Pacific National Bulk Rail Pty Ltd v Australian Rail, Tram and Bus Industry Union

[2017] FWC 2229

[2017] FWC 2229

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.418 - Application for an order that industrial action by employees or employers stop etc.

Pacific National Bulk Rail Pty Ltd
v
Australian Rail, Tram and Bus Industry Union
(C2017/2097)

COMMISSIONER CAMBRIDGE SYDNEY, 21 APRIL 2017

Application for an Order that industrial action by employees or employers stop etc.

[1] This matter involves an application made under s. 418 of the Fair Work Act 2009 (the Act), seeking that the Fair Work Commission (the Commission) make an Order that industrial action that is happening, threatened, impending, probable or being organised is to stop, not occur or not be organised.

[2] Section 418 of the Act is in the following terms:

“418 FWC must order that industrial action by employees or employers stop etc.

(1) If it appears to the FWC that industrial action by one or more employees or employers that is not, or would not be, protected industrial action:

(a) is happening; or

(b) is threatened, impending or probable; or

(c) is being organised;

the FWC must make an order that the industrial action stop, not occur or not be organised (as the case may be) for a period (the stop period) specified in the order.
Note: For interim orders, see section 420.

(2) The FWC may make the order:

(a) on its own initiative; or

(b) on application by either of the following:

(i) a person who is affected (whether directly or indirectly), or who is likely to be affected (whether directly or indirectly), by the industrial action;

(ii) an organisation of which a person referred to in subparagraph (i) is a member.

(3) In making the order, the FWC does not have to specify the particular industrial action.

(4) If the FWC is required to make an order under subsection (1) in relation to industrial action and a protected action ballot authorised the industrial action:

(a) some or all of which has not been taken before the beginning of the stop period specified in the order; or

(b) which has not ended before the beginning of that stop period; or

(c) beyond that stop period;

the FWC may state in the order whether or not the industrial action may be engaged in after the end of that stop period without another protected action ballot.”

[3] The application has been made by Pacific National Bulk Rail Pty Ltd (the employer) and it seeks an Order against the Australian Rail, Tram and Bus Industry Union (the Union) and members of the Union who are engaged in a particular form of industrial action as part of bargaining for a new Enterprise Agreement called the Pacific National Bulk Rail Victorian Enterprise Agreement 2017.

[4] The Hearing of this application commenced via urgent notice of listing at 12:00 pm today, 21 April 2017. The matter was identified to involve complexity such that the requirements of s. 596 of the Act were satisfied, and therefore the Parties were granted permission to be represented by lawyers or paid agents. Mr D Perry, solicitor, appeared for the employer, and Mr M Champion, barrister, appeared for the Union.

[5] The operations of the employer that are the subject of the application are conducted in the State of Victoria. The Hearing was held in Sydney, and it involved a video link to Melbourne. The employer provided evidentiary material in support of the application through a witness statement of Mr Gareth Troy. Mr Troy is the employer’s Service Delivery Manager - Victoria, and he gave evidence as a witness upon which he was cross-examined by Mr Champion via video link to Melbourne.

[6] The determination of the application has essentially involved a question as to whether the refusal by train drivers to allow trainee labour hire employees to board trains so as to observe the work of train drivers as essentially inactive third-parties, is comprehended by the terminology of one particular form of industrial action which was specified in the relevant Protected Action Ballot Order (PABO). The particular terminology of the relevant provision in the PABO is; “An unlimited number of bans on the performance of training duties for labour hire employees.” This provision of the PABO has been referred to as a “Training Duties Ban”.

[7] On 15 March 2017, the Union gave notice to the employer that its members would commence to take protected industrial action. The notification specified eight particular forms of industrial action which were anticipated to commence from various nominated times. The first of the specified forms of industrial action involved the Training Duties Ban which commenced on Wednesday, 22 March 2017. Members of the Union have engaged in the Training Duties Ban by refusing to allow trainee labour hire employees to enter the locomotive cabins, so that those labour hire employees were prevented from observing the train drivers’ work. This form of industrial action has been challenged by the employer as being outside or beyond what would be ordinarily understood by the Training Duties Ban as contained in the PABO and as notified by the Union.

[8] The employer has asserted that the words “training duties” as contained in the Training Duties Ban, could only relate to active instruction as distinct from the refusal to permit trainee labour hire employees to access trains for the purpose of passive third-party observation. It was contended that the refusal by train drivers to allow access to the third-party observers did not involve those drivers engaging in any “training duties” or acting in limitation of such duties. Consequently, the employer has asserted that the refusal to allow trainee labour hire observers onto trains is industrial action that is not authorised by the Training Duties Ban terms of the PABO.

[9] The Union was understandably unable to fully prepare a case in opposition to the application in the time available. The Union broadly asserted that the refusal to allow trainee labour hire observers onto trains was industrial action comprehended by an ordinary understanding of a ban on the performance of training duties for labour hire employees. The Union contended that the refusal to allow trainee labour hire observers onto trains was protected industrial action taken in accordance with the terminology of Training Duties Ban contained in the PABO, and as notified to the employer on 15 March 2017.

[10] It is relevant to note that the particular industrial action that is the subject of challenge in this instance, does not appear to result in any immediate, significant disruption to the employer’s business operations. Indeed, for a period between 6 and 18 April 2017, the employer avoided any impact of the Training Duties Ban by not rostering any trainee labour hire employees to work as third person observers on any trains. Although, presumably, such arrangements could not be sustained in the longer term, the practical impact of the particular industrial action under challenge appears to involve negligible disruption and minimal costs in the short-term.

[11] In addition, there would appear to be significant prospect that, if the s. 418 application was successful, and the particular industrial action involving the refusal to allow trainee labour hire observers onto trains was found to be unprotected industrial action, such an outcome might logically redirect attention towards other forms of industrial action. The Union has notified of its intention for its members to take further protected industrial action. The further industrial action which has been notified involves other forms of industrial action which have significantly more dramatic, disruptive impact on the employer’s business operations. In simple terms, if the Training Duties Ban is found to be unprotected, further industrial action would logically be concentrated upon other more disruptive forms of protected industrial action.

[12] Further, it is clear that the Parties are engaged at an advanced stage of enterprise bargaining negotiations with the Union having secured a PABO which includes the contested terminology of the Training Duties Ban, together with other more disruptive forms of protected industrial action. The Act clearly contemplates an enterprise bargaining regime which includes the taking of protected industrial action. In circumstances where the Union has properly secured the right for its members to take protected industrial action, and contest has emerged about a detailed aspect of a particular form of industrial action as opposed to the taking of industrial action more generally, there is a propensity for the Commission to act cautiously before it would remove the putative protection for the taking of a particular form of industrial action.

[13] The challenge to the particular industrial action in this instance is essentially a matter of semantic analysis of the particular words contained in the Training Duties Ban provision of the PABO. The refusal to permit trainee labour hire observers onto trains may, in a very strict, literal application, not involve a limitation on the performance of any direct training duties for labour hire employees. However, it could be construed that the ordinary and customary performance of work of a train driver whereby that driver permitted a trainee labour hire observer onto a train, facilitated the performance of training duties for labour hire employees.

[14] Consequently, the actual practical effect of the refusal to allow trainee labour hire observers onto trains results in a limitation on the actual occurrence of labour hire employees undertaking training duties, albeit passive observation. In simple terms, the outcome is that labour hire employees do not undertake particular training. Therefore, there would appear to be no practical distinction that could be drawn from there being action which involved the withdrawal of direct training provided to labour hire employees, as opposed to action which led directly to the inability for labour hire employees to undertake training. In either circumstance, the practical effect of the industrial action is the same, that is, trainee labour hire employees are deprived of training, and that outcome is the clear intention of the terminology of the Training Duties Ban.

[15] The proposition that was advanced by the employer whereby the Training Duties Ban would be confined in its operation to five Driver Trainer individuals who performed direct training duties for trainee labour hire employees must, on any reasonable and objective analysis, be rejected as unrealistic. In circumstances where the Union was providing notice that its members were commencing to take various forms of protected industrial action including 48 and 24-hour stoppages of all work, it would be unrealistic for such an industrial campaign to include, as the first form of industrial action mentioned, a particular measure which was confined in its operation to just five employees.

[16] The particular terms of specified industrial action contained in a PABO and the Union’s notification to the employer should be given a practical, realistic construction. In circumstances where the particular industrial action under challenge does not result in immediate and significant disruption to the employer’s business operation, it is appropriate to provide for a broad construction of the particular terms that have been used in the PABO. Any reasonable, objective and realistic contemplation of the words used in the Training Duties Ban would provide for the clear intention of an outcome whereby trainee labour hire employees would be deprived of training of some form or another. The actions of the train drivers in refusing to allow trainee labour hire employees onto trains for the purposes of observation, leads to an outcome that is entirely consistent with any reasonable, objective and realistic construction for the terms contained in the Training Duties Ban provision of the PABO.

[17] The nature of the semantic challenge raised in this instance can be conveniently summarised by identification of a variation to the words used in the Training Duties Ban of the PABO which would hypothetically clarify its intention. In this regard, the Training Duties Ban may be amended to read “An unlimited number of bans on the performance or facilitation of training duties for labour hire employees.”

[18] In summary, the particular industrial action involving train drivers refusing to allow trainee labour hire employees onto trains for the purposes of observation, is, when considered in terms of the practical result of such action, industrial action contemplated by the terms of the Training Duties Ban as contained in the PABO, and as provided in the Union’s notification of 15 March 2017.

[19] The industrial action involving train drivers refusing to allow trainee labour hire employees onto trains for the purposes of observation is protected industrial action. The s. 418 application which has sought to impugn that industrial action must therefore be dismissed.

COMMISSIONER

Appearances:

Mr D Perry of Seyfarth Shaw Australia appeared for Pacific National Bulk Rail Pty Ltd.

Mr M Champion of Counsel appeared for the Australian Rail, Tram and Bus Industry Union.

Hearing details:

2017.

Sydney and Melbourne (video hearing):

April, 21.

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