Australian Rail, Tram and Bus Industry Union [2020] FWC 1489 | Case summary

[2020] FWC 1489

Australian Rail, Tram and Bus Industry Union [2020] FWC 1489 | Case summary | Zoe

[11]

(ii) an unlimited number of employees employed in or in connection with the Railway and Tramway industry or industry is governed and controlled directly by the Governments of the Commonwealth of Australia and the States of Queensland, New South Wales, Victoria, South Australia, Western Australia and Tasmania, or indirectly by such Governments, or any of them through Commissioners, Boards, Managers, Directors, or other means, and also all railway systems in the Commonwealth of Australia owned and controlled by private persons or companies, and the Secretary and/or any employee of the Railway Institute established by or under the direction or with the approval of the Commissioners, Boards, Managers, Directors or other controlling authorities of any of the railway systems in the Commonwealth of Australia; and

(iii)

(a) an unlimited number of railway employees (adults or junior, male or female) who become and remain members of the Union and persons who while being members of the Union retire from the railway industry upon the ground of ill health or having reached retiring age and whose membership has not been terminated pursuant to this Rules;

(b) for the purposes of sub-paragraph (iii)(a) above, "Employee" or "Railway Employee" means any officer or employee employed by any Railway Department and also any officer or employee employed in any railway system in the Commonwealth owned or controlled by private persons or corporations other than officers in a supervisory position employed at an annual rate of salary and shall include the Secretary or any employee of any Railway Institute established by or under the direction or with the approval of the Railway Commissioner or other controlling authority of any railway system in the Commonwealth and "Railway Industry" has a corresponding meaning; and

(iv) an unlimited number of persons employed in the Railway Train Running Industry including Locomotive cabdrivers, Electric Train cabdrivers, Fireman, Electric Helpers, Chargemen and Cleaners, Packers and Trimmers, Wash-out Men, Wash-out Men's Assistants, Motor Drivers and any other worker engaged in and about the working or management of or incidental to any Steam locomotive or Motor driven by electricity or other power used on any Railway;

[13]

(2) Each of the paragraphs numbered (i) to (iv) in Sub-Rule 4(1) shall be interpreted separately. Accordingly, each paragraph shall neither limit nor be limited by the provisions of any other paragraph.

(3) Notwithstanding the proviso to Sub-Rule 4(1), a person who is admitted to membership pursuant to the provisions of Rule 10 and who subsequently elected as a paid Office Bearer of the Union or becomes an employee of the Union, shall be entitled to remain as a member while holding such Office or engaged in such employment.

(4) Without in any way limiting or being limited by the provisions of sub rules (1), (2) and (3) inclusive, the following persons shall be eligible for membership of Union:

(i) All employees of the Transport Service of New South Wales and any successor, assignee or transmittee, whether direct or indirect, of the business and/or the roles, functions or responsibilities (or any part thereof) the Transport Service of New South Wales where such employees are employed in the provision of bus services by the State Transit Authority of New South Wales and its public subsidiary corporations; and

(ii) All employees of the State Transit Authority of New South Wales and any successor, assignee or transmittee, whether direct or indirect, of the business and/or the roles, functions or responsibilities (or any part thereof) of the State Transit Authority of New South Wales; and

(iii) All employees of Keolis Downer Hunter Pty Ltd and any successor, assignee or transmittee, whether direct or indirect of the business (or any part thereof) of Keolis Downer Hunter Pty Ltd where such employees are employed in or in connection with the provision of bus services in the area identified as Outer Metropolitan Bus Contract Region 5 - Newcastle otherwise known as State Transit Region 5 Newcastle; and

(iv) All employees of Transit Systems Pty Ltd and any successor, assignee or transmittee, whether direct or indirect of the business (or any part thereof) of Transit Systems Pty Ltd where such employees are employed in or in connection with the provision of bus services in the area identified as Sydney Metropolitan Bus Service Contract 6 otherwise known as State Transit Region 6; and

(v) All employees of Transit Systems West Pty Ltd and any successor, assignee or transmittee, whether direct or indirect of the business (or any part thereof) of Transit Systems West Pty Ltd where such employees are employed in or in connection with the provision of bus services in the area identified as Sydney Metropolitan Bus Service Contract 6 otherwise known as State Transit Region 6; and

(vi) All employees of Transit Systems West Services Pty Ltd and any successor, assignee or transmittee, whether direct or indirect of the business (or any part thereof) of Transit Systems West Services Pty Ltd where such employees are employed in or in connection with the provision of bus services in the area identified as Sydney Metropolitan Bus Service Contract 6 otherwise known as State Transit Region 6."

[20]

(1) A change in the name of an organisation, or an alteration of the eligibility rules of an organisation, does not take effect unless:

(a) in the case of a change in the name of the organisation - the FWC consents to the change under this section; or

(b) in the case of an alteration of the eligibility rules of the organisation:

(i) the FWC consents to the alteration under this section; or

(ii) the General Manager consents to the alteration under section 158A.

(2) The FWC may consent to a change or alteration in whole or part, but must not consent unless the FWC is satisfied that the change or alteration has been made under the rules of the organisation.

(3) The FWC must not consent to a change in the name of an organisation unless the FWC is satisfied that the proposed new name of the organisation:

(a) this is not the same as the name of another organisation; and

(b) is not so similar to the name of another organisation as to be likely to cause confusion.

(4) The FWC must not consent to an alteration of the eligibility rules of an organisation if, in relation to persons who would be eligible for membership because of the alteration, there is, in the opinion of the FWC, another organisation:

(a) to which those persons could more conveniently belong; and

(b) that would more effectively represent those members.

(5) However, subsection (4) does not apply if the FWC accepts an undertaking from the organisation seeking the alteration that the FWC considers appropriate to avoid demarcation disputes that might otherwise arise from an overlap between the eligibility rules of that organisation and the eligibility rules of the other organisation.

(6) The FWC may refuse to consent to an alteration of the eligibility rules of an organisation if satisfied that the alteration would contravene an agreement or understanding to which the organisation is a party and that deals with the organisation's right to represent under this Act and the Fair Work Act the industrial interests of a particular class or group of persons.

(7) The FWC may also refuse to consent to an alteration of the eligibility rules of an organisation if it:

(a) is satisfied that the alteration would change the effect of any order made by the FWC under section 133 about the right of the organisation to represent under this Act and the Fair Work Act the industrial interests of a particular class or group of employees; and

(b) considers that such a change would give rise to a serious risk of a demarcation dispute which would prevent, obstruct or restrict the performance of work in an industry, or harm the business of an employer.

(8) Subsections (6) and (7) do not limit the grounds on which the FWC may refuse to consent to an alteration of the eligibility rules of an organisation.

(9) Where the FWC consents, under subsection (1) to a change or alteration, the change or alteration takes effect on:

(a) where a date is specified in the consent - that date; or

(b) in any other case - the day of the consent.

(10) This section does not apply to a change in the name, or an alteration of the eligibility rules, of an organisation that is:

(a) determined by the FWC under subsection 163(7); or

(b) proposed to be made for the purposes of an amalgamation under Part 2 of Chapter 3 or Division 4 of Part 7 of Chapter 11; or

(c) proposed to be made for the purposes of a withdrawal from amalgamation under Part 3 of Chapter 3."

[7] Regulation 124 of the Fair Work (Registered Organisations) Regulations 2009 (RO Regulations) permits certain persons to object to the grant of consent to an eligibility rule change under s 158 as follows:

[47]

[9] The Full Court of the Federal Court[5] dismissed an application by Resmed for judicial review of the decision of the Full Bench of the Commission in ResMed, albeit the Full Court did not consider the general principles set out above.

[10] I will apply the general principles set out in paragraph [8] above in determining the RTBU's application for consent to alter its eligibility rules. In addition to those general principles, I make the following observations in relation to the way in which my task under s 158 of the RO Act must be performed:

(a) Unlike the union monopoly coverage situation conferred by the relevant legislation prior to the enactment of the Workplace Relations and Other Legislation Amendment Act 1996 (Cth),[6] the current statutory regime permits competition between unions for members, provided the requirements of s 158 of the RO Act are met. In Re CPSU, the Full Bench held that it was a purpose of the Workplace Relations Act 1996 (WR Act) "to allow for competition between organisations; and, to discourage primarily, if not only, that kind of competition which manifests as a demarcation dispute. That purpose may properly be said to be consistent with encouraging competition between organisations".[7] One of the reasons the Full Bench reached that conclusion was the inclusion of a new object in the WR Act directed to ensuring "freedom of association, including the rights of employees and employers to join an organisation or association of their choice..."[8] [emphasis added]. The objects of the FW Act include "enabling fairness and representation at work and the prevention of discrimination by recognising the right to freedom of association and the right to be represented",[9] but do not expressly include joining an organisation of an employee's "choice". The objects of the RO Act do not include joining an organisation of an employee's "choice". The statutory purpose of the RO Act is focused on discouraging industrial disputation and ensuring unions comply with their rules and applicable standards of conduct. Notwithstanding this difference between the objects of the WR Act and the FW Act/RO Act, it is clear from, inter alia, s 158(4) of the RO Act that the current statutory regime permits competition between unions for members, provided the requirements of s 158 of the RO Act are met.[10]

(b) The application of s 158(4) of the RO Act involves a comparative exercise between the relative capacities of the organisations in question.[11] The expression "more conveniently belong" in s 158(4) is oriented towards the perceived convenience of the employees who would become eligible because of the proposed alteration.[12] The expression "more effectively represent" concerns the relative capability of the organisations in question to effectively represent the industrial interests of that class of employees.[13] The two limbs of the one test are connected and many of the considerations relevant to assessing the "effectively represent" limb may be relevant to the "conveniently belong" limb and vice versa.[14]

(c) To refuse an application under s 158(4), the relevant employees must more conveniently belong to the other organisation, and it must also be the case that the other organisation would represent them more effectively.[15]

(d) To apply s 158(4) of the RO Act, it is necessary to identify the class of "persons who would be eligible for membership because of the alteration" in order that the specified statutory tests for consent may be applied to that class.[16] Identification of that class requires a comparison of the existing coverage of the organisation to the coverage it would have if the Commission were to consent to the proposed rule alteration.

(e) Section 158(4) of the RO Act is conditional: it does not apply if the Commission accepts an undertaking from the applicant organisation that it considers appropriate to avoid demarcation disputes that might otherwise arise.[17]

(f) If (and only if[18]) the Commission forms the view that a "better organisation" exists for all or part of the relevant employees, then the Commission must consider whether to accept an undertaking under s 158(5). If any such undertaking is not accepted, the proposed rule alteration must be refused insofar as it applies to the class of persons for which a "better organisation" exists, save that an applicant may be afforded an opportunity to provide a different undertaking which may be acceptable.[19]

(g) The test of which is the better organisation is to be applied at the time of the decision by the Commission. The test involves broad value judgments.[20]

[66]

[13] The Application was the subject of a hearing before the Commission in Sydney on 4, 5, 6, 16 and 17 December 2019. The RTBU adduced evidence from the following witnesses:

(a) Mr Allan Barden, National Assistant Secretary of the RTBU;

(b) Mr David Babineau, Divisional Secretary of the Tram and Bus Division of the New South Wales Branch of the RTBU;

(c) Mr Thomas Herlihy, Bus Operator and RTBU Delegate at the Leichardt depot;

(d) Mr Bullent (Bill) Akdeniz, Bus Operator;

(e) Mr Duncan McKay, Bus Operator; and

(f) Mr Philip Pasfield, solicitor for the RTBU.

[14] The following witnesses were called by the TWU to give evidence:

(a) Mr Adam Carter, Branch Assistant Secretary of the Queensland Branch of the TWU;

(b) Mr Matthew Burnell, Senior Branch Official of the TWU;

(c) Mr Matt Threkheld, Executive Director of BusNSW, the peak body for the private bus and coach industry in New South Wales;

(d) Ms Marta Folkard, Bus Operator and TWU Delegate at the Leichardt depot;

(e) Mr Darren Woods, Members' Service Centre Official with the TWU;

(f) Mr James Hansen, Bus Driver with Busways Pty Ltd;

(g) Mr Robert Gibson, Deputy Head of Human Resources for Busways Group Pty Ltd;

(h) Mr Jim Glasson, Principal of Transport Outcomes Pty Ltd;

(i) Mr Mike McNess, Senior Organiser of the TWU;

(j) Mr Michael Pieri, Assistant State Secretary of the TWU (NSW Branch);

(k) Mr Nimrod Nyols, Lead Official of the TWU; and

(l) Mr Gavin Webb, Chief Legal Officer of the TWU (NSW Branch).

[15] Transit Systems adduced evidence from Mr Len Kidd, General Manager, NSW for the Transit Group, and Mr Mark Peters, Transit Systems Area Manager South, Hoxton Park/Kingsgrove/Tempe.

[16] In determining the Application and forming the necessary broad value judgments required by s 158 of the RO Act, I have paid careful attention to all the evidence adduced,[21] even though I have not included express references to all such evidence in the reasons for my decision. I have also had regard to the oral and written submissions made on behalf of the RTBU, the Transit Group and the TWU, including the RTBU's written submissions in reply dated 31 January 2020 and the TWU's written submissions in response dated 14 February 2020.

[67]

[17] The RTBU contends that the TWU did not make its objection to the Application in accordance with the TWU's rules. The evidence discloses that the TWU's New South Wales State Secretary, Mr Richard Olsen, made the decision to object to the Application and the objection filed in the Commission by the TWU was signed by the TWU's (NSW Branch) Chief Legal Officer, Mr Webb. The RTBU submits that Mr Olsen did not have the power under rule 69(3) of the TWU's rules to make the objection because the Application is a matter "occurring in a State or Territory that may affect Members living in another State or Territory" within the meaning of rule 68(5)(a), with the result that the power to make the objection rested with the relevant officer of the federal level of the TWU. There was no decision made, so the RTBU submits, in accordance with the TWU's rules, by anyone at the federal level, from the National Council down to the National Secretary. As such, it is contended that no decision was made to object and there is no valid objection before the Commission

[18] The TWU submits that it did make its objection in accordance with its rules and, in any event, first, even if Mr Webb did not have actual authority to make the objection, he had apparent authority to do so and that is enough, and, secondly, even if the TWU's objection was not validly made, the Commission now has before it evidence in relation to a range of matters, including on the question of whether there is another organisation to which the relevant persons could more conveniently belong and that would more effectively represent those members, and the Commission will need to consider such evidence in determining whether it is satisfied of the relevant criteria in s 158 of the RO Act.

[19] As to its rules, the TWU submits that they have to be applied in a sensible way, recognising the important and independent operation of the branch of the union within the relevant state or territory and noting that rule 31 of the TWU's rules states that the business of the union within a particular state or territory is under the control of the Branch Committee of Management of that state or territory.

[84]

[21] Mr Oslen, in his capacity as Branch Secretary, made the decision to object to the Application.[22] In order for Mr Oslen to have had the power to make that decision under rule 69(3) of the TWU's rules, the objection to the Application must have related "to an industrial dispute, award, agreement, or other industrial matter solely confined to one State" and not related "to any matter the subject of rule 68".

[22] As to the confinement or otherwise of the matter to one State, each proposed amendment of the RTBU's rules is expressly limited to New South Wales or some region within New South Wales. Accordingly, it is clear from the terms of the proposed rule alteration that it would, if granted, operate solely within New South Wales. It follows that rule 69(3)(a) is satisfied.

[23] As to rule 69(3)(b), the issue is whether the proposed rule alteration "may affect Members living in another State or Territory" within the meaning of rule 68(5)(a). The RTBU submits that the answer to this question is yes, whereas the TWU submits that the answer is no. There is no suggestion that rule 68(5)(b) is engaged. No doubt that is because it is accepted that there is no "existing" dispute etc to which the matter relates.

[24] The rule amendment, if granted, will not permit persons outside New South Wales to join the RTBU. It will not, therefore, have any direct impact on members of the TWU living in another state or territory. It may have an indirect impact on such persons, including insofar as success or failure of the present Application: (a) may encourage or discourage, as the case may be, similar applications to be made by the RTBU in respect of other states or territories and (b) strengthen or weaken, as the case may be, the overall position of the TWU in terms of its financial position or potential industrial strength. Indeed, a number of the witnesses called by the TWU to give evidence in these proceedings expressed concerns about the possibility of the RTBU making similar applications in respect of other states or territories.

[25] The question is whether, on the proper construction of the TWU's rules, the word "affect" in rule 68(5) of the TWU's rules includes indirect impacts of the kind to which I have referred. The proper approach to the interpretation of union rules was summarised by the Full Bench in AMWU v Resmed Limited[23] as follows (references omitted):

[86]

(2) The nature of union eligibility rules means that they should be construed liberally rather than narrowly or technically.

(3) It is permissible to have regard to any common understanding among people concerned with relevant industries and particularly with industrial matters of the ordinary application of the words used, and to the previous use of the words in the relevant organisation's rules and in statutory provisions, decisions, determinations, awards, reports and other papers concerned with the relevant industry or industries. Federal awards, including consent awards, made by Commonwealth industrial tribunals at a time when the legislative award-making power was founded upon the industrial disputes power in s.51(xxxv) of the Constitution, are important sources in this respect since a union may only be a party to an industrial dispute involving employees eligible to be its members.

(4) If there is ambiguity as to the meaning of words in the eligibility rules, assistance may be sought in the terms of the industry rule (subject to it being understood that the scope of the eligibility rule is not restricted by the scope of the industry rule).

(5) Words in an eligibility rule should not be read in isolation such as to give the rule a wide and indefinite scope of operation that is unlikely to have been intended.

(6) Terms used in union eligibility rules should not be interpreted statically in accordance with the meaning they bore at the time that they were first introduced into the rules. Although such terms will have a fixed connotation, they bear a changing denotation - that is, they may be interpreted in accordance with their appropriate current meaning, taking into account changing technologies and methods of work. This may mean that eligibility rules may cover industries or callings not known when the rules were originally drafted.

(7) The words "in or in connection with" are words of expansion. However, for the requisite connection to be established, the work of the employees in question must be referable or significant to the work of the second group of employees with whom there is said to be a connection. It is not sufficient that the work of the relevant employees makes it possible for an employer to conduct a business involving the performance of work by the second group of employees_._"

[26] Further to principles (1) and (2) in the previous paragraph, while union rules are to be construed objectively, a liberal and purposive approach should be taken to the construction of the rules.[24]

[27] The ordinary meaning of "affect" is "to act on; produce an effect or change in".[25] This meaning is broad enough to include indirect impacts of the kind to which I have referred. However, the words in rule 68(5) "should not be read in isolation such as to give the rule a wide and indefinite scope of operation that is unlikely to have been intended";[26] they must be construed in context. Part of the relevant context includes the fact that, under rule 31 of the TWU's rules, the business of the TWU within a particular state or territory is under the control of the Branch Committee of Management of that state or territory. If a Branch Secretary's power under rule 69(3) of the TWU's rules were limited such that the Branch Secretary could not make a decision to take action in relation to a matter solely confined to one state if the matter relates to a dispute etc that may have an indirect impact on members living in another state or territory, the power of the Branch Secretary would be quite limited, because the outcome of many disputes or applications which reduce or increase the power, influence or financial position of a particular state or territory branch of the TWU are likely to weaken or strengthen, as the case may be, the overall position of the TWU, which may, in one sense, "affect Members living in another State or Territory". I am therefore of the view that the meaning of the word "affect" in rule 68(5)(a) of the TWU's rules is not so broad as to include indirect impacts of the kind to which I have referred.

[28] Accordingly, I am satisfied that Mr Olsen's decision to object to the Application relates "to an industrial dispute, award, agreement, or other industrial matter solely confined to one State" and does not relate "to any matter the subject of rule 68", including "an industrial matter occurring in a State or Territory that may affect Members living in another State or Territory". It follows that Mr Olsen's decision to object to the Application was made in accordance with the TWU's rules.

[29] In light of my conclusion in relation to the proper construction of the TWU's rules, it is not necessary to determine the TWU's alternative arguments concerning the validity of its objection, but I will do so to reduce the likelihood of multiple appeals.

[30] As to the TWU's first alternative argument, any "conduct engaged in on behalf of a body corporate by an officer, director, employee or agent of the body corporate within the scope of his or her actual or apparent authority ... is taken, for the purposes of this Act, to have been engaged in also by the body corporate".[27] The TWU's objection to the Application was signed and filed by Mr Webb, the Chief Legal Officer of the TWU (NSW Branch). It is clear that Mr Webb, in his role as Chief Legal Officer, has apparent authority to sign and file documents in the Commission on behalf of the TWU. It follows, in my view, that Mr Webb's conduct in signing and filing the TWU's objection to the Application is taken, for the purposes of the RO Act, to have been engaged in also by the TWU, even if Mr Webb did not have actual authority to so act.[28]

[31] As to the TWU's second alternative argument, no objection was made by the RTBU to the admission into evidence of a range of documents, witness statements, and oral evidence given by employees, members and officers of the TWU, on the basis that there was no valid objection before the Commission. Given that such material has been admitted into evidence and is before the Commission, I agree with the TWU's submission that such evidence cannot be ignored in determining whether I am satisfied of, and have formed the requisite opinions about, the various statutory criteria in s 158 of the RO Act.

[90]

[34] Regulation 124(2)(b) requires a notice of objection to an application for an alteration of an eligibility rule to comply with the requirements of regulation 14, which requires, inter alia, an objector to state the "name and address of the organisation, association or person lodging the notice of objection". Save for Transit Systems, TSW and TSW Services, the objection filed by the Transit Group does not, in terms, state the name and address of the entities that are objecting to the Application. Instead, it refers to those entities as "all related and associated entities" of the three named Transit Group entities.

[35] It does not automatically follow that any defect in an objection to an application under s 158 of the RO Act means that there is no valid objection before the Commission. For example, regulation 179(1) of the RO Regulations permits the Commission to "exempt a person from compliance with a procedural requirement under the Act or these Regulations if the FWC is satisfied there are special circumstances".

[36] I am satisfied that there is a valid objection filed on behalf of Transit Systems, TSW and TSW Services to the Application. Each of those entities plainly has standing to make the objection in the terms filed. It is therefore appropriate that I consider and determine the objection so filed, and it is not necessary to decide whether a valid objection has been made by or on behalf of entities in the Transit Group other than Transit Systems, TSW and TSW Services.

[37] Had it been necessary to decide whether a valid objection had been made by or on behalf of entities in the Transit Group other than Transit Systems, TSW and TSW Services, I would have invited submissions on Regulation 179(1) of the RO Regulations. My preliminary view on that issue is that there are special circumstances in this case because the proposed alteration to the RTBU's eligibility rules: (a) does not identify the employer of the main group of employees the subject of the Application, namely the employer of the New Employees (Transit Services), and (b) includes employees of successors, assignees or transmittees of businesses or parts of business conducted by various entities in the Transit Group in circumstances where it is not presently possible to determine which entities may be caught by any successions, transmissions or assignments which have not yet taken place.

[104]

[46] Mr Barden addressed the making of the alteration to the RTBU's eligibility rules in his statutory declaration made on 15 January 2019.[29] Mr Barden was not cross examined in relation to this issue. I accept as truthful and reliable the evidence given by Mr Barden in relation to the process adopted by the RTBU in amending its eligibility rules.

[47] Mr Barden gave evidence that the proposed rule change was unanimously approved by the National Council of the RTBU and was unanimously ratified by each of the following National Divisional Committees and Branch Divisional Committees:[30]

Special Tram and Bus Division Committee (National);

Special Tram and Bus Division Committee (NSW);

National Fleet Manufacture, Overhaul, Maintenance and Service Division Committee;

NSW Fleet Manufacture, Overhaul, Maintenance and Service Division Committee;

National Administration, Technical, Supervisory and Professional Division Committee; and

NSW Administration, Technical, Supervisory and Professional Division Committee.

[48] There is no evidence to suggest that any other National Divisional Committees or Branch Divisional Committees were "affected" by the rule change within the meaning of rule 87(4) of the RTBU's rules.

[49] I am therefore satisfied that each of the Councils and Divisional Committees required by rule 87 of the RTBU's rules to approve or ratify the rule amendment did so in relation to the proposed amendment to rule 4.

[50] I am also satisfied that the notice requirements imposed by rule 87(2)(i) and (ii) were met in relation to the proposed amendment to rule 4.[31]

[51] For the reasons set out in the previous five paragraphs, I am satisfied that the RTBU's proposed amendment to rule 4 has been made under the rules of the organisation. Accordingly, the requirements of s 158(2) of the RO Act have been met.

[52] In my opinion, it matters not, for two reasons, whether the notice and agenda requirements for National Divisional Committee meetings or Branch Divisional Committee meetings, as set out in rules 40 and 58 respectively of the RTBU's rules, have been met. First, it is clear from the terms of rule 87 that it establishes all the requirements for a valid rule amendment to the RTBU's rules. In particular, sub-rule 87(1) provides that "Except as provided in this Rule, the National Council shall have power to rescind, alter or amend these Rules in accordance with the procedure set out in sub-rule 87(2)". Sub-rule 87(2) sets out the relevant procedure to be followed, including the notice requirements for a meeting of the National Council. In contrast, rule 87 does not impose any notice requirements for meetings of National Divisional Committees or Branch Divisional Committees. Insofar as those Committees are concerned, the obligation imposed by rule 87(4) is for any such Committees "affected" by the "rescission, alteration or amendment" to ratify it. Otherwise, the "rescission, alteration or amendment ... shall be of no effect."[32] Secondly, even if rule 40 and/or rule 58 of the RTBU's were relevant, sub-rule 40(12) provides that "Notwithstanding anything elsewhere contained in these Rules, a meeting of a National Committee may be held via telephone conference or video conference when a majority of the members of the Committee so agrees or when determined by the National Executive." Rule 58(11) is in similar terms and permits a meeting of the Branch Divisional Committee to be held by telephone conference when a majority of the members of the Committee so agrees. The documents annexed to Mr Barden's statutory declaration establish that the National Executive determined to hold meetings of the relevant National Divisional Committees via telephone conference on particular dates and a majority of the members of each of the relevant Branch Divisional Committees agreed to hold the relevant meeting by telephone conference on particular dates.[33] Accordingly, the requirements of rules 40 and 58 were met in relation to the relevant meetings of the National Divisional Committees and the Branch Divisional Committees.

[125]

[57] The RTBU contends that, on a fair reading, the insertion of the additional "the" bifurcates the rule differently, permitting the RTBU in New South Wales to enrol persons employed in:

private tram and bus services; and

trolley bus and light rail services run in conjunction with or controlled by said services.

[58] This was not, so the RTBU contends, brought to the Commission's attention in any of the three previous decisions.

[59] The RTBU contends that it is not necessary to resolve the disputed interpretation of rule 4(1)(i) of its rules for the purposes of these proceedings. Instead, the RTBU says its right to cover the whole group of employees the subject of these proceedings is, or has been in previous matters, contested by the TWU, and the proposed rule change would remove this doubt. The RTBU relies on its arguments concerning the proper interpretation of rule 4(1)(i) to demonstrate that this is not a matter involving a union flagrantly disregarding the limitations put on its sphere of industrial activity by its registered rules: rather, the RTBU has (with appropriate caution ...) been acting on a legitimately held view".[36]

[60] The TWU contends that Senior Deputy President Hamberger was correct in relation to his construction of rule 4(1)(i) insofar as it concerns employees of bus services run in conjunction or controlled by a tramway service, but incorrect in relation to his construction of rule 4(1)(i) insofar as it concerns employees who were admitted as members of the RTBU at a particular time and who have continued that membership.

[61] In my view, it is desirable to reach a conclusion as to the proper construction of rule 4(1)(i) of the RTBU's rules, rather than consider the Application on the basis of an assumption as to coverage. If the RTBU is correct in its contention that its current rules permit it to have as members persons employed in bus services, the rule change sought by the RTBU would be unnecessary. Further, the benefit of construing both the current rules and the proposed rule alteration is so that the class of "persons who would be eligible for membership because of the alteration" can be identified with precision.[37] The specified statutory tests for consent can then be applied to that class of persons.[38]

[62] I agree with Senior Deputy President Hamberger's reasons and conclusion in relation to the proper construction of rule 4(1)(i) of the RTBU's rules. In addition to the reasons relied on by the Senior Deputy President, I rely on the history of rule 4(1)(i), which was considered by the Full Bench in TWU v Serco Australia Pty Ltd,[39] one of the decisions relied on by the Senior Deputy President. In Serco, the Full Bench stated:[40]

[130]

[63] This analysis of the history of rule 4(1)(i) is persuasive and is a surer guide to the proper interpretation of the rule than a comparison between the eligibility rule of the federally registered union (RTBU) and its New South Wales counterpart.

[64] Accordingly, in my view, under the RTBU's current rules, the following groups of relevant employees are eligible to join the RTBU:

employees of motor omnibus services, trolley bus services, or light rail services are eligible to become members of the RTBU if such services are run in conjunction with or controlled by tramway services; and

employees who were admitted as members of the RTBU when they were training for employment or working in the tramway, trolley bus, omnibus or light rail services and who have continued their membership of the RTBU are entitled to remain as members of the RTBU, even if they no longer work in the industry.

[65] It follows that, under the RTBU's current rules, the following groups of relevant employees are not eligible to join the RTBU:

(a) persons who were employed by the public sector in the provision of public bus services before privatisation and whose employment transferred, following a transmission of business, to a private bus operator, working in the provision of public bus services (e.g. Legacy Drivers), but who were not a member of the RTBU at the time of the transfer or subsequently allowed their membership of the RTBU to lapse; and

(b) persons employed by a private bus operator in the provision of a public bus service who were not employed by the public sector before privatisation (e.g. New Drivers), unless the bus service is run in conjunction with or controlled by tramway services.

[66] The RTBU's objective in making the Application is to alter its eligibility rule so that these two groups of employees are eligible to join the RTBU.[41]

[67] Construing the proposed rule alteration requires some context, particularly in relation to the various relevant entities in the Transit Group. I will set out that context below and then turn to the task of construing the proposed rule alteration.

[68] Public buses operating in region 6 were previously run by the State Transit Authority of New South Wales (STA). In about May 2017, the New South Wales Government announced that it would undertake a competitive tender process to privatise the public bus services in region 6. The successful tenderer was TSW. Since 1 July 2018, TSW has operated the public bus service in region 6.

[69] The Transit Group includes the following entities:[42]

(a) Transit Systems is a parent company. It employs Mr Kidd,[43] but does not employ any bus drivers. It owns all the shares issued in TSW, which in turn owns all the shares issued in TSW Services;

(b) TSW is the operator of public bus services in region 6, pursuant to its contract with the State of New South Wales. TSW does not employ any employees;

(c) TSW Services employs the Legacy Drivers; and

(d) Transit (NSW) Services Pty Ltd (Transit Services) employs the New Drivers in region 6. Transit Services also employs bus drivers who operate public buses in region 3 in New South Wales. Transit Services and Transit Systems have some shareholders in common.

[70] There are two industrial instruments that apply to bus drivers in region 6:

(a) the privatisation of bus operations in region 6 constituted a transfer of business from a non-national system employer that was a State public sector employer to a national system employer. By operation of Part 6-3A of the FW Act, the transfer of business gave rise to the creation of a new federal instrument, which included the same terms as the State Transit Authority Bus Operations Enterprise (State) Award 2018, which applied to bus drivers in region 6 before privatisation. The new instrument is known as a copied state award (Copied State Bus Award). It applies to Legacy Drivers; and

(b) an enterprise agreement known as the Transit (NSW) Services Pty Ltd Transport Workers' Union and Bus Drivers Enterprise Agreement 2017 (Transit Services EA) applies to all bus drivers engaged by Transit Services, including the New Drivers in region 6 and all bus drivers in region 3.

[71] There is no dispute between the RTBU and the TWU in these proceedings that Keolis Downer Hunter Pty Ltd (Keolis Downer) operates a tramway service in Newcastle, which is run in conjunction with a public bus service.[44] Accordingly, there is no dispute in these proceedings that all bus drivers employed by Keolis Downer in region 5 to operate public buses are eligible to join the RTBU, whether or not they were employed by the New South Wales Government to work on such buses before privatisation.

[140]

[77] The RTBU submits that although the Transport Service does not itself have employees, s 68Q(10)(a) of the Transport Act provides that references to an employee "of" the Transport Service of NSW is to be read as a reference to a person employed in the Transport Service to enable Transport for NSW to exercise its functions.

[78] The RTBU submits that sub-rule 4(i) is limited to such employees "employed in the provision of bus services by the State Transit Authority of New South Wales and its public subsidiary corporations". As to the expression "employed ... by the State Transit Authority", s 68Q(10)(b) of the Transport Act provides that references to an employee "of" the State Transit Authority or a public subsidiary corporation of the Authority is to be read as a reference to a person employed in the transport service to enable the Authority to exercise its functions.

[79] It is submitted by the RTBU that the proposed rule must in any event be interpreted in light of its full context. The RTBU's rules at 4(1)(i) permit it to enrol employees of the "State Transit Authority of NSW". It is uncontroversial, so the RTBU contends, that this rule, in its terms, permits it to enrol, inter alia, drivers employed by public bus operators in NSW. A construction which gives the same phrase a more limited meaning elsewhere in the rule is unlikely to be correct; the better approach, according to the RTBU, is that the term, viewed in light of this common understanding held by actors in the industry (including the TWU) has the meaning contended for by the RTBU.

[80] Hence, the RTBU submits that sub-rule 4(i) is directed to those employed in the transport service provided by State Transit Authority, such as the bus drivers in regions 7, 8 and 9, and any successor etc of the business and/or the roles, functions or responsibilities of that transport service.

[81] The RTBU submits that it currently has coverage of all employees of the STA (sub-rule (1)(i)). The clear intent of sub-rule 4(4)(i), according to the RTBU, is to extend the current rule to capture those employees who are employed by a successor, assignee or transmittee of the business and/or the roles, functions or responsibilities associated with the provision of bus services by the STA.

[82] The RTBU submits that giving the sub-rule its purposive construction, and noting the effect of s 68Q(10) of the Transport Act, leads to the conclusion that the sub-rule will cover those employed in bus services that were previously operated by STA. That would, so the RTBU submits, pick up any future privatisation of bus services currently operated by the STA.

[83] The RTBU contends that the TWU's submission to the effect that what occurs in a privatisation is that the STA loses the contract, a private company gains the contract, and it is clear from the decision of the High Court in Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd[46] that in those circumstances there is no succession of a business is incorrect, since it fails to take account of two matters:

• the different approach that the courts take in respect of the meaning of the word "business" when referring to a part of the public sector and the approach taken in cases such as PP Consultants Pty Ltd v FSU[47] and Gribbles in respect of private sector business; and

[142]

[84] The RTBU submits that the correct approach in respect of the "business" of the public sector remains that set out in Re AIRC; Ex parte Australian Transport Officers Federation,[48] which considered the question of whether there had been a transmission of business between two statutory authorities, the Commissioner for Motor Transport and the Roads and Traffic Authority. The relevant question, so the RTBU submits, is whether there is a substantial identity between the activities of the transmitting business and those of the successor entity, with a focus on the role, function or responsibility. Relevant considerations include whether staff performing the functions under the original entity are now engaged by the new entity, and whether the bulk of the tasks or functions (even if not all) have transferred. This is the circumstance the proposed rule is intended to cover. The RTBU contends that neither Gribbles nor PP Consultants called into question the approach to the meaning of "business" or "part of a business" in ATOF in respect of public sector operations.

[85] The RTBU goes on to submit that any doubt as to that in respect of this rule is any event removed by the words "the roles, functions and responsibilities" in the sub-rule. The RTBU submits that those words make clear that the proper approach to determining if there has been a relevant transmission is to ask whether the role, function or responsibility of the Transport Service, and in particular the bus services provided by the STA, have been transmitted to some other person, which would include a private sector operator.

[86] In short, the RTBU submits that there can be no doubt that the effect of the sub-rule is to pick up any employer who succeeds in undertaking the role, function or responsibilities (or any part thereof) of the provision of bus services by the STA. In other words, it is clear, so the RTBU submits, that the sub-rule (4)(i) would permit the RTBU to enrol employees employed in the provision of bus services in regions 7, 8 and 9.

[143]

[87] It is clear from the final three lines of proposed rule 4(4)(i) that it only applies to employees who "are employed in the provision of bus services by the State Transit Authority of New South Wales and its public subsidiary corporations" [emphasis added]. When public bus services in New South Wales are privatised, they cease to be provided by the STA or any public subsidiary corporation. After privatisation, the public bus services are provided by the successful tenderer, such as TSW in region 6.

[88] The RTBU seeks to overcome this problem by making submissions concerning the expression "employed ... by the State Transit Authority".[49] Such submissions are, in my view, misconceived. The full expression is "employed in the provision of bus services by the State Transit Authority of New South Wales and its public subsidiary corporations". It is clear that the word "by" in this expression refers to the entity providing bus services, not the employer of the employees performing such services. So much is clear for two reasons. First, the word "by" appears immediately after the "provision of bus services" and before "State Transit Authority of New South Wales". The ordinary reading of the expression "employed in the provision of bus services by the State Transit Authority" is one in which the bus services are provided by the State Transit Authority. Secondly, read in context, it is apparent that the first part of proposed rule 4(4)(i) is concerned with the identity of the relevant employer or entity that undertakes roles, functions or responsibilities, whereas the second part of proposed rule 4(4)(i) describes what such employees do, namely, they are "employed in the provision of bus services by the State Transit Authority..."

[89] Because proposed rule 4(4)(i) requires employees to be employed in the provision of bus services by the STA and the STA does not provide such bus services after any privatisation, even if proposed rule 4(4)(i) were approved, it would not entitle the RTBU to have join as members any employees of an entity that is or was successful in being awarded a contract to provide bus services in one or more regions in New South Wales. In other words, even accepting the liberal and purposive approach which must be taken to the interpretation of the proposed rules, the way in which proposed rule 4(4)(i) is drafted does not meet the RTBU's intent to extend the current rule to capture those employees who are employed by a successor, assignee or transmittee of the business and/or the roles, functions or responsibilities associated with the provision of bus services by the STA.

[90] Further, it is plain that employees of the STA are currently eligible to be members of the RTBU, pursuant to rule 4(1)(i), and there is no suggestion in these proceedings that the purpose of proposed rule 4(4)(i) is to capture employees of public subsidiary corporations of the STA. The focus of these proceedings is on the privatisation of public bus services in various regions in New South Wales.

[91] For the reasons given in the previous four paragraphs, I am satisfied that proposed rule 4(4)(i) is of no utility. In any event, as I have done elsewhere in this decision, I will, for the purpose of seeking to avoid multiple appeals, continue to address the balance of the arguments made in relation to proposed rule 4(4)(i).

[92] As to "employees of the Transport Service of New South Wales", it is correct that the Transport Service of New South Wales is not a legal entity. It is a group of persons who are employed by the Government of New South Wales to enable bodies such as the STA to exercise their functions.[50] The STA cannot employ any employees; they must be employed by the Government of New South Wales. If a person is referred to as an employee of the STA, that is to be "read as a reference to a person employed in the Transport Service to enable the [State Transit] Authority ... to exercise its functions".[51] Having regard to this context and adopting a liberal and purposive approach to the interpretation of rule 4(4)(i), I am of the view that the expression "employees of the Transport Service of New South Wales" means persons employed in the Transport Service by the Government of New South Wales to enable bodies such as the STA to exercise their functions.

[93] As to "any successor, assignee or transmittee, whether direct or indirect, of the business and/or the roles, functions or responsibilities (or any part thereof) [of] the Transport Service of New South Wales", the first question is whether the Transport Service has any business, roles, functions or responsibilities. Even adopting a liberal and purposive approach to the interpretation of rule 4(4)(i), I am of the view that the Transport Service does not have a business, nor does it have any functions, responsibilities or roles. Transport Service is a group of persons employed "in the service of the Crown"[52] for the purpose of enabling bodies such as the STA to exercise their functions,[53] which include (in the case of the STA) conducting a business, whether or not related to the operation of its bus or ferry services".[54] It is the statutory authorities such as the STA that have functions, responsibilities, roles and businesses, not the Transport Service. Accordingly, I agree with the TWU's submission that "any successor, assignee or transmittee ... of the business and/or the roles, functions or responsibilities (or any part thereof) of the Transport Service" is a nonsensical concept and does not capture the employees the RTBU seeks to be able to engage as members.

[165]

(1) TfNSW may enter into a passenger service contract on behalf of the State for the provision of a public passenger service with an accredited provider of a public passenger service or the operator of a public passenger service who is not required to be accredited under this Act."

[113] Section 39 of the Passenger Act prohibits a person from operating a public passenger service that is conducted according to regular routes and timetables otherwise than under the authority of a passenger service contract.

[114] Because the arrangements in place under s 36 of the Passenger Transport are that public bus services are provided under contract with the New South Wales Government, any privatisation of such services involves the termination of the contract between the New South Wales Government and the STA and a new contract between the NSW Government and a private operator, such as TSW in region 6.

[115] It is apparent from the foregoing that the STA's roles, functions and responsibilities, relevantly for the purpose of the present proceedings, include operating an efficient, safe and reliable bus service in various regions throughout New South Wales. In regions 5 and 6, the STA has ceased undertaking that role, function and responsibility, because the New South Wales Government has entered into contracts with private sector operators to undertake that role, function and responsibility. Having regard to those circumstances and taking into account the absence of any transaction between the STA and the private sector operators in regions 5 and 6, it is clear that the private sector operators in regions 5 and 6 now enjoy, and have taken over, the STA's role, function and responsibility to operate an efficient, safe and reliable bus service in those regions. It follows that not only is there a substantial identity between the role, function and responsibility of the STA in regions 5 and 6 prior to privatisation with the role, function and responsibility of the private sector operators in those regions following privatisation, there has plainly been a succession etc of that role, function and responsibility from the STA to the private sector operators. Accordingly, I am satisfied that proposed rule 4(4)(ii), if approved, would extend the RTBU's existing coverage to successors etc of the STA's role, function and responsibility to provide bus services in regions following privatisation. Whether employers of the relevant employees would fall within the scope of the proposed rule in a particular region would depend on the corporate structure used in any privatisation and the arrangements entered into by the New South Wales Government with private operators in those regions.

[176]

[139] The RTBU submits that TSW is the current operator in region 6. At the time that this rule change was prepared it had entered into a contract which defines it as the 'operator' and contains a contractual term, at clause 53.1(b)(iii), requiring it to employ all drivers in region 6. Further, the RTBU notes that TSW had separately entered into a contract which required it employ all of the transferring (or legacy) drivers.

[140] The RTBU points out that, pursuant to the contract, TSW must provide bus services in region 6, and in that respect it has various subsidiary obligations, including: provide staff holding all necessary authorisations (contract clause 31.1(a)), provide training to its staff (cause 31.1(b)), ensure staff are competent to carry out the work for which they are engaged (clause 35.4(a)(i)), hold required Bus Driver Authorities and ensure that those drivers comply at all times with those Authorities (clause 35.4(b)), employ all of the staff (clause 53.1(b)(iii) and clause 49.3(a)), provide the staff training and knowledge transfer tasks which form part of the services (section 8 of schedule 1, page 158-159). Further, the contract at clause 32 prevents TSW from subcontracting or delegating the performance of any of its obligations other than with the consent of Transport for NSW.

[141] The RTBU submits that it is not in dispute that pursuant to the contract there are "employees who are employed in or in connection with the provision of bus services in the area identified as Sydney Metropolitan Bus Service Contract 6 otherwise known as State Transit Region 6", as stated in the proposed rule. The technical point taken by the TWU is that while there are such employees, and they are employed pursuant to a contract that states that the services that they are providing are to be provided by TSW (and pursuant to a contract that states TSW is to be their employer), as a matter of fact they are not employed by TSW.

[142] The RTBU submits that the fact that TSW does not have employees and never has had is a matter that would be considered in determining how to interpret the proposed rule (4)(v) in a manner that would give it some work to do. The RTBU submits that the clear manner by which that can be done is to give the expression "employees of Transit Systems West Pty Limited. . . where such employees are employed in or in connection with the provision of bus services in [Region 6]" the meaning that it applies to employees who are employed in providing bus services that TSW has contracted to provide who are employed by a related entity, whether pursuant to a subcontracting or other arrangement.

[143] Alternatively, the RTBU contends that given the proposed rule (4)(v) encompasses "any successor, assignee or transmittee, whether direct or indirect of the business (or any part thereof) of Transit Systems West Pty Ltd", it would apply to the employees of any entity in the Transit Group that employs the drivers in region 6 since:

the 'business' of TSW, as evidenced by the contract, is to provide bus services in region 6;

that 'business', in part, involves the obligations in respect of drivers (summarised above);

by arranging for its related entities in the Transit Group to be the employers of the drivers it has, in some manner, assigned or transmitted that part of its business in region 6 associated with the provision of drivers (whether pursuant to clause 32 of the contract or otherwise).

[144] The RTBU submits it is clear that there must be an agreement between TSW and the entities that employ the bus drivers in region 6, as Mr Kidd accepted in cross-examination.

[177]

[145] The proposed rule refers to "employees of TSW...". TSW does not have any employees and there is no suggestion in the evidence that TSW intends to employ any relevant employees. The proposed rule does not make any reference to employees of entities that may be related to TSW. Even adopting a liberal and purposive construction of the proposed rule, there is no basis, in my opinion, to read it such that it would cover employees of related entities of TSW where such employees are employed in or in connection with the provision of bus services in region 6.

[146] The real question is whether either or both of the entities that employ drivers in region 6, TSW Services (the employer of the Legacy Drivers) or Transit Services (the employer of the New Drivers), is a successor, assignee or transmittee, whether direct or indirect, of the business (or any part thereof) of TSW.

[147] TSW is the entity in the Transit Group that entered into the contract with the New South Wales Government to provide a passenger bus service in region 6.[90] That contract defines TSW as the "operator" and requires it to employ all drivers in region 6.[91] TSW also entered into a transitional agreement with the New South Wales Government which required TSW to make an offer of employment to each Legacy Driver.[92] There is no evidence before the Commission to explain why TSW has not, it seems, complied with these obligations and has instead used other entities in the Transit Group to employ the Legacy Drivers (TSW Services) and the New Drivers (Transit Services).

[148] I accept, as has been submitted by the RTBU, that the relevant contractual arrangements between TSW and the New South Wales Government require TSW to provide bus services in region 6, and in that respect it has various subsidiary obligations, including: provide staff holding all necessary authorisations (contract clause 31.1(a)), provide training to its staff (cause 31.1(b)), ensure staff are competent to carry out the work for which they are engaged (clause 35.4(a)(i)), hold required Bus Driver Authorities and ensure that those drivers comply at all times with those Authorities (clause 35.4(b)), employ all of the staff (clause 53.1(b)(iii) and clause 49.3(a)), provide the staff training and knowledge transfer tasks which form part of the services (section 8 of schedule 1, page 158-159). Further, the contract at clause 32 prevents TSW from subcontracting or delegating the performance of any of its obligations other than with the consent of Transport for NSW.

[149] There is no evidence as to the terms of any written or oral contract or arrangement between TSW and TSW Services or Transit Services for TSW Services and Transit Services to employ the bus drivers and other employees necessary to provide public bus services in region 6. However, as Mr Kidd accepted in his evidence,[93] there must be such contracts or arrangements in place, for TSW is contractually obliged to provide the public bus services in region 6 and it does not employ any employees.

[150] TSW's business is the provision of public bus services in region 6, pursuant to a contract with the New South Wales Government.[94] Although TSW is contractually obliged to employ bus drivers in region 6, it does not do so. In my view, the employment of bus drivers in region 6 is not any part of TSW's business; at most, the employment of such staff is an activity which TSW is obliged to undertake.

[151] On the evidence adduced in these proceedings, TSW Services' business is the employment of Legacy Drivers in region 6 and Transit Services' business is the employment of New Drivers in region 6 and bus drivers in region 3. Neither TSW Services nor Transit Services is a party to the service contracts between relevant entities in the Transit Group with the New South Wales Government for the provision of public bus services in region 3[95] or region 6.[96]

[152] In my opinion, neither TSW Services nor Transit Services is engaged in the business of providing public bus services in region 6. I agree with the TWU's submission that a labour hire company or provider of labour does not, merely by employing staff supplied to a business, become a successor, assignee or transmittee of a business or part thereof. I also agree with the TWU's submission that it is wrong to characterise a part of TSW's business as the employment of bus drivers or the provision of authorised and trained bus drivers; they are activities TSW is obliged to carry out, but are not part of its business. Accordingly, the 'characterisation test' fails.

[153] Further, on the evidence adduced, TSW has not conveyed ownership of any tangible or intangible assets to TSW Services or Transit Services. Employees are not "assets" for the purpose of determining whether there has been a relevant disposal.[97] It cannot be said that TSW has disposed of, or that TSW Services or Transit Services enjoy, any part of TSW's business, however characterised. Accordingly, the 'disposal test' also fails.

[154] I therefore find, on the evidence adduced, that there has not been a succession, transmission or assignment of TSW's business or any part of it to TSW Services or Transit Services. It follows that proposed rule 4(4)(v) would not, if made, permit bus drivers who are employed by TSW Services or Transit Services and who are not members of the RTBU to join the RTBU. In other words, proposed rule 4(4)(v) has missed its mark.

[183]

[163] The RTBU submits that the proposition that the main Australian union representing drivers of bus services to the general public would be less effective or less convenient in respect of a cohort of such drivers than a general union for transport workers is inherently unlikely. That is particularly so in respect of drivers whose work has not altered other than by the identity of their employer and perhaps their uniform.

[164] The RTBU contends there is no practical difference between a bus service operated by a state government and that same service as subsequently operated by a private operator. They are operating the same type of vehicle, driving the same routes, at the same or similar times. The RTBU is able to conveniently enrol and effectively represent workers engaged in these services while they are in public hands. The RTBU does not suddenly lose the ability to do so overnight, once a private operator takes over, particularly when the conditions under which the Legacy Drivers are engaged were negotiated by the RTBU prior to the transfer.

[165] The RTBU submits that, like the TWU, it:

is a large union covering a multiplicity of industries, with experience in and resources to work with and bargain with operators in the public and private sector, and represent employees in bargaining and collective and individual disputes;

has extensive internal structures in place to ensure its members are able to fully participate in the democratic operations of the union, including by specific industry-based representative committees; and

has direct experience dealing with privatised bus operations specifically, including in negotiations with the proposed new operators before the handover occurs and in successfully bargaining for subsequent enterprise agreements. In these respects, the RTBU points to its bargaining with Keolis Downer for the Keolis Downer Newcastle Bus Operations Enterprise Agreement 2017.

[166] In contrast, the RTBU submits that the TWU, while greatly experienced in the purely private sector, has less experience than the RTBU in respect of public bus transport services and minimal history in dealing with the complexities involved following privatisation. Indeed, the RTBU contends that the TWU has, by applying its generic private-sector approach in region 6, caused, admittedly with the assistance from the employer, a bifurcation of conditions in the workplace which is generating industrial unrest.

[167] The RTBU contends that the conditions it negotiated in the Copied State Bus Award, which apply to Legacy Drivers, are far superior (for employees) than the conditions the TWU negotiated in the Transit Services EA, which apply to New Drivers. This is one of the matters which the RTBU submits will assist the Commission in coming to the view that the TWU would not more effectively represent the employees in question.[101]

[168] The Legacy Drivers and the New Drivers are on different rosters, but they are driving the same buses, wearing the same uniform, and doing the same work. There is obvious sense, so the RTBU contends, in both groups of employees being able to be represented by the same organisation.

[169] The RTBU currently represents the vast bulk of bus drivers employed to work on public bus services in region 6 and it contends that bus drivers in region 6 and any other region that is privatised should have the choice whether to join the RTBU or the TWU, or not join any union.

[184]

[170] The TWU submits that the persons who would be eligible for membership of the RTBU because of the alteration would more conveniently belong to and be more effectively represented by the TWU rather than the RTBU for reasons including:

(a) the TWU has a long and distinguished history of representing the interests of and advancing the rights of employees in the private bus industry throughout Australia and in New South Wales in particular. The TWU is the only union with general coverage of private bus operations and which has the history of actively representing members employed as drivers and employees working within private buses;

(b) the RTBU has put forward no history of representing employees in private bus operations. Although it suggests it is able to represent employees in "motor omnibus services" outside of government operations when run in conjunction with a tramways services, it is not suggested this has resulted in any practical coverage or representation of employees in New South Wales or elsewhere. Whilst the RTBU claims to represent bus drivers and employees working in metropolitan bus services, its coverage and active operation is limited to the public sector. In most states, this means it has little practical involvement in the bus industry at all;

(c) the TWU is the union which has been involved in all aspects of the making and maintenance of the relevant industry modern award, the Passenger Vehicle Transport Award 2010 (Passenger Vehicle Award). The TWU has been involved in all aspects of the award modernisation and award review process with respect to the Passenger Vehicle Award. The RTBU, given its coverage, has had no involvement in dealing with the Passenger Vehicle Award and would clearly be unable to provide as effective representation in relation to modern award issues compared to the TWU;

(d) the TWU has for many years, and continues to have, enterprise agreements which it has negotiated with all major operators involved in the private bus industry and has established relationships and bargaining expertise relevant to that industry which would place it in a far superior position to deal with private bus employers in bargaining. Current enterprise agreements which have been negotiated by the TWU in New South Wales alone include the following:

CDC and TWU Drivers Agreement 2018 (AE503473);

Busways Group, and the Transport Workers' Union of Australia and Drivers Enterprise Agreement 2018 (AE503516);

Transdev NSW Bus Enterprise Agreement 2018 - 2021 (AE503637);

Transit (NSW) Services Pty Ltd, Transport Workers Union and Bus Drivers Enterprise Agreement 2017 (AE424409);

Busabout and the Transport Workers' Union of Australia Fair Work Agreement 2018 (AE503855);

Premier Motor Service Pty Ltd and the Transport Workers' Union of Australia Fair Work Agreement 2017 (AE427061); and

Interline and the Transport Workers' Union of Australia Fair Work Agreement 2017 (AE429056).

(e) the history of enterprise bargaining is of particular relevance to the capacity of the TWU to more effectively represent employees in the private bus industry in New South Wales. The conditions of employment within the private bus industry in New South Wales were historically determined by the Transport Industry - Motor Bus Drivers and Conductors (State) Award. That State Award was bargained collectively between the TWU and private bus operators, generally represented by Bus NSW without any involvement by other unions, including the RTBU;

(f) the RTBU has no history of being involved in enterprise bargaining in the private bus industry and would be entirely unfamiliar with history of the bargaining processes in private buses generally and in New South Wales. It appears that the RTBU is only covered by or been involved in one enterprise agreement involving a private bus operator across all of Australia being the Keolis Downer Newcastle Bus Operations Enterprise Agreement 2017. It is in a far inferior position to effectively represent employees in private buses;

(g) the TWU has special mechanisms in place to effectively represent the interests of bus industry members within the union. The TWU has established and maintained a private bus industry delegates committee comprising delegates from the private bus industry. The Bus Industry Committee comprises at least 30 members and its purpose is to provide bus delegates with information as to what is occurring in the industry and engage drivers across different employers. The significance of bus members within the TWU is demonstrated by the fact that the Assistant Secretary of the NSW Branch, Mr Pieri, commenced as a bus conducted and driver;

(h) the RTBU itself has historically recognised that it is more convenient for employees in the private bus industry to be represented by the TWU and that the TWU is in a better position to represent the interests of those employees. For example, in around 2012, the T-Way operation forming part of the region 3 contract was put out to private tender and the successful tenderer was Transit Systems. Upon transfer of employment to Transit Systems, previous RTBU members transferred their membership to the TWU without the matter being subject of contest by the RTBU; and

(i) the terms of the alteration to the Rules of the RTBU, particularly the new rule 4(i) and (ii), have the potential to operate with respect to bus operations which have been privatised in the past and in relation to which the RTBU has no membership and has shown no interest in representing the relevant employees. In particular, persons employed by Transit Systems itself to operate services within region 3 who are represented by the TWU may be considered to become eligible to join the RTBU if consent is granted to the alteration. There can be no doubt that it is more convenient for those employees to be members of the TWU and the TWU is in a better position to represent their industrial interests.

[171] In circumstances in which the TWU has the existing coverage, has participated in bargaining and the creation of relevant industrial instruments, and has established relationships with major private bus operators, the TWU contends that the Commission can be well satisfied that employees in private bus companies are more conveniently members of the TWU and the TWU is more effectively able to represent their interests.

[189]

[173] For the reasons given above, I have found that the drafting of the proposed rule alteration does not capture the New Drivers. However, as I have done elsewhere in this decision, I will, for the purpose of attempting to reduce the prospect of multiple appeals, consider the comparative exercise required by s 158(4) in relation to each of the first and second categories of employees set out above, as well as the New Eligible Members as a whole group.

[174] Prior to TSW taking over the operation of bus services in region 6 (1 July 2018), Mr Nyols' understanding is that there were about 1,200 bus drivers working in region 6.[104] Immediately after privatisation in region 6, TSW Services employed about 900 of those drivers (i.e. Legacy Drivers) and Transit Services commenced employing New Drivers.[105]

[175] By about July 2019, the number of bus drivers in region 6 had increased to about 1,300, comprised of approximately 820 bus drivers employed by TSW Services (i.e. Legacy Drivers) and approximately 480 bus drivers employed by Transit Services (i.e. New Drivers).[106]

[176] Since privatisation in region 6 on 1 July 2018, I accept Mr Barden's evidence that RTBU membership in region 6 has remained relatively stable.[107]

[177] In June 2019, the RTBU had about 999 members working in bus operations in region 6.[108] In December 2019, the RTBU had about 868 members working in bus operations in region 6.[109] The reduction in membership is due to a churn of employees in the industry.[110]

[178] In the period from 1 July 2018 until December 2019, about 122 workers engaged in bus operations in region 6 whose employment did not transfer from the public service joined the RTBU.[111] It follows that of the 868 RTBU members in region 6 in December 2019, about 122 were New Drivers and about 746 were Legacy Drivers.[112]

[179] In December 2019, the TWU had about 250 members who were employed in the provision of bus services in region 6.[113] About 20 of those TWU members were formerly members of the RTBU and transitioned to the Transit Group on 1 July 2018 (i.e. Legacy Drivers).[114] The remaining 230 TWU members are New Drivers.

[180] The first category of the New Eligible Members is comprised of Legacy Drivers who were not a member of the RTBU at the time of the transfer or subsequently allowed their membership of the RTBU to lapse. The evidence does not reveal how many employees were in the first category of the New Eligible Members in region 6 at the time of the hearing in December 2019 (or at any other time), but the number must be relatively small given the high density of union membership amongst Legacy Drivers and the fact that RTBU membership in region 6 has remained relatively stable since privatisation on 1 July 2018. The number of employees in the second category of the New Eligible Members in region 6 was about 480 in December 2019, about 230 of whom were TWU members and about 122 of whom were RTBU members.

[181] As to the "more conveniently belong" limb of s 158(4), the RTBU has a long history of representing members in public bus services, primarily but not exclusively when those services are run by government. The TWU has a long history of representing members employed in the private bus industry.

[182] The New Eligible Members work at a place where the majority of bus drivers are already members of the RTBU.[115] The RTBU has delegates at all of the sites where the New Eligible Members may work in region 6, as does the TWU. The New Eligible Members do the same duties and work as the other bus drivers who work in region 6. The New Drivers, who form part of the cohort defined as the New Eligible Members, have different conditions of employment and work different rosters to the Legacy Drivers, but that does not change the substance of the work they do. The New Eligible Members drive the same buses, taking the same routes, wearing the same uniforms, as other bus drivers who work in region 6.

[183] Since privatisation in region 6 on 1 July 2018, substantial numbers of the New Eligible Members in region 6 have joined the TWU.[116] In the same period, substantial numbers of the New Eligible Members in region 6 have joined the RTBU.[117]

[184] In all the circumstances, I find that the New Eligible Members (and each of the first and second categories of employees that comprise the New Eligible Members) could conveniently belong to the RTBU or the TWU. Further, in my opinion, on the evidence adduced in these proceedings, the New Eligible Members (and each of the first and second categories of employees that comprise the New Eligible Members) could not more conveniently belong to the TWU (or any other organisation) than they could to the RTBU.

[185] As to the "more effectively represent" limb of s 158(4), I am satisfied on the evidence that both the RTBU and the TWU are large and well-resourced organisations with long histories of effective representation of bus drivers.

[186] Both the RTBU and the TWU have resources and structures in place to ensure they effectively represent their members and those members are able to fully participate in the democratic operations of the union. Those resources and structures include specific industry-based representative committees, trained delegates at depots, organisers, health and safety representatives, regular meetings and training sessions for new and existing members of the union, and good relationships with members.

[187] I accept that the TWU has more experience than the RTBU representing employees in the private bus industry and dealing with employers in that industry (including in bargaining for enterprise agreements), together with more knowledge than the RTBU in relation to the private bus industry and the needs and concerns of employers in that industry. However, the RTBU has significant recent experience representing bus drivers employed by Keolis Downer in Newcastle, including negotiating a new enterprise agreement with Keolis Downer,[118] and, since 1 July 2018, bus drivers employed in region 6 to operate public bus services. For example, the RTBU succeeded, at first instance and on appeal, in an arbitration before the Commission concerning the proper construction of the Copied State Bus Award.[119] The RTBU has also had experience in dealing with the private sector in the light rail industry in Sydney.

[188] I also accept that, unlike the TWU, the RTBU was not involved in the bargaining negotiations for the Transit Services EA (which covers the New Drivers) and has not had the same amount of experience as the TWU in dealing with disputes relating to the terms and operation of the Transit Services EA. I further accept that the RTBU was not involved in the making of the Passenger Vehicle Award or the award modernisation process in relation thereto, nor was it involved in bargaining for the Transport Industry - Motor Bus Drivers and Conductors (State) Award in New South Wales.

[189] The TWU contends that its established productive working relationships with employers in the private bus industry are crucial to the TWU's success in that industry. While I accept, on the basis of Mr Kidd's evidence, that the TWU has a more co-operative relationship with the Transit Group than the RTBU, the TWU does have robust discussions and become involved in disputes with various employers in the private bus industry, including entities in the Transit Group. Mr Gibson's evidence supports this finding. In any event, I am not satisfied on the evidence adduced in relation to this issue that the TWU's established productive working relationships with employers in the private bus industry (or entities in the Transit Group in particular) mean that it would more effectively represent the New Eligible Members than the RTBU. Effective representation sometimes calls for robust discussions and tough positions to be adopted and maintained, even if they are perceived to, or do, damage relationships between a union and an employer.

[190] I do not accept the TWU's contention that the RTBU itself has historically recognised that it is more convenient for employees in the private bus industry to be represented by the TWU and that the TWU is in a better position to represent the interests of those employees. The TWU points to an example in about 2012, where the T-Way operation forming part of the region 3 contract was put out to private tender and an entity in the Transit Group was the successful tenderer. On the transfer of their employment to the Transit Group, previous RTBU members joined the TWU and the RTBU did not contest the matter. The fact that the RTBU did not contest the matter back in 2012 does not, in my view, demonstrate that the RTBU has historically recognised that it is more convenient for employees in the private bus industry to be represented by the TWU. In 2012, there was not the wide scale privatisation of public bus services that is now on the agenda of the New South Wales Government. The decision taken by the RTBU in 2012 reflects the practical realities in existence at that time, rather than a concession as to the convenience of bus drivers operating public bus services belonging to a particular organisation.

[191] Notwithstanding the differences in experience, industry knowledge and relationships with employers, I am satisfied in all the circumstances that the RTBU has the same capability as the TWU to represent the New Eligible Members (and each of the first and second categories of employees that comprise the New Eligible Members) and would represent them as effectively as the TWU. My value judgment in this regard is supported by the following. First, the resources and structures the RTBU has in place to effectively represent the New Eligible Members (and each of the first and second categories of employees that comprise the New Eligible Members). Second, the RTBU's long experience representing members employed in the provision of public bus services. Third, the RTBU's recent post-privatisation experience in representing members employed by private sector employers providing public bus services in regions 5 and 6. Fourth, the fact that the New Eligible Members (and each of the first and second categories of employees that comprise the New Eligible Members) in region 6 are driving the same buses, on the same routes, and doing the same work now as bus drivers were doing prior to privatisation on 1 July 2018. The RTBU has been effectively representing employees doing such work for many years, albeit most of those employees have been covered by the Copied State Bus Award and its predecessors, rather than the Transit Services EA which applies to most of the New Eligible Members.

[192] I accept the RTBU's submission that, on an overall basis, the terms and conditions of the Copied State Bus Award, which the RTBU negotiated, are better for employees than the terms and conditions of the Transit Services EA, which the TWU negotiated. Some of the more beneficial terms and conditions in the Copied State Bus Award include provisions relating to broken shifts and some allowances. However, the fact that the Copied State Bus Award is better, on an overall basis, for employees than the Transit Service EA does not, in my view, demonstrate that the RTBU would more effectively represent the New Eligible Members than the TWU. The two instruments were negotiated under different industrial relations regimes, with different employers (one public sector and one private sector). In my view, these differences largely explain the different outcomes.

[193] In all the circumstances, I am of the opinion that the New Eligible Members (and each of the first and second categories of employees that comprise the New Eligible Members) would be effectively represented by either the RTBU or the TWU, but there is not another organisation that would more effectively represent the New Eligible Members (or the first or second category of employees that comprise the New Eligible Members) than the RTBU.

[194] For the reasons given, I have not formed the opinion that there is an organisation other than the RTBU to which the New Eligible Members could more conveniently belong or that would more effectively represent the New Eligible Members. Accordingly, the s 158(4) condition is not satisfied with respect to the New Eligible Members. My conclusions in relation to s 158(4) apply equally to the New Eligible Members (as a whole group) and each of the first and second categories of employees that comprise the New Eligible Members.

[196]

[203] There is no suggestion that there is in existence an agreement within the meaning of s 158(6). The contest is whether there is in existence an understanding within the meaning of s 158(6) of the RO Act, and if so, whether consent should be refused on that basis.

[204] In order for the discretion under section 158(6) of the RO Act to be engaged in relation to an alleged understanding:[121]

(a) there must be an understanding;

(b) the RTBU must be a party to the understanding;

(c) the understanding must deal with the organisation's right to represent under the RO Act and the FW Act the industrial interests of a particular class or group of persons; and

(d) the proposed rule alteration, if approved, would contravene the understanding.

[205] The Federal Court has given detailed consideration to the meaning of an "understanding" in the context of provisions of the Trade Practices Act 1974 and similar legislation which prohibit agreements, contracts, arrangements or understandings that have an anti-competitive purpose or likely effect. The task of determining whether there is or was an anti-competitive understanding has elements in common with the assessment of an understanding within the meaning of s 158(6) of the RO Act, in that both legislative provisions address circumstances where a legally binding agreement or a less formal mechanism, namely an "understanding", is or was in existence. In view of these similarities, I am of the opinion that the principles established by those authorities are applicable to the proper construction of the term "understanding" in s 158(6) of the RO Act. Those principles may be summarised as follows:

(a) The term "understanding" is apt to describe something less than a binding contract or arrangement.[122]

(b) An understanding will usually, but may not necessarily, involve some reciprocity of obligation.[123]

(c) There must be a meeting of minds of the parties to the understanding.[124]

(d) For there to be a meeting of the minds there must at least be a consensus as to what is to be done, rather than a mere hope or expectation as to what might be done or what might happen. Independently held beliefs are not enough.[125]

(e) At least one party to the understanding must "assume an obligation" or give an "assurance" or "undertaking" that it will act in a certain way. A mere expectation that as a matter of fact a party will act in a certain way is not enough, even if it has been engendered by that party.[126]

(f) The absence of any direct and express communications between the parties to the alleged understanding is relevant. However, it may be possible, in certain circumstances, to infer the existence of an understanding.[127]

(g) Ultimately the question of whether or not an understanding has been reached will depend on the view formed by the court or tribunal of all the circumstances of each case. Where a case rests on inferences to be drawn from primary facts, it is not sufficient for the circumstances to give rise to conflicting inferences of equal degrees of probability.[128]

[206] In the present case, there is no persuasive evidence of any direct and express communication between the RTBU and the TWU in relation to the making of the alleged understanding.[129] The evidence on this topic mainly consists of assertions and conclusions.[130] The TWU contends that an understanding can be inferred from the longstanding and generally consistent practice of each union in recognising and respecting the right of the other to represent employees in private and public bus operations respectively.[131]

[207] Much of the evidence relevant to the alleged understanding goes no higher than describing what has occurred in practice in the past in New South Wales and other states, namely, the RTBU has represented public sector bus drivers and the TWU has represented private sector bus drivers.

[208] Putting to one side specific instances where employees have transferred from the public sector to the private sector or vice versa, evidence of the RTBU not seeking to recruit or represent private sector bus employees, without more, simply demonstrates that the RTBU has been operating within the confines of its eligibility rules at the time. The same cannot be said for the TWU, given that, at all material times, it has had the right to have bus drivers, whether employed in the public or private sector, as members.

[209] There are a limited number of examples where employees in New South Wales have transferred from public sector employment to private bus operations, or vice versa, and they have transferred union membership accordingly. As mentioned above, in about 2012, the T-Way operation forming part of the region 3 contract was put out to private tender and an entity in the Transit Group was the successful tenderer. As a result, about 50 employees moved from the public sector to employment with an entity in the Transit Group.[132] On the transfer of their employment to the Transit Group, previous RTBU members joined the TWU and the RTBU did not contest the matter. A second example pertains to the purchase, in 1999, by the STA of North & Western Coaches Pty Ltd (NW Coaches), which was a private bus operator that serviced bus routes in the Lane Cove, Ryde, Chatswood, Eastwood, Epping and Parramatta areas. As a result of the purchase, employees of NW Coaches were employed in the STA and members of the TWU became members of the RTBU.[133] The TWU endorsed the transfer because it recognised that the RTBU was the best placed union at the time to represent these employees.[134] In my view, these specific examples are limited to the particular facts and circumstances pertaining at the time of the transactions; they do not establish the existence of a broader understanding between the RTBU and the TWU that the RTBU will represent public sector bus drivers and the TWU will represent private sector bus drivers, unless the bus service is run in conjunction with or controlled by a tramway service.

[210] Having considered all the evidence, I am not satisfied that there is in existence an understanding between the RTBU and the TWU within the meaning of s 158(6) of the RO Act. In my view, the TWU hopes or expects that the RTBU will continue to only represent bus drivers employed by the government, unless the bus service is run in conjunction with or controlled by a tramway service. However, I am not satisfied on the evidence that there is a meeting of the minds - a consensus as to what is to be done - between the RTBU and the TWU. Further, even if there was such an understanding, it is no longer in existence because the TWU considers that it does not "hold anymore" and is actively recruiting members who are currently employed by the New South Wales Government as bus drivers.[135]

[211] In any event, the existence of an understanding or practice involving the RTBU representing public sector bus drivers and the TWU representing private sector bus drivers would not, either alone or together with other factors present in this case, cause me to exercise my discretion to refuse consent to the alteration under s 158 of the RO Act. In my view, the fact that privatisation of public transport is an increasing fact of life in New South Wales provides a sufficient and proper basis for the decision by the RTBU to change its past practices and apply to alter its eligibility rules so that it can seek to recruit persons employed in the provision of public bus services in New South Wales, whether they are employed by the government or a private sector operator.

[201]

[214] First, the TWU contends that the terms of the alteration to the rules of the RTBU for which consent is sought (a) do not capture the primary group of employees in question and (b) are far from clear as to their effect. The RTBU suggests the meaning of the proposed rule is clear and simply means that where bus services are privatised, the RTBU will be able to cover the employees working in the privatised operations, including new employees that are subsequently employed to work with employees who have transferred from government employment. The TWU submits that the terms of the new rule, particularly rule 4(i) and (ii), are not so clear. Nothing in the terms of the rule would expressly limit coverage to circumstances in which employees transfer from employment by the NSW Government to a private operator as appears to be intended by the RTBU. That is, the TWU contends the wording of the new rule 4(i) and (ii) does not appear to be limited to a situation in which members of the RTBU have transferred from government employment to the private sector. The explanation given by the RTBU does not explain the wording of the rule. In addition, the new rule 4(i) and (ii) is unclear as to what entities and operations would, if consent is granted, fall within the potential coverage of the RTBU. The TWU submits it is unclear what is meant by a "successor, assignee or transmittee ... of the roles, functions or responsibilities (or any part thereof) [of] the Transport Service of New South Wales" or "the State Transit Authority of New South Wales". The TWU contends that the lack of clarity of the new rules and the potentially exorbitant nature of the claim to extend the coverage of the RTBU are likely to be productive of disputation and uncertainty into the future and represent proper grounds for refusing consent.

[215] Secondly, the TWU submits that granting of consent for the alteration to the rules of the RTBU has the obvious potential to cause disputes and demarcation issues in private bus operations. Employees and industry representatives are clearly concerned about the potential for disputes and disruption to occur if the RTBU's eligibility is expanded beyond public bus operations. The TWU submits that the potential for disputes to arise has already been demonstrated within Transit System's operations in region 6 where RTBU delegates and members have sought to prevent TWU representatives visiting the workplace and destroyed TWU materials. The demonstrated potential for industrial disputation to occur if consent is granted to the proposed alteration to the RTBU's rules is another factor which should lead to consent being refused, so the TWU contends. Employers and employer organisations involved in the private bus industry apprehend, so the TWU contends, that disputation will be unavoidable if the eligibility rules of the RTBU are extended to cover employees engaged in the private bus industry.

[216] Thirdly, the TWU submits that conduct on the part of the RTBU presents strong grounds for refusing consent. The TWU submits that it is apparent, and not even denied, that the RTBU has been persistently seeking to enrol as members employees of Transit Systems who are manifestly ineligible to join the union. The TWU also submits that RTBU representatives have falsely informed new employees that they were required to join the RTBU. It is submitted that this conduct demonstrates a disregard of the limits of its coverage and represents a strong discretionary ground to refuse consent.[136]

[217] Fourthly, the TWU rejects the suggestion that the limitation in the RTBU's current rules to persons employed in a bus service only being able to join the RTBU if the bus service is run in conjunction with or controlled by a tramway service is some kind of historical accident that ought be corrected. The TWU submits this was no historical accident. It was both the approach that was deliberately adopted by the RTBU in the past and had the logical justification of allowing coverage where there was in a sense one workforce run by the same employer, with a tramway service and a bus service operating together.

[203]

[224] The RTBU submits that the fact it has coverage over bus drivers if the employer of those drivers operates a tramway service and the tramway service is run in conjunction with the bus service or the bus service is controlled by the tramway service is an 'historical oddity'. That is, it is objectively odd, so the RTBU contends, that in the context of the contemporary public transport industry, the RTBU's rules would permit it to represent bus drivers providing public passenger services in the public sector and in the private sector but (according to current Full Bench authority) in the latter case only where the same company that employs the bus drivers also operates a tram service.

[225] In 1934, the RTBU's rules were amended to add buses because they were being used increasingly in lieu of, or with, trams to provide public passenger services. The RTBU's eligibility rule was next relevantly amended in 1960. At that time, trams were disappearing and were being replaced by buses, but the work was the same and it was completely sensible, so the RTBU contends, for the organisation that had traditionally represented government bus drivers to continue to be able to represent them, notwithstanding that the government had phased out trams.

[226] The RTBU submits that the Application is just the next logical step at a point where the New South Wales Government has decided that it will continue to have public bus services, but deliver them in a different way. As a result of privatisation, the contract for the provision of public bus services will no longer be held by the STA, but will be held by a private company. Notwithstanding this change, the same drivers are and will be doing the same tasks, driving the same buses, on the same routes. The RTBU submits there is no logical reason why its proposed rule alteration would not be granted to permit the RTBU to overcome this 'historical oddity' and continue to cover and represent bus drivers, who drive public passenger buses in New South Wales.

[227] The RTBU submits that the scope of its proposed rule alteration is neither vague nor uncertain.

[228] As to the contention that consenting to the proposed rule change would increase the risk of industrial disharmony, the RTBU says that the TWU relies on the fact that the rule change might lead to the TWU and the RTBU competing for members. The RTBU submits that such competition for members is not a demarcation dispute as defined in s 6 of the RO Act and, in the context of the scheme of the RO Act and in particular its focus on encouraging competitive unionism, is not a reason to refuse consent. Further, regardless of the outcome of the Application, there will continue to be two unions representing bus drivers in region 6. Accordingly, to the extent that the Transit Group is concerned about dealing with two unions for bus drivers in region 6, that situation will not change as a consequence of the outcome of this case.

[229] As to the TWU's submissions concerning the RTBU's attempts to recruit members who are not eligible to join the union, the RTBU contends that it has always maintained that, correctly interpreted, its rules permit it to enrol and represent the relevant employees. The RTBU acknowledges, however, that at least in respect of the New Drivers, there are two AIRC decisions and one Commission decision to the contrary. No binding declaration has ever been made. The RTBU submits that this is not a matter involving a union flagrantly disregarding the limitations put on its sphere of industrial activity by its registered rules; rather, the RTBU has (with appropriate caution) been acting on a legitimately held view, which is in stark contrast to the position in ALAEA.

[230] The RTBU submits that a number of persons employed in privatised bus services want, for legitimate reasons, to be able to be join the RTBU and do not wish to join the TWU. The RTBU contends that this strongly weighs in favour of consent being granted.

[231] The RTBU submits that Senior Deputy President Hamberger's decision in Transport Workers' Union of Australia[138] concerned an application under s 768BB for a coverage order in respect of a copied state instrument. Although rule coverage was relevant (and considered), it was not a proceeding to "resolve a demarcation dispute between the two unions" as asserted by Transit Systems. Senior Deputy President Hamberger found that the RTBU was eligible to represent some Legacy Drivers, but was not entitled to represent New Drivers. The point of the Application is to expand the RTBU's coverage to allow it to represent, among others, the balance of the workforce providing public bus services in region 6. The Senior Deputy President did not make an order, or express a view, about whether the RTBU should be able to represent the balance of the workforce. In no way then, so the RTBU submits, can the Application be viewed as one that seeks to 'circumvent' the Senior Deputy President's decision.

[232] The RTBU submits that the claim by Transit Systems to the effect that the proposed rule change is "discriminatory against Transit Systems", in the sense that various entities in the Transit Group are named in the proposed rule alteration, is of no weight. There is nothing improper about a rule alteration identifying specific employers, such as Keolis Downer and entities in the Transit Group. Indeed it is sensible to avoid any uncertainty. It does not prevent the rule alteration applying to other employers who are not named but whose employees fall into the rule coverage.

[233] The RTBU rejects the suggestion that consenting to the proposed rule alteration would give rise to industrial disputation.

[205]

[234] Where I have already addressed a discretionary consideration above, I will not repeat it here. I will take into account all relevant discretionary considerations in deciding whether or not to consent to the proposed alteration, in whole or part, under s 158 of the RO Act.

[235] I do not accept the argument that consent to the RTBU's proposed rule alteration should, as a matter of discretion, be refused on the basis that it has the obvious potential to cause disputes and demarcation issues in bus operations.

[236] First, it is apparent from the evidence adduced in these proceedings that there is discontent and some conflict amongst some bus drivers in region 6, but the principal reason for such discontent and conflict is the fact that different terms and conditions of employment apply to different groups of bus drivers (doing the same work) in region 6, namely, the Transit Services EA applies to the New Drivers and the Copied State Bus Award applies to the Legacy Drivers. Numerous witnesses gave evidence to the effect that they believe it is unfair to have different conditions of employment applying to bus drivers who do the same job in the same region. For example, Mr Nyols gave evidence that "the biggest thing, it's like - and it's just natural - 'Why are there different arrangements in place for the same work?' that is the biggest thing that people dislike, and think is unfair".[139] The reason why different conditions apply to different groups of bus drivers in region 6 is because the Transit Group made a deliberate decision to use Transit Services to employ the New Drivers and TSW Services to employ the Legacy Drivers.

[237] Secondly, there already exists competition between the RTBU and the TWU for members in region 6, where the Legacy Drivers are eligible to join both the RTBU and the TWU, and region 5 (Newcastle), where all bus drivers are eligible to join both the RTBU and the TWU. There is no evidence of any disputation, or the potential for it, in region 5. Further, the evidence does not cause me to have any concern that, in region 6 or any other region in which public bus operations may be privatised, disputation relating to competition between the RTBU and the TWU for members (assuming the proposed rule alteration were granted) would rise to any particular level that would, in any significant way, prevent, obstruct or restrict the performance of work in the industry or harm the business an employer.[140] The highpoint of the evidence in relation to conflict caused by union recruitment activity concerned events that took place on the day on which an announcement was made that the New South Wales Government intended to privatise public bus services in regions 7, 8 and 9 in New South Wales. On that day, a number of TWU organisers attended depots in regions 7, 8 and 9 and distributed TWU flyers which included recruitment material for the TWU.[141] As a result, rank and file members of the RTBU were angry to the point of potential violence directed at TWU organisers.[142] RTBU delegates were involved in heated exchanges with TWU organisers, but the RTBU delegates also 'talked down' RTBU members from becoming violent.[143] I consider this to be an isolated incident which was primarily caused by the timing of the relevant events. On other occasions, the two unions have worked well together,[144] but that has not always been the case, including when the RTBU sought to negotiate an enterprise agreement with Transit Systems for all drivers in region 6 without telling the TWU that it was doing so.

[238] Thirdly, there is no evidence of any stoppage of work that is said to be related to the existence of two unions or a demarcation dispute between the two unions. Mr Kidd gave evidence of a stoppage of work, but the RTBU led evidence in proceedings before Deputy President Bull that it had discouraged the relevant action by employees and, in the result, Transit Systems did not press any orders against the RTBU. Orders were made against 10 individual employees. More importantly, there is no suggestion in the evidence that this stoppage of work was in any way related to the existence of the TWU on site, or a dispute between the RTBU and the TWU.

[239] Fourthly, I accept that where two unions have members doing the same job in the same workplace, bargaining for a new enterprise agreement is likely to be more difficult and complex. There is the potential for 'one upmanship' in relation to claims and tactics advanced by the different unions. There may also be different claims pursued by each of the unions.[145] However, the evidence in this case does not lead me to have any concern that such matters would be likely to cause such a level of disruption or disputation[146] as to warrant the exercise of discretion not to consent to the proposed rule alteration.

[240] Fifthly, although Transit Systems contends that the common theme in its disputes with RTBU members in region 6 is that such members resist the change that necessarily comes with privatisation, the outcome of this Application will not alter the fact that the RTBU has, and is likely to continue to have, a significant number of members in region 6. Further, that a union represents its members who may be resistant to change which is sought to be implemented following privatisation is not a good reason to refuse an application which would give the union greater coverage over the relevant group of employees.

[241] The conduct alleged against the RTBU concerning its recruitment activities falls into two broad categories:

misrepresenting its capacity to represent individual employees; and

recruiting members who are not eligible to be members of the RTBU.

[242] As to alleged misrepresentations, there is no dispute that RTBU delegates have informed New Drivers in region 6 that they can represent them in their disputes with Transit Systems. Even though the RTBU's current eligibility rules do not permit such persons to join the RTBU, I accept the RTBU's contention that employees to whom the Transit Services EA applies are entitled to be represented by a "representative of their choosing" in relation to disciplinary matters[147] and disputes dealt with under the dispute resolution procedures.[148] When RTBU delegates represent New Drivers in such a matter, they do so in their personal capacity and not in their capacity as a delegate of the RTBU. There is no persuasive evidence to the effect that RTBU delegates or officials have told New Drivers anything other than that they can represent them.[149] It follows that on the evidence adduced in these proceedings RTBU delegates or officials have not been misleading New Drivers in relation to their capacity to represent individual employees.

[243] As to recruiting members, I find that the RTBU has continued, up to the hearing of this matter in December 2019, to recruit and accept as members persons who it knows the Commission has found are not eligible to be members of the RTBU.[150] I do not accept the RTBU's submission that it stopped those recruiting activities when it became aware of Senior Deputy President Hamberger's decision of 9 January 2019. Evidence given by Mr Babineau,[151] Mr Akdeniz,[152] and Mr McKay[153] establishes that the recruitment activities continued after that time. Although I have come to a different view to the one advanced by the RTBU in relation to the proper construction of its current eligibility rules, the construction advanced by the RTBU was arguable. It was certainly not hopeless. However, in circumstances where there are there are two AIRC decisions and one Commission decision against the construction for which the RTBU contends,[154] I do not consider that it was reasonable for the RTBU to continue to recruit New Drivers prior to the determination of the present Application. As Vice President Hatcher pointed out in ALAEA[155], "section 158 itself, in requiring the consent of the Commission to any alteration to an organisation's eligibility rules, demonstrates the importance of eligibility rules to the statutory scheme". Accordingly, this ongoing recruitment activity on the part of the RTBU demonstrates a disregard of the limits of its present coverage and weighs against consent being given to the proposed rule alteration.[156] However, the RTBU's conduct in this regard is not as serious as the conduct of the ALAEA, which "over a period of more than 25 years ... persistently and contumeliously enrolled as members and sought to represent persons who on any reasonable view did not fall within the scope of its eligibility rule".[157] In light of these differences, I do not consider it appropriate to impose a condition of the type required by Vice President Hatcher in ALAEA.

[244] As was the case in ALAEA,[158] it is important to consider the interests of the relevant employees in deciding whether or not to exercise the discretion conferred by s 158 to consent to the proposed rule alteration. The evidence establishes that of the New Drivers, about 230 of them have chosen to join the TWU, about 122 of them have chosen to join the RTBU, and a relatively small number of members have (a) left the TWU to join the RTBU[159] or (b) left RTBU to join the TWU.[160] The fact that there is a substantial number of New Drivers who obviously want the RTBU to be able to represent them is significant and weighs in favour of consent being granted, albeit the number of such persons is fewer than those who want the TWU to represent them. Further, although the period during which the RTBU has represented its members who are New Drivers is not as long as was the case in ALAEA, there would be a disruptive effect to the proper industrial representation of those members if the RTBU were no longer able to have them as members and represent them in all relevant respects. This weighs in favour of the Application being granted, assuming the cohort of employees under consideration is comprised of all New Eligible Members or just the second category thereof (effectively, the New Drivers).

[245] However, if consideration is confined to just the first category of New Eligible Members (i.e. Legacy Drivers who were not a member of the RTBU at the time of the transfer or subsequently allowed their membership of the RTBU to lapse), the evidence does not reveal the preferences of those employees, with the result that this is a neutral discretionary consideration. For the other reasons given in this decision, treating this discretionary consideration as neutral, rather than weighing in favour of consenting to the rule alteration, would not alter my overall conclusion in relation to the Application.

[246] In light of my earlier conclusion that the terms of the alteration to the rules of the RTBU for which consent is sought do not capture the primary group of employees in question (New Drivers), this is a strong discretionary reason why the Application insofar as it has missed its mark should be refused. The meaning of the other proposed sub-rules is, in my view, reasonably clear.

[247] I reject Transit Systems' contention that the Application seeks to circumvent the decision of Senior Deputy President Hamberger in Transport Workers' Union of Australia.[161] Senior Deputy President Hamberger found that the RTBU was eligible to represent some Legacy Drivers, but was not entitled to represent New Drivers. The Application seeks to expand the RTBU's coverage to allow it to represent, among others, the balance of the workforce providing public bus services in region 6.

[248] In my view, the fact that the proposed rule alteration names particular employers including entities in the Transit Group and Keolis Downer is not a consideration which weighs against granting consent. There is nothing improper about a rule alteration identifying specific employers. The naming of such entities does not prevent the rule alteration applying to other employers who are not named but whose employees fall into the rule's coverage.

[249] I reject the suggestion that the rule alteration could be amended such that it simply covered all employees in region 6, regardless of who is the employer in that region. Any such alteration would expand the scope of the rule alteration proposed in the Application, given my conclusion that the New Drivers are not caught by the rule alteration. It is not possible for the Commission to rewrite the rule alteration to expand coverage from that which is sought.[162]

[250] I also reject the argument that the rule alteration should be limited to bus drivers only. Although bus drivers are the primary group of employees with which the Application is concerned, the RTBU's current rules enable it to have as members employees "in ... motor omnibus services".[163] Accordingly, it is appropriate that the rule alteration be limited, as it is, to the provision of bus services within New South Wales.

[251] I accept that the limitation in the RTBU's current rules to allow it to enrol as members persons employed in a private bus service only if the bus service is run in conjunction with or controlled by a tramway service is not an historical accident, but it is odd. The RTBU's rules were deliberately amended in 1934 to reflect a change in the industry at the time, namely, some of the existing tramway services began to operate bus services either in connection with or in place of a tramway service.[164] In recent years, there has been a further change to the industry. In particular, the New South Wales Government has decided to privatise the operation of public bus services in New South Wales. The RTBU has been representing the industrial interests of bus drivers working in the provision of those public bus services for decades. It now wishes to be able to continue representing such workers, notwithstanding they are, or may be (in the case of regions 7, 8 and 9), employed by a private sector employer. In my view, the fact that this change in the industry has been the reason for the RTBU's proposed rule change, coupled with the RTBU's long history in representing the relevant class of employees, weighs in favour of the exercise of discretion to grant the Application. Further, it is significant that the RTBU does not seek to amend its rules to cover the private bus sector generally; the proposed rule change is limited to employees in the provision of public bus services.

[252] Finally, and in response to the TWU's submission that any rule change to address potential privatisation of public bus services in region 7, 8 or 9 should be deferred until a later time, it is not in the interests of the parties to these proceedings or the employees concerned to have a different application made for consent to a rule change after each bus region within New South Wales is privatised. Although the RTBU has missed its mark in relation to the New Drivers in region 6, there should not be any great difficulty in drafting one or more rule amendments to deal with the privatisation of public bus services in New South Wales. If privatisation goes ahead in region 7, 8 and/or 9, proposed rule 4(4)(ii) may well give the RTBU coverage over employees who work in the provision of bus services in those regions after privatisation. If not, a further application may be made by the RTBU, as is likely to be the case in relation to the New Drivers in region 6.

Australian Rail, Tram and Bus Industry Union [2020] FWC 1489 (19 March 2020)

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Judgment (269 paragraphs)

Australian Rail, Tram and Bus Industry Union [2020] FWC 1489 (19 March 2020)

Legislation Cited (5)

Cases Cited (21)