Sydney Trains v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
[2021] FWCFB 3089
•31 MAY 2021
| [2021] FWCFB 3089 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Sydney Trains
v
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(C2020/6464)
VICE PRESIDENT HATCHER | SYDNEY, 31 MAY 2021 |
Appeal against decision [2020] FWC 3727 of Commissioner McKenna at Sydney on 31 July 2020 in matter number C2019/6213.
Introduction
[1] This is our second decision concerning an appeal by Sydney Trains against a decision made by Commissioner McKenna on 31 July 2020 (decision). 1 The background to this matter is set out in our first decision of 12 February 20212 and need not be repeated in full here. In short summary, on 10 October 2019 the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) lodged, pursuant to s 739 of the Fair Work Act 2009 (FW Act), an application for the Commission to deal with a dispute in accordance with the provisions of the dispute settlement procedure in clause 8 of the Sydney Trains Enterprise Agreement 2018 (Agreement). The dispute concerned whether Electrical Systems Supervisors (ESSs) and Electrical System Operators (ESOs) could be required to participate in a trial of a new sequential switching procedure which, in their opinion, was unsafe. In an initial decision issued on 22 November 2019,3 the Commissioner determined that the dispute could be resolved on the basis that employees were, under Sydney Trains’ applicable safety rules, entitled not to perform work which they considered could not be done safely. A differently constituted Full Bench, in a decision issued on 12 March 2020,4 upheld an appeal by Sydney Trains against the Commissioner’s decision on the basis that the Commissioner had not resolved the dispute in accordance with clause 8.4 of the Agreement, and remitted to her for determination the following question: “Can Sydney Trains lawfully and reasonably direct relevant Electrical Systems Supervisors and Electrical System Operators to perform work in connection with the trial of the proposed sequential switching procedure having regard to its obligation under subclause 35.2 of the Sydney Trains Enterprise Agreement 2018?”
[2] In the decision now under appeal, the Commissioner answered “No” to the question because:
(1) Subclause 35.2 of the Agreement, properly construed, is not to be read as including the proviso “so far as is reasonably practicable”, as contended by Sydney Trains.
(2) Sydney Trains’ contention that subclause 35.2 is inconsistent with applicable safety obligations in the Work Health and Safety Act 2011 (NSW) (WHS Act) and the Rail Safety National Law (RSNL), and therefore of no legal effect to the extent of the inconsistency by virtue of the operation of s 29(2)(b) of the FW Act, was not accepted on the basis that there is no relevant inconsistency.
(3) If the conclusion as to the construction of subclause 35.2 was wrong, the sequential switching trial proposed by Sydney Trains does not ensure safety so far as is reasonably practicable, since it would introduce new risks that do not currently attend the switching work.
[3] Sydney Trains appealed the Commissioner’s decision on three grounds. The above three conclusions are challenged in appeal grounds 1, 2 and 3 respectively. It was initially agreed that we should first determine the first two appeal grounds since, as Sydney Trains conceded, if it did not succeed in either of these appeal grounds, the answer given by the Commissioner to the question posed for her determination was correct and the third appeal ground (which challenged the third conclusion above) did not arise for consideration.
[4] In our first appeal decision issued on 12 February 2021, 5 we granted permission to appeal, rejected the first appeal ground and upheld the second. In the last respect we held that clause 35.2 of the Agreement, which imposes an obligation upon Sydney Trains to “ensure the health, safety and welfare at work of all its Employees”, was inconsistent with s 19 of the WHS Act and s 52 of the RSNL (because it was not qualified by reference to what is reasonably practicable) and was consequently pro tanto inoperative by virtue of s 29(2) of the FW Act. That conclusion meant that further consideration of ground 3 of the appeal, and the merits of the dispute in general, was required.
Factual background
[5] To deal with the outstanding issues in the appeal, it is necessary to explain in some detail the change to its switching procedures which Sydney Trains seeks to introduce in its trial. The switching process is one by which the supply of electricity to a section of the Sydney rail network is isolated so that maintenance or capital works may be conducted without risk of electrocution. Isolation requires an electrical circuit to be disconnected from all possible sources of supply and rendered incapable of being made live without a pre-meditated and deliberate action. For a section of rail track to be fully isolated, the electrical switches at both ends of the section must be earthed or “rail connected” before work is able to safely commence in that section.
[6] Sydney Trains distributes power obtained from its external electricity providers, which is converted into 1500-volt direct current (1500Vdc) through various substations which it owns, and transmitted through the overhead wiring above the train lines through which the trains are powered. The power then returns through the rails via the 1500Vdc negative system to the substations, thus completing the direct current electrical circuit. In respect of each defined section of rail, Sydney Trains feeds the 1500Vdc from each end.
[7] Each section has direct current circuit breakers (DCCBs), which are automatic switches that interrupt the flow of electricity as a safety measure if a fault is detected. When they are tripped or “opened”, the flow of power to the relevant section is cut off. The DCCBs may also be remotely controlled by ESOs working in the Infrastructure Control - Electrical Operating Centre, located at the Rail Operations Centre in Alexandria. Each section also has manually operated switches to cut off the power supply to the section when it is opened, with power then not being restored until the switch is closed. Switches are operated by Field Officers under the instruction of ESOs. The switches have three possible positions (listed from top to bottom):
(1) Closed – the switch allows the electricity to flow from the external power source into the rail network in the relevant section.
(2) Open – the switch disconnects the overhead wiring in the section from the external power source, so that no electricity can flow through the switch.
(3) Rail Connect – the switch remains disconnected from the external power source, but connects the overhead wiring to the rail tracks, which effectively grounds or earths the overhead wiring.
[8] The switch must be moved from the closed position to the rail connect position to ensure that the relevant section of the rail network is isolated so that capital works or maintenance can commence. Because, as earlier stated, current flows into each section from both ends, the switches at each end of the relevant section must both be placed into the rail connect position for the section to be isolated.
[9] Most of the switches are “low-mounted” and are covered by a polycarbonate “Lexan” screen to protect Field Officers against “arc flash”. Arc flash is a short circuit through the air which creates a high intensity flash of energy that explodes outward. We will return in due course to the circumstances in which arc flash may occur. Some of the switches are “high-mounted”, which places them at a sufficient distance from the Field Officer to protect them from injury in the event of arc flash.
[10] The current procedure for isolating a section of the rail network at each end (End 1 and End 2) requires the following steps to be taken in sequence:
Step 1 | The DCCBs at each end are opened by remote control. This disconnects the overhead wiring in the relevant section from the external power source at each end and thereby de-energises it. When this is done the DCCBs are electronically “tagged”, which prevents an ESO commanding them to close while the tag remains. 6 |
Step 2 | At End 1, the overhead wiring is “proved dead” by a Field Officer. This involves the use of a tool to check that no electricity is flowing through the overhead wiring, and this acts as a control to ensure that de-energisation has occurred as per Step 1. It also checks that no external source of energisation has occurred (such as through a train being erroneously routed from a live section of the network into the dead section). The Field Officer is then meant to ring the ESO to confirm that the overhead wiring has proven dead.7 |
Step 3 | At End 1, the Field Officer then moves the switch from the closed to the open position. This prevents power passing through End 1 into the overhead wiring in the relevant section and thereby isolates it. The Field Officer then manually locks and tags the switch in the open position.8 |
Step 4 | At End 2, the overheard wiring is proved dead by a Field Officer. |
Step 5 | At End 2, the Field Officer then moves the switch from the closed position to the open position and then to the rail connect position. This isolates and then earths (or grounds) the overhead wiring at End 2 by connecting it to the rail. It should be noted that there was evidence that this is not done in one continuous motion but, rather, that the Field Officer should ring the ESO after moving the switch from closed to open to confirm what had been done before then moving it to rail connect.9 |
Step 6 | At End 1, the switch is moved by a Field Officer from the open position to the rail connect position. This earths the overhead wiring at End 1 by connecting it to the rail. After this, maintenance work can safely proceed. |
[11] These steps may be undertaken by a single Field Officer who drives from End 1 to End 2 between Steps 3 and 4 and then returns to End 1 between Steps 5 and 6. Alternatively, the steps may be undertaken by two Field Officers, one at each end, who are in remote communication with each other and the ESO. One point of significance is that, in the case of low-mounted switches, the Field Officer cannot first prove dead the overhead wiring again prior to undertaking Step 6 because the Lexan protective screen physically prevents the Field Officer from putting the test device at the necessary contact point when the switch is in the open position. Where the switch is high-mounted this difficulty does not arise because there is no Lexan screen. 10
[12] The process for restoring power to the section once work is complete essentially involves the reverse of the above procedure except that there is no need for the overhead wiring to be proven dead. The sequence is therefore that Steps 6, 5, 3 and 1 are reversed, in that order.
[13] The proposed new procedure requires the following steps to be taken in sequence:
Step 1 | The DCCBs at each end are opened by remote control (same as existing Step 1). |
Step 2 | At End 1, the overhead wiring is proved dead by a Field Officer (same as existing Step 2). |
Step 3 | At End 1, the Field Officer then moves the switch from the closed position to the open position and then to the rail connect position in one continuous motion. |
Step 4 | At End 2, a Field Officer proves dead the overhead wiring. |
Step 5 | At End 2, the Field Officer moves the switch from the closed position to the open position and then to the rail connect position. |
[14] To restore power, Steps 3, 5 and 1 are reversed, in that order.
The decision
[15] In her decision, the Commissioner identified the risks associated with the introduction of the proposed new procedure arising from consideration of two expert reports that were before her, which were referred to in the decision as the “Axess Report” and the “Sweeting Report”. The Commissioner first noted that there was no dispute concerning two new risks identified in the Axess Report, namely:
(1) uncontrolled closure of a DCCB just prior to opening an isolation switch from the overhead wiring on isolation of power when the far end is already rail connected; and
(2) uncontrolled closure of a DCCB just prior to opening an isolation switch from Rail on restoration of power. 11
[16] The Commissioner also referred to the Axess Report identifying two risks that exist under the current switching procedure and would remain under the proposed new procedure. The first was the risk of an overhead wiring section being energised from an external source, such as a train entering the dead section from a live section just as a switch is being opened from the rail connect position. It was noted that such external energisation events have occurred once per year on average. The second was the risk of an operator “unintentionally opening a switch passing traction load current” 12 (which we understand to refer to a Field Officer opening the wrong switch). The Commissioner went on to observe that there was no contest as to the consequences which might ensue for a worker exposed to these risks and quoted from the Sweeting Report in that respect.13
[17] The Commissioner then proceeded to consider whether the trial of the proposed new switching procedure would, in objective terms be “safe” (in accordance with the requirement in clause 35.2 of the Agreement), and said:
“[44] … the evidence indicates this much: In entirely objective terms, the field trial involving its proposed change to the work procedure is, self-evidently, not without risk and/or is unsafe, or both. This is for the equally self-evident reason that two new risks would be introduced by the implementation of the proposals during the field trial (in addition, it may be noted in passing, to the prevailing risks under the current arrangements…) In consequence, the proposed field trial cannot, in entirely objective terms, be conducted in a safe manner. There is nothing equivalent to, for instance (and however described), failsafe or similar mechanisms to protect Field Officers conducting the work in the field; and nothing proposed that perhaps might be perhaps described as protective ‘back-up measures’, even of as an interim measure, during the field trial.”
[18] The consequences for a worker exposed to the consequences of the risks referred to were characterised by the Commissioner as “dire”, 14 and said:
“[46] That the work under the proposed field trial cannot be conducted “in a safe manner” is, on one view of it, reinforced by the fact that Sydney Trains proposes, hand-in-hand with the field trial of the proposal, to put in place certain measures concerning PPE, being PPE arrangements which represent a departure from the existing arrangements.”
[19] In relation to personal protective equipment (PPE), the Commissioner noted that Sydney Trains proposed that the trial should be conducted with more stringent PPE arrangements than those currently applying, notwithstanding that Sydney Trains had not previously addressed the issue of PPE in response to the Sweeting Report’s recommendations in that respect. 15 The Commissioner referred to the PPE which Sydney Trains would require to be worn during the trial by Field Officers which now included “mandatory PPE” (relevantly, arc-rated base garments) as well as “Optional PPE” (a face shield with chin guard),16 and also referred to the fact that the required PPE did not appear to include arc-tested gloves as recommended in the Sweeting Report. The Commissioner then said:
“[50]…I conclude that the mandatory use of Optional PPE for all purposes in tandem with the field trial does not, considered in the context of the aforementioned ‘entirely objective terms’, make the proposed process for the field trial safe. I am surprised by the seemingly blithe approach of Sydney Trains in propositioning that making Optional PPE mandatory during the trial ‘will address concerns’. In contemporary approaches to the hierarchy of work health and safety measures - and these really are first principles - the imperative is to take steps to remove risk itself. Here, it simply cannot go unremarked, new risks would be introduced as an overlay of risks by the implementation of Sydney Trains’ proposals as to the field trial….”
[20] The Commissioner then concluded:
“[53] My detailed evaluation of the expert and lay evidence leads me to conclude that the proposed field trial cannot, in entirely objective terms, be conducted in a safe manner.”
[21] In paragraphs [54]-[76], the Commissioner dealt with the matters that were the subject of our first appeal decision, namely whether the obligation in clause 35.2 of the Agreement was to be construed as if qualified by the expression “so far as is reasonably practicable” and whether clause 35.2 was inconsistent with the WHS Act and/or the RSNL such as to render it inoperative. Having rejected Sydney Trains’ position in respect of these issues, the Commissioner then stated the following conclusion in the alternative:
“[77] If I am wrong about the proper construction of cl.35.2 with the result that the sub-clause must, as a matter of proper construction, be conditioned by the words “so far as is reasonably practicable”, then I say the following. What is being proposed by Sydney Trains for the field trial does not ensure safety so far as is reasonably practicable. That much is clear; I re-emphasise it is common ground that the proposed arrangements introduce two new risks (in addition to the continuation of at least two identified prevailing risks) of significant work health and safety potential consequences. Paraphrasing an observation that was made in the Sweeting Report, significant safety incidents usually involve more than one thing going wrong; minimising risk so far as is reasonably practicable is best achieved using a mixture of control measures rather than attempting to achieve an outcome by relying on only one. Moreover, it was acknowledged that such an incident, although considered statistically unlikely in the probability scheme of things in the Axess Report (albeit I did not accept such analyses as being reliably based – and that finding was not disturbed in the Appeal Decision) could have occurred in the week that the field trial was then proposed to have proceeded.”
[22] The Commissioner quoted from a submission made by Sydney Trains about merits of the retention of the current procedure in light of risks that existed under that procedure. This included the following:
“… 35. One way in which the Commission might test the merit of the Applicant’s [i.e. the CEPU’s] submission is to ask (rhetorically) how the Applicant’s case for retaining the current switching procedure is compatible with clause 35.2 in the face of the uncontradicted evidence that a risk presently exists in the current procedure from an overhead wire section being energised from an external source such as a train entering the dead section from a live section just as the switch is being opened from rail.
36. By way of further illustration, there is a risk inherent in the current procedure whereby at the last stage in the isolation process the Field Operator is required to move the switch at END 1 from open (position 2) to rail connect (position 3). This final switch operation at END 1 is preceded (and in that respect interrupted) by the isolation and rail connecting of the switch at END 2. There is no capacity to test for dead immediately prior to that last switching operation at END 1. As the Axess Report indicates, where multiple switching operations occur at END 1 (as they currently do), the risk of rail connecting the wrong switch exists under the existing process.” 17
[23] In response to this, the Commissioner noted that the question before her was confined to the safety of what was proposed under the trial, not the safety of the current procedure, 18 and said:
“[81] There was nothing in the evidence before me which would permit me to opine about how the proposed field trial could be made safe or, indeed, as safe as far as is reasonably practicable. Perhaps this is a matter for further consideration and consultation, including with a WHS regulator.”
Submissions
Sydney Trains
[24] Sydney Trains submitted that, in respect of its third ground of appeal, the “discretion standard” of appellate review applies because the issues under consideration involve “evaluative conclusions in respect of which the applicable legal criteria permitted of some latitude of choice or margin of appreciation such as to admit of a range of legally permissible outcomes”. 19 In relation to the merits of its third ground of appeal, it submitted in summary that the Commissioner had erred in concluding that the proposed trial of the new sequential switching procedure does not ensure safety so far as reasonably practicable in the following respects:
(1) The Commissioner wrongly proceeded on the premise that the existence of any risk to safety ipso facto made the sequential switching procedure unsafe.
(2) The Commissioner concluded that the two new risks that were introduced in the sequential switching procedure were in addition to the continuation of two identified prevailing risks, but erred in that she disregarded the removal of the risk that currently exists during the isolation procedure because Field Officers cannot prove dead a low-mounted three position isolation switch in the open position immediately prior to rail connecting at End 1, despite the experts attributing significant weight to this matter in making their recommendations to introduce sequential switching.
(3) The Commissioner did not attribute any weight to Mr Griffin’s unchallenged evidence that “If correctly proved dead, the proposed sequential switching process does not introduce a higher likelihood of arc hazard incidents to occur than the existing electrical isolation process.” The Commissioner fundamentally failed to accord any proper recognition to the fact that the health and safety obligations of Sydney Trains are concerned with protecting employees with harm to their health, safety and welfare through the elimination or minimisation of risk.
(4) The Commissioner appears to have wrongly reasoned that Sydney Trains was proposing only one control measure when it is using and proposing overlapping control measures to ensure the safety of its employees as far as reasonably practicable. Control measures include proving dead immediately prior to connecting to rail for every switch type during isolation; the remote opening of DCCBs by ESOs by tagging them in the open position to de-energise the overhead wiring; and the use of PPE by employees.
(5) The Commissioner failed to evaluate whether the mandatory use of PPE together with other proposed controls constituted reasonably practicable measures to avoid or minimise risk to safety and instead addressed whether the mandatory use of PPE made “the proposed process for the field trial safe” in the sense of removing all risks.
(6) In respect of the likelihood of an incident occurring, the Commissioner erred in adopting what appears to be the same reasoning as she did in the November 2019 decision. 20 It was submitted that her conclusion in that decision, “…even if it were the case that the likelihood of an incident occurring was only once in 14,000 to 15,000 years, it was conceded that such incident could occur in, for instance, the “next week” (being the first week of the trial implementation of the proposals)”, missed the point and the gist of the expert evidence in the Axess Report that the statistical chance of an incident occurring next week, or in any week, is one in 14,000 to 15,000 years.
(7) The Commissioner failed to give appropriate weight to the remoteness of the prospect that the identified risks would ever materialise, which is plainly a relevant factor in assessing whether Sydney Trains had taken reasonably practicable steps to mitigate the risk. In this respect, it submitted that the Axess Report described that prospect as “incredibly unlikely” and “almost unprecedented” and the Electrical Isolation Improvement Project assessment of both the existing electrical isolation process and the proposed sequential switching process of having the same risk rating of C “Medium – Tolerable” with a likelihood of an incident occurring every 10 to 100 years. Further, it referred to the Axess Report’s reassessment of the proposed sequential switching process as having a lower risk rating of D “Broadly acceptable”, meaning the likelihood of a hazard event occurring was significantly smaller than once every 10 to 100 years. Despite finding as unreliable the conclusion in the Axess Report that the likelihood of an incident was once in 14,000 to 15,000 years, the Commissioner made no finding as to the likelihood of the risk materialising and her reasoning purportedly rests upon the implausible notion that the risk of an incident could have materialised at the time of the proposed trial.
(8) The Commissioner’s failure to properly address the remoteness of the risk was compounded by failing to give any weight to the jointly held opinions of the expert witnesses that the sequential switching procedure be implemented based on the standard of “as safe as reasonably practicable” and that the proposed procedure ensured the capacity to prove for dead prior to each switching during isolation. It was submitted that this is not a case where the Commissioner was required to prefer the evidence of competing experts on the issue, as both Professor Sweeting and Mr Griffin recommended that sequential switching proceed to trial. It said that in the face of the expert evidence, the Commissioner’s conclusion that there was nothing in the evidence before her which would permit her to opine about how the proposed field trial could be made safe or as safe as far as is reasonably possible is inexplicable.
[25] Sydney Trains submitted that we should conclude that the Commissioner’s reasoning miscarried and led to error, that we should make our own findings in relation to whether there is any ground for intervention based upon the safety matters raised by it in the proceedings below.
[26] Sydney Trains characterised the CEPU’s case as being advanced on the basis that the proposed sequential switching procedure is unsafe or will not be ensuring safety so far as is reasonably practicable in two respects: first, that the current procedure has proved to be reasonably practicable and is considered safe by employees; and the proposed new procedure will create at least two new risks.
[27] In relation to the first respect, Sydney Trains submitted this was misconceived, as the correct focus of these proceedings is the proposed procedure, not the current procedure. In any case, it submitted, the CEPU case wholly overlooked the jointly held opinion of the experts that the proposed sequential switching procedure is appropriate for introduction in place of the current procedure. In this respect, it referred to the recommendation of the Sweeting Report that Sydney Trains phase out the current procedure as it leaves the authorised person without the means of proving the overhead wiring dead when they return to End 1 to safely operate the switch from open to rail position.
[28] In relation to the second respect, Sydney Trains submitted that we should conclude that the chance of the risks of arc flash materialising during isolation or restoration is so remote as to be implausible. It pointed to the unchallenged evidence of Mr Griffin that if “correctly proved dead, the proposed sequential switching process does not introduce a higher likelihood of arc hazard incidents to occur than the existing electrical isolation process” and that arc hazards “are equally, if not more likely to occur under the current switching process as there are more switching operations, increasing the chance of user error in operating the incorrect switch, which may lead to arc flash.” Sydney Trains submitted that we should give material weight to the importance attributed by the experts to testing for dead prior to switching as a primary risk control measure which prevents an arcing incident and ensures the authorised person is not exposed to an electrocution incident. The worst-case credible consequence of an arcing fault developing while switching, it submitted, could only arise by the failure of two layers of overlapping controls.
[29] It also contended that there are other risks that are reduced under the proposed sequential switching procedure compared to the current procedure as set out in the Axess Report and the evidence of Mr Dale Curran (Associate Director, Network Operations, Network Maintenance Division of the Engineering and Maintenance Directorate in Sydney Trains). It relied on examples provided by Mr Curran in his witness statement, namely that there is less room for error during conversations between ESOs and Field Staff and subsequent switching operations because the proposed process reduces the number of steps, including phone calls and/ or travel; and if the team of Field Staff is working alone, there will be fewer trips from one end of the section of overhead wiring to the other, which means less risk of harm while driving between switches.
[30] Sydney Trains urged that we find that the proposed sequential switching process is at least as safe, so far as reasonably practicable, as the existing electrical isolation process as concluded in the Axess Report and that we should dispose of the dispute by concluding that no ground for intervention has been made out on safety grounds.
CEPU
[31] The CEPU submitted that Sydney Trains does not identify any matter that would justify appellate interference, being some error of principle or material fact, the consideration of irrelevant matters or a failure to take something relevant into account. Further, it submitted that an appeal of this nature does not involve the substitution on appeal of the appellate body’s own view of the matter and generally, appellate bodies exercise significant restraint when reviewing decisions of a discretionary or evaluative kind as they invariably involve the kinds of things about which reasonable minds may differ. It submitted that a finding that a decision-maker did not give appropriate weight to something is not a finding of the kind that is relevant to a review of a discretionary or evaluative decision and as such, an invitation to the Full Bench to make findings on appeal or to give different weight to the weight accorded to them by the Commissioner should be rejected. The finding by the Commissioner about reasonable practicability, it submitted, was open to her and did not demonstrate any error that would attract appellate interference.
[32] The CEPU submitted that the appeal should be dismissed, and the status quo maintained, as there was no serious issue on the evidence that the existing procedure for switching ensured safety or at least ensured safety so far as reasonably practicable. In this respect, it pointed to a Memorandum issued in 2018 by Sydney Trains to its ESO workforce which stated the “current electrical Network Safety Rules relating to the operation of 3 - position switches are safe” and that “Sydney Trains is compliant with all the relevant regulatory and legislative requirements” and evidence of Mr Curran before the Commission “that the system that exists at the moment for switching…is safe so far as reasonably practicable”. The Commissioner had correctly identified that the proposed sequential switching process would introduce two incremental risks in addition to two risks that are equally present in the existing procedure, the consequences that would follow from the introduction of the risks and made findings referable to whether there was any means by which the risks to be introduced were to be eliminated or controlled.
[33] The CEPU submitted that it is wrong to suggest that the Commissioner proceeded on the basis that the existence of any risk by that fact itself made the proposed sequential switching process unsafe, as Sydney Trains did. It was also wrong, it submitted, to suggest that the Commissioner was wrong about the continuation of two identified risks because that is what the evidence before her identified and it did not matter that there was a change to (rather than an elimination of) an existing risk. The simple fact was that more risks were being introduced under the proposed process, carrying with them the potential for catastrophic circumstances. The CEPU submitted that the Commissioner did not need to go further having identified the nature of the risks that were being introduced and the likely consequences following from them materialising because there was in evidence before her a reasonably practicable way of doing things that did not carry those risks, namely the existing procedure.
Consideration
[34] Having upheld Sydney Trains’ second ground of appeal in our first appeal decision, we observed in the penultimate paragraph:
“[61] It is necessary to observe that the contention underlying Sydney Trains’ second ground of appeal was never raised or adverted to in Sydney Trains’ first appeal. Had it been raised, it is unlikely that the Full Bench would have remitted to the Commissioner for further consideration the question that it did.”
[35] Having regard to our conclusion that clause 35.2 of the Agreement is pro tanto inoperative by reason of inconsistency with s 19 of the WHS Act and s 52 of the RSNL, it is apparent with the benefit of hindsight that the question remitted for determination by the Commissioner was the wrong question. The correct question should have been: “Can Sydney Trains lawfully and reasonably direct relevant Electrical Systems Supervisors and Electrical System Operators to perform work in connection with the trial of the proposed sequential switching procedure having regard to its obligations to ensure, so far as is reasonably practicable, the health and safety of its employees under s 19(1) of the WHS Act and to ensure so far as is reasonably practicable, the safety of its railway operations under s 52(1) of the RSNL?”. This is not, of course, the question which the Commissioner answered, or was required to answer, in her decision.
[36] In the final paragraph of the second appeal decision, we raised the question of whether the third ground of appeal properly arises for consideration in light of our conclusion as to the second ground of appeal. The third ground of appeal, as earlier set out, contends that paragraph [77] of the decision was attended by error for several identified reasons. The difficulty is that, apart from paragraph [77], the Commissioner’s reasoning and conclusions were directed to the scope of Sydney Trains’ capacity to issue a lawful and reasonable direction in the context of what she correctly construed was an unqualified obligation upon Sydney Trains under clause 35.2 of the Agreement to ensure the health and safety of its employees. The alternative conclusion stated by the Commissioner in paragraph [77] of her decision addresses the question remitted to her on the hypothesis that her construction of clause 35.2 was wrong and that it is subject to a “so far as is reasonably practicable” requirement. However, as we determined in the first appeal decision, the Commissioner was not wrong in her construction of clause 35.2 and, consequently, paragraph [77] does not arise for consideration on appeal. Neither paragraph [77] nor any other part of the Commissioner’s decision addresses whether Sydney Trains may direct relevant employees to participate in the trial consistent with its obligations under s 19(1) of the WHS Act or s 52(1) of the RSNL.
[37] We consider therefore that our conclusion regarding Sydney Trains’ second ground of appeal in our earlier appeal decision has effectively rendered moot the third ground of appeal, and our earlier decision has consequently determined the appeal as whole. That is, the appeal may be upheld without any further consideration of the third appeal ground.
[38] However, as counsel for Sydney Trains observed at the second appeal hearing before us, the dispute the subject of the CEPU’s initial application remains to be resolved notwithstanding that the precise question requiring determination may have “morphed”. We propose to determine the dispute on the basis of the evidence and submissions that were before the Commissioner and the additional submissions received by us in the appeal. Although the appeal submissions we received after we delivered our earlier appeal decision were substantially concerned with Sydney Trains’ third appeal ground, Sydney Trains’ submissions at least proceeded on the basis that we should make our own findings about the dispute, and determine it, if we upheld its appeal.
[39] For relevant purposes, the dispute settlement procedure in clause 8 of the Agreement authorises the Commission to arbitrate disputes about “…matters pertaining to the relationship between the Employer and Employees…” (see clause 8.2(a) and clause 8.4, Step 4). That would, in our view, readily encompass the arbitration of a dispute concerning what we have earlier characterised as the correct question. Neither party contended that clause 8.9 of the Agreement operates to exclude the resolution of this dispute from the operation of the arbitral mechanism in clause 8.4 Step 4. Any answer we give to that question would be binding on Sydney Trains and the affected employees by virtue of the effect of clauses 5 and 8 of the Agreement and s 50 of the FW Act. However, insofar as answering the correct question will necessarily require us to express an opinion about the relevant operation of the WHS Act and the RSNL, that opinion will not of course be declarative of the rights and obligations of Sydney Trains or the relevant employees under the WHS Act or the RSNL, nor will it bind the regulators under those Acts.
[40] The starting point for our consideration is the current switching procedure. Notwithstanding the identified risks which exist under the current procedure, the position taken by both parties before the Commission was that the current procedure is as safe as reasonably practicable (and complied with Sydney Trains’ obligations under s 19(1) of the WHS Act and s 52(1) of the RSNL). Sydney Trains’ principal witness, Mr Curran, gave unequivocal evidence to that effect. 21
[41] However, Sydney Trains’ position in that respect did not entirely accord with the expert evidence it adduced in its own case. The expert reports identified that the existing switching procedure was deficient because, upon returning to End 1, the Field Officer could not test for dead (in respect of low-mounted switches) prior to undertaking Step 6. The Sweeting Report made the following clear recommendations:
“1. The OHW [overhead wiring] should always be tested for dead while connected to the circuit breaker and then immediately operated through open to rail in one instructed operation.
When using the Australian Rail Technology (ART) three-position isolator, testing the OHW for dead while it is connected to the circuit breaker and then transferring it through open to rail in one operation meets the requirements of the WHS Regulations 155 and 157. Testing dead prior to the operation also introduces the added benefit of preventing an arcing incident and the AP [Authorised Person, i.e. the Field Officer] is not exposed to an electrocution incident.
2. The current practice of separating switching operations on the low-mounted ART three-position switches, so that there is a delay between a) operating the switch to open and b) operating the switch to rail, should be phased out and replaced with sequential switching procedures.
The current procedure leaves the AP without a way of proving the OHW dead when they return to end 1 to operate the switch from open to rail position. Being unable to ‘test for dead immediately prior to closing to rail’ does not follow the SFAIRP [so far as is reasonably practicable] principles. The proposed sequential switching process allows the ‘test for dead immediately prior to closing to rail’. It is therefore recommended to implement the sequential switching process in place of the current process.”
[42] The Axess Report similarly stated:
“On low-mounted three position isolation switches, the current procedure leaves Field Operators without a way of proving the overhead wire dead when they return to End 1 to switch from the Open position to the Rail position because the Lexan screen covers all but the DCCB connection. Being unable to ‘test for dead immediately prior to closing to rail’ does not follow the safe So far as is reasonably practicable (SFAIRP) principles.
The proposed sequential switching process allows Field Operators to prove dead immediately prior to Rail connecting isolation switches, which achieves compliance with current Electrical Network Safety Rules (ENSRs). The existing electrical isolation process does not comply with ENSRs for the operation of low-mounted three position switches, where Field Operators are not able to prove dead when the switch is in the ‘Open’ position.”
[43] Despite these clear recommendations, the expert evidence was less clear as to the nature of the risk to the safety of Field Officers which might exist because of the incapacity to prove dead prior to undertaking Step 6 in the current isolation procedure. The Sweeting Report stated that the step was necessary to prevent an arcing hazard. However, as we understand the position, there could not be a re-energisation of the overhead wiring due to an uncontrolled closure of the DCCB at this point because the relevant section is already isolated at both ends. It appears that a risk arises only if an external re-energisation event occurs - identified as being, most likely, a train entering the dead section. However:
(1) In the event that the Workplace Protections fail, and a live train enters the isolated section (which apparently happens about once a year), the period of the re-energisation event is assumed by the Axess Report to be one second in duration. This is so brief that it appears to be impracticable that testing for dead will be able to detect in advance an external re-energisation event that might occur simultaneously with the switch being moved from the open position to the rail connect position.
(2) This appears to be confirmed by the Axess Report, which says that the risk of external re-energisation is the same under the new procedure as under the current procedure, indicating that testing for dead prior to all switching operations does not eliminate or reduce this risk. Further, the Axess Report in any event appears to indicate that a train entering a dead section is a risk which arises only where “a switch is being opened from Rail” - that is, during the restoration process.
(3) Mr Peter Griffin - the expert called to give evidence at the hearing before the Commissioner - did not accept in any event that connecting a live circuit to rail would cause an arcing event (as Sydney Trains accepted in its appeal submissions 22).
[44] The Axess Report, and Mr Griffin, described the risk involved in not testing for dead prior to undertaking Step 6 in the current isolation process in a different way. They said that the risk was that the Field Officer, through human error, might move the wrong switch (noting that it appears that at least some locations, there are banks of switches), and thus connect to rail a switch that was live at the other end. According to the Axess Report and Mr Griffin, proving dead would confirm that the right switch had been identified or, if testing for dead showed that the overhead wiring was still energised, identify to the Field Officer that they had the wrong switch.
[45] This issue was not explored in the evidence, but we cannot understand how this could possibly occur. As earlier stated, the isolation procedure at End 1 involves the switch being locked and tagged in the open position when Step 3 is undertaken. That being the case, a Field Officer returning from End 2 to End 1 must be able to readily identify which switch has been earthed at the other end and which is required to be moved to the rail connect position (independent of the fact that the switches appear, from a photo in evidence and the evidence of Mr Radford 23 to be numbered). Any other switches at the same location would remain in the closed position. We appreciate that, under the current procedure, a Field Officer might through human error misidentify the relevant switch at End 1 or End 2 before proceeding to open it. This could equally occur under the new procedure. In both cases, testing for dead beforehand is the relevant preventative measure. But the evidence before us does not permit us to conclude that there is a risk of moving the wrong switch from open to rail connect upon return to End 1 under the current procedure. We note that Sydney Trains said at the appeal hearing that it was merely “hypothesizing” about this situation, and no explanation was advanced as to how the putative risk could materialise.24
[46] To the extent that there was said to be a risk arising from the current incapacity to test for dead prior to undertaking Step 6 of the current isolation process, Sydney Trains’ position was that it was not reasonably practicable to remove this risk while retaining the current system. 25 In response to two CEPU witnesses, Mr Chris Newton (an ESS) and Mr Ken Owen (an ESO), who had proposed that the risk could be eliminated by installing an accessible test position on all low-mounted switches, Mr Curran gave evidence that to do this would involve modifying some 2,500 switch positions and would take 7-10 years in addition to the design time.26 This evidence must be considered in the context whereby Sydney Trains intends to move eventually to a switching system which is entirely remote-controlled by the ESOs via a rollout which will take a decade or more to complete across the entire network. We presume therefore that the suggested remedy to the current process would not be reasonably practicable because it would take almost as long, or as long, as the project to move to a remote-controlled system which would render the current procedure redundant.
[47] It is significant that Sydney Trains did not initiate the proposal for a new sequential switching procedure for any reason associated with any identified safety deficiency in the current procedure. Rather, its purpose is to reduce the “down time” for maintenance on sections of the line and thus improve the efficiency of the system. We have no reason to doubt that the new procedure would be quicker than the current procedure, although the extent to which this would be so might be debatable. However, in the absence of any contention that it is not reasonably practicable to retain the current procedure, any efficiency benefit is not relevant to the issue we are required to resolve. The important point is that, as earlier stated, Sydney Trains accepts that the current procedure is as safe as is reasonably practicable. This is of obvious significance in answering the question which we must determine.
[48] As has been outlined above, it is not in dispute that the proposed new sequential switching procedure would introduce two new risks:
(1) In the isolation procedure, an uncontrolled closure of the DCCB at End 2 might occur at the same time that the switch at End 2 is opened in accordance with Step 5.
(2) In the restoration procedure, an uncontrolled closure of the DCCB at End 1 might occur at the same time that the switch at End 2 is being moved from the rail connect position to the closed position (i.e. the reversal of Step 5 of the isolation procedure).
[49] The hazard arising from such a risk is that arcing may occur. This requires the following events to happen simultaneously:
(1) There is an uncontrolled closure of the DCCB which causes re-energisation of the overhead wiring. This must happen within a time window of 0.1 seconds from when the switch is moved from the closed position (in respect of the first new risk) or from the rail connect position (in respect of the second new risk) since, if it happens before this, the DCCB will trip and open again.
(2) The switch must have been moved less than 1 millimetre from its starting point of contact.
[50] The Sweeting Report and the Axess Report accept that arcing may occur in either scenario. Mr Griffin accepted that arcing might occur in the first scenario (opening a switch that is passing current), but not in the second (closing a switch onto a fault).
[51] There was no dispute about the potential for injury which may arise from arcing occurring in either of the two scenarios above. The worst-case scenario was described in the Sweeting Report as follows:
“The current from the DCCB will drive an arc root to the end of the top fixed contact. This will send a plasma jet down behind the Lexan screen and out the bottom, where it will hit the floor and back wall and be deflected through the side mesh or forwards onto the operator. A second stream of plasma will be directed upwards off the rotating contact. This will also impact on the upper part of the Lexan screen.
Under fault currents, the Lexan screen will only survive for seconds but will give the operator some time to leave the immediate vicinity. Without testing the duration cannot be reliably estimated.
After the Lexan screen disintegrates, the plasma stream, driven by the plasma jet, from the fixed DCCB contact, will be directed at the head of an AP who has not moved. For this reason, it is recommended that switching personnel wear hard hats with face shields that have been arc tested.
The plasma stream that is directed forwards below the Lexan shield will impinge on the lower half of the AP. If the AP's PPE is not correctly specified to self-extinguish after being ignited by arc plasma, it can catch alight and continue to burn. The flames will go both up the front and the rear of the person causing severe burns over the whole torso.”
[52] The evidence establishes that the likelihood of either scenario ever occurring is extremely low. Firstly, there is no clear record of DCCBs closing in an uncontrolled fashion once electronically opened by an ESO, and there is no evidence establishing how it might happen in practice. However, both the Sweeting Report and the Axess Report envisaged that it was possible that it could happen, so we cannot proceed on the basis that it will never happen. Secondly, for arcing to occur, there needs to be the simultaneity of events described above which, on any view, would be exceedingly rare. Again, however, the Sweeting Report and the Axess Report did not contemplate that it could never happen.
[53] Sydney Trains uses the Transport for NSW risk matrix to assess work health and safety risks as follows:
Likelihood | Insignificant consequence C6 | Minor consequence C5 | Moderate consequence C4 | Major consequence C3 | Severe consequence C2 | Catastrophic consequence C1 |
Almost certain – L1 | C | B | B | A | A | A |
Very likely – L2 | C | C | B | B | A | A |
Likely – L3 | D | C | C | B | B | A |
Unlikely – L4 | D | D | C | C | B | B |
Very unlikely – L5 | D | D | D | C | C | B |
Almost unprecedented – L6 | D | D | D | D | C | C |
[54] The ratings produced by the above table may be summarised as follows:
A: Very high - generally intolerable
B: High - undesirable
C: Medium - tolerable
D: Low - broadly acceptable
[55] The initial internal assessment of the proposed new sequential switching procedure gave it a “C” risk tolerance rating, on the basis that arc burn injuries (to the torso, arms, hands and head) would constitute a “Major Consequence” but were “Very Unlikely” (occurring once every 10 to 100 years). However, in the Axess Report and with the support of Mr Griffin, the likelihood of such an incident occurring was re-assessed as “Almost Unprecedented” (less than once every 100 years). This re-assessment was founded on a mathematical calculation that the two risks associated with the introduction of the sequential switching system, together with the risk of external energisation caused by a train wrongly entering the dead section of track, was about once in every 14,000-15,000 years. This resulted in the risk matrix producing a “D” rating. The response required by the risk matrix to such a rating is as follows:
“Low risks are considered to be broadly acceptable. Where the risk has health, safety or environmental consequences control measures should be effective, reliable and subject to appropriate monitoring. If options for further risk reduction exist and costs are proportionate to the benefits, then implementation of such measures should be considered. The risk and its treatments should be subject to appropriate degrees and forms of monitoring to ensure that it remains at this level.”
[56] It may be noted that the above does not indicate that a “D” risk tolerance rating means that the activity the subject of the rating is as safe as reasonably practicable, and further control measures are contemplated. In this respect, when the matter was remitted to the Commissioner for determination, Sydney Trains proposed that Field Officers participating in the trial of the sequential switching system be required to wear the Optional PPE (a face shield with chin guard) in addition to the Mandatory PPE (which relevantly includes arc-rated self-extinguishing base garments although apparently not, as the Commissioner observed, arc-rated gloves). However, leaving aside the issue of the gloves, it is not clear as to the extent to which this PPE will protect a Field Officer from burns. In relation to this, the following exchange between the bench and counsel for Sydney Trains occurred during the second appeal hearing (underlining added):
VICE PRESIDENT HATCHER: Yes. So how does the mandatory and the optional PPE protect the officer in that situation if at all?
MR MEEHAN: The optional PPE is a face shield with chin guard so that deals with any ablation that is moving up towards the field officer's head. And would your Honours notice point 3 of the joint note on page 42, that is during the field trial Sydney Trains will require the field officers performing switching operations to wear both the mandatory PPE and the optional PPE.
VICE PRESIDENT HATCHER: So that protects the head and the face?
MR MEEHAN: Yes. And then you have the fire - the garment which is arc rated and tested and is worn so the body is covered from neck to wrist to ankle. And then there's safety footwear which one sees in paragraph 1(b) of the joint note.
VICE PRESIDENT HATCHER: So what degree of protection does that provide to the body in the event of arc flash that gets through the Lexan guard?
MR MEEHAN: The garment is designed to self-extinguish so it does not operate as a protective shield per se that would stop plasma setting alight the garment, but it is designed to self-extinguish.
VICE PRESIDENT HATCHER: What does that mean?
MR MEEHAN: For any flame to stop burning.
VICE PRESIDENT HATCHER: So this risk that's referred to of it melting into the skin you say that can't happen?
MR MEEHAN: No, I couldn't say it can't happen, your Honour. It could happen under the current system, it could happen under the proposed system if there was an arc flash incident of the kind that Professor Sweeting describes. And there was no dispute, I should indicate, at the end of the day between Mr Griffin and Professor Sweeting as to the type of consequences. We are in the arena of severe burns, not death, severe burns, both under the current system and the proposed, but a key difference between the professor and Mr Griffin was the circumstance in which an arc flash could occur, and I've touched on that, and Professor Sweeting gives no evidence about the likelihood of such an incident occurring. He simply gives an opinion as to the circumstances in which it can occur. Mr Griffin gives evidence about the likelihood and this is when one enters the realm of his evidence about once in 14,000 years. 27
[57] The following exchange, which occurred later in the hearing, is also of relevance (underlining added):
MR MEEHAN: So it [the Sweeting Report] appears to contemplate the - I might be putting it too highly - failure of the self-extinguishing garment. But I certainly don't want to be taken to be underplaying the severity of potential consequence. We accept there is capacity if the risks that we say are incredibly remote were to materialise cause burn injury.
VICE PRESIDENT HATCHER: That might be accepted but I'm struggling to understand whether the provision of self-extinguishing PPE protects against this worst-case scenario. I mean, it's all predicated on the PPE being not correctly specified to self-extinguish. I'm not sure what that means but does it follow that if they were self-extinguishing PPE that will not happen?
MR MEEHAN: Well, I can't put it that highly, your Honour. But what he appears to describe as the worst credible consequence seems to implicitly involve that self-extinguishing PPE not working in the way that it's designed to - namely, by extinguishing the flames that have reached the field officer who is wearing it. 28
[58] These exchanges demonstrate that even if all the PPE recommended in the Sweeting Report is provided to participants in the trial and is required to be worn, it will not be enough to ensure that employees are protected from burns at least to the body (or to the hands even if arc-rated gloves are worn) if an arc flash occurs.
[59] We are therefore left, in summary, in the following position:
(1) Under both the current switching procedure and the proposed sequential switching procedure, there is a risk of a train entering and briefly re-energising the dead section of overhead wiring if the Workplace Protection arrangements fail. If this happens when a switching procedure is being undertaken, it is possible that an arcing event may occur, with the risk of serious burns injury to the Field Officer undertaking the switching procedure. The evidence before us does not disclose a means by which this risk may be eliminated. The use of the Mandatory PPE and the Optional PPE, and the wearing of arc-rated gloves, would reduce but not eliminate the possibility of injury in the event of arcing occurring.
(2) A change from the current procedure to the proposed sequential switching procedure would mean that the present Step 6 in the isolation procedure whereby the switch at End 1 is moved from the open position to the rail connect position without first testing for dead (in the case of low-mounted switches) would be removed. However, for the reasons earlier set out, it has not been demonstrated to us that this results in the removal of any actual risk to the safety of Field Officers.
(3) The sequential switching procedure would introduce two new risks of arcing incidents occurring. Although the likelihood of such incidents occurring, we accept, is remote, if they occur they may cause serious burn injuries to the Field Officer conducting the switching procedure. The risk of such injury occurring is not removed by Sydney Trains’ intention, at least during the trial, to require Field Officers to wear the Optional as well as the Mandatory PPE.
[60] If the applicable safety standard was that produced by a “D” rating under the Transport for NSW risk matrix – that is, “broadly acceptable” – then the proposed sequential switching system would meet that standard. There is no doubt that the new risks that would be introduced by the sequential switching system would be extremely unlikely to ever occur and the use of PPE will at least to some extent mitigate the risk and possibly the severity of injury. However, that is not the standard. Sydney Trains is required under s 19(1) of the WHS Act to ensure - that is, to guarantee or make certain – the health and safety of the workers it engages to carry out its operations, so far as is reasonably practicable. This standard does not permit an approach whereby the efficiencies introduced by the sequential switching procedure may be balanced against the remoteness of the new risks associated with that procedure. The simple fact is that the sequential switching procedure would introduce two new, albeit very remote, risks to employee safety which would be eliminated by retaining the existing switching procedure. It has not been suggested that it is not reasonably practicable for Sydney Trains to retain the existing procedure, notwithstanding that it is less efficient than the sequential switching procedure would be. Therefore, the proposed sequential switching procedure does not ensure the safety of employees so far as is reasonably practicable because it carries with it risks to safety which do not exist under the current switching procedure and will not exist in the future if the proposed switching procedure is not introduced.
[61] Because, in our opinion, the introduction of the sequential switching procedure, even on a trial basis, would not be consistent with Sydney Trains’ statutory obligation under s 19(1) of the WHS Act, it must follow that Sydney Trains cannot lawfully and reasonably direct any employee to participate in the sequential switching procedure. An equivalent conclusion would apply in respect of s 52(1) of the RSNL. In this respect, our conclusion is of the same effect as the Commissioner’s conclusion in her second decision, albeit that the Commissioner was for the reasons earlier explained not addressing what we have now identified as the correct question.
Conclusion
[62] We have previously granted permission to appeal and upheld Sydney Trains’ second ground of appeal. We re-determine the dispute on the basis that the question to be answered is:
“Can Sydney Trains lawfully and reasonably direct relevant Electrical Systems Supervisors (ESSs) and Electrical System Operators (ESOs) to perform work in connection with the trial of the proposed sequential switching procedure having regard to its obligations to ensure, so far as is reasonably practicable, the health and safety of its employees under s 19(1) of the WHS Act and to ensure so far as is reasonably practicable, the safety of its railway operations under s 52(1) of the RSNL?”
[63] For the reasons given, our opinion is that the answer to this question is “No”. The CEPU’s application in matter C2019/6213 is concluded on this basis.
VICE PRESIDENT
Appearances:
Mr S Meehan of counsel for the appellant.
Mr R Reitano of counsel for the respondent.
Hearing details:
2021.
Sydney (with video-link to Melbourne):
7 April.
Printed by authority of the Commonwealth Government Printer
<PR730270>
1 [2020] FWC 3727
2 [2021] FWCFB 746 at [2]-[7]
3 [2019] FWC 7871
4 [2020] FWCFB 1315
5 [2021] FWCFB 746
6 Transcript, 7 April 2021, PN 59
7 Transcript, 11 November 2019, PN 735
8 Ibid, PNs 405-406, 736-739
9 Ibid, PNs 232-238, 261-267, 742
10 Transcript, 7 April 2021, PN 291
11 [2020] FWC 3727 at [36]
12 Ibid at [37]
13 Ibid at [38]
14 Ibid at [45]
15 Ibid at [47]
16 Ibid at [48]-[49]
17 Ibid at [79]
18 Ibid at [80]
19 See Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at [44] per Gageler J; Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513
20 [2019] FWC 7871
21 Transcript, 15 November 2019, PN 1336
22 Transcript, 7 April 2021, PNs 773-792
23 Transcript, 11 November 2019, PN 806
24 Transcript, 7 April 2021, PNs 794-798
25 Ibid, PNs 36-45
26 Transcript, 15 November 2019, PNs 1297-1305
27 Transcript, 7 April 2021, PNs 132-141
28 Ibid, PNs 759-761
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