C2015/70, Transcript of Proceedings [2015] FWCTrans 10 (13 January 2015)

TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 1051234-1

COMMISSIONER LEE

C2015/70

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

Metro Trains Melbourne Pty Ltd
and
Australian Rail, Tram and Bus Industry Union
(C2015/70)





Melbourne

9.40 PM, TUESDAY, 6 JANUARY 2015

PN1

THE COMMISSIONER: I'll take the appearances please.

PN2

MR C. BROADBENT: Yes, Broadbent, C. I appear on behalf of the applicant in this matter and I seek leave to represent the applicant this evening.

PN3

THE COMMISSIONER: Yes, thanks.

PN4

MR K. FAROUQUE: If the commission pleases, Farouque, initial K. I appear with Mr Burgio, initial E. We seek permission to appear for the RTBU.

PN5

THE COMMISSIONER: Thank you. I'm presuming that the basis for permission for you both is that there’s some complexity in this matter and it will enable the matter to be dealt with more efficiently. Would that be right?

PN6

MR BROADBENT: That's right and also on the basis that none of the people with me today have any experience of actually understanding this particular section.

PN7

THE COMMISSIONER: Mr Farouque, that’s the general proposition.

PN8

MR FAROUQUE: Yes, that is, Commissioner.

PN9

THE COMMISSIONER: Yes. I'm satisfied that there is some complexity and it would be appropriate to grant permission to appear to enable the matter to be dealt with more efficiently. That permission is granted to you both. Mr Broadbent?

PN10

MR BROADBENT: Yes. Just by way of very brief opening, this matter has been brought before you today because at a late hour this afternoon, Metro received two notices. They actually became aware that the notices had been posted by the RTBU by reason of contact from The Age Newspaper and the notices which are attached to the application, which I presume you've got with you - - -

PN11

THE COMMISSIONER: Yes, I have.

PN12

MR BROADBENT: One of them talks about engaging in restricted work practices in relation to Siemens trains which are described as having explosive static inverters. The other is in relation to the change in work practices in relation to the digital train radio public address system. I have got a couple of – I don’t want to go into a great deal of detail bearing in mind the time. I’ve got a witness which I would like to call, if I may, Mr James Pinder, who can give some evidence as to how those particular directives might amount to change in work practices and the like.

PN13

THE COMMISSIONER: Yes, all right.

PN14

MR BROADBENT: If I could call Mr Pinder?

PN15

THE COMMISSIONER: Mr Farouque?

PN16

MR FAROUQUE: Commissioner, I just note this application has been made, I think, this evening at around 7 o'clock perhaps or thereabouts. We've been given very limited notices in the circumstances of the application.

PN17

THE COMMISSIONER: Yes.

PN18

MR FAROUQUE: I'm not certain as to how the commission intends to proceed this evening and I'm not certain whether – I note that the application seeks the matter be dealt with on an ex parte basis and the matter be listed for a hearing on or after, I think, the 7th - is my recollection of what the application says and so in that regard, Mr Broadbent hasn't indicated how he wishes to propose other than to call a witness.

PN19

THE COMMISSIONER: Yes.

PN20

MR FAROUQUE: Perhaps that matter could be clarified so we can make some relevant submissions in relation to the appropriate course.

PN21

THE COMMISSIONER: Yes. No, I think that’s appropriate. Thanks, Mr Farouque.

PN22

MR BROADBENT: Yes. The application listed two orders that were requested; one was to cease and desist in engaging in or encouraging any unlawful industrial activity and the other was that it be dealt with on an ex parte basis. We’re clearly not going to pursue the request that it’s dealt on an ex parte basis because my friends are here and there’s no need for that to happen. Having regard to the late hour at which the application was made, we were not entirely convinced that it would be logistically possible for the attendance of the RTBU.

PN23

Bearing in mind the fact that the industrial action that is threatened is actually due to take place now, there’s been no notice, there’s been no discussion over it, there’s been no prior notification that there’s an intention to engage in this kind of action we felt that it was appropriate – bearing in mind this is Melbourne’s metropolitan rail network and there will be a considerable disruption to a vast number of people if this action is allowed to progress. We sought that be made, if you like, on an interim basis for a short period of time in order to enable the industrial action to be averted whilst my friend would be allowed to prepare a response to the application.

PN24

We are more than happy if the RTBU wished to postpone voluntarily taking any form of action - we’re more than happy to have the matter dealt with at a different time where both parties would be able to present evidence in advance and the like, but clearly going back to the fact that the industrial action itself is going to have such a large impact on the travelling public, and in the view of Metro is quite plainly unlawful industrial action, if there isn't going to be that kind of agreement then we would press that the matter is heard and determined this evening.

PN25

THE COMMISSIONER: Yes, all right. Thanks. Mr Farouque?

PN26

MR FAROUQUE: Commissioner, we’ve obviously been given very short notice of this application.

PN27

THE COMMISSIONER: Yes.

PN28

MR FAROUQUE: It involves some very significant issues in relation to the health and safety of not only drivers, but other staff of Metro and in fact the travelling public. There are essentially two issues, factual issues, which arise in respect of this application: firstly, a matter of an exploding static inverter on Siemens trains. Commissioner, that is a matter which has been – it’s a very serious matter. It’s been raised in the public domain. It’s been reported in the press. It relates to the inverters on carriages of Siemens trains which carry a real risk of exploding, causing – and that explosive force has caused the compartment and the cover containing the inverter to be blown off the inverter and there are, I think, at least five instances where that event has occurred. Metro have apparently sought to - - -

PN29

THE COMMISSIONER: Aren’t these matters – essentially what I'm dealing with at your request, Mr Farouque, because I’ve asked Mr Broadbent to outline his request - - -

PN30

MR FAROUQUE: Yes.

PN31

THE COMMISSIONER: - - - how we intend to proceed. He’s made it clear that the ex parte aspect of the application falls away and that he’s prepared to move on the matter tonight substantively and evidence to be taken and then I make some determination. So the relative question is what views do you have about that and, in particular, he’s made representations about the significant effect of the purported industrial action on the metro system and that underpins the need to deal with the matter expeditiously.

PN32

MR FAROUQUE: Commissioner, the matter from the union’s perspective is this: the matter of the exploding inverter carries with it a risk to drivers, other staff and members of the public. What the applicant is seeking to do is to effectively obtain an order from the commission in circumstances where it can then waive that order in front of drivers, if it obtains such order, seeking to compel them to drive trains which I think from a reasonable perspective could be considered to be a form of – drive a train which has effectively a risk to drivers and the travelling public.

PN33

THE COMMISSIONER: That's a matter ultimately I have to determine, Mr Farouque.

PN34

MR FAROUQUE: Yes. And so my submission, Commissioner, is that that matter should not be determined this evening. It’s appropriate in my submission that in respect of both issues which arise in this application that the proceeding should be heard at a time at a later date. We would propose Thursday for the matter to be heard and so that the parties have a proper opportunity to call evidence in relation to the issues at hand. If this matter is - - -

PN35

THE COMMISSIONER: Do you disagree that the effect of that would be that there would be a major impact on the metro rail system up until Thursday?

PN36

MR FAROUQUE: If drivers did not drive the Siemens trains or did not attend the Siemens trains and follow the process of train preparation – if I could just show you this picture.

PN37

THE COMMISSIONER: No. We'll get to the evidence.

PN38

MR FAROUQUE: Yes.

PN39

THE COMMISSIONER: We’re either running the case or we’re not.

PN40

MR FAROUQUE: Yes.

PN41

THE COMMISSIONER: So your position is that you don’t want to have the case run. Isn’t that right?

PN42

MR FAROUQUE: Yes. This evening we don’t think it’s appropriate that the case be run.

PN43

THE COMMISSIONER: Yes.

PN44

MR BROADBENT: Commissioner, if I may, there are a couple of statements there that have been given that might be a little misleading. The first is in relation to a safety aspect. I have with me Metro’s chief engineer who’s looked at this issue of the so-called exploding capacitors and he can give evidence in respect of that. There haven't been five instances of it. There’s been one where - - -

PN45

THE COMMISSIONER: You're both just leading evidence from the bar table. So what I'm trying to deal with is to avoid you both doing that and to have the matter dealt with substantively, and the question is when I do that your position is that I do that immediately. Mr Farouque, your position of your client is that I stand the matter down, that I shouldn't deal with it because it’s a significant issue until Thursday. Is that right?

PN46

MR FAROUQUE: That is right, Commissioner.

PN47

THE COMMISSIONER: Yes, all right.

PN48

MR FAROUQUE: And that would be consistent with the commission’s own mandate pursuant to section 4(1)(e) which provides a scheme whereby if the commission cannot hear and determine an application within 48 hours, it can make an interim order and so there’s no - - -

PN49

THE COMMISSIONER: If it can’t.

PN50

MR FAROUQUE: If it can’t. And so there is a window and the time frame that I'm proposing is within the window of the 48 hours provided for in the legislation.

PN51

THE COMMISSIONER: Yes, all right. I'm going to adjourn. Is there anything you want to say in response to that particular point?

PN52

MR BROADBENT: I think that there is an opportunity to hear it today and I think there is a pressing need to hear it today. It’s also worthy of note that the trains that are being discussed there have actually been in service for years now. It may be worth going into conference perhaps for five minutes to see whether or not there’s a means by which we can come to an agreement over how the industrial action might be avoided and that the matter be progressed at a later date. Unless my friend is willing to do that, then I really press for the matter to move forward tonight.

PN53

THE COMMISSIONER: Yes. Mr Farouque, conference?

PN54

MR FAROUQUE: Can I seek instructions?

PN55

THE COMMISSIONER: Seek instructions? Yes.

PN56

MR FAROUQUE: We’re prepared to have a conference, Commissioner.

PN57

THE COMMISSIONER: All right. I'll accede to that. I just foreshadow that it will be for a brief time because I would be looking to make a determination as to the threshold issue as to whether or not I move to deal with the matter substantively tonight or at some later time as sought by Mr Farouque. I haven't made a determination on that yet, but given that that’s an open question, if I do proceed with it tonight, I’d want to have enough time to be able to deal with it and to ultimately reach a determination in the matter, but if both sides are seeking a conference, we will adjourn into conference and while that conference occurs anybody who’s in the court – it will be a private conference – who are not associated with these parties will need to absent themselves from the court while that conference occurs. So the commission will adjourn.

<SHORT ADJOURNMENT [9.55 PM]
<RESUMED [11.01 PM]

PN58

THE COMMISSIONER: This matter was a section 418 application made by Metro. It was made late in the afternoon today. I’ve listed the matter at short notice, given the nature of the application that was made. In the preliminary stages of the hearing this afternoon there was a request for a conference, private conference, to be convened coming from the applicant and the respondent agreed that they would participate in that conference before me. At that conference the parties reached the following agreement which I'll now read into the transcript.

PN59

The first point is that Metro Trains will implement additional mitigation, such as a fire blanket or similar, to deal with the static converter issue. The additional mitigation will need to be consistent with advice from the chief engineer. The installation of the additional mitigation will be undertaken within seven days from tomorrow’s date, 7 January 2015. Secondly, Metro Trains Melbourne agree to effect a resolution to the software issue identified in some DTRS radio systems that causes the UPS to stall and the PA to fail in specific circumstances. This application will be completed within a three-week time frame from 7 January 2015. Thirdly, daily meetings will occur between the union and Metro representatives to monitor progress of the first two items. Fourthly, the union will immediately withdraw the circulars that were appended to the application that was made this afternoon which directed that certain action be taken by employees. Fifthly, on the basis of this agreement the applicant in this matter Metro withdraws the section 418 application that they made this afternoon.

PN60

I expect, to be clear to all parties, that both the union and Metro will take every action that they can take immediately to advise Metro staff of the outcome in the commission this evening. In terms of the agreement, Mr Broadbent, do you agree that that’s the agreement that was reached?

PN61

MR BROADBENT: Yes, I do, Commissioner.

PN62

THE COMMISSIONER: Yes. You agree that on that basis you're withdrawing the application?

PN63

MR BROADBENT: Yes, immediately.

PN64

THE COMMISSIONER: Yes. Mr Farouque?

PN65

MR FAROUQUE: Yes, I agree that’s the agreement reached, Commissioner.

PN66

THE COMMISSIONER: All right. I thank the parties for their attendance at short notice and the commission is now adjourned.

<ADJOURNED INDEFINITELY [11.04 PM]