[2013] FWC 795

Fair Work Act 2009

s.418 - Industrial action

Australian Rail, Tram and Bus Industry Union; Australian Federated Union of Locomotive Employees

Alleged industrial action at Queensland Rail Limited.

[1] The following Decision, now edited, was issued during proceedings on 1 February 2013.

[2] This is an application by Queensland Rail Limited under s.418 of the Fair Work Act 2009 (the Act) for an order to be directed to the Australian Rail, Tram and Bus Industry Union and employees of QR who are engaged in work covered by the QR Passenger Pty Ltd Train Crew Union Collective Workplace Agreement 2009. That agreement is within its period of operation.

[3] The background to the matter is that there was an incident involving a train collision at Cleveland Station on Thursday, 31 January at 9.40 am. The train involved in the incident is a two-train unit comprising units known as class 160 units. Class 160 units and class 260 units have the same braking system.

[4] On 1 February 2013 the state secretary of the RTBU issued a newsletter to train crew asserting that the incident at Cleveland was the result of a catastrophic brake failure. The newsletter also stated that information had been sought by the union from high level QR managers. Members' concerns about a clear and imminent risk to their safety through the operation of 160 and 260 class units are reasonable and that a direction by QR management to employees to work around those units is both an unlawful and unreasonable direction that would breach QR's obligation to provide a safe system of work.

[5] There was also evidence before the commission of a text message advising train crew that they are to take class 160 and 260 units out of traffic at Bald Hills or Roma Street and detrain passengers and that those text messages are being disseminated to employees covered by the agreement by or at the behest of the RTBU.

[6] QR has placed uncontested evidence before the Commission that there are 64 such units and that the action by RTBU members will result in QR being left with only two-thirds of its train fleet available for allocation. This will cause significant disruption to the travelling public, particularly starting in the next a.m. peak period on Monday, 4 February.

[7] It is not in dispute that if the action is industrial action as defined in s.19 of the Act, it would not be protected industrial action and would be within the provisions in s.418(a) of the Act, in that it is happening or is threatened, impending, or probable, or is being organised. The RTBU asserts that the action is not industrial action because it is based on a reasonable concern on the part of employees about an imminent risk to their health and safety. That risk is said to be apparent from the fact that the incident at Cleveland occurred in circumstances where the weather conditions that existed earlier in the week were not in existence.

[8] QR has placed evidence before the commission that its senior management met with the state secretary of the RTBU on 1 February 2013 and provided a range of advice which essentially constituted a declaration from the General Manager, Rollingstock, that the 160 and 260 fleet is fit for traffic, together with supporting reasons. Those supporting reasons included:

• details of the regime of testing that has been and continues to be undertaken on the fleet of those units;

• information that both units involved in the incident at Cleveland had been tested very recently, both in January 2013 (albeit it has emerged that one of the units was tested in December 2012);

• that the tests included tests on the braking systems;

• that no braking faults were reported post-January inspections; and

• that there have been reviews of the history of brake failures, and no brake failures have occurred for either of the units involved since delivery to Queensland Rail.

[9] There were also comments to the effect that no brake failures have occurred on the 160 or 260 fleet since delivery to Queensland Rail, and that those units are maintained to Australian Standards and original equipment manufacturer's specifications, and that all are up to date.

[10] Counsel for the RTBU cross-examined QR witnesses about a number of incidents occurring early in the week commencing on Monday, 26 January 2013 involving trains overshooting stations; a situation where the brakes in a unit lost air; and a brake computer fault. Mr Coleman's evidence established that the majority of those incidents could be explained by weather conditions existing at the time. The evidence did not establish anything that could be termed a brake failure, much less one that could be described as catastrophic.

[11] The union called no direct evidence about these incidents. The source of the assertion that the incident at Cleveland was caused by a catastrophic brake failure is not in evidence. What is in evidence is that there has been no finding about the cause of that incident and that a series of investigations are ongoing.

[12] On the basis of the evidence before me, I am not satisfied that on an objective assessment of the concern outlined in the case for the RTBU that the concern is reasonable. I am of the view that an ordinary person in the position of the employees involved in this action would not form the view that there is an imminent risk of catastrophic brake failure associated with the operation of the class 160 and 260 units.

[13] The previous instances identified by the RTBU in the cross-examination of QR's witnesses do not support the contentions of the Union about the risk and its nature or the risk that is asserted to support the argument that this is not industrial action within the meaning in s.19 of the Act.

[14] Accordingly, I am of the view that the action taken by the RTBU and its members is industrial action within the meaning in s.19 of the Act and that it is not protected industrial action. Accordingly, on the basis that there is unprotected industrial action happening and that it is probable that the action will continue and that it is being organised by the RTBU, I must make an order under section 418 and I intend to do so.

[15] After hearing from the parties in relation to the terms of the Order, it was reduced to writing and given to the parties, including State officials of the RTBU, at the conclusion of the hearing.

Mr J. Murdoch on Counsel on behalf of Queensland Rail Limited.

Mr J. Merrell of Counsel on behalf of the Australian Rail, Tram and Bus Industry Union, Queensland Branch.

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