1. The respondent submits its obligation was to set rosters within the shift length limits, which it did. The text of the Agreement, together with the operational and industrial context of the often-remote train operations, support a construction that does not limit the length of actual work performed.
2. Driver only operations have different arrangements and are not covered by cl 4 of A1. The respondent submits that only 2-up crews (other than those operated from its Port Augusta depot) are covered by it.
3. DOO have a 9-hour limit on rostered shifts. This can be exceeded without limit or payment of overtime in the event of any "train delays" and the driver not electing to cease operating the train: cl 1.10.4, A5.
4. Clause 18.3.9 of the Agreement and clause 4.3.1 of A1, both refer to the lengths of rostered shifts, not actual shifts. Working longer shifts than the roster limits is contemplated by clauses 4.1.4.4 and 4.1.4.5.
5. The respondent argues the Port Augusta depot sits outside the rostering guidelines, with Attachment 6 a complete defence to the claim regarding Port Augusta based crew. While the text is not invoked to support this construction, the respondent contends there is no reason why overtime would be payable after 12 or 15 hours of work other than to excuse this depot from all shift limits. The respondent submits the maximum shift lengths in A1 only provide markers or thresholds for when overtime rates will apply at Port Augusta. Item 1 of A6 has no utility otherwise.
6. The respondent's alternate position is that each occasion was an emergency situation, in accordance with the Agreement. It contends the applicant's reading of "major equipment failure" and "operational emergency" as having to result from the same causes as "other emergency" is incorrect on a plain and ordinary meaning of the provision.
7. The use of the word "because" gives no support for the applicant's narrow meaning. An inability to complete a shift is because of an emergency if the emergency was a substantial and operative factor.
8. Regarding a crews' fitness to continue an excessive shift because of an emergency, the respondent submits this requirement only applies to drivers who are actively working and not yet relieved of operational duties. This is indicated by the word "working", which means active working instead of being on duty. In that event, the crews' indication may be given by words, or the actions of continuing to work.

1. There is no dispute about the principles to be applied to construing the terms of an Enterprise Agreement. The Court is required to search for the objective intention of the authors, in context, with the aim of giving effect to that intention.
2. To determine the application, it is appropriate to first determine a number of general issues. These are: whether A1 covers DOO and whether 3-up crews were covered by cl 4.3 of A1; whether the A1 shift limits only applied to the rostering process; whether or not any shift limits applied at the Port Augusta depot; and the meanings of 'emergency' and 'indication of fitness to continue'. The resolution of these preliminary issues will deal with each crew configuration, where relevant. These reasons will then consider the remaining issues as they arise in relation to each of the eleven alleged contraventions.
3. Construing the Agreement calls for a textual, purposive and contextual approach that recognises the full industrial context of the covered work. The Court is required to objectively determined the parties' intended meanings when the terms of the agreement were agreed.

1. The first issue is whether "Driver only operations" were covered by A1. This question includes issues of actual shift limits and the applicability of the emergency rules.
2. Clause 11 of the Agreement allows for DOO and requires application of the A5 roster provisions of 1.10.1 to 1.10.4. Attachment 5 contains a range of provisions for DOO for both mainline and terminal shunting work. It primarily provides terms about DOO implementation, including DOO cabin standards and procedures for tests and trials.
3. Clause 1.10.1 provides a minimum rest time away from home prior to a DOO.
4. Clause 1.10.2 adopts the General Rostering Provisions of cl 18 of the Agreement. In turn, cl 18.3.9 required the respondent to take account of the specific roster arrangements of A1. Thus, the A5 cross reference to cl 18 shows an intention for DOO to be covered by the specific roster arrangements detailed in A1.
5. A broad range of facilitative provisions in A1 do not appear in A5. These include: master and working rosters, RDO's, weekends off duty, roster changes, emergency situations, interval between shifts at home base (cl 5.1.3.5 expressly caters for DOO), rostered working time and actual working time, mandatory rest period, confirming next turn on duty, lift up and lay back, barracks working/resting away (cl 10.4.2 specifically caters for DOO), commencing and returning from leave, roster suspension, crewing, and cancellation recovery shifts.
6. The specific references to DOO in cl 5.1.3.5 and cl 10.4.2 of A1 are consistent with an intention for A1 to cover DOO. It is highly unlikely the employer and employees intended to exclude DOO from the many practical terms, such as lift up and lay back, contained in A1 but not in A5.
7. Another consideration is the differently expressed shift limits for DOO in A1 and A5. Different meanings would indicate DOO are not covered by A1, in which case the specific A5 meaning would apply.
8. Clause 1.10.4 of A5 set out a "maximum rostered shift limit of nine (9) hours from sign on to sign off ...". The limit is referenced to the duration of the actual work time between the real events of sign on and sign off. The limit is not referenced to the predicted or rostered length of a shift. That is based on a "timetabled running time": cl 1.10.3. The phrase "from sign on to sign off" would be redundant if the shift limit was not intended to apply to actual time worked.
9. Clause 4.1.1 of A1 does not refer to the time between sign on and sign off. Instead, cl 4.1.1 distinguishes between "maximum rostered shift length" and the table reference to a "maximum shift length". The maximum shift length for Driver Only Mainline is 9 hours. The difference between the expressions is between the most time that can be rostered for a range of crews, and the most time that be worked on a driver only shift.
10. To this point of the analysis, which does not include the broader submission of the parties, I conclude that A5 conveys an intention of DOO being limited to actual worked shifts of 9 hours from sign on to sign off. I defer making a conclusion about whether cl 4.1.1 has that intention until after consideration of the broader submissions.
11. I next consider whether the limited 3-up crewing arrangement for slow services between Port Augusta, Cook and Kalgoorlie were intended to be covered by cl 4.3. I conclude they were for the following reasons.
12. The plain meaning of cl 4.3 is that it applies to all "employees who are unable to complete their rostered shift ...". The provision is not limited to those employees rostered to a shift referred to in the cl 4.1.1 table, (which expressly includes DOO). It equally applies to the small category of employees rostered on 3-up crews in accordance with cl 14.
13. Clause 14 is contained in A1, with the only uncertainty caused by 3-up not being included in the table or elsewhere in cl 4. I consider this arrangement is consistent with 3-up having its own clause as it was a local exception to the 12-hour shift limit, and with some of those crews included in A6. I also find it likely the Agreement intended 3-up crew were to be covered by all the practical facilitative arrangements of A1, which include 4.3.
14. The next question is whether the delay exception thresholds for DOO are intended to be different. Did A5 intend to allow any "train delays" to override actual shift limits, and without any limit to the additional hours worked? Or does A5's use of "train delays" mean train delays as described in cl 4.3 of the cross-referenced Rostering Guidelines?
15. There is no apparent purpose for allowing DOO shift limits to be extended for any train delay, and without any limit. That result would be at serious odds with the threshold of an emergency before 2-up and 3-up crews could continue working beyond shift limits, and with a 16-hour limit.
16. I conclude A1 and A5 are intended to be read together, in a context of the Rostering Guidelines expressly applying to DOO.
17. In my opinion, the respondent's position of no limits to the length of actual DOO shifts in the event of any train delay, subject to crew, is not consistent with the fatigue management aims of the Agreement. The health and safety objectives, together with the applicable safety legislation, the Work Health and Safety Act 2012 and the Rail Safety National Law (South Australia) Act 2012, require the respondent to safely manage, by reducing to the greatest extent that is reasonably practicable, the known hazard of excessive working hours and the resulting risk of harm from driver fatigue. An intention to remove DOO from the same shift limit exclusion threshold and hard limit, as apply to other types of crews has no contextual or purposive support.
18. The lengthy cabin standards for DOO provide a further fatigue management context for this type of crewing. For example, cl 1.21 requires all locomotive cabs to have "the vigilance control timing cycle set ... before a penalty brake application occurs". Clause 1.23 provides that if the penalty brake is applied and not reset within 2 minutes an "automatic emergency call" shall be made to the train controller.
19. The respondent's construction would also be at serious odds with limits imposed on workers with comparable responsibilities, such as interstate truck drivers and pilots, for managing the risks of harm from operator fatigue.
20. The associated question arises of whether a single driver has a different ability to keep working after being delayed by an emergency. In cl 1.10.4 of A5, a driver needs to elect to cease working at 9 hours, whereas under cl 4.3 of A1 the crew needs to indicate their fitness to continue working.
21. In my opinion the same test is intended to apply, that is, all drivers need to indicate their fitness to continue beyond the shift limit in the event of an emergency. Not electing to stop driving is the same as electing to continue to drive, which is the same as indicating a fitness to continue driving by continuing to drive. The same fatigue hazard consideration applies in both cases.
22. In my opinion DOO are covered by A1, with supplemental provisions in A5. I conclude DOO are covered by the same provision as other crews regarding the limited circumstances in which they may work beyond a shift limit. DOO are limited to actual shifts of 9 hours, unless they cannot complete a shift because of an emergency, and they have given an indication of their fitness to continue by not electing to stop. The absolute limit of 16 hours in cl 4.3 then applies.

Do shift limits apply to the rostering process or to actual time worked?

1. I next determine the broader issue of whether shift limits apply to rostered shifts or to actual work time. I commence with the text of cl 4.1 of A1.
2. In addition to the difference between the phrases 'maximum rostered shift length' and 'maximum shift length' in cl 4.1.1, the text of the maximum shift lengths for two person operations distinguishes between rostered shifts and "actual shifts" in three instances.
3. For crews of one driver and a level 7 trainee driver, a maximum shift of 10 hours may be rostered, but on two conditions: that where rostered shifts are longer than 9 hours there will be consultation during the roster development process; and that "actual shifts may be worked up to 10 hours to complete tasks due to unavoidable necessities." I conclude that this crew configuration is limited to 10 hours of actual time worked.
4. For crews of one driver and a higher-level trainee, the maximum shift length is stated to be 11 hours. The table then permits actual shifts "up to 12 hours to complete tasks due to unavoidable necessities." I conclude that this crew configuration is limited to 11 actual hours, or 12 actual hours to complete tasks due to unavoidable necessities.
5. For crews of two qualified drivers, as was the case here for 2-up crews, the maximum shift length is stated to be 12 hours, provided rostered shifts of more than 11 hours are "subject to the provisions outlined in Clause 4.1.2." Clause 4.1.2 states that for 12-hour shifts "crews may be rostered for a maximum of 12 hours from sign on to sign off" provided consultation occurs about the corridor concerned, the robustness of the timetabled shift, and the availability of suitable relief. The table allows "actual shifts" of "up to 12 hours to complete tasks due to unavoidable necessities."
6. In my opinion, the applicable cl 4.1.2 limit of "a maximum of 12 hours from sign on to sign off", the associated consultation requirement about "suitable relief" in cl 4.1.2.3, and the table reference to "actual shifts" up to 12 hours, together convey a clear intention that the shift limit of 12 hours applies to actual working time and not just to the predictive rostered times.
7. Clause 4.1.4 includes textual support for the applicant's construction. This provision distinguishes between "rostering" and the "management" of 12-hour shifts (being any shift in excess of 11 hours). I disagree with the respondent's submission that this clause contemplates working longer shifts, other than in an emergency situation.
8. Clause 4.1.4.4 requires the Master Roster to contain an "operational provision" for relief of crew who may exceed the 12-hour shift limit. Clause 4.1.4.5 states that "crew will not be required to undertake any work" of more than 9 hours for a driver only, or 12 hours for two drivers, including travel time and working time.
9. Neither subclause would be required if shift limits are not concerned with actual time worked. And there would be no need for a plan of how to provide relief to avoid exceeding the 12-hour limit, absent an emergency.
10. Further textual support is contained in cl 6.6 and cl 6.6.1. They provide that "Shift Lengths will vary according to operational needs" and may include required additional hours to be worked "up to the maximum Shift Length." This clause is not consistent with the respondent's construction, or its submission that some operational needs require shifts longer than the limits.
11. The respondent claims textual support from cl 14.1 of A1 in relation to 3-up working. I do not agree. While the submission points to the descriptor "rostered" for 15-hour shift lengths, it overlooks the following explanatory phrase "(sign on to sign off)", which indicates actual work time is limited.
12. Contextual support is provided for the applicant's construction by cl 3.1 of A1. This requires the respondent to use its best endeavours to prepare Master Rosters "to reflect the real and likely work." This indicates an intention for rostering to focus on the actual work to be performed, rather than on set blocks of work time_._
13. In my opinion, the minimum intervals between actual duty at home base or at rest locations set by cl 5 of the Agreement provide some further contextual support for actual shift limits.
14. The respondent submits the cl 7.1.3.6 and cl 12.3 Agreement requirements "to work reasonable overtime ..." support its preferred construction of no actual shift limits. I do not agree. Firstly, the clauses respectively specify that the working of reasonable overtime is "at the appropriate penalty rates", and "for payment of overtime penalty rates", but here the only entitlements to overtime rates is at the Port Augusta depot, or for exceeding lift up and lay back limits, or for exceeding the ordinary hours of a long duty cycle. Secondly, it is premature to accept that the offered additional hours on the 11 occasions were all reasonable without a determination of whether the additional hours were in excess of the A1 limits. If additional hours exceeded binding limits they could not also be reasonable.
15. I conclude cl 4.3 sets a strict shift limit of 16 hours of actual work following delay because of an emergency.
16. Regarding the health and safety objectives, the respondent points to its commitment to safety compliance being included in the Agreement. It also acknowledges the importance of the need to manage the fatigue of employees. It submits it did consider and apply fatigue management principles in rostering, as the Agreement required.
17. The respondent submits this obligation extends to the fatigue of relief crew and of vehicle drivers. The respondent may have to engage in a balancing exercise to ensure the safety of all concerned.
18. I observe that cl 18.3.2 of the Agreement does require consideration of "fatigue management principles" in rostering. While there is no evidence of what the fatigue management principles were, I accept they existed as required by law. Section 116 of the Rail Safety National Law (South Australia) Act 2012 required a documented fatigue management program for rail safety workers. Regulation 29 of the subordinate Rail Safety National Law National Regulations 2012 (the Regulations) set out a broad range of factors to be considered by an employer in assessing the safety of hours of work and periods of time between shifts, but does not venture into any specific limits to working hours.
19. There is no suggestion from the respondent that its fatigue management principles provide any stricter shift limits than are contained in the Agreement. The respondent would not have submitted there are no limits to the length of actual worked shifts if any binding fatigue management principles restricted any actual shift lengths.
20. Actual shift limits advance the health and safety purpose of maintaining safe operations and avoiding adverse health consequences for drivers. Shift limits are controls on the hazard of long shifts contributing to driver fatigue with resulting risks of serious harm.
21. I agree with the applicant that an absence of any limits to the length of actual shifts is not consistent with commitments to management of driver fatigue in this industrial context. But I do not agree with the applicant's more general submission that the Agreement's expression of the respondent workplace health, safety and welfare compliance goal adds to the fatigue management purpose.

1. The first question is whether there is any inconsistency between A6 and A1. That is because the specific details outlined in A6 prevail over the main body of the Agreement and the rostering provisions of A1 only "to the extent there is any inconsistency".
2. I add that the phrase "and continue to apply" that appears at the end of the preamble was not addressed in submissions. While the phrase appears to be grammatically incorrect, its likely meaning is to emphasise that the specific depot arrangements will continue to apply to the extent of any inconsistency.
3. In my opinion no direct or indirect inconsistency arises. The provisions do not clash in any way; they can operate harmoniously in a practical way.
4. The respondent's submission of A6 having no utility if there are no actual shift length limits also overlooks the agreed "unique circumstances at certain intermodal depots" referred to in A6's fist sentence. While there is no evidence of what the unique circumstances were at Port Augusta, they cannot be dismissed or assumed to not exist. Two features of that depot give rise to possible reasons. They are its remote location and requirement for 15-hour shifts across the Nullarbor, which may make attracting and retaining highly skilled staff more difficult. It is sufficient to identify A6 is based on "unique circumstances" at the depot, and these features. There may well be other reasons.
5. The Port Augusta overtime rates also have the utility of incentivising drivers to not stop when shift limits are reached in an emergency, and for them to continue up until 16 hours.
6. I also reject the respondent's submission that payment of overtime rates after long hours on a shift is an oddity. Overtime rates for long daily shifts are a common industrial reality in most industries. The Agreement's underpinning Rail Industry Award provides overtime rates for working more than 10 hours on a day: cl 13.1(g) and cl 20.1(a).
7. Overtime rates also feature in the Agreement for excessive lift up and lay back times, and in the obligations to work reasonable overtime, at overtime or penalty rates.
8. Another reason why payment of overtime rates does not imply the shift limits cease to apply, is that in some circumstances of working beyond the shift limits, a Port Augusta based driver will not receive any overtime payment for that particular duty. That is where the driver is already entitled to overtime for that duty cycle, as overtime will not be paid twice for the same duty.

1. Next, I consider a range of issues regarding the construction of cl 4.3 of A1 - Maximum hours on Duty in Emergency Situations. It is necessary to reproduce the text of cl 4.3.1:

Employees who are unable to complete their rostered shift because of an emergency must be relieved from duty and signed off after a maximum period of sixteen (16) hours. In these circumstances, emergency means a major equipment failure or operational emergency or other emergency due to fire, flood, storm, earthquake, explosion, accident, derailment, epidemic or warlike action. The working of extended hours in this circumstance is subject to the crews' indications of their fitness to continue.

1. I commence with rejecting the applicant's narrow construction of the given meaning of emergency. The definitional sentence of the clause has three meanings: a major equipment failure, an operational emergency, or other emergency due to one of the listed occurrences. The clause does not require a major equipment failure and an operational emergency to be due to the listed occurrences. As the respondent submits, there is no added element of emergency to a major equipment failure, because that very event is accepted as an emergency from a working hours perspective.
2. I accept the clause could only operate where a defined emergency caused employees to be unable to complete their rostered shift. The parties dispute how direct and significant the emergency cause must be.
3. The applicant submits an emergency had to be a direct and proximate cause, whereas the respondent submits it is sufficient if the emergency was a substantial and operative factor out of a range of other factors.
4. The respondent submits the same broad approach should be taken as is applicable to general protections claims under the Fair Work Act 2009. It submitted the High Court decision of Board of Bendigo Regional Institute of Technical and Further Education v Barclay[3] should be followed. At [104] the Court relied on the legislative history and the purpose of s 360 as clarified in the Explanatory Memorandum to conclude that a "substantial and operative" reasons for an employer's adverse action, but not necessarily the sole or dominant reason, would establish a contravention.
5. In my opinion, the Barclay decision is specific to its legislative context and is not applicable to construing cl 4.3. In addition to the Explanatory Memorandum clarifying the statutory approach to multiple causal reasons, the factual issue was to identify the real reason for what actuated the conduct of a person. In construing the Agreement, there is no reason to apply that policy purpose of the Memorandum. The Agreement is dealing with a very different question of whether an employee could not complete their rostered shift "because" of an emergency. An emergency is an objective physical or actual occurrence, whereas a person's reasoning process for taking certain actions can be a far more complex question. An emergency is recognised in the Agreement as an exceptional unforeseen circumstance that may cause breach of the important shift limits.
6. I conclude I should apply the ordinary meaning of the plain word used in the agreement, without giving it either of the meanings urged by the parties. An emergency either did or did not prevent an employee from completing their shift when the limit was reached or at a later point in continuing work. Each factual situation needs to be individually considered.
7. The applicant also submits the concept of "major equipment failure" should be limited to equipment failure not foreseeably caused by the respondent, for example, through failing to comply with known maintenance schedules.[4] I agree this is a possible meaning in context, but would depend on facts establishing foreseeability that are not alleged in this claim.

1. The applicant's complaint is that no indication of fitness to continue was given by any crew after they continued to work beyond the shift limits. The respondent says the indication was by continuing to work.
2. The applicant says this was not an indication, or a sufficient indication, but does not identify the minimum elements of a compliant indication. It submits the respondent assumed the crew were fit to continue.
3. I observe the concept of a driver's indication of their fitness to continue is also used in reg 29(1)(i) of the Regulations. It also expresses the indication of fitness as coming from the employee, rather than from the employer.
4. In my opinion, the expression used for DOO of not electing to stop at a shift limit has the same meaning as giving an indication of fitness by continuing. Neither expression requires consideration of anything more than fitness to continue, or any particular method of doing so. The context of radio communication systems between crew and base suggests a specified method of communication was not considered necessary.
5. I agree with the respondent's submission that the evidence shows some crews would pull up if fatigued, so they were likely aware of their ability to either stop or continue, subject to their fitness to continue unaffected by additional fatigue. There is also no complaint of any active driver or relieved crew member being unfit to continue when or after the limits were exceeded, or of any inability to give their personal indication of fitness to continue.
6. I disagree that only those crew members who were then performing operational duties had to give an indication of fitness as other crew members could rest. There is no support in the text to distinguish between crew members, and even a resting crew member who may not be recalled to active duty is still having to work an extended shift. There may be broader fatigue issues for some crew beyond the length of a particular shift.
7. The questions of whether continuing to drive should be a sufficient indication of fitness, and whether casually assessed subjective fitness is the best reasonably practicable method of assessing the degree of fatigue and associated risks of harm, are not issues that arise on the construction of the Agreement. Construing the Agreement requires searching for the intended meaning, not for a better meaning.
8. I conclude the crews in question did, at and after shift limits were reached, give indications of their fitness to continue on the train by either continuing to perform operational duties or by not asking to be relieved.

1. The summarised facts are taken from the more extensive agreed facts. Details of driving times and timing of relief from operational duties while still on duty have mostly been omitted as not being relevant to determining the allegations about shift lengths.
2. No facts about indications of fitness to continue were agreed, with this issue now resolved in favour of the respondent's submission that continuing to work was a sufficient indication, where required.
   1. Service 3PM6 - 16-17 February 2023
3. The issue is whether a 2-up crew were unable to complete their 12-hour shift for 55 minutes because of an operational emergency of a derailment and a major equipment failure of signalling damage.
4. The crew of 3MP6 signed on at Spencer Junction at 10:05pm on 16 February.
5. At about 6:10pm on the previous day, a train had derailed at Two Wells, causing substantial damage to track and signalling machinery. The rail network between Adelaide and Spencer Junction had been closed until 3:22pm on 16 February to allow repair work to be completed. The derailment also caused two block failures from around 4:55pm that day, resulting in progress under "train order working". Those failures "self- restored".
6. At about 6:30am on 17 February, 8 hours and 25 minutes into the 3MP6 shift, the derailment from 15 February caused a third block failure on the Two Wells to Long Plains section of track, and more "train order working". Service 3PM6 was further delayed due to network congestion because of this.
7. On 17 February, the crew signed off at Adelaide at 11:00am, 12 hours and 55 minutes after they signed on.
8. The applicant submits the facts do not support a finding of inability to complete the shift due to an emergency. The derailment and signalling damage occurred more than a day before the crew signed on, and so the crew's inability to complete their rostered shift was due to known existing delays and was not due to an unforeseen delay.
9. The respondent relies on its submissions about an emergency only having to be a substantial and operative cause of the delay. It submits the previous day's derailment was an emergency situation that was still causing delays and so was a substantial and operative cause of the ultimate delay. If the previous day's derailment and damage could not be relied on, the respondent instead relied on the third block failure that occurred well into the shift. That was a major equipment failure that caused track congestion and delays, and so excused the breach of shift limit.
10. I find the sole cause of any delay was the third block failure. None of the earlier events affected 3MP6's progress on the given facts. While the third block failure resulted from a derailment two days previously, it was still the cause of this delay. There is no evidence this was a likely event following the derailment. I find the third block failure was a major equipment failure.
11. While there is no evidence of how long the third block failure delayed the 3MP6, that was the only cause of any delay on the agreed facts.
12. I conclude the crew were unable to complete their shift because of an emergency. There was no breach of the Agreement on this occasion.
    1. Service 2PA8 - 28 February 2023
13. The issues are whether a medical emergency of a passenger qualified as an emergency, and if it was, whether the 16-hour limit was breached by 61 minutes.
14. Service 2PA8 operated the Indian Pacific passenger service with a 3-up crew who signed on at Cook at 1:45pm on 27 February. The rostered shift length was 15 hours.
15. At about 8:00pm, a passenger experienced a medical emergency. As a result of the medical emergency the service was held up from 10:45pm to 1:05am the next day to allow the RFDS to retrieve the passenger.
16. Due to 2PA8 being held, the crew were unable to sign off at Spencer Junction until 6:46am on 28 February, which was 17 hours and one minute after sign on.
17. The applicant accepts that a medical emergency may cause an operational emergency, but submits it was not in consequence of one of the defined causes of "other emergency" and so was not an emergency situation. The second alleged breach was of the absolute limit of 16 hours until sign off.
18. The respondent submits these circumstances amounted to either an operational emergency or other emergency due to an accident. It also submits, that 16 hours was exceeded due to the crew's election to travel to the depot at Spencer Junction as passengers on the train instead of being driven in a light vehicle.
19. I accept the situation was an operational emergency, based on my previous rejection of the applicant's construction of the given meaning of emergency.
20. I find the absolute limit of 16 hours was breached, irrespective of the crew's election to return to a depot on the train instead of in a light vehicle, and the reasons for that choice. Those circumstances may be relevant to a consideration of imposing a penalty, but they do not constitute an exception to the absolute shift limit.
21. I conclude the respondent breached the Agreement on this occasion.
22. I find the contravention was a serious contravention because the same conduct affected three drivers, and the respondent knew of a likely contravention if the crew did not leave the train to travel by light vehicle, given their unchallenged reasons for remaining on the train.
    1. Service 3SP7 - 8 March 2023
23. The issue is the cause of a 10-minute delay in sign off after a 12-hour rostered shift.
24. The crew of 2-up service 3SP7 signed on at Spencer Junction at 11:10pm on 8 March 2023.
25. Service 3SP7 was delayed in its departure due to delays in fuelling, attaching the crew van and completing the required brake test. The unspecified delays in fuelling were caused by the fuel truck "being out of service". As a result, a replacement fuel truck was used, which delivered fuel at a slower rate.
26. On 9 March at about 1:00am, 3SP7 was held in a crossing loop for 9 minutes to allow another of the respondent's trains to cross at Bookaloo.
27. On 9 March at about 6:31am, 3SP7 was impacted by temporary speed restrictions (TSRs) which resulted in reduced speed between Wynbring to Mt Christie.
28. On 9 March at about 7:52am, 3SP7 was impacted by TSRs, which resulted in reduced speed between Barton and Bates.
29. The crew signed off at Cook at 11:20am on 9 March 2023, which was 12 hours and 10 minutes after they signed on.
30. The applicant submits none of the delaying causes were emergency situations, as each delay was foreseeable.
31. The respondent submits the TSRs and crossing loop delays were operational emergencies. While delays from TSRs and crossing loops were part and parcel of operating on the shared national network, the respondent did not have control over how long and how often the delays occurred.
32. The respondent also submits the fuelling delays due to the fuel truck being out of service was a major equipment failure.
33. Based on the limited available facts, I conclude the out of service fuel truck was likely a major equipment failure, as without fuel the train could not operate, and the replacement fuel truck was slower to refuel. The facts are silent however as to when the fuel truck went out of service, which may have been shortly, or long before, the shift was due to start. There is also no evidence of the time delay from slower refuelling. And there is no evidence of the time delay from attaching the crew van and completing the required brake test.
34. I must therefore determine this allegation based on the absence of evidence that the slower refuelling method was an unforeseen occurrence. I find the respondent has not proved it was a relevant emergency.
35. I disagree that TSRs and crossing loop waits, that were not due to other emergency situations, were operational emergencies. They were known regular incidents of use of the network, although the amount of time lost on each occasion was not known of beforehand. Characterising all TSRs and crossing loop delays as unexpected delays is not accurate as they are part and parcel of using the single-track network. I also reject the notion that any waiting time for the respondent's own trains to cross paths could be an operational emergency. To conclude otherwise would justify exceeding shift lengths due to the expected and normal incidents of use of the network.
36. I conclude this breach of Agreement has been proven. I find this was a serious contravention because the same conduct affected two employees, and the respondent had implied or tacit knowledge of the likely breach through its relevant managers having knowledge of the likely excessive shift before it started. That was through their knowledge of the delays in fuelling, attaching the crew van and completing the required brake test.
    1. Service 3PM6 - 4 May 2023
37. The remaining issue regarding 3PM6 is whether the crew were delayed by 1 hour and 13 minutes because of a major equipment failure from a crew coach failing, or by an operational emergency of waiting at four crossing loops for 1 hour and 49 minutes while the respondent's other trains passed.
38. Service 3PM6 was initially rostered as 3-up for 15 hours starting from Cook. It was changed to 2-up at about 3:00am on 4 May because of a generator failure in the crew coach at Cook at about 2:41am.
39. It is appropriate to set out agreed facts [57] and [58] in full:

There were no replacement crew coaches available at this time. It takes up to 24 hours for a replacement crew coach to arrive in Cook, due to the remote location of Cook. There is no safe location to stable the train for this duration.

Without a functioning crew coach, Pacific National cannot operate a service with more than two locomotive drivers as crew because there is no safe location for the third locomotive driver to travel passenger.

1. Two of the originally rostered crew signed on at Cook at 3:45am on 4 May 2023. The third was conveyed to Port Augusta by other means.
2. The respondent obtained "priority pathing" from the ARTC so that 3PM6 could arrive at Port Augusta within 12 hours of sign on.
3. At about 4:56am, 3PM6 was held in a crossing loop for 24 minutes to allow another of the respondent's trains to cross. At about 5:56am, 3PM6 was held in a second crossing loop for 30 minutes to allow another of the respondent's trains to cross. At about 6:56am, 3PM6 was held in a third crossing loop for 24 minutes to allow another of the respondent's trains to cross. At 8:14am, 3PM6 was held in a fourth crossing loop for 31 minutes to allow another of the respondent's trains to cross.
4. The total waiting time to allow the respondent's other trains to cross at the four crossing loops was 1 hour and 49 minutes.
5. The crew signed off 13 hours and 13 minutes after sign on.
6. The applicant submits the crew coach failure occurred prior to the crew signing on, resulting in them being deliberately placed in a known emergency situation.
7. The respondent submits the crew coach failure caused the change from 3-up to 2-up with the shorter shift length of 12 hours. That was because no replacement crew coaches were available and there "was no safe location to stable the train for the time it would take for a replacement crew coach to arrive at Cook."[5] The respondent then obtained priority pathing but 3MP6 was delayed for lengthy periods at crossing loops.
8. I find the crew coach failure was a major equipment failure that caused the crewing level and shift limit to be reduced. But those changes did not prevent the crew from signing off within 12 hours. I find the 109 minutes of waiting time to allow the respondent's other trains to pass was the only reason for the delayed sign off. The crew exceeded their shift limit by 73 minutes, which was 36 minutes less than the total waiting time of 109 minutes, hence the waiting time accounted for more than the delayed sign off time. Once the service commenced, the previous crew coach failure had no bearing on the train's progress. I conclude the crew were unable to sign off with 12 hours because of the waiting time, and not because of an emergency.
9. I conclude the Agreement was breached on this occasion.
10. I find this breach was a serious contravention. It affected two employees. I infer the respondent's relevant managers knew of significant waiting times from having to wait for its own trains to pass at crossing loops. I find the respondent had implied or tacit knowledge of a likely breach through its managers' knowledge.
    1. Service 6MP5 - 6 May 2023
11. The issue is whether a 3-up crew worked 1 hour beyond their rostered 15 hours because of a major equipment failure of a broken rail and an operational emergency of amalgamating the service with another service of the respondent to provide relief to that crew.
12. The 6MP5 crew signed on at 11:20pm on 6 May. At about 8:15am on 7 May, ARTC advised the respondent there was a section of broken rail at Immarna, between Ooldea and Bates. As a result of the broken rail, 6MP5 stopped at Bates at about 10:13am on 7 May for a period of 31 minutes before continuing to Watson.
13. The broken rail also caused the respondent's 2-up service 7SP7 to stop at Immarma at about 8:00am on 7 May for 2 hours, before continuing to Watson.[6] This 7SP7 is the subject of the next allegation.
14. At about 1:00pm on 7 May, the respondent amalgamated 6MP5 with its 7SP7 at Watson, to provide relief to the crew of 7SP7. Service 6MP5 was then dragging 7SP7 and continued to operate as normal with crew transitioning through standard rest periods travelling as passenger.
15. The crew signed off at Cook at 3:20pm on 7 May 2023, 16 hours after they signed on.
16. The applicant submits the broken rail was not a causative emergency and there was no other operational emergency.
17. The respondent submits the broken rail "required"[7] it to amalgamate the two services to give relief to the 7SP7 crew.
18. I find the broken rail caused a delay of 31 minutes to 6MP5. There is no explanation for the other 29 minutes of work after the end of the rostered 15 hours. The agreed facts state the service continued to operate as normal after the amalgamation. I infer some time was consumed by physically joining the trains, but that resulted from the respondent's decision to give relief to its other crew. There is no evidence the amalgamation decision was "required" to relieve the second crew. Providing relief to one crew is not defined as an emergency that justifies a second crew having to work beyond shift limits.
19. I conclude the inability of the crew to complete their rostered shift for an initial 31 minutes was due to a major equipment failure: the broken rail. That was not a breach of the Agreement.
20. I also conclude the crew's inability to complete their rostered shift for the next 29 minutes was because of the amalgamation decision or other unknown reason. As these were not proven to be emergency situations, a breach of the Agreement occurred at that point.
21. I find the contravention was a serious contravention. The same conduct affected each crew member, and the respondent had implied or tacit knowledge of a likely breach through its managers' decision to amalgamate the services, in a context of the service then operating normally until sign off.
    1. Service 7SP7 - 6 May 2023
22. The issue is whether the 2-up crew for 7SP7 were prevented from completing their shift for 4 hours and 30 minutes because of the broken rail referred to above.
23. The broken rail caused 7SP7 to be delayed for 2 hours.
24. By that point the crew of 7SP7 had worked 13 hours and 10 minutes after sign on. Service 7SP7 was then amalgamated with 6MP5 in order to provide relief to the 7SP7 crew.
25. The respondent relied on its rejected submission that employees based at Port Augusta were not subject to any shift limits.
26. I find the broken rail was a major equipment failure that directly impacted 7SP7, causing a delay of two hours. By the time the trains were amalgamated, they had been unable to complete their 12-hour shift for 70 minutes. To this point there had not been a breach.
27. I find the crew's subsequent inability to complete their shift until 16 hours and 30 minutes, i.e. for an additional 3 hours and 20 minutes, was not because of any emergency. That extra time was how long it took to be returned to base after the self-contained broken rail delay of 2 hours had been dealt with. There were no more delays to normal train operations after the amalgamation.
28. I conclude the Agreement was breached after the 13 hours and 10 minutes.
29. I find this breach was a serious contravention. It affected two employees. I find the breach was engaged in knowingly based on inferred knowledge of the relevant managers who planned the shift. I infer they knew that additional time of up to 3 hours and 20 minutes of normal train operations would be required to complete the shift, without regard for any unexpected delays.
30. I find the 16-hour limit was also breached by 30 minutes. This was a serious contravention. I infer the respondent's managers knew of a likely 16-hour breach from returning both drivers to Port Augusta by the normal operation of 6MP5.
    1. Service 3SP7 - 31 May 2023
31. The issues with service 3SP7 are whether a 2-up crew were unable to complete their 12-hour shift because of an operational emergency, and if the extended 16-hour limit did apply, was it breached by 15 minutes.
32. A 2-up crew signed on at Port Augusta at 10.45pm on 31 May. At about 8:42am the next day, the ARTC advised of a safety breach by another operator. This resulted in "a significant near miss...meaning that the two services nearly collided on track."[8]
33. The respondent's crew advised they could not continue working safely and wished to pull up the train. They then pulled up the train at Thomair at about 10:45am, 12 hours after signing on. Thomair was about 19 minutes by train from Cook. The crew waited 1 hour and 45minutes for caretakers to arrive from Cook, so the train could be "stabled" on the track (taking another hour) and so the crew could be driven to Cook. The crew signed off at Cook 16 hours and 15 minutes after sign on.
34. The applicant submits it may be accepted that the near miss was an operational emergency. If so, they had to be signed off within 16 hours.
35. The respondent does not address the issue of whether or not the near miss emergency was the reason the crew could not sign off at the completion of their 12-hour shift. The respondent does submit the crew could not then sign off within 16 hours due to the unavoidable consequences of the near miss.
36. I agree the near miss was an operational emergency. However, it was not until after the emergency occurred that the crew pulled up the train. By then the crew had already worked up to their 12-hour shift limit, yet their destination of Cook was still 19 minutes away by train. And they would have still needed to perform some admin duties and walk to their sign off location.
37. I conclude the crew were not unable to complete their 12-hour rostered shift because of the emergency. Without the emergency they would still have taken more than another 19 minutes, but less than 4 hours, to complete the shift. I conclude the Agreement was breached on this occasion, to this degree.
38. I conclude this breach was a serious contravention. It involved more than one employee. And I conclude the respondent's knowledge of a likely breach is established by the fact of the normal operation of the service taking 12 hours without reaching its destination.
39. I conclude the 16-hour limit was exceeded following the emergency. While the respondent was taking steps to facilitate the crew's sign off at Cook, they were insufficient to avoid breach of the 16-hour limit. I conclude the respondent breached the 16-hour limit in these circumstances.
40. I conclude this was not a serious contravention because I am unable to find the respondent's relevant mangers had knowledge of a likely breach of the 16-hour limit.

1. The issue for this 3SP7 service is whether a Port Augusta based 2-up crew was unable to complete their 12-hour rostered shift, for another 15 minutes, because of an operational emergency of waiting time, or because of a major equipment failure involving communications with ARTC.
2. The crew signed on at 12:55am on 22 June.
3. At about 6:23am, 3SP7 was "held by the ATRC"[9] for 9 minutes.
4. Reduced speed was required through two sections due to TSRs. There is no evidence of how long the TSRs delayed the expected progress of the train.
5. At about 10:30am, the crew experienced communication issues with ATRC. They stopped the service at Immarna because they could not obtain authority to proceed until communications had been re-established. There is no evidence of how long this took.
6. At about 11:12am, 3SP7 was 'held' for an unknown time to facilitate a crew change in a different train operated by the respondent.
7. The crew then completed the journey to Cook, where they signed off 12 hours and 15 minutes after sign on.
8. The applicant relied on its general submissions. The respondent relied on its operational and major equipment failure defences.
9. Consistent with earlier conclusions, I conclude that waiting time for another of the respondent's services to change crews was not because of any type of emergency. I also conclude the unknown lost expected travel time from two TSRs was not because of an emergency.
10. I conclude the 9 minutes lost from being held by the ARTC was not because of an emergency. The respondent provided no evidence to establish that was due to any type of emergency, in contrast to it being an expected event when sharing the single-track network.
11. The remaining cause of some unknown delay was a temporary communication issue with ARTC. I agree that was a major equipment failure due to the crew's inability to obtain the necessary authority to proceed. This event was an emergency.
12. Due to the absence of any evidence of how long the emergency took, together with the evidence of the other delaying non-emergency events, I must conclude the emergency defence has not been proven.
13. I conclude the Agreement was breached on this occasion.
14. While the contravention affected both crew members, the evidence does not support a conclusion that the respondent's managers had knowledge of a likely breach of the shift limit by up to 15 minutes. I conclude the contravention was not a "serious contravention".

1. The issue is whether a single driver's inability to complete a rostered shift for 91 minutes was because of an operational emergency of an evacuation drill and major equipment failures of a locomotive and of automated signalling.
2. The driver for 4MP5 signed on at 1:00pm, for a scheduled start at 1:25pm.
3. The facts are limited. They include:[10]

Service 4MP5 did not depart Adelaide until 4:35pm on 22 June 2023 due to:

(a) an evacuation drill which occurred at the Adelaide Freight Terminal at 2:35pm on 22 June 2023 for a period of 25 minutes; and

(b) locomotive 'NR92' being moved from the lead unit to a secondary unit because, prior to the service's scheduled departure, 'NR92' was observed to have a water leak.

1. The remaining facts are that due to a major failure of CTC telemetry equipment, ARTC was unable to set routes and clear signals from the start of the journey until 9:50pm that day. This resulted in 4MP5 "experiencing delays due to a signal fitter manually setting the route of the train when advice was received from the ARTC."[11] There is no evidence of how long the manual signalling delay was.
2. The driver was relieved from active duty by an incoming shift at about 9:05pm at Redhill. He was then conveyed to Port Augusta by light vehicle, a journey of about 90 minutes, where he signed off after 10 hours and 31 minutes.
3. The applicant submits the evacuation drill was a planned occurrence, not any type of emergency.
4. The respondent primarily relies on its submission that cl 1.10.4 of A5 allows more than 9 hours of work for DOO in the event of any 'train delays'. As I have rejected this construction, I have considered the respondent's alternate submission of the delays being due to a major equipment failure and an operational emergency.
5. Based on the facts, I find the delayed departure from 1:25pm to 3:00pm was due to both the evacuation drill and the observed water leak. That is based on the timing of the drill, and the fact the leak was observed prior to the scheduled start and was still a cause of delay after the drill. From 3:00pm until departure at 4:45pm the delay is only attributed to the leak issue. The timing of these occurrences means the drill did not ultimately cause any of the delay, as the train could not have left until the locomotives had been repositioned.
6. I find the water leak was a major equipment failure, because it necessitated a locomotive being repositioned. As this remained the cause of delay until departure, I do not need to make a finding about whether the evacuation drill was an emergency. Given the applicant's correct acceptance of the signalling delays being viewed as major equipment failures, I conclude the driver's inability to complete his rostered shift was due to an emergency, and there has not been any breach of the Agreement.

1. The issue is whether a 2-up crew were unable to complete their rostered shift of 12 hours until a further 2 hours because of decisions made to deal with a major equipment failure in a locomotive of a different service that occurred about 10 hours and 30 minutes prior to sign on.
2. The sequence of events starts with a 2-up crew for 2PS7 rostered to sign on at Cook in SA at about 12:10am on 28 June. They were scheduled to take over the train's operation after it had been driven to Cook from WA by a different crew.
3. On the previous day at about 2:20pm, locomotive NR76 of the respondent's service 2PM5 lost power and failed. Service 2PS7 was then required to render assistance to 2PM5 by exchanging locomotives at Boonderoo in WA at about 3:25pm. That was 8 hours and 45 minutes prior to the crew's sign on at Cook. As a result of changing locomotives, 2PS7 arrived at Cook with only one functioning locomotive and less power.
4. As a result of 2PS7 having less power it "did not have sufficient power to meet the sectional run time as it was travelling at reduced speed; and was unable to maintain its scheduled path."[12]
5. Service 2PS7 departed Cook at 12:55am. At about 9:57am, the crew pulled up the train at Pimba and were relieved from duty at about 11:55am. The crew were driven by light vehicle to Port Augusta. The travel time from Pimba to Port Augusta is about 1 hour and 51 minutes.
6. The crew signed off at 2:10pm.
7. The applicant submits the suggested emergency from a major equipment failure was not an emergency that impacted this crew. They were placed into an existing situation of likely delay by being given an underpowered train that was known to be unable to meet the sectional run time.
8. The respondent submits the use of only one locomotive for 2PS7 was a major equipment failure, and the resulting reduced travelling speed from less power was an operational emergency.
9. The agreed facts recite the bare circumstances of the crew pulling up the train, being relieved, and being transported to Port Augusta by light vehicle. The parties accept the crew's right or obligation to pull up the train and be relieved in the circumstances known to them. No unexpected delay by these steps is suggested.
10. I find the only cause of delay from the expected travel time was the use of only one locomotive for the whole shift.
11. I add the agreed facts refer to "a rain event" on 27 and 28 June in the Pimba to Port Augusta region, which "resulted in many of the unsealed roads in the region becoming unsafe to travel on."[13] But there is no evidence this caused any delay to the particular journey in question, and there is no basis for inferring it did. Unlike many sidings on the intercontinental track, Pimba is next to the sealed Stuart Highway that connects it to Port Augusta.
12. I find the respondent's relevant managers likely knew the Cook to Port Augusta section of 2PS7's journey would be so delayed from using only one locomotive that it would not be able to meet its sectional run time. I accept the respondent did so as a solution to the loss of power in a different service more than 10 hours before the fresh 2PS7 crew was due to sign on at Cook. For unexplained reasons the respondent decided on this solution.
13. While a loss of power in any locomotive is a major equipment failure, the only connection between that happening to NR76 and the crew's slow journey was the respondent's decision, made many hours before the crew signed on, to replace NR76 with one of 2PS7's locomotives. The slower speed was a planned and known factor from the outset; it was not an unexpected or unforeseen problem.
14. I conclude the crew would have been able to sign off before the end of their rostered shift if one of the two planned locomotives for 2PS7 had not been removed. It was not the case that the crew were unable to complete their shift because of an emergency.
15. I conclude the Agreement was breached on this occasion. As the contravention resulted from a deliberate decision to operate a slow service, and it affected two employees, I conclude it was a serious contravention.

1. The only issue raised for 4MP5 is the manner in which the single driver indicated his fitness to continue after reaching 9 hours. The applicant accepts an operational emergency occurred due to a safety breach by another operator, and this caused 4MP5 to be held for 69 minutes.
2. The driver signed on at 12:10pm on 6 July. The driver pulled up the train at Mambray Creek at about 9:05pm. He was later relieved from duty and driven to Port Augusta, where he signed off at 11:05pm, after a shift of 10 hours and 55 minutes.
3. I find the fitness to continue issue does not arise because the driver pulled up the train just before the 9-hour point. His actions demonstrate a driver's ability to decide to not continue driving where a rostered shift was going to be exceeded.
4. I conclude the Agreement was not breached on this occasion.

1. I have dismissed allegations 1, 9 and 11.
2. I have found allegation 2 was a serious contravention by breach of the 16-hour shift limit by 61 minutes in an emergency situation.
3. I have found allegations 3 and 4 were serious contraventions by breach of the applicable shift limits by 10 and 73 minutes respectively, not because of emergency situations.
4. I have found part of allegation 5 was a serious contravention by a continuing breach of the shift limit for 29 minutes, not because of an emergency situation. That was after an initial delay of 31 minutes, which was not a breach.
5. I have found part of allegation 6 was a serious contravention by a continuing breach of the shift limit for 3 hours and 20 minutes not because of an emergency situation. That was after an initial delay of 70 minutes, which was not a breach. I have also found the shift limit of 16 hours was breached by 30 minutes, which was a serious contravention.
6. I have found part of allegation 7 was a serious contravention by an initial breach of the shift limit for at least 19 minutes, that was not because of an emergency. I have found the subsequent delay was due to an emergency. I have also found the shift limit of 16 hours was breached by 15 minutes, which was an ordinary contravention.
7. I have found allegation 8 was an ordinary contravention by breach of a 12-hour shift limit by 15 minutes, not because of an emergency situation.
8. I have found allegation 10 was a serious contravention by breach of a 12-hour shift limit by 2 hours, not because of an emergency situation.
9. A directions hearing will be listed to determine final orders and program a hearing of the penalty application.

[1] Section 557A has subsequently been amended.

[3] [2012] HCA 32, at [104].

[4] Applicant's reply submission, para 16.