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[2023] FWC 1903
General information, not legal advice.
Fair Work Commission
2023-08-01
Original judgment source is linked above.
s.424 - Industrial action
Qube Logistics (Rail) Pty Ltd T/A Qube Logistics
Suspension or termination of protected industrial action - endangering life etc - economic impact of industrial action
[1] On 27 July 2023, the Australian Rail, Tram and Bus Industry Union (RTBU) filed an application pursuant to s.424 of the Fair Work Act 2009 (FW Act) seeking an order for the suspension or termination of protected industrial action on the basis that the action has threatened, is threatening, or would threaten to endanger the life, personal safety or health, or the welfare, of the population or of part of it. The Respondent to the application is Qube Logistics (Rail) Pty Ltd (Qube).
[2] The action that is potentially relevant to the application commenced on 14 July 2023, when the RTBU provided notice of the following four partial work bans pursuant to s.414 of the FW Act, with each work ban to commence at 12:01am on Thursday, 20 July 2023:
[11] Subsequent to the end of the hearing, I was notified by the RTBU on 1 August 2023 that it has given formal notice of an indefinite strike commencing at 12:01am on 1 August 2023 and that Qube had also given written notice of a lockout from 12:01am on 1 August to 12:01am on 2 August 2023. It appears Qube's lockout was notified to provide certainty in circumstances where it was still awaiting receipt of the RTBU's indefinite strike notice.
[12] I granted permission for the RTBU and Qube to be legally represented at the hearing on 31 July 2023 on the basis it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter, pursuant to s.596 of the FW Act.
[13] The RTBU relied on the following evidence in support of its application:
[14] The RTBU also relied on an outline of submissions dated 29 July 2023 and oral closing submissions.
[15] Qube relied on the following evidence in opposing the application:
[16] Qube also relied on an outline of submissions dated 31 July 2023 and oral closing submissions.
[17] The following summaries are necessarily brief given the time pressures. The summaries represent what I have identified as evidence to highlight in the decision. I have reviewed all the evidence.
[19] Mr Pryor was cross-examined particularly in relation to the bargaining process, the RTBU's Federal Court application, Qube's variation application to the Commission and an email allegedly sent by James Berriman.
[20] Mr Woods is employed by Qube as a Train Driver at its Newcastle Depot. Mr Woods has a background in training and provided evidence about train driver qualifications. Mr Woods stated Railsafe publishes an 'Operating Rail Traffic Standard' (Standard) for train drivers on the Sydney Trains Network. A copy of the Standard was attached to Mr Woods' statement. The Standard requires qualifications for 'traction knowledge' and 'route knowledge'. These qualifications may expire even when a driver is still operating trains. A driver remains route qualified if they have driven on the route in the previous 12 months. A driver remains traction qualified if they driven a particular type of rolling stock within the last 24 months. There is also an initial assessment process to achieve a route qualification.
[21] Mr Woods gave evidence about events on 14 July 2023. Mr Woods stated he was directed to drive train 5WB7 from Newcastle to Wollongong and then drive by car back to Newcastle. Mr Woods raised fatigue issues and was advised he would be relieved on route to Wollongong. Qube's internal system 'Qube live' initially indicated Mr Woods would most likely be relieved at Cowan by a Moss Vale driver, John Edwards Senior. Mr Woods was then advised he would have to travel to Enfield before getting relieved because Mr Edwards Senior is not route qualified past Enfield. Mr Woods also gave evidence that there is an under supply of drivers as a result of industrial action which is raising these types of issues with route qualifications.
[22] Mr McMahon recently retired from his employment with Sydney Trains as a driver trainer. He still holds positions with the RTBU. Mr McMahon gave evidence about the importance of maintaining current competencies for train drivers and the potential for catastrophic consequences if rules are breached. Mr McMahon gave evidence about the complexities of the rail network and the risks that can present if a driver is not familiar with a given route.
[23] Mr Priestly is employed as Network Incident Manager for Sydney Trains. Mr Priestly gave evidence about the Glenlee network which is jointly operated by Sydney Trains and the Australian Rail Track Corporation (ARTC). Freight trains wishing to enter this area must gain consent from Sydney Trains and ARTC. This approval can be for scheduled set paths or for ad hoc paths.
[24] Mr Priestly gave evidence about an incident on 26 July 2023 involving Train 3164 operated by Qube. Mr Priestly gave evidence this train entered the Sydney Trains network at Glenlee without the approval of Sydney Trains. Mr Priestly was tasked with investigating this incident for Sydney Trains.
[25] Mr Priestly listened to relevant phone calls between Sydney Trains, Qube and ARTC. Mr Priestly ascertained that Train 3164 presented at Glenlee around 4:44am seeking to access the Sydney Trains network without an ad hoc path being approved. Sydney Trains did not accept access for the train because no ad hoc path was approved. It indicated the train should instead travel on the Southern Sydney Freight Line (SSFL). There were conversations between Qube, ARTC and Sydney Trains, but Sydney Trains had still not accepted the train onto the Glenlee network. At 5:42am, Train 3164 appeared on the Sydney Trains network moving towards Macarthur. This created problems with passenger trains and as a result, the train was directed to travel on the passenger network into Enfield and wait there until 10am when the peak passenger commute period ends.
[26] Train 3164 entering the Sydney Trains network unannounced meant another train, SN26, was stuck behind it and delayed. Train 3164 was ultimately accepted onto the Sydney Trains network to avoid delaying a passenger service.
[27] Mr Priestly gave evidence Qube has made multiple requests to Sydney Trains to not delay their trains since 21 July 2023 due to 'crew resource management'.
[28] Mr Priestly gave evidence he was asked to look up the crew on Train 4962 on 26 July 2023 travelling from Morandoo to Port Kembla. Mr Priestly confirmed the crew was John Edwards Senior and Craig Writer.
[29] Mr George is an InterCity Train Driver with NSW Trains based at Moss Vale depot. Mr George was driving a passenger train, Train SN26, on 26 July 2023. As Mr George approached Campbelltown at around 5:30am, he was directed to stop and told by a signaller that an unscheduled freight train was in front of his train and there would be a delay. The signaller indicated they were not aware which direction the freight train was travelling. Mr George gave evidence of being extremely concerned about this uncertainty from a signaller and that it was unprecedented in his experience. Train SN26 was then required to sit stationary between two stations, a practice that should be avoided because it can create various risks to safety. Train SN26 remained stationary for around 15 minutes and then continued on its route.
[30] Mr Holmes is employed in the Office of the Rail Safety Regulator. He gave evidence about the concept of route qualifications and their purpose in minimising safety risks. Mr Holmes gave evidence about the sort of evidence he would require during an audit to determine if the relevant qualification requirements had been met.
[31] Mr Berriman is Qube's Interstate Operations Manager. Mr Berriman gave evidence about an email he allegedly sent regarding safety issues on 22 July 2023. Mr Berriman denied sending the relevant email.
[32] The RTBU seemingly accepted Mr Berriman did not send the relevant email and did not rely on the alleged email in support of its case.
[33] Mr Dobby is Qube's Enterprise Infrastructure Manager. Mr Dobby gave evidence confirming checks he had undertaken to confirm Mr Berriman did not send an email as alleged on 22 July 2023.
[34] Mr Coulton is employed by Qube Holdings Limited as General Manager - Industrial Relations. Mr Coutlon gave evidence about the bargaining process, including in relation to a conciliation conference conducted by the Commission on 26 June 2023 and a Federal Court application filed by the RTBU concerning the application of pay rates under the current and predecessor agreements. Mr Coulton gave evidence about an in principle agreement reached on 26 June 2023 and receiving an unstamped copy of the RTBU's application prior to reaching the in principle agreement. Mr Coulton gave evidence about receiving a stamped copy of the application on 27 June 2023 and then becoming concerned about the potential underpayment amounts.
[35] Mr Coulton gave evidence about a further conference at the Commission on 10 July 2023 and offers subsequently provided by Qube to the RTBU via email on 12 July 2023. Mr Coulton explained that the RTBU rejected Qube's offers on 13 July 2023 and proposed a counter-offer. The counter-offer was not acceptable to Qube.
[36] Mr Coulton gave evidence about the industrial action taken thus far and an application filed by Qube to vary the current agreement and its predecessor on 29 July 2023. Mr Coulton provided evidence in response to that filed by Mr Pryor regarding the bargaining process and respective positions.
[37] Mr Hudd is Qube's National Safety Manager Rail and Agri and CEO of Qube's Registered Training Organisation.
[38] Mr Hudd provided evidence about route qualifications and Qube's safe management system (SMS), which is used by Qube to monitor the competency standard of drivers. This includes recognition of relevant work performed for Qube or labour hire contractors.
[39] Mr Hudd responded to evidence about route qualifications provided by Mr Woods. There were not substantial differences in the evidence but Mr Hudd referred to the potential for drivers to have broader route experience than that required for their current routes and that driver validation processes are not the only way for a driver to achieve route competency.
[40] Mr Hudd gave evidence about Mr Edwards Senior. Mr Hudd stated Mr Edwards Senior is very experienced despite only commencing employment with Qube in June 2023. Mr Edwards Senior provided Qube with evidence of his route competencies on commencement with Qube and evidence of their currency from his recent employment with Southern Shorthaul Railroad (SSR). Mr Hudd stated this evidence, which was attached to his statement, confirmed Mr Edwards Senior was route qualified to travel beyond Enfield towards Broadmeadow, amongst various other routes. Mr Hudd also referred to diary entries provided by Mr Edwards Senior to substantiate his competencies. Mr Hudd stated a driver assessment for Mr Edwards Senior for the relevant route was not required because of his demonstrated experience.
[41] Mr Hudd gave evidence about being contacted by the ONRSR in response to concerns raised by the RTBU in its correspondence dated 27 July 2023. Mr Hudd gave evidence he provided information about the qualifications of Mr Edwards Senior and Mr Writer to the ONRSR and that receipt of this information was confirmed by the ONRSR. Mr Hudd also referred to SSR providing copies of Mr Edwards Senior's transcript on 31 July 2023 to clarify his route competencies. The transcript was attached to Mr Hudd's statement.
[42] Mr Hudd responded to Mr George's evidence about the incident on 26 July 2023. Mr Hudd stated he disagreed with much of Mr George's evidence and that no report had been made to him by Sydney Trains or via the ONRSR online portal. Mr Hudd gave evidence it is common for trains to be delayed and denies Mr George's statement discloses a safety breach.
[43] Mr Angelos is National Rail Access Manager for Qube. Mr Angelos provided evidence about Qube's Access Agreements with Sydney Trains which allow access to the Sydney Trains network on a scheduled or ad hoc basis.
[44] Mr Angelos stated he was not aware of any issue occurring on 26 July 2023 until he received the RTBU's material in support of its application. Mr Angelos stated that he has not received any concerns from Sydney Trains, ARTC or UGL regarding safety issues with Qube's crews since the commencement of protected industrial action. Mr Angelos stated in his role, he would expect to be immediately notified of any concerns.
[45] Mr Angelos gave evidence that the path for Train 3164's movements on 26 July 2023 was approved by UGL and ARTC on 22 July 2023 and by Sydney Trains on 23 July 2023. Mr Angelos gave evidence about the delays experienced by Train 3164 on 26 July 2023. Mr Angelos states he concluded there was nothing unsafe about the events associated with the delay and that the operation of red signals had their intended effect of preventing a collision.
[46] Mr Angelos gave evidence about reviewing Qube's Customer Service Centre audio tapes relating to Train 3164 on 25 and 26 July 2023. Mr Angelos stated these tapes indicate there was a miscommunication between the control rooms of Qube, Sydney Trains and ARTC regarding the train's route. Mr Angelos stated the evidence suggested Sydney Trains had rejected a request from Qube but ARTC may have been under a misapprehension.
[47] Mr Angelos was adamant in his evidence that the industrial action did not cause the relevant delays and that the relevant rail crew observed all signals as required.
[48] Mr Angelos also provided evidence in response to some of the issues raised by Mr George and Mr Priestley in their statements. The effect of the responses was to reiterate his view that nothing unusual or untoward occurred on 26 July 2023 in relation to Train 3164. Mr Angelo also attached the approved train path for Train 3164 to his statement.
[49] Division 6 of Part 3-3 of the FW Act sets out when the Commission may or must make orders to terminate or suspend protected industrial action. Relevantly, s 424 provides:
424 FWC must suspend or terminate protected industrial action - endangering life etc.
Suspension or termination of protected industrial action
(1) The FWC must make an order suspending or terminating protected industrial action for a proposed enterprise agreement that:
if the FWC is satisfied that the protected industrial action has threatened, is threatening, or would threaten:
(c) to endanger the life, the personal safety or health, or the welfare, of the population or of part of it; or
(d) to cause significant damage to the Australian economy or an important part of it.
(iia) if the industrial action is being engaged in, or is threatened, impending or probable, in a State that is a referring State as defined in section 30B or 30L - the Minister of the State who has responsibility for workplace relations matters in the State;
(iib) if the industrial action is being engaged in, or is threatened, impending or probable, in a Territory - the Minister of the Territory who has responsibility for workplace relations matters in the Territory;
(3) If an application for an order under this section is made, the FWC must, as far as practicable, determine the application within 5 days after it is made.
(4) If the FWC is unable to determine the application within that period, the FWC must, within that period, make an interim order suspending the protected industrial action to which the application relates until the application is determined.
(5) An interim order continues in operation until the application is determined.
[53] I accept the RTBU's submission that evidence about what occurred following the notification of its partial work bans may be relevant to assessing the impact of the indefinite strike, given the practical consequence of the notification of the partial work bans appears to be that the RTBU have largely ceased working in the same manner that would occur with a strike.
Threatened, impending or probable industrial action?
[54] It is not in dispute, and I find, that the RTBU's indefinite strike constitutes protected industrial action, in the form of employee response action for a proposed enterprise agreement, that is threatened, impending or probable. This engages the prerequisite in s.424(1)(b) of the FW Act.
Endangerment of the life, the personal safety or health, or the welfare, of the population or of part of it?
"6.4 Causative of harm to specified public interests: ''. . . is threatening to . . . endanger . . . or to cause damage to . . .''
In the context, the verb ''is threatening to'' may be given its ordinary meaning in the sense of giving an ominous indication of being the source or cause of a relevant danger or damage. The industrial action must itself be giving ominous indication of being the direct or reasonably proximate cause of effects that are productive of, or are likely to be productive of a relevant danger, peril or damage to welfare or the economy. The phrase imports the temporal element of the circumstance by using the present continuous to require satisfaction as to there being a threatening situation contemporaneous with the exercise of jurisdiction.
In the context, the words ''to endanger'' and ''to cause'' each import a direct relationship, and a relatively high degree of causative impact in producing the specified danger or damage. Construction of the phrases in this manner is consistent with the constructions applied in a number of cases to similar expressions used in Commonwealth anti-dumping legislation (ICI Australia Operations v Fraser [1992] FCA 120; (1992) 34 FCR 564 at 568-522 per Black CJ, Neaves and von Doussa JJ; Swan Port Land v Minister for Small Business and Customs (1991) 28 FCR 134 at 144-145 per Lockhart J)."
[58] I am not satisfied on the evidence presented by the RTBU that the indefinite strike by its members has threatened, is threatening, or would threaten to endanger the life, the personal safety or health, or the welfare, of the population or of part of it.
[59] The RTBU has primarily relied on the following evidence to establish that s.424(1)(c) is enlivened in this case:
[62] Mr Angelos gave evidence, that was not significantly undermined in cross-examination, that he did not become aware of the alleged incident on 26 July 2023 until he reviewed the RTBU's evidence in this matter. Mr Angelos gave evidence that he has not been contacted by Sydney Trains or ARTC in relation to the incident on 26 July 2023 and that his investigation indicated nothing unsafe occurred. I have no evidence of the ONRSR, Sydney Trains or ARTC formally raising any concerns about this incident, although I acknowledge the evidence of Mr Priestly.
[63] I cannot be satisfied on the evidence before me that the indefinite strike is threatening, or would threaten, to endanger the safety or welfare of the train travelling public in New South Wales. The evidence provided by the RTBU has not demonstrated that either of the incidents relied upon by the RTBU constitute breaches of safety that could enliven the operation of s.424(1).
[65] For these reasons, I am not satisfied that I must make an order suspending or terminating the RTBU's indefinite strike and I dismiss the RTBU's application.
[66] Despite arriving at this conclusion, it is clear that the RTBU has genuine concerns about the safety of some actions that have occurred since the industrial action commenced. It would be expected that the raising of these issues will have at the very least prompted Qube to review what has occurred and to ensure adequate protocols are in place to ensure all safety procedures and rules are fully complied with in the future, despite the impact of the industrial action.
[67] Given I do not need to assess whether it is appropriate to suspend or rather terminate the protected industrial action, it is not strictly necessary for me to comment on the state of bargaining. However, I intend to do so.
[68] The events following the conference I conducted on 26 June 2023 are extremely disappointing. The RTBU and Qube reached an in principle agreement during this conference which was recorded in writing by the Commission. The parties were provided with this document and agreed to its terms before the conference concluded. The RTBU provided an undertaking around not taking industrial action as part of the agreement. There is no doubt Qube's representatives were provided with an unsealed version of the RTBU's Federal Court claim during the conference and provided with an opportunity to review the document before the in principle agreement was finalised.
[70] Despite my comments above, I accept Qube is faced with having to try and deal with an underpayment claim concerning the interpretation of existing and predecessor terms while also negotiating a new agreement and that the outcome of the Federal Court claim could result in significant financial costs for its business.
[71] Further, I consider the proposals offered by Qube to the RTBU on 12 July 2023 were productive and may provide a conceptual framework for the resolution of this bargaining dispute. That may particularly be the case if some further movement can be achieved.
[72] Qube's s.240 bargaining dispute notification is still before me. I intend to list a conference for this matter in Sydney at 11am on 4 August 2023. I encourage Qube and the RTBU to reflect on their bargaining positions and conduct the necessary consultations to enable a meaningful and productive conference to occur.
[1] Attachment KP5 to Mr Pryor's statement - Exhibit A1.
[2] [2023] FWC 1417 and PR763117.
[4] Attachment KP1 to Mr Pryor's statement - Exhibit A1.
[5] Attachment KP6 to Mr Pryor's statement - Exhibit A1.
[6] Attachment KP7 to Mr Pryor's statement - Exhibit A1.
[7] Mr Pryor's statement at [41] - Exhibit A1.
[9] Attachment KP8 to Mr Pryor's statement - Exhibit A1.
[10] Mr Pryor's statement at [46] - Exhibit A1.
[11] Attachment KP10 to Mr Pryor's statement - Exhibit A1.
[14] Attachment KP3 to Mr Pryor's statement.
[15] Attachment KP4 to Mr Pryor's statement.
[17] Qube outline of submissions at [13].
[18] RTBU outline of submissions at [33].
[19] Coal and Allied v Australian Industrial Relations Commission [2000] HCA 47, 203 CLR 194 at [20].
[20] Ambulance Victoria v Liquor, Hospitality and Miscellaneous Union [2009] FWA 44, 187 IR 119 at [32]- [33].
[21] (1998) 80 IR 14 at 32.
[22] RTBU outline of submissions at [40].
[23] Attachments SH1 to SH5 of Mr Hudd's statement.
[24] Coal and Allied Operations v CFMEU (1998) 80 IR 14 at 32.
[25] Ambulance Victoria v Liquor, Hospitality and Miscellaneous Union [2009] FWA 44, 187 IR 119 at [29].
[26] Attachment KP4 to Mr Pryor's statement.
Printed by authority of the Commonwealth Government Printer
Australian Rail, Tram and Bus Industry Union
Qube Logistics
(1992) 34 FCR 564
(1991) 28 FCR 134
(2012) 202 FCR 200
(1998) 80 IR 14