Pacific National Services Pty Ltd Pacific National (NSW) Pty Ltd v Australian Rail, Tram and Bus Industry Union

[2019] FWC 3769

[2019] FWC 3769

FAIR WORK COMMISSION

DECISION IN TRANSCRIPT

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

Pacific National Services Pty Ltd
Pacific National (NSW) Pty Ltd
v
Australian Rail, Tram and Bus Industry Union
(C2019/3258)

DEPUTY PRESIDENT BULL SYDNEY, 31 MAY 2019

Section 418 - application for an order that unprotected industrial action by employees stop etc. Order made against employees, not satisfied RTBU organising unprotected industrial action.

[1] This matter was heard in Sydney on Saturday 25 May 2019. At the conclusion of the proceedings, the Commission handed down its decision on transcript. This is the published version of the decision edited for style and clarity.¹

[2] An application has been filed jointly by Pacific National Services Pty Ltd and Pacific National (NSW) Pty Ltd (Pacific National) on Friday afternoon 24 May 2019 for an order under s.418 of the Fair Work Act 2009 (the Act). It was filed against the Australian Rail, Tram and Bus Industry Union of Australia (RTBU), all its officers and employees and those of its delegates who are Pacific National employees.

[3] It was also filed against employees of Pacific National who are members or eligible to be members of the RTBU and are employed at the Pacific National Depot at Port Augusta in South Australia.

[4] An order for substituted service was made by Pacific National and granted on 24 May. 2 The Commission has been told that approximately 80 employees would be covered by the order sought in addition to the RTBU itself and its officials and delegates.

[5] Mr Perry sought leave to appear as a solicitor for Pacific National which was not opposed by Mr Diamond, the RTBU National lawyer who also appeared for RTBU members. Pursuant to s.596(2)(a) of the Act, the application for leave to appear is granted based on the complexity of the matter and the belief that it would assist the matter to be dealt with more efficiently.

[6] By way of background, Pacific National, are a national rail and freight provider and the evidence is that they employ nationally approximately 3,500 employees. It services its customers by moving their products by rail from one location to another. It has two distinct business units, one being freight which we appear to be concerned with this afternoon, and coal.

[7] In South Australia a freight business exists and on 9 August 2018, Pacific National, made a decision to introduce driver-only operations on the Port Augusta to Tarcoola route. It then embarked upon consultation with its employees, pursuant to its enterprise agreement covering the workforce. That agreement is known as the Pacific National Intermodal Train Crew Enterprise Agreement 2017 (the Agreement).

[8] The Commission has been told that Pacific National has received at least two notices of dispute under clause 43 of the Agreement relating to the test and trial of driver-only operations on the Port Augusta to Tarcoola route. Further, the Commission is advised and was provided a copy of a notice of a meeting issued by the RTBU on 13 May at the RSL club rooms Port Augusta, attended by Leanne Holmes, an RTBU national organiser. The notice indicates, amongst other things, the meeting is to discuss driver-only operations.

[9] Pacific National contends that following that meeting, unprotected industrial action in the form of an overtime ban has been instituted due to the existing driver-only operations dispute. They say that the dispute remains and continues to cause industrial unrest within the workforce.

[10] In support of its application, three witnesses were called by Pacific National. Mr Daniel Price, Acting Intermodal Planning Manager, Mr Vincent Ortuso, Manager Operations, South Australia and Northern Territory and Mr John Laundy, Acting Supervisor Port Augusta, Whyalla.

[11] The RTBU made submissions but called no witness evidence and tended some internet extractions regarding a flu epidemic in South Australia and email correspondence.

[12] The specific provision of the Act that I am required to have regard for is found at s.418. Section 421 requires as far as practicable that an application made under s.418 should be determined within two days after it has been made, hence this Saturday morning hearing.

[13] Section 418(1) states as follows:

“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.”

[14] The evidence of Mr Daniel Price I find to be significant in respect to whether or not industrial action is happening. Mr Price's evidence was, if I can just summarise what I believe are the relevant parts of his evidence contained particularly at paragraph 30 of his witness statement, 3 where he states in his experience in labour planning at Pacific National over the last six years it is customary for train drivers at Port Augusta to accept overtime work so that shifts can be covered.

[15] He states he has never experienced such difficulties in covering overtime in Port Augusta than the last two weeks. He also states that there has been a dramatic drop in Port Augusta train drivers working overtime from the period commencing about 17 May 2019 when compared to the average overtime hours per week. Out of 80 employees at Port Augusta Depot, Pacific National made 135 calls to work overtime from 17 May 2019, to 24 May 2019, with only two train drivers accepting the overtime.

[16] In particular, in giving evidence to demonstrate the substance of his assertions, Mr Price states that on Saturday 18 March 2019, there was a disruption to services which resulted in Pacific National requiring two additional drivers. 23 drivers were contacted from the Port Augusta depot of whom 15 declined to work overtime, six did not respond to voicemail messages left and one driver's phone rang out. He referred to the impact of that incident being that the service was delayed by 13 hours and 12 minutes. It also incurred additional costs to Pacific National.

[17] Mr Price also states that on Sunday 19 May, where overtime was required, 12 drivers from the Port Augusta depot were contacted. Three declined to work, three did not respond and six drivers' phones rang out. He then referred to the impact caused by overtime not being worked.

[18] On 21 May Mr Price refers to the necessity to cover a shunting shift. 20 drivers were contacted. 10 declined to work overtime, 9 did not respond and were left voice messages and one driver's phone rang out. The coverage of the overtime was met by organising a supervisor from the office with appropriate qualifications to perform the shunting work.

[19] Also on 21 May a customer requested an additional grain service. 19 drivers were contacted from the Port Augusta depot. 13 declined to work overtime, three did not respond to voicemail messages and three drivers' phones rang out. Mr Price referred to the impact of the failure of employees to work the overtime required.

[20] Mr Price refers to a third event on 21 May 2019, where an overtime shift was required to be worked and 18 drivers were contacted. Seven train drivers declined to work, 9 did not respond, one driver's phone rang out and one driver did accept the overtime.

[21] In respect to other evidence relied on by Pacific National, Mr Ortuso, at paragraph 16 of his witness statement, 4stated that in his experience:

“… employees have regularly accepted overtime shifts due to the beneficial payments under the Enterprise Agreement for working overtime. The number of employees declining overtime that we have seen in the last two weeks is inconsistent with normal employee practices, in my experience working in South Australia with employees covered by the Enterprise Agreement.”

[22] He states at paragraph 18 of his witness statement that:

“Over the last two weeks, since the meeting that the RTBU held with employees on 13 May, I have seen the reduction in the acceptance by employees to work overtime shifts. So far this week, there has only been 62.27 hours overtime from the Port Augusta Depot and last week there was 119 hours of overtime at the Port Augusta Depot. These hours are inflated due to overtime being paid to drivers who have stabled the train on the track.”

[23] He goes on to state that this is unusual, as there has been no reduction in the need for overtime in the last two weeks.

[24] I am prepared to accept the evidence in particular of Mr Price and Mr Ortuso that the working of overtime has been reduced in the last 2 weeks. The facts speak for themselves in respect to the actual events on 18, 19 and 21 May that I've referred to in Mr Price's evidence. None of that was challenged in cross-examination as not having in fact occurred.

[25] There was no evidence called by the RTBU or any employees to counter what was being put against them. Mr Diamond did produce material that indicated there had been a flu epidemic in South Australia which I accept as being the case. However, the evidence from Pacific National was that there had been no increase, and in fact, there had been a decrease in sick leave applied for during the relevant period. Consequently I don't regard evidence of a flu epidemic as relevant to the defence of the respondents.

[26] As far as the evidence that has been given this morning and this afternoon, I am prepared to conclude, as categorised by the Full Bench in the decision that's been brought to my attention by Mr Perry in Australian Workers Union v BlueScope Steel Limited, 5 that there is a coordinated and collective refusal of employees to work overtime. The reason is industrial in nature and the reasonable inference is that the industrial nature is a dispute to do with driver-only operations. That being the case, being a collective refusal, it is industrial action. I find on the evidence before me that unprotected industrial action on behalf of employees at least, is happening.

[27] I am further asked to draw an inference that it is been organised by the RTBU and that its officials, delegates and employees should be covered by any order. There is no direct evidence about the RTBU being involved in or organising industrial action. However, there has been no evidence produced by the RTBU itself, refuting the allegation. But that is its right not to call evidence and in the submissions that have been made on its behalf the RTBU disputes that it has been organising unprotected industrial action.

[28] A bundle of emails were tendered to the Commission by Mr Diamond 6 and in particular, an email of 24 May which was sent at 5.28 pm by the RTBU Sub-Branch Secretary of Port Augusta, Mr Brett Dawson, who states to the employees' concerned:

“To be clear, unprotected industrial action is not permitted under the Fair Work Act and is not condoned by me or the RTBU. If you have been refusing overtime for any reason outside what would be the norm, this must stop immediately. I have received instruction from the RTBU national office, that they will attempt to stop any order against us, but that if this behaviour is occurring, it must cease immediately.”

[29] A further email was sent by Leanne Holmes, who the Commission is informed is a National Organiser for the RTBU, on Friday 24 May at 8.22 pm. Amongst other things, she states that:

“To be clear, OT bans, go slows or any other type of refusal from what is normal, or any changes to custom and practice could be found to be unprotected industrial action and, if it has occurred in the past, must not occur again.”

[30] Mr Perry, on behalf of the applicant states these are self-serving emails, whereas Mr Diamond rejects that proposition and states categorically that the RTBU is not organising any unprotected industrial action. If it is found by the Commission that industrial action is occurring, Mr Diamond submits it is not organised by the RTBU.

[31] In looking at the witness evidence that has been provided this morning and this afternoon, there is no direct evidence that the RTBU has been involved in the organisation of unprotected industrial action.

[32] Mr Laundy on behalf of Pacific National gave evidence of a conversation with two employees (which was objected to by Mr Diamond) but that evidence of a conversation of two employees, made no reference to the RTBU organising any industrial action. As such, I am not satisfied that from what has been put before the Commission is sufficient to draw an reasonable inference to conclude that the RTBU itself is organising unprotected industrial action and as such, I decline to draw such an inference.

[33] An order will be issued covering employees in substance in the form sought by Pacific National and it will operate for a period of one month, commencing from today.

[34] If there's nothing else to be said, the matter will be adjourned.

DEPUTY PRESIDENT

Appearances:

Mr D Perry, Solicitor and Ms R Brediceanu Solicitor, on behalf of Pacific National

Mr M Diamond, National Lawyer for the Australian Rail, Tram & Bus Industry Union

Hearing details:

Sydney

2019

May 25

Printed by authority of the Commonwealth Government Printer

<PR708888>

1 See extra curial publication (1997) 9 Judicial Officers’ Bulletin Gleeson CJ at 25

 2   PR708673

 3   A1

 4   A2

 5 (2008) 171 IR 115

 6   R1