[2015] FWC 6282
The attached document replaces the document previously issued with the above code on 9
September 2015.
Endnote twenty-four has been corrected.
Associate to Commissioner Lee
Dated 17 September 2015.
1
Fair Work Act 2009
s.424—Industrial action
KDR Victoria Pty Ltd T/A Yarra Trams
(B2015/1224)
COMMISSIONER LEE MELBOURNE, 9 SEPTEMBER 2015
Application to terminate or suspend protected industrial action.
[1] On 24 August 2015 KDR Victoria Pty. Ltd. trading as Yarra Trams (the applicant)
made an application pursuant to s.424 of the Fair Work Act 2009 (the Act) for an order to
terminate protected industrial action that was being taken by the Australian Rail, Tram and
Bus Industry Union (ARTBIU) and its members. Subsection 424(3) requires that the FWC as
far as practicable, determine such an application within 5 days after it is made.
[2] The application was listed for hearing before me on the 25 August at 2.30pm.
Permission to appear for counsel for both sides was granted on the basis that the matter was
complex and would be more efficient. Witness evidence was provided and submissions were
made in relation to the industrial action and its impact. Submissions were also made as to the
approach the Fair Work Commission (the Commission) should take in applying s.424.
[3] At the conclusion of the proceedings in this matter, and after a brief adjournment I
provided a decision to the parties. That decision was as follows:
“I have considered all the evidence that has been put in the proceedings and I am in a
position to announce my decision in this matter.
KDR Victoria Pty Ltd T/A Yarra Trams (Yarra Trams) has made an application
pursuant to section 424 of the Fair Work Act (2009) for an order terminating protected
industrial action which has been notified by the Australian Rail, Tram and Bus
Industry Union (ARTBIU).
The basis of the application is that the action in paragraph 6 of the application:
“A 4 hour stoppage of all work commencing at 10AM on Thursday, 27 August 2015
and finishing at 2PM on Thursday, 27 August 2015, for the holding of a stop work
meeting about enterprise agreement negotiations. The employees intending to engage
in the action would all be employees who are members of the RTBU and whose
employment will be subject to the proposed agreement, but will exclude all employees
who are employed as authorised officers or depot starters”
[2015] FWC 6282
REASONS FOR DECISION
AUSTRALIA FairWork Commission
[2015] FWC 6282
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“…is threatening to endanger the personal safety or health or the welfare of a part of
the population of Melbourne who rely on public transport generally and tram services
in particular.”
The application has been opposed by the ARTBIU. The ARTBIU also submitted that
if the requirements of section 424 of the Act were met, the appropriate course would
be to suspend rather than terminate the protected industrial action.
I have considered all of the material that has been put in the proceedings, including the
witness evidence and the submissions that have been made, including as to the correct
approach I should take in applying section 424 of the Act.
While the industrial action will undoubtedly have an effect on the travelling public, I
am not satisfied that the protected industrial action by the ARTBIU has threatened, is
threatening or would threaten to endanger the personal safety or health or the welfare
of a part of the population within the meaning of this section of the Act.
As I am not satisfied as to the matters in section 424(1)(c), there is no basis to
terminate nor suspend the protected industrial action.
Accordingly, this application is dismissed, and an orderi to that effect will be issued
with this decision.
I will publish further written reasons for the decision as soon as practicable.
I urge the parties to continue negotiations with vigour in order that the dispute may
ultimately be settled by way of a concluded agreement. The Fair Work Commission
remains available to the parties to assist in that regard.”
[4] I now provide the reasons for the decision that was made.
[5] The application seeks an order to terminate protected industrial action by the ARTBIU
and its members which is threatened impending or probable. The ARTBIU and its members
were already at the time of the hearing engaging in a range of industrial action but that action
did not give rise to a concern of the type contemplated in s.424. The action that was of
concern to the applicant and gave rise to this application was described in paragraph 6 of the
Form 37, which was derived from a letter to the applicant from the ARTBIU on the 13 August
2015. That action is as follows:
“A 4 hour stoppage of all work commencing at 10AM on Thursday, 27 August 2015 and
finishing at 2PM on Thursday, 27 August 2015, for the holding of a stop work meeting
about enterprise agreement negotiations. The employees intending to engage in the
action would all be employees who are members of the RTBU and whose employment
will be subject to the proposed agreement, but will exclude all employees who are
employed as authorised officers or depot starters”
[6] The applicant submitted it is that action, of which they have been notified, that is
threatening to endanger the personal safety or health or the welfare of a part of the population
of Melbourne who rely on public transport generally and tram services in particular. However
[2015] FWC 6282
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it is clear that the focus of the application was on the threat to the welfare of a part of the
population.
[7] The applicant, Yarra Trams is the employer who will be covered by the enterprise
agreement and is a bargaining representative for the agreement. The ARTBIU opposed the
application.
The submissions and evidence
Background
[8] Yarra Trams submitted that their service provides an integral part of the Melbourne
Trams System and that for many using the service during the stoppage it is the only transport
option that they have.
[9] The applicant submits that the proposed stoppage threatens or would threaten to
endanger the personal safety, health or welfare of that part of the population of Melbourne
who rely on trams to attend medical appointments and/or other appointments such as carer
appointments that cannot, or cannot easily, be rescheduled. Further, that the logistics
associated with the stoppages mean that the impact of them will not be confined to the hours
of 10am to 2pm and will spill over into general road use.
[10] Mr Edmiston the Manager of Operational Planning gave evidence as to the size of the
Yarra Trams operation, the number of tram stops being 1763 and that there are 24 tram routes
and eight tram depots including a CBD “tram hub.”
Ceasing and resuming normal services
[11] Mr Edmiston gave evidence related to the process of ceasing and resuming normal
services in the event of a four hour stoppage from 10am to 2pm. His evidence was that it was
anticipated that Yarra Trams would run a full service until about 9am after which the
frequency of trams would decrease and trams may begin to return to depots. He confirmed
during the hearing that the decision to implement this practice of what I will describe as
“early cessation” had in fact been made and would be implemented.ii The decision to do so
flowed from concerns that people would be left stranded. Mr Lettoof, Manager of the
Essendon lines gave evidence that for the Essendon lines this practice may result in some
trams being cancelled from 9.30 am onwards.
[12] Mr Edmiston also gave evidence that it would take some time after 2pm to have the
trams leave their respective depots and re-enter the system as there will be much more traffic
on the road than in the early hours of the day which is the time trams normally leave en masse
from the depots. He estimated that there would be approximately 40-50 trams departing each
depot. The number of trams required to leave each depot, combined with the time of the day
and the absence of traffic lights at a number of the depots, will combine to cause disruptions
to traffic for up to an hour. Also, these factors will result in there being a significant impact on
the system between 2pm and 4pm and that it would not be until 4 or 5 pm that trams would be
running to schedule. I note this was not consistent with the evidence of Mr Lettoof who
thought that Essendon services would return to normal by 3pm. Mr Altieri gave evidence that
the traffic officers, depot starters, and traffic officer drivers who are empowered to stop and
direct traffic will assist in managing disruption caused by trams exiting depots and that steps
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had been taken by way of Vic Roads making alterations to traffic light cycles to facilitate the
flow of trams.
Patronage of trams
[13] Mr Edmiston provided statistical evidence on the patronage levels of trams during
particular time periods of the day. The summation of that evidence is that it can be concluded
that 22.7% of weekday patronage occurs between the hours of 10am and 2pm; 34.7% between
9am and 3pm and 44.7% between 9am and 4pm. It followed that if it is accepted that the
disruption to service will in effect be from 9am to 4pm that 44.7% or in raw numbers 230 000
people who would normally travel would be affected.
[14] It was submitted by the union that this extrapolation did not take into account that
these numbers were based on an ordinary day of travel and did not account for the fact that
this was a highly unusual situation involving strike action which would lead to people making
alternative arrangements.iii
[15] The age and profile of patrons was referred to. An attachment to the statement of Mr
Edmiston provided evidence by way of a customer survey that approximately 7% of patrons
are 60-69 years of age; approximately 2% of patrons are 70 or older and 42% of patrons have
special mobility needs. Mr Edmiston gave evidence that these people would tend to have less
transport options than the general populace. Mr Edmiston also suggested that it was possible
that concession card holders that use the tram network would have fewer transport options
than the general populace. However, on cross examination Mr Edmiston conceded that there
were numerous alternative modes of transport that were available and that passengers could
conceivably make alternative arrangements. Mr Edmiston also conceded that he had no idea
who might be affected at all.iv Mr Edmiston also gave evidence about accessible stops for
passengers of limited mobility and some passengers having to disembark at non accessible
stops meaning they will not be able to disembark safely. However, this concern was alleviated
given the decision of Yarra Trams to implement early cessation.
Transport to hospital and other health facilities by tram
[16] Evidence was given that The Epworth, Royal Melbourne, Royal Childrens and Alfred
hospitals are serviced by trams and that each of these provides various clinical services. A
map attached to the statement of Mr Edmiston was provided that showed hospitals within 400
metres of the tram network. v Mr Edmiston gave evidence about the cohort of people attending
hospitals including older people who may not be able or feel able to drive; that “many”
treatments at hospitals result in the patient being unable to drive after the procedure and that it
can be difficult and expensive to park in public hospitals. On cross examination he admitted
the basis of this evidence was his personal experience with going to a hospital.vi Mr Edmiston
makes the claim that these hospitals are not easily accessed by other means of public transport
pointing out the significant distance of train stations from Royal Melbourne, the Royal
Childrens Hospital and the Alfred hospital.
Transport for school children
[17] It is not disputed that a number of students and teachers use trams to get to schools. A
map was provided showing schools within 400 metres of the tram network. vii Yarra Trams
run a number of school extra tram services. As the extra trams are normally rolled out at
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2.45pm Mr Edmiston submits that as a result of the problems referred to above under the
heading of ceasing and resuming normal tram services, that the ability to roll out those trams
“on time or at all” will be significantly compromised. Mr Lettoof said the stoppages would
affect school children as it would take “some hours” to return the system to normal. I note this
was inconsistent with his evidence that the system in Essendon would return to normal by
3pm which is one hour rather than “some hours”. I note that Mr Edmiston was aware that
some schools had made arrangements to organise their own buses.viii
Concerns about Shunting of trams
[18] Mr Cushion gave evidence about the risk that the uncontrolled and unsupervised
shunting of trams may result in a collision between trams and that a number of shunt areas
cannot be used safely or only used safely in certain circumstances for various reasons.ix Mr
Cushion also expressed concern about the proposal that trams that have already departed their
respective depots being shunted back to the depot using the first available shunt after 10 am
means that passengers on those trams may be left “stranded”. However, it became clear
during the proceedings that the mitigation strategy of early cessation implemented by Yarra
trams meant that both of these concerns were no longer an issue.x
Mitigation
[19] Mr Edmiston gave evidence as to the mitigation strategies Metro has implemented. As
mentioned earlier, one of these is early cessation. Another is the hiring of replacement buses.
His evidence in chief was that at most there are approximately 200 buses available on Friday
21 August. There were questions raised in cross examination as to the number of replacement
buses available. Mr Edmiston made particular note by reference to a further map attached to
his statement of the high tram usage associated with servicing the Deakin University Campus
in Burwood and the RMIT and Latrobe University Campuses in Bundoora as these campuses
are not serviced by the train networkxi.
[20] Mr Edmiston also gave evidence about the significant number of buses required to
replace the tram service on a one to one basis.xii Depending on the hour, the numbers of buses
required ranged from 440 at 10am to 464 at 2pm. Higher numbers would be required if
matching one to one after 2pm though of course trams will be re- entering the system at that
time. However, the use of and proposed deployment of replacement buses was outlined by Mr
Edmiston as follows: “we have taken a view that with the trains running and with the normal
bus network around Melbourne that we can allocate the resources through certain trunk routes
and create a service offering so that people can still move around Melbourne”xiii. Mr Edmiston
was clear that it is not possible to replicate where the trams go on a number of routes.xiv
[21] There seemed to have been little in the way of communication to the public as to the
impending and likely industrial action. Mr Altieri gave evidence that while the union had
made a public statement about the action, Yarra Trams had made no public statement. Mr
Edmiston gave evidence that the company’s reluctance to communicate the likelihood of the
action was motivated by a desire not to confuse customers should the strike not actually take
place and they had to retract the statements. I also note that the initial action taken by the
company to advise of the industrial action was, on the evidence of Mr Edmiston, stopped on
advise by the state government.xv I note that the company posted information on the website
that the action was likely to occur prior to the conclusion of proceedings before me and
evidence to that effect was tendered late in the proceedings.
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[22] Ms Kazakof gave evidence about various means of alternative transport that could be
used to access the various hospitals referred to in the evidence of Mr Edmiston she conceded
on cross examination that it was possible that some people who had little difficulty attending
a hospital on a tram might not be able to use the alternative transport referred to.xvi
Comparisons with earlier train and tram strikes in Melbourne
[23] Mr Lettoof gave evidence about train and tram stoppages in the 1980’s and 1990’s. At
the time Mr Lettoof was employed by the PTC. In his statement he made a general reference
to transport stoppages from that time causing many problems and he being personally caught
in traffic congestion. xvii Mr Lettoof went on to claim that the stoppage on 27 August will
cause the same impact on the Victorian public as did the “transport stoppages” he recalled.
Ultimately, Mr Letoof’s evidence was that the tram stoppages of that era caused general
disruption and inconvenience to the people of Melbourne arising from the traffic congestion
during those stoppages.
The Legislation
[24] S.424 of the Act is as follows:
“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:
(a) is being engaged in; or
(b) is threatened, impending or probable;
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.
(2) The FWC may make the order:
(a) on its own initiative; or
(b) on application by any of the following:
(i) a bargaining representative for the agreement;
(ii) the Minister;
(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;
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(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;
(iii) a person prescribed by the regulations.
Application must be determined within 5 days
(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.
Interim orders
(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”
[25] The parties referred me to essentially the same authorities in considering the approach
to take in this matter, though as Mr O’Grady submitted, perhaps to different effect.
[26] The FWC must make an order under s.424(1) to either suspend or terminate the action
that is being engaged in, or is threatened impending or probable if satisfied that it has
threatened, is threatening or would threaten to endanger the personal safety or health, or the
welfare, of part of the population.
[27] The explanatory memorandum states that it is not intended that these mechanisms be
capable of being triggered where the industrial action is merely causing an inconvenience.
Nor is it intended that these mechanisms be used generally to prevent legitimate protected
industrial action in the course of bargaining. However, there should not be other criteria or
tests substituted for those found in s.424(1).xviii
[28] There must be an appropriate evidential basis to found the satisfaction of the matters in
s.424(1).xix In considering the welfare of the population, there needs to be a basis upon which
it is reasonable to conclude, on an assessment of matters of fact and degree that the collective
welfare is in peril or danger.xx
[29] The meaning of the terms in s.424(1) have been considered in previous decisions of
the Commission and its predecessors particularly the references to “welfare” and the concept
of endangerment.xxi These are commonly used words and expressions which are widely
understood in the community and which should be given their ordinary meaning.xxii
[30] A consideration of the actions open to an employer to mitigate the impact on notified
protected action can properly be taken into account when assessing the likely impact of that
action.xxiii
[31] The decision to terminate or not to terminate must be made on a case by case basis
depending on the facts peculiar to the case.xxiv
[32] I will apply these principles as relevant in making my decision.
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Consideration
[33] It is clear and not a particularly remarkable observation that Yarra Trams are an
important part of the Melbourne public transport system. The tram routes cover a significant
area of metropolitan Melbourne. Therefore, when the trams are not running, this will clearly
have an impact on the ability of people to move about the city.
[34] Further, while the stoppage is scheduled to take place between 10am and 2pm, it is
likely that when combined with the mitigation strategy of early cessation implemented by
Yarra Trams and the fact that it will take some time to get a large number of trams out of the
depots and onto the roads from 2pm, that the tram service will be affected for a longer period
than just 10am to 2pm. How much longer is less clear. From 9.30am to 3pm is the evidence of
Mr Lettoof when considering the Essendon service. However, Mr Edmiston gave evidence
that suggested the disruption to normal services would extend from 9am until 4 or 5pm. In
any case, it is clear that it is only the period between 10am and 2pm that there will be no
trams running at all. The period from 9am or 9.30am to 10am and from 2pm to 4 or 5pm there
will be disruptions to the service as the trams wind down and wind back up into service.
[35] It is also clear that 22.7% of average patrons of the service will not be able to travel on
a tram at all between 10am and 2pm and this will have an impact on that group. Those who
would normally travel between 9am and 10am and between 2pm and 5pm are more likely to
suffer an impact in terms of likely delays in the service rather than an inability to use the
service at all.
[36] There was some time spent during the hearing considering the risks associated with
shunting large number of trams within a short time frame as well as the possibility that
passengers would be forced to disembark trams at stops other than their planned destination,
or in other words be left stranded, in order for the tram to return to the depot in time to
comply with the 10am stoppage. However the concession was rightly made by Mr. O’Grady
that the mitigation strategy implemented of early cessation will remove both of these risks.xxv
[37] The mitigation strategy of Yarra Trams by way of replacement buses was extensive.
While there was some contention as to whether additional buses could have been added, there
is no doubt that those buses that were to be deployed would be done so in a manner that
would best allow people to move around Melbourne accounting for the loss of tram services.
The efforts to mitigate the action by Yarra Trams are to be applauded. However, I am
concerned that more could have been done. In particular, other bus operators could have been
approached as there was no contractual barrier to doing so. Also, earlier and more strenuous
efforts should have been made by the company to communicate the fact of the action.
[38] I note that there were references to the stoppages in the 80’s and 90’s by Mr Lettoof
these references were vague and of little utility.
[39] This leaves a consideration as to the evidence going to the impact of the stoppage on
the ability of Yarra Trams patrons, including the entire demographic of travellers, young and
old, concession card holders, students and the mobility impaired to attend medical or other
appointments that cannot or cannot easily be rescheduled. On this point, the applicant submits
that I can conclude that there will be significant numbers of people who will not be able to
attend an appointment. The evidence supporting this proposition was not at all strong. For
example, the evidence related to the claimed inability to attend medical appointments was
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based largely on the personal experience of a transport executive, Mr Edmiston and his
attendance at a hospital 3 or 4 times. I have considered the “weight of the numbers” argument
put forward by Mr O’Grady for the applicant. However, while it is clear enough that
passengers will not be able to attend appointments by tram for a number of hours during the
day, it was not clear to me that they would not be able to attend to those appointments at all
utilising either the array of transport options that already exist or will be put in place through
the provision of additional bus services.
[40] In summary, the evidence in this case supports a finding that there will be disruptions
to the tram service and there will be inconvenience to members of the travelling public. The
evidence is also to the effect that there will be a range of options for passengers to make
alternative arrangements for travel using combinations of replacement buses, trains and other
modes of transport. This will not be as convenient to the passenger if a tram was their
preferred mode of travel. However it is not a sufficient basis to establish that the collective
welfare is in danger or peril. I am urged by Mr O’Grady that I can be confident to infer from
the weight of the numbers that there will be significant numbers of people who will have their
welfare impacted upon.xxvi I consider this to be a tenuous basis to make a finding that the
circumstances in s.424(1) exist and would amount to doing so on the basis of a generalised
prediction as to the likely consequences of the industrial action. To do so would be
inconsistent with the authorities cited.
[41] It is for these reasons that the application was dismissed.
COMMISSIONER
Appearances:
C O’Grady of Counsel representing the Applicant
M Harding of Counsel representing the Respondent.
Hearing details:
2015
Melbourne:
August 25.
Printed by authority of the Commonwealth Government Printer
Price code C, PR571758
OF THE FA WORK COMMISSION THE SEA
[2015] FWC 6282
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i PR571260.
ii Transcript at PN 397.
iii Transcript at PN 836.
iv Transcript at PN 304-317.
v Exhibit O1, Annexure JE7.
vi Transcript at PN 409.
vii Exhibit O1, Annexure JE8.
viii Transcript at PN 344.
ix Exhibit O4 at [7]-[11].
x Transcript PN 722-733.
xi Exhibit O2, Annexure JE12.
xii Exhibit O2, Annexure JE13.
xiii Transcript at PN 219.
xiv Transcript at PN 220.
xv Transcript at PN 293.
xvi Transcript at PN 600.
xvii Exhibit O3 at [9]-[10].
xviii National Tertiary Education Industry Union V Monash University [2013] FWCFB5982.
xix Victorian Hospitals’ Industrial Association v Australian Nursing Federation [2011] FWAFB 8165, at 49.
xx Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; 99 IR 309 at 6.5.
xxi For example, in relation to “welfare of the population”: see Coal & Allied Operations Pty Ltd v Construction, Forestry,
Mining and Energy Union (1998) 80 IR 14, Victoria v Health Services Union of Australia (1995) 37 AILR 3-091; in relation
to “endanger”: see Metropolitan Ambulance Service v Liquor, Hospitality and Miscellaneous Union (unreported, AIRC,
Kaufamn SDP, PR950276, 30 July 2004), St John Ambulance Australia (NT) Inc v United Voice (2011)212 IR 258, Tyco
Australia Pty Ltd (t/a Wormold) v Communication, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied
Services Union (2011) 208 IR 243.
xxii Victorian Hospitals’ Industrial Association v Australian Nursing Federation [2011] FWAFB 8165, at 51.
xxiii Ausgrid; Endeavour Energy; Minister for Industrial Relations (New South Wales) v Communications, Electrical,
Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; Australian Municipal,
Administrative, Clerical and Services Union; Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union
known as the Australian Manufacturing Workers' Union [2015]FWC 1600.
xxiv Transport Workers Union of Australia v Transport Management Group Pty Ltd t/as Southern Coast Transit PR940030
(Acton SDP, Lacy SDP, Hingley C) at 19.
xxv Transcript at PN 722-732.
xxvi Transcript at PN 740.
