1
[2013] FWCFB 2165
DECISION
Fair Work Act 2009
s.604—Appeal of decision
Australian Rail, Tram and Bus Industry Union
v
Queensland Rail Limited
(C2013/2963)
JUSTICE BOULTON, SENIOR DEPUTY PRESIDENT
DEPUTY PRESIDENT BOOTH
COMMISSIONER SPENCER
SYDNEY, 17 APRIL 2013
S.604 Appeal against decision - appeal against industrial action order - meaning of industrial
action - permission to appeal - utility of appeal - permission not granted.
[1] This is an application for permission to appeal by the Australian Rail, Tram and Bus
Industry Union (the Union) pursuant to s.604 of the Fair Work Act 2009 (the Act) against the
decision and order of Commissioner Asbury.1
[2] The decision concerned an application by Queensland Rail Limited (Queensland Rail)
under s.418 of the Act for an order that industrial action cease following a train collision that
occurred at Cleveland Station in Brisbane on Thursday 31 January 2013.
[3] On 1 February 2013, the Commissioner heard evidence and submissions from both
parties and decided that unprotected industrial action, organised by the Union, was taking
place and it was probable that the action would continue. Accordingly the Commissioner
made the order that the unprotected industrial action stop.2
[4] In the appeal proceedings on 28 March 2013, the Union was represented by Mr J.
Merrell of Counsel and the Company was represented by Mr J. Murdoch SC.
[5] At the conclusion of the hearing of submissions on permission to appeal, the following
decision was given by the Full Bench:
“We have considered what has been put by the parties in relation to permission to
appeal and we are in a position to announce our decision now. We note that the matter
dealt with in the decision and order of the Commissioner which is sought to be
appealed against arose as a result of a particular incident which occurred at Cleveland
Railway Station on 31 January 2013. The application before the Commissioner for an
order under s.418 of the Act was called on and dealt with by the Commissioner on 1
1 [2013] FWC 795 and see Order PR533732.
2 See Order PR533732.
AUSTRALIA FAIR WORK COMMISSION
[2013] FWCFB 2165
2
February 2013. The decision and orders made by the Commissioner were made on the
basis of the available evidence and submissions put by the parties in the proceedings.
The orders made by the Commissioner apply for a limited period and will expire on 29
March. We have been advised that the orders have been complied with by the Union
and its members and there are no issues concerning enforcement proceedings or
disciplinary action arising from the orders. We note that the appeal was lodged by the
Union on 5 February 2013 and was assigned to be dealt with under the regular roster
arrangements within the Commission for dealing with appeals. The appeal was listed
for today. No application was made by the Union for a stay of the decision or order
and/or for an expedited hearing of the appeal. At the outset of the proceedings today
we asked counsel for the Union and Queensland Rail to address us as to the issue of
permission to appeal and in particular as to the utility of the appeal, given the matters
that we have outlined.
We have considered these submissions and have decided not to grant permission to
appeal in this matter. Given that the order made by the Commissioner will expire
tomorrow and having regard to the circumstances of the appeal that we have referred
to, we do not consider that there is any utility in the determination of the appeal.
Further, we are not satisfied that there is any public interest consideration such that
permission to appeal should be granted. We would also add that we are not persuaded
on the basis of what has been put in the appeal, and as raised with counsel in the
proceedings this morning, that it has been demonstrated that there is an arguable case
of appealable error in relation to the approach or determination by the Commissioner
of the matter which was before her.
We note that there are continuing investigations into the incident at Cleveland Station
and that a working party has been established by Queensland Rail to consider issues
relating to that incident and the safe operation of relevant train units. The Union is
represented on that working party. We would urge the parties to work constructively
together to develop appropriate responses to any issues arising from the relevant
investigations and reports.”
SENIOR DEPUTY PRESIDENT
Appearances:
[2013] FWCFB 2165
3
J Merrell of Counsel for the Australian Rail, Tram and Bus Industry Union.
J Murdoch of Counsel for Queensland Rail Limited.
Hearing details:
2013.
Brisbane, March 28.
Printed by authority of the Commonwealth Government Printer
Price code C, PR535539
