B2015/1245, Transcript of Proceedings [2015] FWCTrans 511 (3 September 2015)

TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009

COMMISSIONER GREGORY

B2015/1245

s.424 - Application to suspend or terminate protected industrial action - endangering life etc.

Metro Trains Melbourne Pty Ltd

and

Australian Rail, Tram and Bus Industry Union

(B2015/1245)

Melbourne

EXTRACT OF TRANSCRIPT OF PROCEEDINGS

11.40 PM, TUESDAY, 1 SEPTEMBER 2015

THE COMMISSIONER: I am conscious of the requirement to determine this application as I understand it under the Fair Work Act where possible within five days. I am also conscious of the submissions and evidence that have been provided on behalf of Metro Trains Melbourne Pty Ltd indicating that it requires 48 hours' notice of what is to occur, in particular on Friday, 4 September, if it is to be able to respond accordingly and put in appropriate measures in response. I am also satisfied that, based on the evidence and submissions provided, that I am in a position to determine this application at this point and I hand down this decision now in transcript. It will be subject to some further editing and I will endeavour to publish a final decision tomorrow.

Section 424 of the Fair Work Act provides in part in the context of this application that the Fair Work Commission must make an order suspending or terminating protected industrial action for the proposed enterprise agreement that is being engaged in or is threatened, impending or probable. If the Fair Work Commission is satisfied that the protected industrial action has threatened, is threatening or would threaten to endanger the life, the personal safety or health or the welfare of the population or of part of it.

In the present matter I understand the application is made on the basis that the protected industrial action proposed to be taken by the ARTBIU threatens to endanger the personal safety or health or the welfare of the population or of part of it. The application also indicates that the applicant, Metro Trains Melbourne Pty Ltd, seeks an order in response terminating the foreshadowed protected industrial action. The particular action was foreshadowed in separate notices of intention to take industrial action provided to Metro Trains by the ARTBIU both on 26 August and 27 August 2015 and involves, as I understand it, a four-hour stoppage commencing at 10 am on Friday, 4 September 2015 and concluding at 2 pm on the same day.

The employees intending to engage in the action, I understand from the notice, would be employees who are members of the ARTBIU and whose employment will be subject to the proposed agreement, excluding employees who are employed in any grade as train drivers. The notice also indicates that the ARTBIU will work with Metro Trains to insure the trains are running into the nearest, most appropriate yard, shunting location, depot, siding, loop or storage facility so that no train is left on a live, running line during the stoppage. Train drivers rostered to prepare trains during the hours from 10 am till 2 pm will complete their training preparations to insure trains are ready to commence service at 2 pm. This will be done, as I understand from the notice, to reduce the impact and disruption to the travelling public. It is proposed that such action will commence at 10 am, as I have indicated, and will continue during the period of the stoppage.

The ARTBIU intends that all Metro employees, signallers and train controllers shall remain at work until the last train on the network has been taken off the network. The action also involves what is described as a ban on short arrivals and short departures, involving, as I understand it, in more detail a ban on compliance with any direction or requirement to terminate a late-running train service and send it back in the other direction for the purposes of timetable adjustment other than for safety-critical reasons. This action is proposed to take place throughout Thursday, 3 September, 2015.

Metro Trains relies on the evidence in particular of Mr Ranjit Bria, its director of operations. His evidence indicates in part that I think 168,000 passengers would normally travel between the hours of 9.30 am and 3 pm on a week day and that the impact of the industrial action will likely extend significantly beyond the period from 10 am until 2 pm, as services are brought to an end in anticipation of the stoppage and then normal services eventually resume.

His evidence indicates that in excess of 200,000 passengers could actually be impacted by the stoppage on Friday, 4 September. His evidence also indicates that there is a degree of confusion about who will actually be involved in the stoppage and it is possible other services will have to be cancelled as a consequence. Potential increased absenteeism and the possibility of unexpected disruptions to the network may also exacerbate the impact of the stoppage. His evidence also indicates that buses will be utilised in mitigation of the impact of the proposed industrial action. However, their ability to act in mitigation is limited as there are only a finite number of buses available and the number of individual bus services required to counter the non-running of a single train service.

As I understand it, his evidence is that 250 buses can be utilised but they are only likely to assist approximately 17,000 passengers that would otherwise have planned to travel by train during the period of the stoppage. Mr Bria's evidence also indicates that customers are likely to become frustrated and anxious, to use his words, by the impacts of the stoppage. He also makes reference to a number of other possible eventualities, including members of the public trespassing on rail tracks and rail property, possible delays extending to impact on services being provided to the AFL match on Friday evening and even potential consequences that could emanate in circumstances where train services would be utilised to assist in an evacuation from the central city.

His evidence also suggests that there will be greater risk on the roads due to additional traffic congestion. He also made particular reference to the circumstances of school children, the disabled, concession holders and others who may have limited alternative options and be groups that are likely to be particularly impacted. I am satisfied that much of his evidence was speculative in nature and dealing with possible rather than probable consequences. This is not a criticism of Mr Bria and is perhaps due in large part to the fortunate fact that the Melbourne metropolitan area has not experienced train stoppages in recent times.

That would enable him to provide a more factual account based upon recent experience of what might be the probable impacts. Evidence was also provided on behalf of Metro Trains by Ms Melissa Hogan about the nature of the negotiations that have taken place to date in regard to the establishment of a new enterprise agreement to cover the parties. Ms Hogan is the special projects industrial relations manager, people and performance, within TM and her evidence detailed the progress or otherwise of the negotiations that have taken place between the parties since bargaining commenced in May 2015.

She indicated that more than 20 formal bargaining meetings had taken place since that time. The submissions provided on behalf of Metro Trains also made reference to a number of authorities it submits are relevant to the determination of this matter. It made reference to the decision in Coal and Allied v the CFMEU [1990] 80 IR14, and in particular the references in that decision to the ordinary meaning of the expression:

The welfare of the population is a general invocation of the considerations that go to the wellbeing of the total number or body of the inhabitants of Australia. Moreover, despite the generality of the concept of welfare of the population, the phrase is threatening to endanger reports a requirement of there to be a danger or peril to welfare there needs to be a basis upon which it is reasonable to conclude on an assessment of matters of fact and degree that the collective welfare is in peril or danger.

Reference was also made to the decision in Victorian Hospitals Industrial Association v ANF [2011] FWA FB8165, where the Full Bench indicated in part that conduct that puts a person's physical or mental state at risk of material detriment will qualify as conduct that threatens to endanger personal health or safety. Reference was also made to the decision in Metropolitan Ambulance Services v the LHMWU at PR950276 and the reference there to the Macquarie Dictionary definition of "endanger" as to:

Expose to dangers, imperil.

The RTBU provided evidence from three witnesses. Evidence was provided by Ms Carita Kazakoff, a solicitor with Slater and Gordon, that made reference to other public transport options apart from train services that are available in the Melbourne metropolitan area. Her statement attached a series of local maps provided by Public Transport Victoria which purportedly show available train, tram and bus services available in each particular locality. Mr Brian Penza is an authorised officer with Yarra Trams. His evidence made reference to his observation and reports from other employees of Yarra Trams during a recent four-hour tram stoppage on 27 August that was also scheduled between 10 am and 2 pm.

His evidence indicated that he was not aware of the passengers and members of the public becoming aggressive or insulting or displaying negative feelings towards the authorised officers during the conduct of that stoppage. Mr Grant Wainwright, an organiser with the ARTBIU, also provided evidence about the progress of the negotiations that have taken place with representatives from Metro Trains and in more recent times with the involvement of representatives from the Victorian government also in attendance in what he described as government-facilitated bargaining meetings.

He made reference to key topics that were discussed in these meetings and the varying degree of progress made or otherwise in regard to those matters. His evidence also indicates that in more recent times, those discussions have also been had with the involvement of the CEO of Metro Trains. He also indicated that discussions were had about the involvement of an independent third party to assist in progressing the negotiations. He disagreed in cross-examination that the union had not been prepared to shift its position in the negotiations, although this was not necessarily evident from recent exchanges of documents provided as evidence between the parties. He also made reference to various attempts that had been made to clarify and assist in the conduct of the proposed industrial action. Mr Wainwright also took issue with various aspects of the witness evidence provided by Mr Bria, although it is also acknowledged that Mr Bria did not agree in his examination in chief with the evidence provided by Mr Wainwright about these matters.

The ARTBIU also made reference to various authorities, including the decision in the National Tertiary Education Union v University of South Australia, and the decision that I have already made reference in Coal and Allied v CFMEU. There is little doubt that if the four-hour stoppage in particular proposed by the Australian Rail, Tram and Bus Industry Union proceeds on Friday 4 September it will result in significant disruption and inconvenience. As I have indicated, the evidence provided by Metro Trains indicates that approximately 160,000 people and potentially more who would otherwise have been travelling at this time will have to make other arrangements. This is obviously a significant number of people.

Clearly those people will have to make a whole range of other arrangements. Some will obviously defer or postpone their travel by train to another time. Others will use the tram network or travel by taxi or other contemporary alternatives, while others will choose to travel by road or by other means. It is also acknowledged that for some, particularly the disabled, the available options might be limited and they might suffer additional inconvenience. However, the references that I have referred to in the submissions make reference to a requirement based on the authorities that the collective welfare be in peril or in danger or that the personal safety or health of part of the population be threatened to be endangered.

The authorities referred to also indicate that the decision-maker must have some basis for his or her satisfaction over and above the generalised predictions as to the likely consequences of the industrial action. In this context I refer in particular to the decision in Coal and Allied v CFMEU, that I've already made reference to, when the Full Bench stated:

Moreover, despite the generality of the concept, welfare of the population, the phrase is threatening to endanger imports a requirement of there to be a danger of or peril to welfare. There needs to be a basis upon which it is reasonable to conclude on an assessment matters of fact and degree that the collective welfare is in peril or danger.

I also make reference to the decision in VHIA v ANF that I have already referred to also, where it was determined that conduct that puts a person's physical or mental state at risk of material detriment is what is required to qualify as conduct that threatens to endanger personal health or safety. I have also made reference already to the reference to the Macquarie Dictionary definition of "endanger" in Metropolitan Ambulance Services v LHMWU. That decision also indicates that while the determination of the matter will involve a degree of subjectivity and value judgement, nevertheless there must be evidence before the Commission sufficient to found such a satisfaction.

The decision of Deputy President Kaufman in Ambulance Victoria v LHMWU also makes it clear that the requirement is that it is probable rather than possible that the action would threaten to endanger. In the circumstances of this matter, I am not satisfied that the evidence indicates more than what can be described as generalised predictions existing about the likely consequences of the protected industrial action and that this falls short of the required evidence that needs to exist in order that an order can be made.

I am also satisfied that there are many things that can be done in mitigation, both by Metro Trains and its employees as well as those that will be affected by the proposed industrial action to significantly lessen or minimise its impact. The bus services that will be in place have already been referred to, as have other forms of transport. Presumably, there will also be many other train travellers who will otherwise decide to defer their travel on that day. It is also noted that the relevant protected industrial action, certainly in regard to the protected industrial action to occur on 4 September, is also subject to a five-day notice period being an additional two days over and above the standard three days that would otherwise apply under the Act.

This additional time will presumably also assist both Metro Trains and the travelling public to respond to the proposed action as well as giving customers, passengers, members of the public additional time to deal with and respond to the impacts of the stoppages. I have also noted the submissions - and I do not put them any more highly than that; I do not know that specific evidence was provided - but the submissions that have been made about the impact of the stoppage to Melbourne's tram network, which occurred for a similar four-hour period last week, although I acknowledge that there were also submissions made about it occurring for an extended period beyond that as well and the submissions made about the numbers of travellers impacted by that stoppage and the decision that was handed down in regard to a similar application in regard to that matter.

It follows in conclusion that I am not satisfied that the protected industrial action proposed to be taken is threatening or would threaten to endanger the personal safety or health or the welfare of the population or part of it, within the meaning of section 424 of the Fair Work Act. As I am not satisfied in this regard there is accordingly no basis to terminate or suspend the protected industrial action. The application is accordingly dismissed and an order to that effect will be issued in conjunction with this decision.

In coming to a decision in this matter, I suggest that the outcome should not be seen through the adversarial prism of win or lose. It is clearly evident why Metro Trains have made this application. They are obviously concerned to insure that rail services run in metropolitan Melbourne in a manner that is as close to normal as possible, regardless of any concerns that they may have about the welfare and safety issues that are involved in regard to the proposed industrial action. Nevertheless, the scheme of the legislation allows for protected industrial action to be taken in certain circumstances and I am not satisfied that the circumstances can be found to exist as required by section 424 to suspend or terminate the action.

I am also aware that the Commission has previously been involved in a limited way in assisting the parties in their negotiations. The Commission obviously remains available to the parties to continue to provide that assistance and I urge the parties to give further consideration to this option. As I indicated that decision is obviously handed down in transcript. I will endeavour to publish and edit this version of that decision as soon as possible.

ADJOURNED INDEFINITELY [11.59 PM]