Metro Trains Melbourne Pty Ltd
[2015] FWC 6037
•2 SEPTEMBER 2015
| [2015] FWC 6037 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.424—Industrial action
Metro Trains Melbourne Pty Ltd
(B2015/1245)
COMMISSIONER GREGORY | MELBOURNE, 2 SEPTEMBER 2015 |
Application to suspend or terminate protected industrial action.
Introduction
[1] Metro Trains Melbourne Pty Ltd (“Metro Trains”) and the Australian Rail Tram and Bus Industry Union (“the RTBU”) have been involved in protracted negotiations about the establishment of a new enterprise agreement to cover the parties. On 16 July 2015 the Fair Work Commission made a protected action ballot order following an earlier application by the RTBU and, on 7 August 2015, the employees voted to authorise the industrial action contained in the ballot order. Various Notices of Intention to commence Industrial Action have been provided to Metro Trains since that time.
[2] These include a Notice provided to Metro Trains in correspondence dated 26 August from the RTBU which included:
“A ban on compliance with any direction or requirement to terminate a late running train service and send it back in the other direction for the purposes of timetable adjustment (a ban on short arrivals and short departures) other than for safety critical reasons, commencing at 00:01 on Thursday 3 September 2015 and concluding at 23:59 on Thursday 3 September 2015. The employees intending to engage in the protected action would be all employees who are employed in any grade as Train Drivers who are members of the RTBU and whose employment will be subject to the proposed agreement.” 1
[3] A further Notice provided to Metro Trains in correspondence from the RTBU on the following day included the following proposed protected industrial action:
“A 4 hour stoppage commencing at 10:00 on Friday 4 September 2015 and concluding at 14:00 on Friday 4 September 2015. The employees intending to engage in the protected action would be all employees who are members of the RTBU and whose employment will be subject to the proposed agreement, excluding employees who are employed in any grade as Train Drivers.
The RTBU will work with Metro to ensure the trains are run into the nearest/most appropriate yard, shunting location, depot, siding, loop or storage facility so that no train is left on a live running line during the stoppage. Train Drivers rostered to prepare trains during the hours of 10:00 to 14:00 will complete their train preparations to ensure trains are ready to commence service at 14:00. This will be done to reduce the impact and disruption to the travelling public. It is proposed that such action will commence at 10:00 and will occur during the period of the stoppage. The RTBU intends that all Metrol employees, Signallers and Train Controllers shall remain at work until the last train on the network has been taken off the network.” 2
[4] On 31 August 2015 Metro Trains made application under s.424 of the Fair Work Act 2009 for an order that the protected industrial action referred to above be terminated. The application was dealt with in a hearing on 1 September 2015 and a decision handed down in transcript at the conclusion of the hearing. The Commission now publishes that decision. It has been subject to appropriate editing without intending to change the intent of the decision.
[5] Mr F. Parry QC appeared on behalf Metro Trains. Mr H. Borenstein QC appeared on behalf of the RTBU. Both were granted permission to appear under s.596(2)(a) of the Act. Ms M. Richards and Ms J. Parker from the Victorian Government Solicitors’ Office also sought leave to intervene in the proceedings on behalf the Victorian Government. Leave was granted.
The Issue to be Determined
[6] Section 424 of the Fair Work Act provides, in part, in the context of this application:
“(1) The FWC must make an order suspending or terminating protected industrial action for a proposed enterprise agreement that:
(a) is being engaged in; or
(b) is threatened, impending or probable;
if the FWC is satisfied that the protected industrial action has threatened, is threatening, or would threaten:
(c) to endanger the life, the personal safety or health, or the welfare, of the population or of part of it” 3
[7] The application in this matter is made by Metro Trains on the basis that the protected industrial action, referred to above, that is proposed to be taken by the RTBU threatens to endanger the personal safety or health, or the welfare, of the population or of part of it. It seeks an order in response terminating the foreshadowed protected industrial action. The application is opposed by the RTBU.
The Evidence and Submissions
[8] Metro Trains relies on the evidence, in particular, of Mr Ranjit Bria, the Director of Operations at Metro Trains. His evidence indicates that 168,000 passengers would normally travel between the hours of 9.30 a.m. and 3 p.m. on a weekday and that the impact of the proposed industrial action to be taken on 4 September will likely extend significantly beyond the specified 4 hour period from 10am until 2pm as services are brought to an end in anticipation of the stoppage, and then normal services eventually resume. His evidence indicates that in excess of 200,000 passengers could actually be impacted.
[9] He also indicates that there is a degree of confusion about who will actually be involved in the stoppage, and it is possible that other services will have to be cancelled as a consequence. Potential increased absenteeism and the possibility of unexpected disruptions to the network are also likely to exacerbate the impact of the stoppage.
[10] His evidence also indicates that buses will be utilised in mitigation of the impact of the protected industrial action, however, their ability to act in mitigation is limited as there are only a finite number of buses available, and several individual bus services are required to counter the non-running of a single train service. His evidence is that 250 buses will be utilised, but they are only likely to assist approximately 17,000 passengers that would otherwise travel by train during the period of the stoppage.
[11] Mr Bria’s evidence also indicates that customers are likely to become “frustrated and anxious” by the impact of the stoppage. 4 He also makes reference to a number of other possible eventualities, including members of the public trespassing on rail tracks and rail property, possible delays extending throughout the day and impacting on services being provided to passengers attending the AFL match in the evening, as well as possible consequences that could emanate in circumstances where train services are utilised to assist in an evacuation from the city centre following an emergency incident. His evidence also suggests there will be a greater risk on the roads due to additional traffic congestion.
[12] He also said that school children, the disabled, and concession card holders, who typically use train services during the time of the stoppage and may have limited other travel options available, are groups likely to be particularly impacted.
[13] Evidence was also provided on behalf of Metro Trains by Ms Melissa Hogan about the nature of the negotiations that have taken place to date in regard to the establishment of a new enterprise agreement to cover the parties. Ms Hogan is the Special Projects IR Manager – People and Performance with Metro Trains, and her evidence detailed the progress or otherwise of the negotiations that have taken place between the parties since bargaining commenced in May of this year. She indicated that more than 20 formal bargaining meetings have taken place since that time.
[14] The submissions provided on behalf of Metro Trains also make reference to a number of authorities it submits are relevant to the determination of this matter. In dealing with the term “welfare of the population” it refers to the Full Bench decision of the Australian Industrial Relations Commission in Coal & Allied Operations v Construction, Forestry, Mining and Energy Union 5 (“Coal & Allied v CFMEU”) and the judgement of Guidice J in the following terms:
“The ordinary meaning of the expression ‘the welfare of the population’ is a general invocation of the considerations that go to the well being of the total number or body of the inhabitants of Australia. Any application of the expression to action threatening to endanger the welfare of a ‘part of’ the population must give adequate meaning to the generally inclusive character of the total number or body of the inhabitants inherent to the term ‘population’. There is grammatical infelicity in the wording of the paragraph. Danger to the life, or to the personal safety or health, of a ‘part of the population’, instead of to individuals, appears a cumbersome form of expression. But that awkwardness is no barrier to giving the reference to a part of the population its more collective meaning when it is found in the expression ‘welfare of the population’. Moreover, despite the generality of the concept ‘welfare of the population’, the phrase ‘is threatening to endanger’ imports a requirement for there to be a danger or peril to welfare. There needs to be a basis upon which it is reasonable to conclude, on an assessment of matters of fact and degree, that the collective welfare is in peril or danger.”
[15] It also refers to the Full Bench decision of Fair Work Australia in Victorian Hospitals Industrial Association v Australian Nursing Federation 6 in support of the submission that “personal safety or health” refers to a person’s physical or mental state and “Conduct that puts a person's physical or mental state at risk of material detriment - or that materially hinders or prevents improvement in a person's poor physical or mental state - may qualify as conduct that endangers personal health or safety.”7 It continues to submit that it “can scarcely be denied” that many people catch trains for health reasons.8
[16] In the dealing with the concept of “threat to endanger” it also refers to the decision of Senior Deputy President Kaufman in Metropolitan Ambulance Service v Liquor, Hospitality and Miscellaneous Union 9 and his reference in that decision to the Macquarie Dictionary (3rd ed) definition of the verb “endanger” being “to expose to dangers; imperil.”10
[17] It also refers to the High Court decision in Coal & Allied Operations Pty Ltd v AIRC 11 when it considered the notion of when the Tribunal ought to be “satisfied.” Gleeson CJ, Gaudron and Hayne JJ concluded:
“…the decision-maker must have some basis for his or her satisfaction over and above generalised predictions as to the likely consequences of the industrial action in question…” 12
[18] The RTBU provided evidence from three witnesses. Evidence provided by Ms Carita Kazakoff, a solicitor with Slater and Gordon, made reference to other public transport options, apart from train services, that are available in the Melbourne metropolitan area. Her statement attached a series of maps of municipal areas produced by Public Transport Victoria, which purportedly show available train, tram and bus services in each particular locality.
[19] Mr Brian Penza is an Authorised Officer with Yarra Trams. His evidence made reference to his observations and reports from other employees of Yarra Trams during recent protected industrial action taken by RTBU members employed by Yarra Trams, which involved a four hour tram stoppage on 27 August, also scheduled between 10 a.m. and 2 pm. His evidence indicates he was not aware of passengers and members of the public becoming aggressive or insulting to Authorised Officers, or displaying “negative feelings” towards them, during the conduct of the stoppage on 27 August. 13
[20] Mr Grant Wainwright is an Organiser with the RTBU and provided evidence about the progress or otherwise of the negotiations that have taken place with representatives from Metro Trains and, in more recent times, with the involvement of representatives from the Victorian Government, in what he described as “Government facilitated bargaining meetings”. 14 He made reference to the key topics discussed in these meetings and the varying degrees of progress made in regard to these matters.
[21] His evidence also indicated that in more recent times discussions have also been had with the involvement of the CEO of Metro Trains. He also indicated that discussions had been had about the involvement of an independent third party to assist in progressing the negotiations. He disagreed in cross examination that the RTBU had not been prepared to shift its position in the negotiations, although this was not necessarily evident from recent exchanges of documents and other correspondence between the parties. He also made reference to various attempts that have been made to clarify and assist Metro Trains in the conduct of the proposed protected industrial action.
[22] Mr Wainwright also took issue with various aspects of the witness evidence provided by Mr Bria, although it is acknowledged that Mr Bria did not agree in his examination in chief with the evidence provided by Mr Wainwright about these matters.
[23] The RTBU also made reference to various authorities in support of its submissions, including the Full Bench decision in National Tertiary Education Union v University of South Australia, 15 as well as the decision in Coal & Allied v CFMEU, referred to previously.
Consideration
[24] There is little doubt that if the four hour stoppage proposed by the Australian Rail Tram and Bus Industry Union proceeds on Friday, 4 September it will result in significant disruption and inconvenience. The evidence provided by Metro Trains indicates that approximately 160,000 people, and potentially more, who would otherwise have been travelling by train at this time, will have to make other arrangements. This is obviously a significant number of people. Clearly, they will make a range of other arrangements. Some will obviously defer or postpone their travel to another time. Others will use the tram network, or travel by taxi or other contemporary alternatives, while others will choose to travel by road, or by other means. It is also acknowledged that for some, particularly the disabled, the available options might be limited and they might suffer additional inconvenience.
[25] As indicated, the parties have made reference to various authorities in support of their submissions in this matter. The decision in Coal & Allied v CFMEU refers to the requirement that the collective welfare be in peril or in danger, or that the personal safety or health of part of the population be threatened or be endangered. The decision in Metropolitan Ambulance Service v Liquor, Hospitality and Miscellaneous Union refers to the Macquarie Dictionary definition of “endanger” as being exposed to dangers or imperil. The decision in Coal & Allied Operations Pty Ltd v AIRC also indicates that “the decision-maker must have some basis for his or her satisfaction over and above generalised predictions as to the likely consequences of the industrial action in question” 16 The decision also indicates that while the determination of an application will involve a degree of subjectivity or value judgement, nevertheless there must be evidence before the Commission that is sufficient to found such a satisfaction. The decision of Deputy President Kaufman in Ambulance Victoria v Liquor Hospitality and Miscellaneous Union also makes clear that it is necessary for it to be “probable” rather than “possible” that the proposed protected industrial action would threaten to “endanger.”
[26] I also refer again to the decision in Coal & Allied Operations v CFMEU when the Full Bench stated:
“Moreover, despite the generality of the concept ‘welfare of the population’, the phrase ‘is threatening to endanger’ imports a requirement for there to be a danger or peril to welfare. There needs to be a basis upon which it is reasonable to conclude, on an assessment of matters of fact and degree, that the collective welfare is in peril or danger.” 17
[27] The decision in Victorian Hospitals’ Industrial Association v Australian Nursing Federation also found that conduct that puts a person physical or mental state at risk of material detriment will qualify as conduct that threatens to endanger personal health or safety.
[28] I have considered all the evidence that has been provided by the parties in this matter. In my view much of the evidence relied upon by Metro Trains, in particular, was speculative in nature and dealing with possible, rather than probable consequences. This is not a criticism and perhaps due, in large part, to the fortunate situation that the Melbourne metropolitan area has not experienced industrial action that has caused stoppages to the metropolitan train services network in recent times that would otherwise have enabled a more evidence-based account of what might be the probable impacts. However, given this situation I am not satisfied that the evidence indicates more than what can be described as generalised predictions existing about the likely consequences of the proposed protected industrial action, and that this falls short of the required evidence that needs to exist before the Commission must make an order under s.424.
[29] I am also satisfied that there are many things that can be done in mitigation, both by Metro Trains and its employees, as well as those that will be affected by the proposed industrial action, to significantly lessen or minimise its impact. The bus services that will be in place have already been referred to, as well as the other transport options that are available. It can also be assumed that many passengers, who would otherwise have travelled by train during the period of the stoppage, will defer their travel plans to another point in time.
[30] It is also noted that the relevant forms of protected industrial action, certainly in regard to the protected industrial action to occur on 4 September, are also subject to a five day notice period, being an additional two days over and above the standard three days notice that would otherwise apply under the Fair Work Act. This additional time will presumably also assist both Metro Trains and the travelling public to respond to the proposed protected industrial action, and give all those impacted additional time to deal with and plan in response to the impact of the stoppages.
[31] I have also had some regard to the decision handed down recently in regard to a similar application relating to the four hour stoppage involving Yarra Trams that took place on 27 August. It was also scheduled from 10 am until 2 pm on that day. The RTBU submits that a similar number of passengers were impacted by that stoppage, although little or no evidence was provided in support of these submissions. However, it is noted that a decision was handed down in transcript in that matter which determined that the proposed protected industrial action was not threatening or would not threaten to endanger the personal safety or health or welfare of part of the population within the meaning of s.424. 18
[32] I have considered all of the evidence and submissions provided in these proceedings. I am not satisfied, in conclusion, that the evidence establishes, based on the relevant authorities, that the protected industrial action proposed to be taken by members of the RTBU that is the subject of this application is threatening or would threaten to endanger the personal safety or health or the welfare of the population, or a part of it, within the meaning of s.424. It follows that there is accordingly no basis to terminate or suspend the protected industrial action. The application is accordingly dismissed and an Order to this effect will be issued in conjunction with this Decision.
[33] It is also suggested that the outcome of this matter should not be seen through an adversarial prism of win/lose. It is evident why Metro Trains have made this application. It is obviously concerned to ensure that rail services operate in metropolitan Melbourne in a way that is as close to normal as possible, regardless of any additional concerns they may have about the possible welfare and safety of the population or any part of it. Nevertheless, the scheme of the legislation allows for protected industrial action to be taken in certain circumstances and, as indicated, I am not satisfied having considered all of the circumstances involved in this matter that I am required to suspend or terminate that action in this case.
[34] I am also aware that the Commission has previously been involved in a limited way to date in assisting the parties in their negotiations. The Commission obviously remains available to the parties to continue to provide that assistance, and I urge the parties to give further consideration to this option.
COMMISSIONER
Appearances:
Mr F Parry QC appeared on behalf of the Applicant.
Mr H Borenstein QC appeared on behalf of the Australian Rail, Tram and Bus Industry Union.
Ms M Richards and Ms J Parker appeared on behalf of the Victorian Government Solicitors’ Office.
Hearing details:
2015.
Melbourne:
1 September.
1 Exhibit MT1 at attachment RB-6 at page 2, point 4.
2 Ibid at RB-7 at page 2, point 2
3 Fair Work Act 2009 (Cth) ats.424(1)
4 Above n.i at para 108
5 (1998) 80 IR 14
6 [2011] FWAFB 8165
7 Ibid at [51] as quoted in the Outline of Submissions of the Applicant at para 24
8 Outline of Submissions of the Applicant at para 25
9 PR950276
10 Ibid at [64]
11 (2001) 203 CLR 194
12 Ibid at 208
13 Exhibit RTBU3 at para 7
14 Exhibit RTBU4 at para 5
15 [2010] FWAFB 1014
16 Above n.xii
17 Above n.v
18 [2015] FWC 5917
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