C2005/3069, Transcript of Proceedings [2005] AIRCTrans 1397 (29 June 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 11833-1

COMMISSIONER LARKIN

C2005/3069

RAILCORP RAIL INFRASTRUCTURE CORPORATION
AND
AUSTRALIAN RAIL, TRAM AND BUS INDUSTRY UNION COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA
s.99 - Notification of an industrial dispute
(C2005/3069)

SYDNEY

4.01PM, TUESDAY, 07 JUNE 2005

Reserved for Decision

PN1

MR M HARMER: May it please the Commission, I seek leave to appear for
RailCorp and appearing with me is MR H POWER, the acting manager industrial relations of the infrastructure group of RailCorp. May it please, Commissioner.

PN2

THE COMMISSIONER: Yes. Thank you, Mr Harmer.

PN3

MS M YAAGER: If the Commission pleases I appear on behalf of Unions New South Wales.

PN4

MR M MOREY: If the Commission pleases I appear on behalf of the RTBU. I have also with me MR G TOWLETT and MR M ZIRM.

PN5

MR R CARCARY: If the Commission pleases, I appear on behalf of the CEPU.

PN6

MR T NAYLER: If the Commission pleases, I'm seeking leave to intervene in this dispute.

PN7

THE COMMISSIONER: I'll first address the application made by Mr Harmer for leave to appear on behalf of RailCorp. Do I have any opposition to that application?

PN8

MR MOREY: Yes, Commissioner. The RTBU opposes the use of legal clients on these proceedings. We believe that it overly complicates the matter.

PN9

THE COMMISSIONER: Mr Morey, on what basis do you appear for the RTBU or are you an employee?

PN10

MR MOREY: I'm an employee of the RTBU.

PN11

THE COMMISSIONER: Of the RTBU?

PN12

MR MOREY: Yes.

PN13

THE COMMISSIONER: That's a change I didn't know Mr Morey. See what you learn when you ask questions? Ms Yaager, do you have a view for Mr Harmer's application?

PN14

MS YAAGER: I agree, concur with Mr Morey's view of legal representation. It certainly does complicate.

PN15

THE COMMISSIONER: Is Union of New South Wales a registered organisation under the federal act?

PN16

MS YAAGER: I believe so, Commissioner. Your Honour, I seek to intervene in this matter.

PN17

THE COMMISSIONER: Seek to intervene or seek leave to appear?

PN18

MS YAAGER: Seek leave to appear, your Honour.

PN19

THE COMMISSIONER: You still oppose Mr Harmer?

PN20

MS YAAGER: Yes.

PN21

THE COMMISSIONER: On what basis?

PN22

MS YAAGER: Supporting the RTBU.

PN23

THE COMMISSIONER: Mr Carcary, do you have a view?

PN24

MR CARCARY: I'd support the RTBU and oppose the appearance of Mr Harmer but I would support the application by Unions New South Wales to appear on behalf of those employees that aren't represented here today.

PN25

THE COMMISSIONER: All right. I don't need to hear from you Mr Harmer. Leave is granted. Ms Yaager - I'm sorry Mr Harmer do you - except for the position, do you oppose Ms Yaager's application and/or Mr Nayler's?

PN26

MR HARMER: We do not oppose either intervention or appearance for .....

PN27

THE COMMISSIONER: Thank you, leave is granted Ms Yaager.

PN28

MR NAYLER: Commissioner, could I just say that I - - -

PN29

THE COMMISSIONER: You haven't got leave yet.

PN30

MR NAYLER: No.

PN31

THE COMMISSIONER: Does anybody have a view on Mr Nayler's application?

PN32

MR HARMER: No opposition to it, Commissioner.

PN33

THE COMMISSIONER: No opposition. Leave is granted. You were going to say something Mr Nayler?

PN34

MR NAYLER: Yes, Commissioner. I was just going to say that I really should have said that I'd be seeking leave to appear.

PN35

THE COMMISSIONER: Yes. I don't think that - do you need leave to appear?

PN36

MR NAYLER: We weren't notified of the dispute or we would be left - -

PN37

THE COMMISSIONER: Mr Harmer, is that correct - I seem to remember that they weren't on the original notification but I seem to remember the ASU's name.

PN38

MR HARMER: Strictly speaking, Commissioner, I think leave to intervene is all that's required by the Union of New South Wales and the ASU but whatever it is we don't oppose it. So, Commissioner, we're happy for them to appear and to intervene.

PN39

THE COMMISSIONER: Leave is granted Mr Nayler on whatever basis it may be granted - happy to have you here. Material was forwarded to me from RailCorp. That material was only brought in about 3 o'clock and that's no criticism. My associate has copied that for all the union parties and I presume they have had an opportunity to view that material. Also, prior to coming on to the Bench, I became aware that the unions had a document representing their submissions and their view on a recommendation. Again that was provided to Mr Harmer and myself and I have had the opportunity to read that material. Hence we have a late start. I will hear whatever you wish to place before me. I wouldn't envisage that any submissions you had would go too much further than what is already before me.

PN40

However, I could be wrong in that regard and I still do know Mr Nayler's position, whether or not it supports the material put before me or whether the ASU seek to put something else before me. I might ask you that now Mr Nayler.

PN41

MR NAYLER: Commissioner, the ASU is supporting the Unions New South Wales.

PN42

THE COMMISSIONER: You don't wish to place anything further before me? Yes. Thank you. Do the parties envisage any in depth submissions in regards to material put before me except I suppose to address the late material that has been put?

PN43

MR HARMER: May it please the Commission, we seek to put on brief submissions and some brief evidence which really will be just formerly tendering material already exchanged in the conciliation process.

PN44

THE COMMISSIONER: Is it already material I have before me?

PN45

MR HARMER: It is, your Honour.

PN46

THE COMMISSIONER: I don't know that you need to put - you can refer that material. While this is still conciliation, while we are on the record, that's accepted. The matter is still conciliation and as I outlined yesterday, it was listed today for the purposes of hearing the parties as to whether I should make a recommendation and if so what would be the content at recommendation. So I think it's sufficient - if we are to refer to the document, I don't really seek a tender of anything that I already have. You will be limited in any submissions Mr Harmer. Ms Yaager?

PN47

MS YAAGER: Yes. I have a submission. There are a few minor changes to the submission that we've handed up to you this afternoon. I've just made a couple of minor changes to that. There's also the recommendation - - -

PN48

THE COMMISSIONER: We might get that on the record prior to hearing Mr Harmer unless you've notified Mr Harmer of those changes?

PN49

MS YAAGER: No.

PN50

THE COMMISSIONER: I think he needs to be aware of that before I hear from him. You won't be very long, yourself?

PN51

MS YAAGER: No.

PN52

THE COMMISSIONER: Thank you, Mr Morey?

PN53

MR MOREY: I have a short submission on behalf of the RTBU, Commissioner.

PN54

THE COMMISSIONER: Which is not contained in the document I have before me?

PN55

MR MOREY: No.

PN56

THE COMMISSIONER: Mr Carcary?

PN57

MR CARCARY: Just a very brief one, Commissioner. Once again it's not contained in the document.

PN58

THE COMMISSIONER: Thank you, Mr Carcary. I think Mr Nayler, you've clarified your position.

PN59

MR NAYLER: I've already indicated - the Unions of New South Wales group.

PN60

THE COMMISSIONER: Yes. Thank you. Ms Yaager I may ask for clarity of these submissions, the witness submissions that you put to- - -

PN61

MS YAAGER: In terms of some of the amendments that I've made to the Commission, or - - -

PN62

THE COMMISSIONER: Yes.

PN63

MS YAAGER: It's just a few minor changes, but I'm happy to refer to those when I talk to the submissions - they are actually hand written changes at this in point in time.

PN64

THE COMMISSIONER: Mr Harmer might want to say something about them, because I'm going to hear from Mr Harmer now but if you've changed something in the documents- - -

PN65

MS YAAGER: I've just added a few additional points to my document.

PN66

MR HARMER: If the Commission pleases can I just suggest this - if the Commission is prepared to proceed on this basis I'd be happy to briefly and it would be very brief address and reply the written submission and any alteration made to it and that would also enable me to pick up on any of the additional submissions.

PN67

THE COMMISSIONER: You could do that in reply?

PN68

MR HARMER: Yes.

PN69

THE COMMISSIONER: That's fine. Then I will have some questions myself if those questions are not clarified for me in any of the submissions of the material put. Mr Harmer, then, you're going to commence?

PN70

MR HARMER: Yes. If the Commission pleases, I've got a very brief outline of submissions Commissioner, which has been provided to the unions present and ..... provide a copy for the Commission - - -

PN71

THE COMMISSIONER: Is that something I've not received?

PN72

MR HARMER: That's correct.

PN73

THE COMMISSIONER: I would have liked to have received it but anyhow. I prefer to read it before I come on to the Bench - but yes, thank you for that document.

PN74

MR HARMER: If the Commission pleases, as I say it is merely an outline and if I can just move it through it by way of indication to the agenda after introducing some issues. We really just want to talk briefly to our draft statement and recommendations, the Commission has received and then to go to a number of brief factors, dealing with the Commission's discretion. If the Commission pleases, what we seek from the Commission are the draft statement and recommendations which the Commission has already received and I'm happy to have that marked. I'm entirely in the Commission's hands in that regard.

PN75

THE COMMISSIONER: You've not changed those recommendations down to point 8 of the document filed at 3 o'clock this afternoon? They're the recommendations that RailCorp would seek?

PN76

MR HARMER: That's correct, Commissioner. If the Commission pleases, in relation to the process we've just indicated agreement, what the Commission has already indicated that this is essentially a continuation of conciliation and we are seeking recommendations which are procedural in nature. So we just emphasise that we're not seeking any outcomes detrimental to the unions on the substantive issues, the introduction of the change, if you like, and it is a change . Whilst we'd say that we've ..... a dispute over us, formalising a long term custom and practice within our own documentation and that's something we say we have a right to do, subject of course to our implementing that right fairly and safely and in compliance.

PN77

What we say, Commissioner, is that we're merely seeking further process to demonstrate that fairness, safety and compliance. We're not seeking any conclusions on the substantive issues and we wouldn't consider any material gain to the substantive issues in any way relevant.

PN78

Commissioner, in terms of evidence, we merely seek to rely on the materials exchanged by the parties today in conciliation and are available on the Commission's file. Again we don't seek to have those marked unless it would be convenient to the Commissioner or to the parties. Commissioner, item 2 on our outline - we just turn briefly to the draft statement and recommendation and obviously this has been prepared with great respect to the Commission's undoubted ability to compile its own statement of recommendation but merely by way of assistance on what we seek. Commissioner, the first component, paragraphs 1 to 5 are provided by way of background and seek merely to summarise the valuable process that we consider the parties have been through as facilitated by the Commission, as currently constituted.

PN79

THE COMMISSIONER: You referred to part 5 of that document?

PN80

MR HARMER: Paragraphs 1 to 5 of that- - -

PN81

THE COMMISSIONER: Yes. Can I just take (a) of five? I think the last sentence there, is a sentence that was contained in the original dispute notification that I received in the Commission. I just sought some clarity from you in regards to the historical situation. The submission states - the statement you seek that I make, states:

PN82

Historically employees engaged by the contracting companies to perform the work include riggers with a recognised competency for certain overhead work allocated to them.

PN83

It's my understanding and correct me if I'm wrong, that the tasks that were performed by these contractors since, I think 1992 or at least from early 2004. I don't know that I know the exact dates on that. The tasks actually have not changed but what has changed in a sense is that the employees of the contractors were - performing this work - were qualified linesmen that were ex rigging employees and then what changed was that due to whatever circumstances some of those contract employees that were coming on to the site were, not all linesmen. Some of them were riggers or they held some other posts ..... Is that the situation?

PN84

MR HARMER: If the Commission pleases, first of all on my instructions the long standing custom and practice that is going well before the waiver was introduced and around April 2004, embodied these persons with other than line qualifications being involved in this overhead assembly work. Secondly, as I understand it, the contractors have always provided a range of employees dependent upon the nature of the task which might involve around any labouring task or more qualified task. It's the attempt to formalise that long standing custom and practice - and I don't understand that there would be a dispute around the thing which it has undergone and without going back to '92 certainly long before we got a serve in April 2004 it has been a custom and practice. The dispute has emerged over the attempt to formalise that and application to that formalisation in our own documents and processes associated with that formalisation.

PN85

Commissioner, having said that, we're not seeking to have a dispute over the facts and whilst there has been some comment on the drafting that we utilised in our statement of recommendation as suggested we're happy for anything that is seen as being unilaterally asserted by our side, to be so marked, and just to assert a position of RailCorp and RIC is that this is the long standing practice. We're not asking for that sort conclusion of the facts or any prejudice to the union's position which may well be in opposition to that. We're merely seeking to note what the Commission may have been satisfied of or the extent on what we support in light of Commissioner, as a foundation for a continuation of the process, if that makes sense.

PN86

THE COMMISSIONER: This is the statement that you seek I make.

PN87

MR HARMER: Absolutely. What I'm saying is if the Commission is not so satisfied rather than the Commission having to deal with an issue on the facts, we'd be happy to have any component of it adjusted to what is asserted by the rail agencies, but that is- - -

PN88

THE COMMISSIONER: It's part of the background. Apart from whether I make a statement that I'm quite happy to make or not, that's another question, but that was what my understanding was. It was put to me in conference by the unions that, that was the change. There was no actual change to the ..... The change was the actual qualifications of the personnel that were coming on site. That in a sense commenced the process of looking at formulae for creating - formalising the system.

PN89

MR HARMER: In short Commissioner, our position is that no - the custom and practice included the riggers. We've just received competency undertaking the work and that long preceded the change to ..... the waiver which was actually picked up by one of our operational engineers in an audit as being a need to change our own documentation and formalise a long standing custom and practice. We certainly maintain that there's been long standing acquiescence in the utilisation of these persons and that the real issue has come to head in the attempt to formalise procedures around it in our own documents. That seems to have been a catalyst for producing a range of issues, not all of which we must confess we're aware of at present but that's again why we seek the process, to have all of the issues come out and at the moment we are advised by the unions that they are purely sacred in nature.

PN90

If the Commission pleases, the background material ends at paragraph 5. Paragraph 6 we say notably there are a series of undertakings that have been provided by the rail agencies during the course of the conciliation proceedings which we now openly repeat in this document and we consider are of value in supporting the process which we seek and hopefully in appeasing what maybe certain concerns of the unions concerned, and valid concerns at that. At point 7, Commissioner, we've got a brief conclusion that we seek that basically that the process has been of assistance in identifying and progressing resolution of the safety concerns, so asserted by the unions. Commissioner, if I can just convey thanks on behalf of the rail agencies, we believe that the investment of considerable time by the Commission and indeed the parties has greatly assisted in progressing consultation over this issue, identification of issues, and partial resolution. We just seek to continue that process given today's date. The recommendations we seek basically put a timetable around the continuation of that process. At 8(a) we've tried to encapture the segments of additional factual material which we understand the Commission to have identified and which we agree as being of value in further pinpointing and addressing potential efficiencies, if you like, in what's being pursued by the rail agencies. We put a suggested time lines around the process which we consider to be reasonable in the circumstances given what we have all been through.

PN91

We suggest that the way this should continue during the course of the process and the absorption, if you like, of the exchange of information and consultation designed to achieve consensual resolution. We consider that ,that framework to be fair and reasonable and again totally without prejudice to the position of the unions I understand have been prepared today to operate on the basis of the waiver. We think it is a reasonable and measured approach on the part of the
rail agencies. If the Commission pleases, obviously the recommendation includes the requirement that work continue as normal but there be no industrial action of any kind while we attempt with the assistance of the Commission for the progress of the matter.

PN92

At point 3 of the outline we go very briefly, Commissioner, and I will be brief - look at some of these points are fairly obvious but in terms of the guidance for the Commission's discretion it is essentially a matter of procedure. The Commission of course controls at its discretion its own processes ..... of the Act, an exercise about discretions to be guided by the public interest in the objects of the Act under section 90. We point in particular to section 3H of the objects of the Act, which basically requires that the Commission is to attempt to settle and resolve disputes as far as possible by conciliation. What we would certainly put Commissioner, with respect, is that the process has not gone as far as it possibly can.

PN93

There are indeed many other steps that could usefully be taken as part of conciliation to assist the parties for the benefit of the Commission's dislocation. We think we are a long way short of achieving that object. That's further demonstrated we say at point 3.4 by sections 102 and 103 of the Act. First of all section 103 of course, Commissioner, again determines when conciliation is complete ..... involves of course satisfaction about the resolution of the dispute or both parties coming to that view. Commissioner, we take the view that the Commission itself cannot be satisfied at present that there's no likelihood that within a reasonable period its position of conciliation could not first progress resolution of this dispute and certainly unilateral positions don't constitute the position required under 103(1)(b) of the Act. In terms of section 102 again the requirement there is part of conciliation is that the Commission shall do everything that appears to be right and proper to assist the parties to resolve the matter.

PN94

Again we simply make the point, Commissioner, that we haven't exhausted each - and it's right and proper not by a long shot in this matter. Demonstration of that at 3.5 is that there are numerous, Commissioner, which neither party at present has called on. For example, if there's a view by one set of parties that they don't want to participate in conference there's an ability to compel them along or to get their state secretaries along or other officials that might be able to assist at a more responsible level to progress the matter. We're not pressing that at the moment ..... it's available. There's of course - - -

PN95

THE COMMISSIONER: I must say Mr Harmer in all the years I've dealt with the parties before me I've never been put in that position.

PN96

MR HARMER: Hopefully you won't in this matter, Commissioner, but I've certainly in matters where that has assisted and indeed the powers it can exercise. Obviously these powers generally under 111 and section 87, Commissioner, obviously where there's a safety issue involved the Commission itself has the opportunity if it considers it appropriate to refer to a member of the federal inspectorate who is to be appointed of course and report to assist the Commission in the matter. Again neither party is formally called for that and were not at that point. Also Commissioner under 111 of the Act it would be the opportunity for you to make recommendations going to a substantive issue such as our right to manage again to assist in opening a way forward. We haven't sought that yet. We don't think we've reached that point.

PN97

There's scope in conference for conciliation to progress this matter but they're all potential avenues available under the Act. At 3.6, just in terms of the general requirement of the substantial merits of the matter what we say briefly, Commissioner, is that all the parties have invested heavily in this process. I think that's the commendation certainly of the unions and the Commission as well as the rail agencies. There has been progress made, it has been valuable, it has identified issues, real issues and they have been addressed in part but the process isn't complete. Unilateral back flips of the type that we saw yesterday shouldn't be encouraged, perhaps whilst impressed with the acrobatic dexterity of our friends, back flips, double twist, the pike and all that and an expert landing I might say.

PN98

It's not up to one party to go this far down the garden path and then tip the issue if you like and - we are certainly encouraged that the recommendations that now appear to be sought are it seems a further request for a Commission assistance rather than an attempt to move the resolution to the field. If that did occur and the parties took to the field with us asserting our management right and obviously the unions having their rights, we would probably end up back here anyway trying to address the same core issues and we think it's worth while with the assistance that are valuable undertakings the rail agencies have provided and the security that will just continue under the waiver to completing the process that was commenced by the parties with the Commission's assistance.

PN99

At 3.7 again briefly, Commissioner, there's obviously requirement under the Act to have regard to state occupational health and safety legislation which has been properly raised by the unions. What we would say Commissioner is that without taking the Commission to the Act it's clear under that Act that consultation through representative organisations can satisfy the Act, set out fully in
section 17.3. We believe that continued process under this Commission will satisfy that requirement and is indeed consistent with satisfaction of the concerns put forward by the unions as to where those confines with the RIC EBA which is the governing certified agreement.

PN100

So by conclusion and noting our reservation of an opportunity to respond to the unions' submissions we think by pursuing the process that the Commission has valuably facilitated to date. There will be satisfaction with concerns that both parties and potential resolution and it is simply too soon not - or to give up on that process, if the Commission pleases.

PN101

THE COMMISSIONER: Mr Harmer, the discussions associated with this issue between RailCorp and I believe safety employees and union employees, employed by RailCorp, commenced in September, December 2004 with meetings or workshops?

PN102

MR HARMER: Yes, Commissioner. As I understand it and again I'll be corrected no doubt if I get it wrong, there was initial consultation over an issue about how it introduced the waiver which extended to the September workshop. Then there was further consultation in December about the proposed changes to the relevant component of the manual, a thing called Q15I06. That what it's currently called - it has a new number in its proposed varied form. There has since that time been continued exchange of correspondence in the discussions around the issue surrounding notification by both the UTU and the RTBU whilst that was in use.

PN103

THE COMMISSIONER: That was in February 2005, but the actual commencement was September 2004 I think, if memory serves me.

PN104

MR HARMER: We'd also contend that in this process under the federal act is consultation within the meaning of both the RIC EBA and indeed the occupational health and safety legislation in New South Wales and valuable consultation of that.

PN105

THE COMMISSIONER: I think I need a crystal ball. That's an issue that will possibly be disputed, but that's fine, it may not be, but I just wanted clarity on that. Another point I will ask you. In perusing the material that has already been filed before me and of course that material has not been subject to argument or what have you and I accept that. We simply have those documents that we've been discussing in the conferences that have been before the Commission. There's one thing I wanted to check with you though - the work performed by these contract employees it does not involve working on or near electricity or live lines or equipment?

PN106

MR HARMER: Commissioner, and again I'll be corrected in if any technical deficiencies in my report but the answer is that, that is correct. The lines are totally isolated, if you like, and there are quite rigid restrictions and protections under the waiver at present and indeed under the proposed change to the documentations that prevent any access to live wiring .....

PN107

THE COMMISSIONER: Nor do they perform maintenance or repair of overhead wiring equipment?

PN108

MR HARMER: Yes and again leaving aside my technical deficiencies, as I understand it the distinction is that linesmen would certainly be involved in running maintenance if you like of the network. This is isolated construction work undertaken on a specific basis and it's only specific components of it as distinct from the regular maintenance that might be undertaken by a linesman ..... If the Commission pleases.

PN109

THE COMMISSIONER: So that's not live work?

PN110

MR HARMER: Absolutely not.

PN111

THE COMMISSIONER: Don't sit down. It's my understanding that RailCorp by I think RailCorp's chief electrical engineer is talking to the contract providers of labour in relation to the types of training modules required to satisfy the competencies for the task.

PN112

MR HARMER: Commissioner, as I understand it the contractors concerned are regulated and approved trainers in relation to the competencies. What the documentation that has been proposed by the way of change to the safety manual involves, is that the chief electrical engineer as part of the actual changes and a step in that process, would audit and approve if it was reported and indicated a lack of objection to the relevant qualifying process, procedures et cetera that are- - -

PN113

THE COMMISSIONER: That would involve the training modules though?

PN114

MR HARMER: Exactly. As I understand it, Commissioner, that process is currently continuing with the assistance of safety officers within RailCorp and certainly as part of the proper responsibility of the chief electrical engineer.

PN115

THE COMMISSIONER: Is it a process of audit and approval of the training modules required to deliver the competencies required of the task undertaken within the RailCorp business of these contract employees.

PN116

MR HARMER: In short form yes, Commissioner, although it is express, as I understand it as a lack of objection to an approval but I think it amounts to same- - -

PN117

THE COMMISSIONER: A lot of lay persons, so.

PN118

MR HARMER: So am I Commissioner so - - -
THE COMMISSIONER: As long as that is not incorrect. If that is incorrect I need to know. That's what my understanding was from the material before me. I think it is part of that process. I think the chief electrical engineer has been liaising with Mr Gauchi, safety officer and a member of one of the unions. That's the issue that arose the other week with the meeting on Friday between the gentlemen.

PN119

MR HARMER: That's correct and Mr Gauchi participated in that meeting in his capacity as a safety officer and pursuant to that role as we understand it.

PN120

THE COMMISSIONER: There is also - is there in place at the moment, process and procedures that ensure that these contract employees have completed the required training and they're certified as competent to the required level?

PN121

MR HARMER: Yes there are in place such procedures within the contractors and they are currently known to - RailCorp and RIC as I understand in terms of the revised safety manual provisions formal approval has not yet been provided by the chief electrical engineer within the revised processes, but it would currently be the case ..... indeed that their processes methodologies are subject to vetting and have been seen- - -

PN122

THE COMMISSIONER: So a better reflection then is that RailCorp plan to put in place.

PN123

MR HARMER: I'm sorry.

PN124

THE COMMISSIONER: The better reflection of the situation is at the moment that RailCorp plan to put in place processes and procedures for ensuring that contract employees are certified competent to the required level, whatever that may be.

PN125

MR HARMER: Commissioner, consistent with their obligations there are currently monitoring and assessment mechanisms in place. As I'm instructed they have been enhanced and formalised as part of this rule change and it's actually a positive enhancement as we see it. It doesn't however indicate any acquiescence in the notion that we don't currently fulfil an assessment and monitoring approach. We acknowledge they've been improved. As I understand it, there's auditing of competency cards of all contractors entering sites that would be expected. Verification that they have the appropriate qualifications and of course verification that the contractors as part of their requirements to qualify for the work have the ability to so approve if you like competent training body - those workers. So there are mechanisms there but what we say Commissioner is that for the benefit of safety they are being enhanced and formalised as part of the proposed changes which are being resisted at present.

PN126

THE COMMISSIONER: I think I only have two more for you Mr Harmer. It is my understanding and this came out during conferences that RailCorp have no intention or no proposal that contractors will sign off their own work.

PN127

MR HARMER: That's again as I understand the situation, Commissioner.

PN128

THE COMMISSIONER: One further question in relation to supervision. Part E of the undertakings that RailCorp are putting forward in the document states that:

PN129

RailCorp will ensure that supervisory arrangements are maintained.

PN130

Does that mean no change to the supervisory arrangements currently in operation as we speak.

PN131

MR HARMER: Yes, Commissioner. As we would assert it not only currently in place but long standing custom and practice around those supervisory arrangement. The one qualification I would put to that is that there has been reference in conciliation to the Barclay Mowlem decision and the incident as far back as 1999 and it's asserted there has been enhancement since that time and whilst there exist within RailCorp and RIC engineers capable of supervising the work, the tendency as I understand it by the renew area is to utilise qualified rail workers, foremen supervisors team leaders to supervise the work. Again we'd say that's an enhancement of long standing. No immediate change around any aspect- - -

PN132

THE COMMISSIONER: So what is currently occurring will continue?

PN133

MR HARMER: Absolutely.

PN134

THE COMMISSIONER: In other words, that RailCorp personnel will supervise the employees of contractors.

PN135

MR HARMER: Yes.

PN136

THE COMMISSIONER: Yes, Thank you Mr Harmer. I think they are the only questions that I sought to ask you in relation to the material before me.

PN137

MR HARMER: May it please the Commission.

PN138

THE COMMISSIONER: Yes thank you. Ms Yaager?

PN139

MS YAAGER: If the Commission pleases, I would like to request the Commission to consider the following recommendations (1) that there be no changes made to Q15I06 of the Rail Safety Manual, (2) if RailCorp desires to make an alteration this should be done through a process of consultation in line with the New South Wales OH&S Act and regulation. (3) if during this consultation process the parties require the assistance of an independent expert that an expert should be selected by the parties and appointed to conduct an independent review of the overall proposed system of work and (4), if the Commission believes RailCorp has failed to meet its statutory OH&S requirement a system of consultation must be immediately implemented to satisfy the statutory requirement of the New South Wales OH&S Act.

PN140

If the Commission pleases, I would like to make the following submission of behalf of Unions New South Wales.

PN141

THE COMMISSIONER: Ms Yaager, I don't like to interrupt. Are you just going to read the document?

PN142

MS YAAGER: Yes.

PN143

THE COMMISSIONER: I have read it, you see?. It's obvious. I've read it.

PN144

MS YAAGER: So you don't want me to go through- - -

PN145

THE COMMISSIONER: There may be different points you would like to bring out and there might be a couple of things that I want clarity on or I would ask you and then of course you may wish to put submissions in relation to Mr Harmer's submissions but that's up to you.

PN146

MS YAAGER: Probably some important points that we'd like to make is that the unions never entered into any arrangements for the new proposed scope of work. They basically found out about this after they have been implemented by RailCorp and they raised it as an OH&S issue. RailCorp then quickly set up two consultative forums, two workshops and those were referred in September 2004 and December 2005. Those workshops were not adequate consultative forums under the OH&S Act. They were just two ad hoc workshops and we believe that the unions even struggled to get appropriate representation onto those workshops.

PN147

THE COMMISSIONER: But there were safety and union employees?

PN148

MS YAAGER: Yes, but they weren't all union employees. It is my understanding that the ETU as some other unions were excluded from those workshops and they weren't set up- - -

PN149

THE COMMISSIONER: Tell me which one, what union? What union or safety or union employee? Yes. Mr Carcary.

PN150

MR CARCARY: If I may be of assistance Commissioner. I understand there were two workshops, I had, if my memory serves me, representation at one of those workshops and that was only after some agitation on my behalf to have someone there, nominated by the union.

PN151

THE COMMISSIONER: So there was a CEPU representative at least on the September or the December one?

PN152

MR CARCARY: At least on one occasion but only one occasion.

PN153

THE COMMISSIONER: Of course the argument is you don't recognise those consultation I think - - -

PN154

MR CARCARY: But it is also for the RTBU we found out about the workshops. We also had to agitate to have representation at those workshops. We weren't invited to participate but we got there as a result of agitating to be part of the discussions that were going forward.

PN155

MS YAAGER: Notwithstanding that, RailCorp has in place occupational health and safety committees and we don't believe any of the OH&S committees were consulted about this proposed change of work, whether it was the peak committee or it was a number of the committees that had been set up in RailCorp. I'm of the understanding that WorkCover actually asked RailCorp how they had undertaken consultation with those committees aside from the two ad hoc committees that they'd set up in response to the unions raising concern about the proposed ..... of work.

PN156

So basically because they'd set up the consultative mechanisms the union then said that we'll allow the work to continue however we are going to agree to a strict criteria in terms of which work would be carried out. I understand that there were varying qualifications. Some of the contractors who carried out that work - 50 per cent of them were linesmen and then others had different qualifications. However, during that time they were directly supervised by qualified
cert 3 linesmen within RailCorp. There was actually direct supervision.

PN157

Even though this was in place - - -

PN158

THE COMMISSIONER: Mr Harmer is saying to me that the supervision has not changed, that the supervision - that's why I asked the question - what is currently in operation is not to be changed. That's why I don't want to get into what is it? No Mr Morey, I'm talking to Ms Yaager. I'll hear you in a moment please. That's why - I mean if you can't answer the question that's fine.

PN159

MS YAAGER: Let me try and then can I - and if I'm not across the issue. My understanding is that is linesmen with the expertise and the cert 3 qualifications had to directly supervise the contractors carrying out the work.

PN160

THE COMMISSIONER: You say that is current operation of supervision.

PN161

MS YAAGER: That's my understanding.

PN162

THE COMMISSIONER: And I have been informed - now there may be an issue whether that is the situation but I have been informed that the current system will not change. Yes. Mr Morey.

PN163

MR MOREY: If the Commission pleases yesterday while we were discussing this matter it was shown in the documents that were provided by RailCorp that they did intend to have the work completed without supervision and I quote from a document - from the safety manual:

PN164

An overhead traction system assembler is authorised to perform specific tasks on rail connected 1500 volt overhead wiring without direct supervision. Tasks may include activities such as erection of .....

PN165

Blah blah blah.

PN166

THE COMMISSIONER: All right, but Mr Morey what has been put to me and I'm not going into evidence. I'm not doing inspections or anything. What has been put to me by RailCorp is that the current system is not going to change. I mean, that's what Mr Harmer put. I mean, that's what - you've looked at a document and I don't know the ins and outs of that document. I don't really want - I'm operating on the basis that that's what has been put to me. If that is not correct I'm sure someone will show me. It may be in the document you say to me, but I don't what that document and I don't want to necessarily get into the ins and outs of whether that document is implemented tomorrow, next week, whether that's correct. The submission has been put to me that the system that is in operation will not change.

PN167

Regardless of what that system is it will not change. That has been a submission put to me.

PN168

MR MOREY: I accept what Mr Harmer is saying but given the - - -

PN169

THE COMMISSIONER: If the system is "x", and tomorrow somebody can prove to me the system now is "y", then don't you think I'm going say something about it?

PN170

MR MOREY: I agree Commissioner. Our concern is that over the past
12 months dealing with this organisation that we are told one thing and within a short period of time it has changed, manipulated or completely different. That's a pattern over the last 12 months. I agree if they're saying it's not going to change, then there's nothing else that we can do at this point but I just want the Commission to note that we've been given many assurances and many undertakings by this organisation over the last 12 months, that have not been fulfilled and at best have not been true when they were uttered in the first instance. We are not convinced by just hearing someone say that this is the way it is because practically that hasn't happened over the last 12 months.

PN171

THE COMMISSIONER: While we're on that point I'm going to ask Mr Harmer if that is the situation, that the current system of supervisors of these contract employees in relation to the issue before me has not changed.

PN172

MR MOREY: Commissioner, the other thing I just also say. In response to the issue about the waiver being put in place- - -

PN173

THE COMMISSIONER: No, Mr Morey, I'm on one thing at a time. I'm a very simple woman, Mr Morey.

PN174

MR MOREY: I know but that's part of- - -

PN175

THE COMMISSIONER: Thank you, I know you know that. I only go along one thread at a time. Okay? You can get to that in a moment. I want to know about the supervisory issue and then you can talk to me about the waiver when you had the submission. Otherwise gentlemen, ladies, we will be here until 12 o'clock not that I have a worry but I'm quite sure you've got plans for tonight. When you are ready Mr Harmer. I want this clear. Yes Mr Harmer.

PN176

MR HARMER: Commissioner, yes, may I just confirm what I've indicated before - the supervision of the scope of works will not change, has not changed. It remains as it has been long standing custom and practice.

PN177

THE COMMISSIONER: Do you disagree with what has been put to me as in to what that supervision means?

PN178

MR HARMER: Commissioner, can you clarify it - sorry what has been put?

PN179

THE COMMISSIONER: What has been put to me its supervision provided by linesmen 3 and that it has been direct supervision.

PN180

MR HARMER: First of all in terms of the identity as I communicated before, Commissioner, we take the view that there are engineers who would be qualified. There are line traction workers, there are foremen team leaders, involved in supervision. The renewal section - - -

PN181

THE COMMISSIONER: Is that the practice? Are you telling me that it is linesmen?

PN182

MR HARMER: The practice concentrates and prefers upon line traction workers. That is as I understand it - the preponderance, currently. We're not obviously ruling out others who are more than capable of - - -

PN183

THE COMMISSIONER: Can I just say to you, is the current practice that - for example that engineers supervise?

PN184

MR HARMER: On my understanding that would not be the regular occurrence.

PN185

THE COMMISSIONER: If an issue arises depending on what we do with this, but just for this argument alone, if this is disputed then and I have a requirement too, then I will simply just have to have witness evidence.

PN186

MR HARMER: Absolutely Commissioner - - -

PN187

THE COMMISSIONER: Because I have - I think you are not necessarily disagreeing with the unions but that doesn't necessarily mean that this may not lead to a disagreement. I'm doing this on the basis of the argument at the moment without having decided anything but for the purposes of the argument I put you all on notice that I will accept it at face value, that the current system does not change and if an issue arises then I will address it another way, but thank you. You wish to - just on that?

PN188

MR HARMER: I'm sorry, again, I hope they don't complicate things, Commissioner, but if I can just distinguish first of all I quite agree that the regular custom and practice is that it will be qualified line traction workers will supervise - are preferred to supervise. The second issue however - moving away from identity of who supervises to some sort of definition of direct supervision as involving a ratio of supervisors, number of workers. That certainly is an area where flexibility is required depending upon the nature of the work. As part of RailCorp and its right to manage depending upon location complexity, time of day, involved in the work there will be alterations involved. If there is an attempt to pin down that issue and get some agreement on ratios that certainly would be an area where we say we've got a right and do in fact allocate supervision as necessary for the particular - - -

PN189

THE COMMISSIONER: But for the purposes of the dispute before me, the submission of RailCorp is the current practice of supervision will not change.

PN190

MR HARMER: That's correct.

PN191

THE COMMISSIONER: That's what has been put to me. When you are ready Ms Yaager. I hope you remember where you are in your submissions.

PN192

MS YAAGER: I'm talking to it rather than reading it word for word to spare you. We're happy we've clarified that issue. In terms of direct supervision though Commissioner, can I just say, that will all come to a risk assessment in terms of the scope of the work, so that would be sort of thrashed out in a proper and appropriate risk assessment. The other thing and we have brought it to the Commission's attention is the lack of consultation with RailCorp, not only in relation to this issue, in relation to the occupational health and safety consultative mechanisms, their injury management.

PN193

I have to bring this to the Commission's attention because they are saying that they are consulting with us when in fact they are not. To say that we have perfect consultative mechanisms in place, that is not the case. We have asked now WorkCover to intervene in this dispute and mediate. I believe that the RIC OH&S peak committee has not met in several months - since September last year and that leads to a breach of the OH&S Act and regulations.

PN194

In terms of the information that we've asked RailCorp to provide. We did ask them to provide us with information on accidents, near misses, and incidents relating to overhead wiring. That's easy. They have that information. That helps us in taking into account what things need to go into a risk assessment. We make available to them the incidents that they required of us, but there hasn't been that exchange of information. I thought in good will and in spirit of co-operation that they would make that information available. Also the training material, again we've heard that we haven't received the training material but I'm aware that Mario has this meeting on Friday and we've just clarified about their supervision.

PN195

In terms of RailCorp's breaches of the OH&S Act we believe that they have breached the OH&S Act and regulations in a number of places. I won't go into that minutiae because I have actually provided where we think and also in terms of the risk assessments that they have provided are valid. We want to challenge those risk assessments. We want the opportunity to produce our own risk assessment methodology in terms of the scope of work and in terms of the overall risk assessment.

PN196

If the Commission pleases, I think that might go back to getting an independent expert who has the expertise in the system that we are talking about to actually assist both parties in coming up with a proper risk assessment and safe system of work. We would be happy to - I think either side - would be happy to make submissions to that independent expert.

PN197

THE COMMISSIONER: Are those your submissions? I just have a question. First off, I wish you would number your paragraphs but you'll have to learn that on your computer skills.

PN198

MS YAAGER: We do with all of this we've done this very much in a hurry today.

PN199

THE COMMISSIONER: It's just that on your pages - on page 2, just the third paragraph - I raised with Mr Harmer in relation to the historical context and my question put to him, arose from what the unions had told me during one of the conferences that it's not necessarily - this is what I put - it's not necessarily that the task to be performed has changed what did change was the qualifications of some of the employees that were performing these duties. It was my understanding - I was told by the unions in conference that prior to this issue arising, or prior to some time in early or mid 2004, that these contractor employees were linesmen ex RIC personnel. Then for whatever reason, the contract employees became - some were linesmen but that they were also riggers and other tradesmen or tradespersons.

PN200

Is that still the union's position because if I take you to page 2 of your submission on the third paragraph, if you would like to read that- - -

PN201

MS YAAGER: The contract employee, the third paragraph?

PN202

THE COMMISSIONER: Yes. When you say contract employees had varying levels of qualifications my question is when? Was that prior?

PN203

MS YAAGER: Can I refer that to Mr Talbot?

PN204

THE COMMISSIONER: Yes. I might ask it now if I could just while I'm on it.

PN205

MR CARCARY: If I might add, Commissioner, the varying levels of the people carrying out the work were of varying levels. Half of them were qualified linesmen. The other 50 per cent were all different types of people. They could have been from the pub across the road. We never knew that.

PN206

THE COMMISSIONER: This is from 1992 or - - -

PN207

MR CARCARY: That's correct.

PN208

THE COMMISSIONER: So it's not the case that they were all linesmen?

PN209

MR CARCARY: No.

PN210

THE COMMISSIONER: That's what was put to me by the unions in conference the other day.

PN211

MR CARCARY: People carrying out the larger scope of the work were linesmen. What has happened over the years is that the people who were of the lower qualification or of no qualification were then entered into that workforce and were carrying out the larger scope of the work. That is what has changed over the years.

PN212

THE COMMISSIONER: I don't know what that means, but anyhow - larger scope of work. I don't know that I want to ask at the moment but- - -

PN213

MR CARCARY: The more technical component of the work has been taken over by the lower qualified people over the years.

PN214

THE COMMISSIONER: What's that more technical work?

PN215

MR CARCARY: The technical component of the work which - I don't know if you want to get into technical part of work.

PN216

THE COMMISSIONER: It's not dealing with live wires, though is it - live lines?

PN217

MR CARCARY: No. Sorry, I'll leave it to Mark.

PN218

MR ZIRM: Sorry. Commissioner.

PN219

THE COMMISSIONER: Say who you are.

PN220

MR ZIRM: I'm Mark Zirm from the ASU. What it is, it's all about the tensioning of the ..... wires and putting those wires up into the ..... There's a lot of knowledge that you need to know in doing that and if it's not done right you are going to put the health and safety of a lot of people at risk.

PN221

THE COMMISSIONER: Yes but they're not handling live wires.

PN222

MR ZIRM: It's not live electricity no but the danger is in the actual tensioning of the wires and reconnecting and terminating it to structures and that sort of thing.

PN223

THE COMMISSIONER: Yes. Thank you. Is that it, Ms Yaager?

PN224

MS YAAGER: Yes.

PN225

THE COMMISSIONER: From your submissions I mean. I've got Mr Morey and Mr Carcary to go at this point but thanks. Yes Mr Morey.

PN226

MR MOREY: Commissioner, I'd just like to support Unions New South Wales's submission in relation to what they've put forward. This is a complex area. I guess we've gone through the broad headings and that's in order to assist this matter. I think it also needs to be pointed out that we believe that Rail ..... is also in breach of the 2002 enterprise agreement in relation to 7.1.3.4 and 7.1.4.3 of that agreement.

PN227

THE COMMISSIONER: Can I get that again? - 7.1.3.4 and- - -

PN228

MR MOREY: and 7.1.4.3, that's in relation- - -

PN229

THE COMMISSIONER: That's just to trick me, is it?

PN230

MR MOREY: No. I would never do that to you Commissioner - only with a half pike and my dexterity could I do that.

PN231

THE COMMISSIONER: That's the RIC EBA, Mr Morey?

PN232

MR MOREY: Yes. That's the RIC EBA, Commissioner.

PN233

THE COMMISSIONER: I don't have - I'll have to read that.

PN234

MR MOREY: That deals with appropriate skills and qualifications for contractors or people who come on site. Obviously at this stage that we're hoping that this isn't an industrial dispute that it is a dispute about safety in the workplace but certainly RTBU reserves its right if we do see that it does become an industrial dispute to pursue that avenue.

PN235

THE COMMISSIONER: I still have an - I do have an alleged industrial dispute before me anyway.

PN236

MR MOREY: At this stage we see it as a safety issue.

PN237

THE COMMISSIONER: Yes. That's right and then you quite clearly, I think, even in the documentation and your submissions to me, its concerns safety and safety alone from the unions' perspective.

PN238

MR MOREY: The only other thing I'd like to say is that - there's two other things I'd like to say. Our concerns in relation to the much talked about safety system of RailCorp and in RIC in relation to ensuring that the workplace is safe in that their ability to monitor contractors, didn't take into account the issue last weekend or the weekend before where a 16 year old boy, they say. We believe he was 12 is our position and what we're been told was flagging on the stations for a contractor, his father, who was put there, who was doing survey work around Artarmon.

PN239

He was come across by a number of security officers who were looking for spray painting vandals. They came across this young lad with a yellow jersey, with a yellow vest on, a 2-way radio and he was there signalling the trains. So, I don't know. Maybe he was a very tall 12 year old and got passed but this 12 year old had no qualifications, no identification, no anything yet he was still able to get onto the tracks. So I'm not convinced in relation to their argument that they monitor contractors appropriately.

PN240

THE COMMISSIONER: Mr Morey, I do know about that incident. I read it so I know about that. There's two predominant contractors that provide employees for this particular work and what have you, is there not? They are long standing contractors?

PN241

MR MOREY: I'm assuming - I don't know.

PN242

THE COMMISSIONER: Has there ever been an issue from the unions in relation to the contractors, apart from this issue before me of supplying under age labour?

PN243

MR MOREY: No but what I'm saying, Commissioner, is that, that has not occurred because of the standards and things that are currently in place. Although she doesn't go directly to the issue it's a symptom of what is going on and what the unions believe is going on in RailCorp with this push, I guess, deregulate as much as possible, allow contractors to be on the track unsupervised, is our concern. I think that just highlights that when I'm told that the system is fool proof and that they check everything and everyone who goes onto the track, that they've all got safe working, that they're all suitably qualified, I don't understand how a youth gets through. It's just an example to highlight our concerns in relation to their constant statement that they monitor everything.

PN244

The other concern I have, just in adding to, what Ms Yaager has said, McInerney in both his reports inquiries highlighted the need to ensure workers were appropriate qualified and trained to perform the work they were asked to do. Our concern is during this whole process, the recommendations that came out of the Waterfall were also in relation to the way in which systems were put in place, the way people are trained to maintain those systems.

PN245

During the whole course of these discussions we haven't heard from anyone from RailCorp in relation to occupational health and safety, what they have done to ensure that, what they have done to ensure the appropriate mechanisms are in place within the organisation, what they've done to ensure that they've adequately consulted with their employees in relation to the requirements under the Act. As Ms Yaager pointed out there are a number of other areas, where we believe they are in breach of the occupational health and safety act.

PN246

Unfortunately, Commissioner, we've had so many guarantees over the last 12 to 18 months about things that will happen, that that won't happen, we'll make sure it's safe. The RTBU certainly is not in a position to accept those on face value. Obviously we'll have to wait and see what happens but certainly we are very concerned about this issue.

PN247

THE COMMISSIONER: Yes. Thank you, Mr Morey. Mr Carcary?

PN248

MR CARCARY: Thank you, Commissioner. I'll try and be as brief as possible. I rise to support the submissions of both Unions New South Wales and Mr Morey on behalf of RTBU and the CEPU would recommend the draft recommendation handed up by Unions New South Wales to the Commission. In doing that, I would also like to reserve the CEPU's rights in advancing arguments about the existence of an alleged industrial dispute. If we can go to the recommendation handed up by Harmers on behalf of RailCorp, I would submit that it is the CEPU's concern that if the Commission was to make such a recommendation, by default they would actually be undermining the Occupational Health and Safety Act of New South Wales.

PN249

It clearly has a requirement for people to be consulted, that employees to be consulted. It is clear that has not happened in relation to this issue and that must happen so that RailCorp comply with the state legislation. It is as my friend correctly pointed out recognised by the federal Act, the Workplace Relations Act. There is no option. Their recommendation should not be made. It is the recommendation advanced by Unions New South Wales that should carry the day, today. Thank you, Commissioner. I'll leave it at that.

PN250

THE COMMISSIONER: Mr Carcary, can I just ask you a couple of questions?

PN251

MR CARCARY: Certainly.

PN252

THE COMMISSIONER: Out in industry there are what we would call special class electrical licences. I know from my previous life that in certain circumstances ..... guys would pick up a special class to perform a specific task that part of what a sparky would perform. It's also my understanding that part of riggers' certificate and this happens out in construction and power plants and what have you, that riggers do a certain amount of what we would call line work, but they never work with live lines, nor do they work within the vicinity of live lines. Is that correct, or incorrect, on your understanding?

PN253

MR CARCARY: My understanding Commissioner is that riggers are at times used on the construction of new lines in the energy supply and distribution industry and that's about the limit. Even within that construction activity they aren't used to the full extent. They don't do the final tensioning of the lines and as I understand it any work around the actual electrical connections or the ensuring the integrity of the electrical installation - so the insulation type activities.

PN254

THE COMMISSIONER: Yes. They run the lines and then the sparkies connect them.

PN255

MR CARCARY: Check them and that sort of thing. In terms of the restricted electrical licence, it's certainly my understanding that to even achieve one of those the person is supposed to have a trade certificate or a certificate at level III to use the modern terms before they can even advance to get one of those. They are extremely restricted in the activities that can be performed. In terms of plumbers, there are restrictions in using them for a like for like type replacement of hot water services. Other classifications such as people on a production line also must do like for like and certainly would not contemplate working on an installation that runs at 1500 volts direct current.

PN256

THE COMMISSIONER: But they're not live, these contractors are not - they are assembly, rebuilding and line work but - does not involve- - -

PN257

MR CARCARY: And the restricted electrical licence does not allow the person to work on live electricity either because it- - -

PN258

THE COMMISSIONER: No, but that's what I'm say, we've - this particular contractors, they don't work on anything live?

PN259

MR CARCARY: No, but neither do the holders of restricted licences.

PN260

THE COMMISSIONER: No and neither do riggers.

PN261

MR CARCARY: The important thing is - is about having the job done properly obviously for the efficient running of the railway but also for public and worker safety in that if the installation - if the electrical integrity of the installation is compromised in any way, whether it be through a bad connection or a cross over connection there's many various bad things happen, to put it simple.

PN262

MR NAYLER: If the Commission pleases.

PN263

THE COMMISSIONER: Is that your submission Mr Carcary? I'm not rushing you. I only asked. That's all.

PN264

MR CARCARY: There is one issue that was raised earlier and that was about the working near live electricity. The instructions I've received since that issue was brought up because there are safety clearances however in recent times the organisation has moved to amend those safety clearances in an ad hoc manner. So even though there's rules around it, there doesn't seem to be a standard application of those rules, which is a concern to us. That's it, thanks, Commissioner.

PN265

THE COMMISSIONER: Thank you, Mr Carcary. Mr Nayler you didn't seek - you rely upon the submission in support of it.

PN266

MR NAYLER: I rely and support the submissions of the unions of New South Wales.

PN267

THE COMMISSIONER: Anything further from the unions at all?

PN268

MR ZIRM: If the Commission pleases. I'd just like to point out, there's a lot of hidden dangers in these work places like live low voltage or high voltage power lines in these areas. I don't think they've taken into account with the 300 metre clearances and all of that they're getting these live low voltage power lines that are around. In saying that, I'd also like when you're tensioning up wires like catenary wires contact wires, you've got to put them into a set of weights which keeps it in constant tension over a long area. That has taken me 10 years to learn to get that right and it is a very practiced skill to do it and if you've got a run of wire that's two kilometres long, you've got a mid point at one kilometre, you've got no scope for error.

PN269

If you don't get a set of weights in the correct place, those weights at the end of the day, if the temperature goes up, the weights will be on the ground. If the temperature goes really low, those weights will get caught up in the wheels up the top. I can show you diagrams of these if you'd like. If that happens that means the wire over that whole area will be not of the correct tension, which means trains are coming along the next day or when ever the temperature is at its extreme, the pantographs will get caught up and could endanger lives of any workers in that area or any public in that area.

PN270

THE COMMISSIONER: I don't like to rush you but I just want to hear if Mr Harmer has anything else. The overall position being put to me. I don't know that I really need what the position is in regards to the safe working. That would only be one issue, there'd probably be a number of issues that you would raise.

PN271

MS YAAGER: Can I just make the point, Commissioner and I think what
Mr Zirm was trying to say. Basically, what we're saying, this is high risk work and we're trying to make the connection between - because people keep saying, this is non electrical live work. I think what we're trying to say and it's a shame that Mario's not here today to add his technical expertise that there is the potential for things to go wrong with live wires and we provide that - - -

PN272

THE COMMISSIONER: There's no wires - they're not working near or on live wires. That's the submission that's been put to me.

PN273

MR CARCARY: If the installation is done properly and everything goes according to plan, that's correct, Commissioner.

PN274

THE COMMISSIONER: Thank you, that's all I need to know.

PN275

MR CARCARY: If something, however, isn't done correctly - isn't done to specification - there is a greater potential for risk of harm to occur later.

PN276

THE COMMISSIONER: Yes and Mr Carcary that can happen in all walks of life and in any work place. People do at times, not operate, regardless if they're qualified or not. My question was, are they working on live equipment wires or near it. I don't think anybody's disputed before me that they're not. That is not necessarily saying that I have a concluded view on the overall issue before me. I'm going to reserve and you'll get the recommendation tomorrow. But I want to make it quite plain that is what's been put to me. People do make errors in
workplaces and there are issues and we know it.

PN277

You, Ms Yaager would know it in your position with unions New South Wales. I hear that - I hear what you're saying but for this exercise you're not disputing what has been put to me in relation. You may have concerns that that will then happen and you may have concerns about the competencies or the training or assessment and all that. I hear all that but the actual task and that's what I wanted to know and I think you've answered that or everyone has, I think. Yes, Mr Morey, they haven't answered it?

PN278

MS YAAGER: It really goes to the heart of a risk assessment. They're the things that you take into account when you are producing a risk assessment. All of the things that can go wrong - the probability - you take all of that into account. So when you have your overall system of work and your safe work method statements all of the potential things that can go wrong are taken into account. That's what we're arguing that their risk assessments that are provided aren't .....

PN279

THE COMMISSIONER: Mr Harmer, is there anything you wish to say in reply?

PN280

MR HARMER: There is, although I'm instructed and I apologise and I don't seek to test the Commissioner's patience - I'm instructed to seek just a couple of minutes adjournment just to get some instructions on the technical side of things. I don't know what aspect, Commissioner, but if you would let me have that indulgence.

PN281

THE COMMISSIONER: We'll just have five minutes adjournment.

<SHORT ADJOURNMENT [5.19PM]
<RESUMED [5.29PM]

PN282

THE COMMISSIONER: Yes, Mr Harmer, are you ready?

PN283

MR HARMER: Commissioner, if I could just respond as briefly as possible. First of all in relation to Unions New South Wales submissions, I'll just make a point summary. The first one is that there have been a lot of issues raised by the unions and to the extent that I don't take issue with every point or fact or otherwise, the non addressing of it is not to be taking back the essence of that general part. Secondly, in relation to the recommendations sought by
Unions New South Wales, what we'd say briefly is that in relation to number one, the recommendations sought by RailCorp and RIC are put on hold still, if you like the relevant changes in Q15I06 in that the waiver is to continue.

PN284

I'd also just note however, that there are many aspects of that separate proposed changes which aren't disputed and the dispute in this matter goes to a specific assembly over ..... assembly work. In relation to the remaining recommendations sought, we again believe that are satisfied by the recommendations we've sought. That is, that the process of consultation, as I say, the Occupational Health and Safety Act makes it appear but this process and consultation with the unions can satisfy the requirement. In terms of the recommendation three and an independent expert, we're not ruling that out but we haven't reached that point yet, Commissioner and as we've pointed out in our submission, there are further steps we think can fruitfully progress the matter before that point is reached.

PN285

In terms of the inserted phrase to meet the system in consultation again we'd be saying that that can be addressed with the process we've sought. Point 3, on consultation, what we say is that the September `04 session was an employees stakeholders' session - on the waiver December `04 there was an employees stakeholders' session on the total work changes. No union was excluded from that process including LEPU. The relevant documentation that we've provided in the form of our processed control plans, job safety analysis and standard job details have been the subject of consultation of employees on the ground and indeed, utilised by them for some time now.

PN286

That includes RailCorp RIC employee and of course contractor employees. As I said before, there has since that time been correspondence in this process ..... requirements under the Act. Again the context is, we're dealing with a long standing acquiesced custom and practice - acquiesced by employees' unions and contract employees alike. Point 4 on supervision. I don't seek to address the issue again in detail but in overall supervision, no change. The issue of direct supervision, we agree is a matter of assessment. That also has not been changed. Indeed direct supervision is not a requirement currently under the waiver and there are categories of employees currently not involved in direct supervision and again long standing acquiescence in that practice.

PN287

Point 5 - there was points made more generally about consultation processes. That's not a matter for this dispute. We agree those consultation processes need to be addressed and being progressed elsewhere. Point 6, there is assertion made about breaches of our.... First of all, Commissioner, our informal feed back from work cover is that have detected no breaches, no requirement for improvement or prohibition notices or otherwise. They do not play a mediating role and have chosen, despite the expected obligations not to take any action in relation to the approach of the new management.

PN288

We put it no higher than that. Point 7 - a call for an independent expert again, specifically in submission. We just repeat that RailCorp and RIC have the expertise, have the responsibility and the right to manage and are doing so fairly, safely and in compliance consistent with that right and responsibility. Point 8 - we take it that the reference to - it seems acknowledgement of about 50 per cent of the workforce have been contractors over the years, it was put and that clearly goes to a long period of time prior to April 2004, have been doing this work with the current qualifications. Again no change to the custom and practice.

PN289

We turn to the RTBU five points. Number 1 - there was an assertion made about non compliance with the RIC certified agreement. We dispute that. There's been no section 170LW sought in terms of relief and indeed, it has been confirmed that safety alone is the issue not ..... industrial non compliance, which as I say, in any event, we dispute. Secondly, the assertion about a 16 year old child, other than raising lack of relevance, I don't seek to address that matter. Thirdly, however, relating to it ..... long standing contractors, no previous issues raised of under aged labour or otherwise.

PN290

Fourth issue of supervision - I've previously addressed. Fifth, assertion that there's been nothing in the way of addressing occupational health and safety. As I say, the process control plans job safety analysis, standard job detail do directly address those issues in accordance with standard practice. Again, ..... by all unions concerned and employees on the ground are then certainly reflected in compliance with legislation. Terms of the ETU - again point made on consultation, the OH&S Act. I'd just repeat again that this process that we've sought by way of recommendation can address that.

PN291

Commissioner, unless there's any questions we don't seek to address any other points on commissional evidence.

PN292

THE COMMISSIONER: No, thank you, Mr Harmer. I think I'd indicated earlier that I will consider over night, what's been put to me in the conciliation proceedings this afternoon. I'll issue something tomorrow morning to the parties. I would suggest you put an order in for transcript. Of course, I'll receive my copy of transcript and I'll keep it on file. We'll attempt to get that out with this script tomorrow morning. Nothing further, the Commission stands adjourned.

<ADJOURNED INDEFINITELY [5.37PM]