the requisite opinion that the work cannot be done or completed in a safe manner. (It otherwise would be unthinkable to, say, require any employee to undertake tasks if the employee has, as the employees in this case do, conscientiously-based concerns that the performance of work tasks cannot be done safely, or completed in a safe manner.) Moreover, Rule 6 further provides that, in such circumstances, arrangements shall then be made for the work to be carried out in a safe manner.

[58] In view of my conclusions about question 9(b), it is unnecessary to answer the other questions posed in the List of Issues, namely questions 3(a), 3(d), 4, 5, 6, 7 and 8. Even if it were open to me to make an evaluative assessment, rather than, say, either affirmatively or negatively answer questions 4, 5, 6, 7 and 8, I would not do so. Shortly stated, the evidence and submissions were of such a highly technical and complicated nature, and so contested on matters of technical, micro-detail, that I would not presume to pass upon such matters even though I have been invited to do so or it is agreed I may do so; the matters were indeterminable on what was before me. In any event, even if the matters had been determinable on what was before me, I would not make any decision which may result in it being perceived that the Commission had given its imprimatur to propositions that, as to the questions posed, something was, for example, “safe”, “not safe”, “as safe”, “compliant”, “not compliant”, “involves a material risk”, “does not involve a material risk” or the like. Similar considerations arise in relation to questions 3(a) and 3(d).

[59] As to questions 3(b) and 3(c), I accept Sydney Trains’ submissions that the Commission is not empowered by clause 8 of the Agreement to determine (or, perhaps more accurately, answer questions about or purport to determine) whether the implementation by Sydney Trains of the proposals would involve it failing to ensure so far as reasonably practicable the health and safety of all its employees contrary to s.19(1) of the Work Health and Safety Act 2011 (NSW) and/or toensure so far as is reasonably practicable the safety of Sydney Trains’ railway operations contrary to s.52(1) of the Rail Safety National Law. The dispute settlement procedures clause does not extend to determining, quasi-declaratory style, whether Sydney Trains’ proposed changes to work procedures would, if implemented, result in contraventions of those two statutes - being legislation which does not, in any event, fall within the jurisdictional remit of the Commission.

[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.

[61] The matter is determined on the preceding bases, and the proceedings are now concluded.

COMMISSIONER

Appearances:

R Reitano of counsel for Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.

S Meehan of counsel for Sydney Trains.

Hearing details:

2019.

Sydney:

November 11, 15, 18.

Final written submissions:

21 November 2019.

Printed by authority of the Commonwealth Government Printer

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