Ms Nerida Mullally v Sydney Trains

[2024] FWC 2479

[2024] FWC 2479

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.739 - Application to deal with a dispute

Ms Nerida Mullally
v

Sydney Trains

(C2024/5853)

DEPUTY PRESIDENT SLEVIN SYDNEY, 12 SEPTEMBER 2024

Application to deal with a dispute

1. A dispute has been notified to the Commission by Ms Nerida Mullaly under clause 8.6 of the Sydney Trains and NSW TrainLink Enterprise Agreement 2022. The dispute was arbitrated before me yesterday. I informed the parties of my decision at the conclusion of the hearing and indicated I would provide written reasons. These are those reasons.

1. The dispute is about consultation over changes arising from Sydney Trains Regional Rail Project. The NSW Government is replacing the NSW regional rail fleet with new trains.  The new trains need to be tested. That testing is to be done at the Auburn Heavy Maintenance Centre. Five employees engaged as Crew Support Officers (CSO) at the nearby Auburn Stabling Yard are affected by the changes as it is proposed that they provide support to the test crews.

1. Sydney Trains proposed to consult with the employees about the changes in accordance with clause 7 of the Agreement. Clause 7.1(b) provides that consultation occur at the local level occur as follows:

Local Level – shall take place with the affected Employee(s) or through local consultative committees and working parties established as and when required. Such committees include representation from local management and Employee representatives nominated or elected by the affected workforce.

1. Clause 7.3(b) of the Agreement provides for meetings to occur. It reads:

   The Employer will meet with the affected Employees and/or their Union Representative(s) and discuss the effects of the changes on the Employee(s) concerned and measures proposed to avoid or otherwise minimise any possible adverse impact on affected Employees.

1. Sydney Trains proposed to meet with the five CSO on 23 August 2024. The invitation for the meeting nominated a union delegate as the employee’s representative. A disagreement arose as to who would represent the employees at the meeting.  Ms Mullally is one of the CSOs. Ms Mullally wrote to Sydney Trains advising that she had been appointed by her four colleagues to represent them in the consultation. Ms Mullaly indicated that there was no need for the union delegate to attend. Sydney Trains insisted that the union delegate attend on 23 August 2024.  Ms Mullally indicated that the employees would not attend if a union delegate was present and put the matter in dispute under the dispute settlement procedure in clause 8 of the Agreement.

1. The meeting went ahead on 23 August 2024 without the five affected employees. Sydney Trains circulated the outcomes of the meeting to the employees and invited their written feedback as the last step in the consultation process. Ms Mullally contended that by failing to meet the employees Sydney trains has not complied with the consultation obligation in clause 7.3(b).

1. The dispute was not resolved between the parties and was referred to the Commission. The Commission is empowered to resolve the dispute by clause 8.6. It may conciliate or, if conciliation fails, arbitrate a resolution to the dispute.

1. A conference was conducted by the Commission on 3 September 2024 following which a recommendation was made that Sydney Trains meet with the CSOs. Sydney Trains did not accept the recommendation and an arbitration was conducted. 

1. Ms Mullally continues to represent the CSOs and continues to press for a consultation meeting without the presence of a union delegate. Sydney Trains continues to refuse to meet.  

1. As the dispute has not been resolved through conciliation the disputes procedure requires that the Commission arbitrate. I consider that the following question arises for arbitration:

Has Sydney Trains met its obligations under cl 7.3(b) of the Agreement in circumstances where it has not met with the five affected employees.

1. Ms Mullally relies upon correspondence between the parties in the period 21 August 2024 to 5 September 2024. Sydney Trains relies upon a witness statement of Riordan Joseph Coote Senior Manager Service Delivery (Crew Ops) at its Auburn operations. There was no dispute about the underlying facts. The parties also relied upon written and oral submissions.

1. Sydney Trains submitted that the workplace change was not caught by clause 7 of the Agreement. It further argued that if clause 7 does apply the requirement in 7.3(b) has been met because it did all that was reasonably necessary to meet, but the employees refused to attend. It submitted that it was not required to meet with the employees on terms dictated by them and that the employees gave Sydney Trains an ultimatum requiring that the union delegate be excluded from the meeting and then choosing not to attend. It further submitted that the employees were given ample opportunity to attend, and a meeting was held in their absence.

1. I do not accept the first argument concerning the application of clause 7. The introduction of the new fleet is a major change. It affects the employees.
   Sydney Trains agreed to consult over the changes in accordance with clause 7.1(b). It arranged a meeting for 23 August 2024 to do so. When the dispute was raised prior to that meeting it was couched in terms of a dispute over clause 7. Sydney Trains engaged with the dispute on the basis clause 7 applied. I do not see how Sydney Trains can now contend that the provision does not apply. I find that it does.

1. As to Sydney Trains second argument that the steps it has taken meet the requirement in clause 7.3(b) of the Agreement, I find that they do not. Clause 7.3(b) sets an obligation on Sydney Trains to meet with affected employees and/or their union representative to discuss the effects of the change. No such meeting has occurred.

1. A meeting did occur on 23 August 2024, but the affected employees were not represented. The union delegate who did meet with Sydney Trains was not in a position to represent the affected employees as they had nominated someone else to represent them. Consequently, Sydney Trains cannot be said to have complied with its obligation to meet and discuss the impacts of the change with the affected employees. I do not consider the description of the request to meet without the delegate as an ultimatum as an accurate description. It was simply a request, and it was a request that was consistent with clauses 7.1(b) and 7.3(b). I consider Sydney Trains should have met with the employees in accordance with the request.  The failure to do so was not in accordance with clause 7.3(b).

1. In oral submissions Sydney Trains expressed concern that the conduct of the employees may set a precedent that will lead to the obligation in clause 7.3(b) becoming overly burdensome where every request by affected employees as to the manner in which a meeting is to occur must be accommodated. Sydney Trains in a large organisation and it is committed to consulting on changes that occur in the workplace.

1. The outcome of the current dispute turns on its own facts. The facts here are that a request was made by all of the affected employees as to how they would be represented in a meeting under clause 7.3(b). How an employee is represented in consultation is a matter that is expressly dealt with in clause 7.1(b). It allows employees at a local level to nominate or elect a representative The employees nominated someone other than their union delegate to be their representative. Once that nomination was made consultation was to occur with the employees or through their representative. The meeting that went ahead on 23 August 2024 was not with the employees, and their representative was not present. Consequently, the employees were not represented, and the meeting was not in accordance with clause 7.3(b). My determination in this matter is limited to these particular circumstances. My finding that Sydney Trains is not meeting its consultation obligation to meet is confined to these facts.

1. As I consider Sydney Trains is acting contrary to the Agreement by refusing to meet with the five CSOs I resolve the dispute by directing Sydney Trains to meet with the CSOs and discuss with them the proposed changes. If the employees choose not to be represented by a union delegate, then Sydney Trains should accommodate that choice.

DEPUTY PRESIDENT

Appearances:

N. Mullally for the Applicant

S. Jenkins-Flint for the Respondent

Hearing details:

2024
11 September
Sydney(in person)

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