C2004/1684, Transcript of Proceedings [2004] AIRCTrans 461 (5 February 2004)

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TRANSCRIPT OF PROCEEDINGS

O/N 8912

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT HARRISON

C2004/1684

ASSOCIATION OF PROFESSIONAL ENGINEERS,
SCIENTISTS AND MANAGERS, AUSTRALIA

and

STATE RAIL AUTHORITY OF NEW SOUTH WALES
and OTHERS

Notification pursuant to section 99 of the Act
of a dispute re alleged summary termination of
employees etcetera

SYDNEY

1.05 PM, FRIDAY, 23 JANUARY 2004

PN1

THE SENIOR DEPUTY PRESIDENT: May I have appearances in this matter?

PN2

MR P. MARCHIONNI: I appear for the Association of Professional Engineers, Scientists and Managers, Australia.

PN3

MR R. CROW: I seek leave to appear for all three employers named in the notification and with me at the bar table is MS J. McAULIFFE from the Rail Infrastructure Corporation and MS I. RUSAK who appears on behalf of both Rail Corporation NSW and the State Rail Authority of NSW.

PN4

THE SENIOR DEPUTY PRESIDENT: Any difficulty with leave being granted to Mr Crow? Yes, leave is granted to you Mr Crow to appear. I've commenced this hearing on transcript. I thought it was wise we would do so. The matter is listed for both hearing and conciliation but other than that which is put in the notification I'm not entirely sure what it is that you seek to achieve by it Mr Marchionni, so perhaps you will let me know that.

PN5

MR MARCHIONNI: Your Honour, what created this difficulty for the Association that led to the dispute notification was the fact that for the first time to our knowledge, a number of senior staff within the rail industry were summarily dismissed. Now there is obviously a range of remedies that the Association has open to it and not surprisingly, we have started down that path. However, what has caused us a great deal of concern and alarm is the fact that it appears, at least, in the circumstances involving the two senior staff members who were terminated last Thursday, Friday that the corporation or State Rail Authority or Rail Infrastructure Corporation or whomever they were employed by at the time, made a decision to undertake that course of action or to take that course of action in a manner which is alien to those of us who are bound by the awards and agreements that apply in the rail industry, and dare I say it, to the individual contracts of employment under which a whole range of people in a whole range of public sector environments are employed.

PN6

The concern that we have about the dismissal of Mr Smith and Mr Bruce is one issue and that is a difficult issue for all of us because of the manner in which they were terminated but the issue that really brings us here today is the fact that we believe, and when I say we believe - in January 2004 in the New South Wales public sector, the way you find out about things is to pick up for example, this morning's edition of the Sydney Morning Herald and find that the New South Wales Government has sacked Jan McClellan, up until recently the Director-General of the Department of Education and Training, and whilst I suppose, to an extent CEOs, members of the SES and the CES have an expectation that the ground can be tugged from underneath them fairly quickly, that the speed with which these people in rail were removed, the - what you could only describe as "the pretence under which they were removed", caused us a great deal of concern not only for them as members of our Association but also the fact that for example, when you look at those two individuals you are talking about 72 years or more of combined experience simply exiting the system.

PN7

If it is the Minister or the Government's wish to make, as the Premier was quoted the other day, rail employees "safety fanatics" which is an unfortunate choice of term but, however, if they are concerned about safety, our concern is that removing senior staff members is not a way to ensure safety for the travelling public but more importantly from the Association's perspective, the concern that we have is where does this stop? If, for the first time, senior employees below the level of Chief Executive can be removed without any suggestion of a timely investigation or a review of performance then our concern is that this is just the tip of the iceberg and in fact a substantial number of our members have contacted the Association voicing their concerns regarding their future.

PN8

That is because, from what I can gather, speaking to the two people concerned the reasons given for their removal relate to an interim report by McInerney AJ, a special commission of inquiry into the Waterfall accident and the fact that a number of people either gave evidence or are named in that report. Now if that is the case what we want to know as an Association representing these people, many of whom are on awards and agreements, is will RailCorp, Rail Corporation of New South Wales, Rail Infrastructure Corporation and the State Rail Authority of New South Wales bother to apply the normal practices that they apply before they issue the ultimate sanction which is dismissal.

PN9

This sort of removal is unprecedented. For example, from time to time we represent individuals who have been the subject of disciplinary action. Invariably, those actions take months before a final decision is made and then of course you have recourse to various tribunals but the speed with which this was done and the apprehension that has been caused by these removals is really the nut of the issue for us and we'd like to know a whole range of - actually what we are seeking is the Commission's assistance in obtaining information particularly in relation to, not only the aforementioned individuals but anyone else who at this stage has a reasonable apprehension based on current employment practices within RailCorp, SRA and RIC of literally being frogmarched out the door and summarily dismissed, and that really is the nut of the issue your Honour.

PN10

THE SENIOR DEPUTY PRESIDENT: You said that you are considering a range of issues that are appropriate for the individuals concerned who have thus far had their services terminated and you have proceeded down that path. In relation to those employees you have identified who have been dismissed or any others you have not identified who have been dismissed, have any procedures been invoked?

PN11

MR MARCHIONNI: Nothing beyond, at this stage your Honour, seeking formal advice regarding - well really quite frankly, how best to represent the interests of people who will be adversely affected by either RailCorp, SRA or RIC.

PN12

THE SENIOR DEPUTY PRESIDENT: We are just dealing with those whose services have been terminated and for the time being the two employees you have identified. Do you assert that they would be employees who would be entitled to pursue rights under for example, section 170CE of the Act?

PN13

MR MARCHIONNI: Clearly your Honour that we would be at least attempting to invoke the provisions of section 170 as a likely first step to at least ensure that there - quite literally, use every device available to us including the provisions of section 170.

PN14

THE SENIOR DEPUTY PRESIDENT: I suppose what I am thinking of is what the Commission would be inclined to do in this matter which has been brought to the Commission under section 99 alleging an industrial dispute. What I would be inclined to do there if I was of the view that what you ask for is likely to be able to be provided to you should a competent section 170CE be lodged.

PN15

MR MARCHIONNI: There is that issue your Honour but there are other complications as you can probably imagine. The two individuals concerned - were we to assert our rights under section 170, or their rights under section 170, and seek to follow that course of action the immediate issue that we naturally deal with is the issue of jurisdiction, whether there is a nexus between the awards and agreements under which our members work and the individual contracts of employment under which a number of these people have been engaged. There is a range of employees who believe, I think reasonably, that they are subject to a potential sanction. And they would be people whose conditions are regulated by awards and agreements; whose employment is regulated by individual contracts of employment going back to the days of the Rail Access Corporation - Rail Services Australia, Rail Services Authority, Rail Infrastructure Corporation, State Rail Authority and more recently RailCorp and Rail Infrastructure Corporation. So, it is a very muddy sort of an area.

PN16

But in addition to those two people who have been terminated there has been a great deal of speculation that others were to follow. And effectively I guess really what we are on about today is attempting to get assistance from the Commission to ensure that before any other heads are locked in this industry that some notion of reasonable practice - that we are used to - is applied.

PN17

That in part brings us to the Commission today. The issue of Mr Smith and Mr Bruce is a separate issue, but what it has given rise to is a reasonable fear on the part of a substantial number of our members that they are next - or next in line. And, in fact, the information provided to us was that the Corporation Board was to meet yesterday, Thursday, to consider a range of further terminations. Now my understanding - again the best advice possible is to read the Sydney Morning Herald, or perhaps to listen to Alan Jones of a morning. The advice that we have at the moment is that at this point in time there are not other people who are to be terminated today. But it is only early. It is only a quarter past one. Given the manner in which Mr Bruce and Mr Smith were terminated it would not surprise me if other people got their marching orders this afternoon.

PN18

Really, your Honour, we are here to try and see if we can't arrive at a position where at least people are given some adequate opportunity, before decisions which bring their careers to a halt, are made.

PN19

THE SENIOR DEPUTY PRESIDENT: You seek the extraction of some sort of understanding from the other side, do you, about what their plans are? Is that what you are after?

PN20

MR MARCHIONNI: Yes, your Honour. And, also, if there are to be further terminations, further summary dismissals of employees, then what we would seek is the assistance of the Commission for the employers, be they RailCorp RIC or SRA - RIC, SRA or Rail Corporation - to provide us and the Commission with reports that would be relied on that would form the information that would be used to dismiss, with or without notice, members of the Association or employees eligible to be employees of the Association. And, also, recourse to the terms of contracts from employees of Rail Corporation of New South Wales, State Rail Authority of New South Wales and Rail Infrastructure Corporation in order to be able to inform the Commission about the processes that should be in place before contracts - either individual, or contracts relating to awards and agreements - are used to terminate employees.

PN21

And further, what we seek is the assistance of the Commission so that we can find out what advice was taken, who provided that advice, when that advice was made that informed the person or people who made the decision to terminate those employees, and are likely to make similar decisions to terminate other employees of either RailCorp, RIC or SRA. Because we really do need to know what process is in place. And we want to know literally what the employers are relying on to take the course of action that they have taken and that we believe they propose to take in relation to a range of other employees. We seek from the employers copies of the contracts of employees of those dismissed, planned to be dismissed, or liable to be dismissed as a result of the release of the interim report of the standing Commission of inquiry into Waterfall.

PN22

And the reason we do that, as I mentioned in the background of the dispute notification, is that we find the actions of the employers to be offensive, to be out of all proportion and also, quite frankly, to be mystifying. We simply do not know what it is that these people allegedly have done, or that others in similar positions, making similar decisions, are likely to - what is going to be visited upon them and how decisions are to be made. If we could seek the assistance of the Commission to at least try and find a way where there is some level of process applied; where some quaint notions of natural justice might apply when it comes to members of our Association.

PN23

THE SENIOR DEPUTY PRESIDENT: Mr Crow?

PN24

MR CROW: Your Honour, could I respond to most of that by handing up a copy of a media release, dated 22 January 2004, by Rail Corporation NSW.

PN25

THE SENIOR DEPUTY PRESIDENT: Do you want me to mark this, Mr Crow?

PN26

MR CROW: Yes, please.

PN27

THE SENIOR DEPUTY PRESIDENT: The media release of 22 January 2004, reference 200-2060. I will mark them all RailCorp and mark any exhibits RailCorp, Mr Crow - RailCorp 1.

EXHIBIT #RAILCORP1 MEDIA RELEASE OF 22/01/2004 REFERENCE 200-2060

PN28

THE SENIOR DEPUTY PRESIDENT: Yes?

PN29

MR CROW: Could I ask your Honour to look at the last paragraph above the series of dot points at the bottom of the first page? The one beginning, Mr Bunyan. Mr Bunyan being described earlier in the document as the RailCorp Chairman. He is describing there a meeting of the board of RailCorp and he says:

PN30

The board is determined that no further disciplinary action would be taken against individuals.

PN31

As you will see it is in connection with the Waterfall report. Mr Marchionni's concerns - his members concerns as he has described them - we would think would therefore be ameliorated or removed by that resolution of the board.

PN32

Now, most of what Mr Marchionni has said has seemed to me to be based on an expectation, or a presumption, that there would be further dismissals of employees as a consequence of the interim report into the Waterfall accident. That is not the case. Therefore we think his concerns are groundless, his members' concerns are groundless. There doesn't seem to us to be any further utility in these proceedings.

PN33

THE SENIOR DEPUTY PRESIDENT: Yes, I understand. Do you want to say anything at all about the two individuals that have had their services terminated?

PN34

MR CROW: I would prefer not your Honour. I did understand Mr Marchionni to describe that as a separate issue to the one which is notified to the Commission. Their personal positions does not seem to be the subject of the notification and indeed it would be my submission inappropriate for it to be so. If they or their union does consider that they have available to them a remedy under section 170CE they will no doubt pursue it and it is inappropriate for it to be canvassed in these proceedings. The notification before you today and the submissions that Mr Marchionni has made seem to me to be related entirely to what my clients will do going forward and therefore I just think it is inappropriate to canvass what has happened in relation to those two employees or former employees.

PN35

THE SENIOR DEPUTY PRESIDENT: What do you want to say about the media release Mr Marchionni?

PN36

MR MARCHIONNI: Your Honour if this is an affirmation by Mr Bunyon that in fact no further disciplinary action will be taken against individuals that is obviously of some comfort to the association. I would however request the opportunity at least to discuss the issue of process. I am conscious of what Mr Crow said that we don't want to visit specifically the circumstances surrounding the other two individuals because we obviously - it quite simply only happened recently and we are in the process of receiving advice as to the best course of action to pursue individually and jointly with those two people.

PN37

So from that perspective I would welcome the opportunity of - I suppose if this is an assurance from RailCorp, are we to assume correctly that employees of Rail Infrastructure Corporation and the State Rail Authority of New South Wales will be similarly captured by the provisions of this media release. I know that it talks about Countrylink, City Rail and RailCorp, does this media release also extend to those employees of Rail Infrastructure Corporation?

PN38

THE SENIOR DEPUTY PRESIDENT: Well may be some of those matters we could pursue in conference. That when the determination of which Mr Bunyon speaks of there being no further disciplinary action taken against individuals which employees of which of the various agencies does that determination relate to. Mr Crow might be able to get those instructions and that might satisfy you. Because this is a media release and it relates no doubt to resolutions made by the Board I don't know that I would pursue that matter on transcript, but we could pursue that in conference certainly.

PN39

MR MARCHIONNI: Yes, your Honour, thank you.

PN40

THE SENIOR DEPUTY PRESIDENT: All right, let's adjourn into conference.

NO FURTHER PROCEEDINGS RECORDED [1.27pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #RAILCORP1 MEDIA RELEASE OF 22/01/2004 REFERENCE 200-2060 PN28