Rail Commissioner v Australian Rail, Tram and Bus Industry Union
[2011] FWA 4790
•26 JULY 2011
[2011] FWA 4790 |
|
DECISION |
Fair Work Act 2009
s.418 - Application for an order that industrial action by employees or employers stop etc.
Rail Commissioner
v
Australian Rail, Tram and Bus Industry Union
(C2011/5155)
COMMISSIONER HAMPTON | ADELAIDE, 26 JULY 2011 |
Industrial action during a bargaining process - application for orders to cease - whether protected industrial action - whether particular action endorsed by protected action ballot approval - application granted in part.
INTRODUCTION
[1] This is an application by the Rail Commissioner 1 seeking that Fair Work Australia make orders in relation to certain industrial action that was being undertaken by members of the Australian Rail, Tram and Bus Industry Union (the Union).
[2] The application was made pursuant to s.418 of the Fair Work Act 2009 (the Act) on the basis that certain industrial action was not protected within the meaning of the Act and as a result, orders should be issued preventing that action.
[3] The application was filed on 20 July 2011 and heard on the afternoon and evening of that day and on the following day. Having considered the evidence and submissions in the context of the statutory obligations bearing upon the issues, I issued an order 2 late on 21 July 2011 preventing certain defined industrial action pursuant to s.418(1) of the Act. In so doing, I indicated that I would publish reasons for my decision, which I now do.
BACKGROUND
[4] The industrial action which is the subject of this application is principally the refusal by members of the Union to participate in track orientation training associated with the soon to be re-opened Noarlunga train line. That train line has been closed for redevelopment for some six months and was due to commence services on Sunday 24 July 2011. In the lead up to that event, the Rail Commissioner had organised all of its metropolitan train drivers (and some other relevant employees) to undertake orientation trips where they would travel the line in a train (which was operating without passengers) to observe the new infrastructure and acquaint themselves with the modified rail corridor.
[5] The broader context for this matter is that the parties are presently negotiating a new Enterprise Agreement and the Union has sought and obtained approval, through a protected action ballot 3, for certain protected industrial action to be taken in advancing its relevant claims.
[6] The Union has subsequently given notice of certain industrial action in accordance with s.414 of the Act. 4 That notice provided for the industrial action to commence at 0001am on 21 July 2011. There is no contention that this notice itself is defective and the Rail Commissioner concedes that the industrial action if taken as notified would be protected industrial action within the meaning of the Act.
[7] One of the notified forms of industrial action was “An indefinite ban on non safety critical training.”
[8] The Union has recently advised that it considers orientation work over any new rail line to be non safety critical training 5 and a ban was applied concerning that work, to coincide with the s.214 notice. At the time of concluding the hearing of this application, the ban applying to the track orientation activity was in force.6
[9] The Rail Commissioner contended that the track orientation work is safety critical training and has sought the ban on such work be prevented.
THE LEGISLATION
[10] Division 4 of Chapter 3 – Part 3 of the Act provides relevantly as follows:
“418 FWA must order that industrial action by employees or employers stop etc.
(1) If it appears to FWA 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;
FWA 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) FWA 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, FWA does not have to specify the particular industrial action.
(4) If FWA 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;
FWA 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.
[11] In light of the facts of the matter and the concession made, the only issue between the parties was whether the industrial action being organised and taken is protected industrial action within the meaning of the Act.
[12] The Act relevantly provides parameters for employee claim action to be protected as follows:
“409 Employee claim action
Employee claim action
(1) Employee claim action for a proposed enterprise agreement is industrial action that:
(a) is organised or engaged in for the purpose of supporting or advancing claims in relation to the agreement that are only about, or are reasonably believed to only be about, permitted matters; and
(b) is organised or engaged in, against an employer that will be covered by the agreement, by:
(i) a bargaining representative of an employee who will be covered by the agreement; or
(ii) an employee who is included in a group or groups of employees specified in a protected action ballot order for the industrial action; and
(c) meets the common requirements set out in Subdivision B; and
(d) meets the additional requirements set out in this section.
Protected action ballot is necessary
(2) The industrial action must be authorised by a protected action ballot (see Division 8 of this Part).
Unlawful terms
(3) The industrial action must not be in support of, or to advance, claims to include unlawful terms in the agreement.
Industrial action must not be part of pattern bargaining
(4) A bargaining representative of an employee who will be covered by the Agreement must not be engaging in pattern bargaining in relation to the agreement.
Industrial action must not relate to a demarcation dispute etc.
(5) The industrial action must not, if it is being organised or engaged in by a bargaining representative, relate to a significant extent to a demarcation dispute or contravene an FWA order that relates to a significant extent to a demarcation dispute.
Notice requirements after suspension order must be met
(6) If section 429 (which deals with employee claim action without a further Protected action ballot after a period of suspension) applies in relation to the industrial action, the notice requirements of section 430 must be met.
Officer of an employee organisation
(7) If an employee organisation is a bargaining representative of an employee who will be covered by the agreement, the reference to a bargaining representative of the employee in subparagraph (1)(b)(i) of this section includes a reference to an officer of the organisation.”
[13] I have not set out the notice and other requirements of the Act established in relation to protected industrial action, including by s.413 and s.414, in light of the concession made by the Rail Commissioner in that regard.
THE POSITIONS ADVANCED BY THE PARTIES
[14] No issues have been raised by the Rail Commissioner about the purpose or nature of the claims being pursued by the Union. The Union also conceded that the ban is industrial action for present purposes and that it is threatened, impending and/or probable. It is also clear that the Union is organising the industrial action. Accordingly, the only remaining issue is whether the industrial action is authorised by the protected action ballot as required by s.409(2) of the Act.
[15] The Rail Commissioner argued that the orientation work should be considered to be safety critical training, and therefore beyond the scope of the authorised action, on the following grounds:
- All Rail Commissioner Train Drivers are to be rostered to undertake familiarisation trips from Adelaide Railway Station to Noarlunga Centre and return in order to observe any new or updated features of the rail corridor prior to the resumption of normal services on 24 July 2011;
- On 7 July, a Risk Assessment of issues with potential to impact on the safe operation of services on the Noarlunga line confirmed the need to reinforce Driver knowledge of the new line and provide for re-familiarisation of features associated with the line;
- As part of its obligations under the Rail Safety Act 2007 (Cth) (the Rail Safety Act) the Rail Commissioner is required to ensure that employees engaged to undertake rail safety work in relation to its rail transport infrastructure and rolling stock have the competence to carry out that work (s.69(1));
- The competence of a rail safety worker to carry out rail safety work must be assessed by reference to the knowledge and skills which will allow the worker to undertake duties safely (s69(2)(b));
- Section 69(4) of the Rail Safety Act stipulates that a rail transport operator is not prevented from requiring a rail safety worker to undertake further training before carrying out rail safety work;
- Section 71(1)(c) of the Rail Safety Act requires that a rail safety worker must cooperate with a rail transport operator with respect to any action taken by the operator to comply with a requirement imposed by or under that Act;
- Rule 134 (g) of the Common and General Operating Rules 7 developed to ensure the requirements of the Rail Safety Act are met require that drivers be acquainted with the line over which work is undertaken and have a complete knowledge of signals, rules, regulations, and instructions pertaining to train operations over such line; and
- Re-familiarisation of Drivers with a section of their work environment to which they have not had access for a period of six months or more is considered to constitute a safety critical aspect of the Rail Commissioner’s work procedures to which the provisions of the Rail Safety Act apply.
[16] In the context of the authorisation provided by the protected action ballot process in respect of the imposition of a ban on non safety critical training, the Rail Commissioner contended that the action by the union members in relation to participation in scheduled re-familiarisation activities on the Noarlunga Line is unprotected action which ought not occur.
[17] The Rail Commissioner also noted that the process of orientation being adopted on the Noarlunga line also applied in the case of another recently re-opened railway line and would be expected as part of the reintroduction of rail lines in the future. It was also contended that the orientation training was being rostered and records of that training were being kept for competency assessment purposes.
[18] The Rail Commissioner also contended that there were changes to at least one station platform and a number of new signal configurations and these reinforced the need for the orientation training to be conducted as proposed.
[19] In effect, the Rail Commissioner sought orders that would stop any industrial action in the form of bans or limitation upon safety related orientation and training generally.
[20] The Union’s position was that the orientation work should be considered not to be safety critical and in that context contended that it was protected industrial action. The orientation work was said to be non-safety critical on the following grounds:
- There were a large number of drivers who had already undertaken the orientation and these should be sufficient to staff the driving functions. Rosters could be operated that did not necessitate non-oriented drivers. Any inconvenience in so doing should not be considered as creating a critical requirement;
- The nature of the training was more of a re-acquaintance exercise and was being undertaken informally and without real vigour;
- It was suggested that there were no apparent records of the training as would be required by s.69(2)(a) of the Rail Safety Act if this was to be considered competency related training;
- The changes made to the Noarlunga track were not significant and it contended that they were largely associated with the replacement of the sleepers rather than the related infrastructure; and
- The union did not agree that it was necessary for the orientation work to be done as a pre-requisite for driving of trains on the line.
[21] In essence, the Union argued that unless it was impossible for the Rail Commissioner to conduct its business safely without the orientation being done by all train drivers, the proposed training was not safety critical.
[22] In terms of any order, the Unions did contend that if one was to be made it should deal only with the particular circumstances and not attempt to canvass other issues that may arise in the future. Further, the Union requested that any order not apply before midnight on 21 July in order to allow it to inform its membership.
CONSIDERATION
[23] In approaching this matter I am mindful of the purpose of protected action ballots and related matters as set out in s.436 of the Act as follows:
“436 Object of this Division
The object of this Division is to establish a fair, simple and democratic process to allow a bargaining representative to determine whether employees wish to engage in particular protected industrial action for a proposed enterprise agreement.
Note: Under Division 2, industrial action by employees for a proposed enterprise agreement (other than employee response action) is not protected industrial action unless it has been authorised in advance by a protected action ballot.”
[24] I am also mindful of the guidance that has been provided by various Full Benches with respect to s.214 and the related notice requirements concerning protected industrial action which set some of the context in which this matter needs to be determined. 8
[25] This matter has been argued on the basis that the ban in question must fall within the scope of the ballot approved and notified industrial action in order to be protected under the Act. Given the provisions of s.409 of the Act, that approach is sound.
[26] Given the scheme of the Act, it is my view that the scope of the notified and approved industrial action should not be considered in a pedantic or narrow fashion. For instance, there may be an argument whether the orientation activity is training in a strict sense. I note that if it were not considered to be such then the ban would clearly not be approved, or protected. However, as effectively conceded by the Rail Commissioner, the substantive nature of the activity is consistent with the notion of training and should be considered as such for present purposes.
[27] Given the statutory scheme, it is also evident that Fair Work Australia may only interfere with industrial action that is being taken in the context of what would otherwise be protected action where it is positively satisfied that the action is not protected.
[28] The essential question is therefore, whether the track orientation training should be considered to be non critical safety training.
[29] I find that the orientation work is safety training for present purposes. The clear purpose of which is to acquaint the drivers, and to some extent other employees, with the changed track conditions and infrastructure. Given the emphasis upon safe operating procedures that must be applied given the nature of the work and the regulatory environment, I accept that the training is fundamentally directed to safety objectives. I also consider that the public transport context in which the work is performed, and the related safety implications for both staff and the public, also bears upon the character of the training for present purposes.
[30] There is no doubt on either case that the orientation training is desirable and should be undertaken however, the significant point of difference between the parties is whether that training is safety critical. Critical in the sense in which it is being used here must mean, crucial or vital.
[31] I have carefully considered the Union’s proposition that as a significant proportion of the drivers have undertaken the orientation in the lead up to the introduction of the ban, it was not necessary that all of the drivers do so. In that sense, it contended that the training was not critical. This was disputed by the Rail Commissioner. In the absence of evidence on this aspect I have accepted for present purposes that it was at least feasible, albeit undesirable for reasons that I will outline, for the operations on the Noarlunga line to recommence on Sunday 24 July 2011 based upon the existing level of orientation.
[32] However, as outlined above, in my view it is necessary to consider the training itself in the context in which it is being conducted. That is, to consider the nature and purpose of the training itself and despite the Union’s contention to the contrary, I am satisfied that the training is critical in the sense that as far as possible those drivers who are to drive on the track in the future should be properly orientated on the revised rail corridor for reasons advanced by the Rail Commissioner. There are clear safety advantages to this taking place prior to the commencement of passenger services and the fact that this can only take place within the present window of opportunity reinforces that this is safety critical.
[33] There was no suggestion by the Union that those drivers who were not subject to the orientation could not subsequently be required by their employer to undertake driving duties on the Noarlunga line. I consider that it is vital for the orientation, which could only be done in this form now, to be undertaken with all of the available drivers who may work on that line.
[34] To the extent that there may be other drivers who are not available to undertake the training (on leave or not yet employed) and cannot do so, this does not detract from the vital nature of the exercise for those who can be trained in this manner.
[35] In the light of the risk assessment made by the Rail Commissioner and all of the circumstances evident here, I have found that the orientation training is safety critical for present purposes.
[36] As a result, I found that the orientation training was not non-critical safety training and thereby fell outside of the scope of the ballot approved and notified industrial action. It was therefore not protected and s.418(1) of the Act obliged me to make an order that the bans on such work not be organised and not occur.
[37] I am satisfied that it is permissible to make orders under s.418 that only deal with that part of the notified industrial action which is not protected. 9 In this case, I consider that this was an appropriate step.
THE NATURE OF THE ORDER
[38] The order made by Fair Work Australia operates in relation to industrial action which was defined in the following terms:
“3.1 Subject to the definition of industrial action in section 19 of the Fair Work Act 2009, industrial action in this order will mean the refusal to participate in work and activities associated with the orientation of drivers and other employees in relation to new, modified or upgraded rail lines and any related training or induction activities that are safety critical.”
[39] This was designed to capture the limitation on what is considered to be industrial action pursuant to s.19 of the Act 10 and to deal specifically with the relevant ban and directly related training. Section 418(3) does not require Fair Work Australia to specify the particular industrial action within the order and in most cases that course of action may be appropriate. However, I considered that in this particular case a narrow approach was warranted.
[40] A more general order would not in reality assist the parties in meeting their obligations and I was not sufficiently aware of the other circumstances regarding training and induction that might arise to extend the express operation of the order. I would note however that only industrial action on non-safety critical training would be covered by the authorised and notified action, and thereby be protected, and some guidance may be taken in that regard from this decision. In the event that other circumstances arise, a further s.418 application can be brought if necessary.
[41] Section 418(1) of the Act requires that such an order must be made for a defined period, the “Stop period”. The intended operation of a stop period is a little unclear in the context of findings that the industrial action is not protected due to the scope of the protected action ballot authorisation. That is, the not protected action cannot ever become protected without the necessary steps being taken under the Act and if a subsequent ballot endorsed action that was then notified, it might well become protected and the s.418 order would not apply.
[42] In the circumstances, I determined that the stop period for the order should be that period ending at 12 midnight on Friday 14 October 2011, being a period of some three months.
[43] Section 418(4) provides that where I have made an order in circumstances which include where a protected action ballot order has authorised the industrial action, Fair Work Australia may state that the industrial action may be engaged in after the end of the stop period without another protected action ballot.
[44] In this case, the order only relates to the industrial action that is not authorised by the ballot. As outlined above, it could only ever become authorised if a subsequent ballot provides the necessary foundation for that to occur. On that basis, a statement as contemplated by s.418(4) of the Act was not appropriate.
COMMISSIONER
Appearances:
B Moritz on behalf of the Rail Commissioner.
A Wadell with D Phillips for the Australian Rail, Tram and Bus Industry Union.
Hearing details:
2011
Adelaide
July 20 and 21
1 The Rail Commissioner is a statutory office established by the Rail Commissioner Act 2009 (SA).
2 Rail Commissioner/ARTBIU Industrial Action Order 2011 - PR512392.
3 PR509776 Bartel DP, 20 May 2011.
4 Exhibit A1.
5 Exhibit A2.
6 I note that the commencement of the ban was delayed as part of an understanding that has facilitated some progress in the overall negotiations. However, the ban was confirmed in the lead-up to the resumed hearing in this matter.
7 Extracts from the Common and General Operating Rules, which have been adopted and apply in this workplace, were provided - Exhibit A2.
8 These include Boral Resources (NSW) Pty Ltd [2010] FWAFB 1171, 31 March 2010 per Boulton J, Hamberger SDP and Deegan C; and Telstra v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2009] FWAFB 1698, 15 December 2009 per Giudice J, Acton SDP and Whelan C.
9 National Tertiary Education Industry Union v University of South Australia [2010] FWAFB 1014, 14 April 2010 per Boulton J, Ives DP and Gay C - although this matter dealt fundamentally with s.224 of the Act, the operation of s.214 was also canvassed on the relevant issue.
10 Section 19 provides some limitation upon action that is considered to be industrial action including where it is agreed to by the employer or, subject to certain conditions, the refusal to perform work that is based on a reasonable concern of the employee about an imminent risk to his or her health or safety.
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