Australian Rail, Tram and Bus Industry Union of Employees v Aurizon Operations Limited [2021] QIRC 341

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Australian Rail, Tram and Bus Industry Union of Employees v Aurizon Operations Limited [2021] QIRC 341 PARTIES: Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch (Applicant) v Aurizon Operations Limited (Respondent) CASE NO: WHS/2020/154 PROCEEDING: Work Health and Safety Dispute DELIVERED ON: 5 October 2021 MEMBER: HEARD AT: O'Connor VP On the papers ORDER: 1. Application to remit the dispute to arbitration is dismissed. CATCHWORDS: INDUSTRIAL LAW - WORK HEALTH AND SAFETY - where notice of dispute filed pursuant to s 102B of the Work Health and Safety Act 2011 (Qld) - where matter not settled in conference - whether matter should be referred to arbitration - whether commission should use its discretion to decide not to deal with a dispute - whether the subject of dispute is frivolous, vexatious, misconceived or lacking in substance - where dispute not referred to arbitration. -- 1 of 17 -- 2 LEGISLATION: CASES: Work Health and Safety Act 2011 (Qld), s 18, s 19, s 81, s 102B, s 102C, s 102E, s 274 Work Health and Safety Regulation 2011 (Qld), s 35, s 36 Australian Rail, Tram and Bus Industry Union of Employees v Aurizon Operations Ltd [2021] QIRC 263 General Steel Industries Inc. v Commissioner for Railways (NSW) [1964] 112 CLR 125 Sydney Trains v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2021] FWCFB 3089 Reasons for Decision [1] On 11 November 2020 the Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch (ARTBU) filed in the Queensland Industrial Relations Commission (the Commission) a Notice of dispute under s 102B of the Work Health and Safety Act 2011 (Qld) (WHS Act) with Aurizon Operations Limited, Depot Hill, Queensland (Aurizon). The ARTBU together with the Australian Municipal, Administrative, Clerical and Services Union (AMACSU), as an interested party, are seeking the issuing of a certificate for arbitration. [2] Details of the dispute are as follows: 1. Aurizon intends to reduce the number of rail control boards from 11 to 8. 2. Aurizon have planned on removing the Mackay and Gladstone control boards and combining them with the existing boards at the Rockhampton Rail Control Centre. 3. This action will increase the workload levels on existing Train Controllers located at the Rockhampton Rail Control Centre. 4. Therefore, the propensity for Aurizon workers and others to encounter high risk situations will occur more often, due to the increased workloads on the remaining Train Controllers. 5. Aurizon has a primary duty under the Work Health and Safety Act 2011 (Qld) to eliminate risks and hazards in the workplace. 6. If Aurizon is unable to do this, then the PCBU is duty bound to manage the risks so as to minimise a person's possible exposure to risks and hazards in the workplace. 7. Aurizon introducing measures which increase the propensity of risk in the workplace stands in contradiction to their duties under the law as a PCBU. [3] Sections 102B and 102C of the WHS Act provide: -- 2 of 17 -- 3 102B Notice of dispute may be given to commission (1) This section applies if a dispute remains unresolved at least 24 hours after any of the parties to the dispute has, under another provision of this part, asked the regulator to appoint an inspector to assist in resolving the dispute. Note - See also section 71 (5), 82 (2) or 89 in relation to a request by a party that the regulator appoint an inspector to assist in resolving the dispute. (2) A party to the dispute may give the industrial registrar written notice of the dispute. (3) The notice must state each of the following matters - (a) the names of the parties to the dispute; (b) the workplace where the dispute exists; (c) the WHS matter the subject of the dispute; (d) whether a decision made by an inspector to exercise, or not to exercise, compliance powers under part 10 to assist in resolving the dispute is subject to review under part 12. (4) On receiving the notice, the industrial registrar must immediately publish it on the QIRC website within the meaning of the Industrial Relations Act 2016. (5) A relevant union for the WHS matter may notify the industrial registrar, in writing, that the union wants to participate in the resolution of the dispute. (6) A relevant union that gives notice under subsection (5) is taken to be a party to the dispute for the purposes of this division. 102C Action for settling dispute (1) This section applies if notice of a dispute has been given under section 102B. (2) The commission may deal with the dispute in any way it thinks fit, including by means of mediation, conciliation or arbitration. (3) Without limiting subsection (2), if the commission deals with the dispute by arbitration, the commission may make any order it considers appropriate for the prompt settlement of the dispute. (4) A person must not contravene an order made under subsection (3). WHS civil penalty provision. Submissions of the ARTBU and AMACSU (the Unions) Background [4] The Unions submitted that Aurizon provide network control services in Central Queensland to customers using their rail network. [5] The management of safe human, motor vehicle and locomotive movements on and around the Queensland rail network is managed by Network Controllers (Controllers) who rely upon "control boards" to monitor, in real time, these movements. [6] These control boards display information about the movements and state of different portions of the rail network. They also provide Controllers with the ability to manage -- 3 of 17 -- 4 rail traffic and other movements to facilitate rail operators, operators of trains and scheduling of trains to move their goods from A to B. [7] On 21 January 2020 Aurizon gave notice to the Unions and the workforce that the company would be centralising yard control of the Jilalan and Callemondah yards into the Rockhampton Control Centre where there would be eleven (11) separate control boards. To achieve this centralisation, Aurizon were also seeking to consolidate the new boards and existing boards into eight (8) boards. [8] On 21 February 2020 the ARTBU issued notices of a WHS dispute in respect of the following concerns: a) that Aurizon was seeking to introduce a new work process that will not eliminate or better manage the existing risks in the workplace; and b) that Aurizon would be implementing changes that would increase risk levels in the workplace by increasing the propensity for life threatening safety incidents to occur; and c) that Aurizon had failed to adequately consult with all workers affected by this change. [9] The ARTBU provided the following possible solutions for Aurizon to end the dispute: a) to engage a consultant that is qualified to conduct a report on risk management and workload, so as to identify workload levels that currently exist in Aurizon's current operations; b) to provide details in respect of how they intended to ensure that Network Controllers were adequately competent to carry out the new workings; c) to undertake a risk assessment in respect of their rail network's radio network, with the inclusion of other stakeholders; d) for Aurizon to demonstrate how they have consulted with all affected workers and stakeholders in respect of the changes; e) for Aurizon to provide to the Union and the workforce the Company's change management plan in respect to the examination of risks and hazards arising from the changes; and f) for Aurizon to identify, reduce and manage risks and hazards, in compliance with their duties under the WHS Act, in respect of these proposed changes. [10] The ARTBU met with Aurizon to discuss resolution of the dispute over the course of several months and were unable to reach settlement. The ARTBU filed a complaint on 10 November 2020 with Work Health and Safety Queensland1 seeking assistance and following no contact subsequently filed this dispute in the Commission on 11 November 2020. [11] A conference was held at the Commission on 26 November 2020 and the parties agreed a risk assessment/workload study be undertaken by an external entity. This was undertaken between 8 March 2021 and 21 March 2021 by Siecap and the report was presented to the Unions on 30 May 2021. 1 Complaint about a Work Health and Safety or Electrical Safety Issue under the WHS Act dated 10 November 2020 attached to WHS/2020/154 - Notice of WHS dispute filed 11 November 2020. -- 4 of 17 -- 5 [12] As a consequence of the report, Aurizon amended the total number of boards that would be present following the consolidation process from eleven (11) to nine (9). After examining the data from the workload report, the Unions found that the report established the boards could not be consolidated unless new technologies were implemented to alleviate the current workload issues present in the Rockhampton Control Centre. [13] On 8 June 2021 the ARTBU met with Aurizon to discuss how the findings of the workload study enabled the company to continue with the consolidation of the control boards. The Unions were unable to convince Aurizon that the data demonstrated that increased workload driven by the board consolidation would lead to an increase in the propensity of risk in the workplace and on the rail network. [14] On 23 June 2021 the Unions requested to resume the conference at the Commission. On 6 July 2021 Aurizon informed their workforce they were intending to proceed to consolidate the boards between 23 August 2021 and 28 September 2021. A second conference was held at the Commission on 14 July 2021 at which time the parties were unable to resolve the matter. The Unions subsequently seek for the matter to be referred to arbitration. [15] The ARTBU submits they have complied with the requirements of s 81 of the WHS Act which states: 81 Resolution of health and safety issues. (1) This section applies if a matter about work health and safety arises at a workplace or from the conduct of a business or undertaking and the matter is not resolved after discussion between the parties to the issue. (2) The parties must make reasonable efforts to achieve a timely, final and effective resolution of the issue in accordance with the relevant agreed procedure, or if there is no agreed procedure, the default procedure prescribed under a regulation. (3) A representative of a party to an issue may enter the workplace for the purpose of attending discussions with a view to resolving the issue. [16] As the parties have been unable to achieve a settlement, the Commission is left with two options for the resolution of the dispute, either the matter is arbitrated, or the matter is not referred to arbitration. [17] Section 102E of the WHS Act provides as follows: 102E Decision not to deal with dispute (1) The commission may decide not to deal with a dispute about a WHS matter if - (a) notice of the dispute was not given in accordance with section 102B ; or (b) the commission considers the WHS matter the subject of the dispute is frivolous, vexatious, misconceived or lacking in substance. (2) Subsection (1) does not limit the grounds on which the commission may decide not to deal with the dispute. -- 5 of 17 -- 6 (3) The commission may make a decision under subsection (1) on its own initiative. [18] The ARTBU submit that they have complied with s 102E(1)(a) of the WHS Act. In respect of s 102E(1)(b) they submit that they will be able to demonstrate a prima facie case as to why the dispute is not frivolous, vexatious, misconceived or lacking in substance. [19] In respect of s 102E(2) of the WHS Act, the ARTBU submit the Commission should be cautious in seeking to dismiss the application on another basis. In support of that submission, the ARTBU refers to the General Steel Industries Inc. v Commissioner for Railways (NSW),2 Barwick CJ states: The plaintiff rightly points out that the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion.3 [20] The ARTBU submit that this dispute is of a nature that does not lead to a "definite and certain conclusion". Further, it is submitted that within this jurisdiction there is currently no law specifically relating to the Commission approach to dealing with a dispute or the power to dismiss an application under s 102C of the WHS Act.4 [21] Notwithstanding the submission that the dispute is of a nature that does not lead to a "definite and certain conclusion", the ARTBU is seeking to have this dispute referred to arbitration on the basis that there is a valid question of law to be determined as to whether the Respondent should be barred from proceeding with the implementation of a workplace change that will increase the propensity of risk in Aurizon's rail network. [22] The Unions submit if it is not reasonably practicable to eliminate the risk, then the PCBU must apply the hierarchy of control to minimise those risks. Regulations 35 and 36 of the Work Health and Safety Regulation 2011 (Qld) (WHS Regulations) set out the management of risk and the hierarchy of control measures as follows: 35 Management of risk A duty holder, in managing risks to health and safety, must - (a) eliminate risks to health and safety so far as is reasonably practicable; and (b) if it is not reasonably practicable to eliminate risks to health and safety - minimise those risks so far as is reasonably practicable. 36 Hierarchy of control measures (1) This section applies if it is not reasonably practicable for a duty holder to eliminate risks to health and safety. 2 General Steel Industries Inc. v Commissioner for Railways (NSW) [1964] 112 CLR 125. 3 Ibid [8]. 4 Submissions of the ARTBU and AMACSU filed 19 July 2021, [57]. -- 6 of 17 -- 7 (2) A duty holder, in minimising risks to health and safety must implement risk control measures under this section. (3) The duty holder must minimise risks, so far as is reasonably practicable, by doing one or more of the following - (a) substituting (wholly or partly) the hazard giving rise to the risk with something that gives rise to a lesser risk; (b) isolating the hazard from any person exposed to it; (c) implementing engineering controls. (4) If a risk then remains, the duty holder must minimise the remaining risk, so far as is reasonably practicable, by implementing administrative controls. (5) If a risk then remains, the duty holder must minimise the remaining risk, so far as is reasonably practicable, by ensuring the provision and use of suitable personal protective equipment. [23] The Workplace Health and Safety Queensland, Code of Practice 2021, How to manage work health and safety risks, is an approved code of practice under s 274 of the WHS Act. Clause 4.1 of the Code of Practice states: The hierarchy of control measures . . . You must always aim to eliminate the risk, which is the most effective control. If this is not reasonably practicable you must minimise the risk by working through the other alternatives in the hierarchy. . . . Elimination The most effective control measure involves eliminating the hazard and associated risk. The best way to do this is by, firstly, not introducing the hazard into the workplace. For example, you can eliminate the risk of a fall from height by doing the work at ground level. Eliminating hazards is often cheaper and more practical to achieve at the design or planning stage of a product, process or place used for work. In these early phases, there is greater scope to design out hazards or incorporate risk control measures that are compatible with the original design and functional requirements. For example, not using a noisy machine will be more effective than providing workers with personal hearing protectors. You can also eliminate risks by removing an existing hazard, for example, by removing trip hazards on the floor, disposing of unwanted chemicals, or not working in an isolated or remote area. It may not be reasonably practicable to eliminate a hazard if doing so means that you cannot make the end product or deliver the service. If you cannot eliminate the hazard, then you must minimise as many of the risks associated with the hazard as reasonably practicable. [24] The WHS Act states what qualifies as "reasonably practicable" as follows: -- 7 of 17 -- 8 18. What is reasonably practicable in ensuring health and safety In this Act, reasonably practicable, in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including – (a) the likelihood of the hazard or the risk concerned occurring; and (b) the degree of harm that might result from the hazard or the risk; and (c) what the person concerned knows, or ought reasonably to know, about - (i) the hazard or the risk; and (ii) ways of eliminating or minimising the risk; and (c) the availability and suitability of ways to eliminate or minimise the risk; and (e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk. [25] The substantive reason for the application by the ARTBU is that Aurizon is seeking to introduce a work process that increases the inherent workloads of employees who are responsible for the safe operation of the rail network. They contend that the predicted increase to the workload, without substantial additional safety controls, increases the propensity of risk in the workplace that would not exist under the current safety systems. [26] It is submitted that it has been historically acknowledged that increasing workloads on Controllers creates greater risk.5 [27] The Unions submit the "reasonably practicable" option in managing the risk and hazards in these circumstances is for the Respondent to continue the operation of the existing eleven (11) board system and relies on the FWCFB decision in Sydney Trains v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (Sydney Trains).6 [28] In the submission of the Unions, where a PCBU intends to introduce a new system of work and the existing system provides for a reasonably practicable elimination or management of risk, and the new system introduces additional risks, the PCBU must not introduce the new system. The introduction of additional risks would amount to a contravention of their duty under s 19 of the WHS Act. 5 Affidavit of Mr Jon Harris filed 10 August 2021, Attachment JH2 - "Network Controller High Priority Board Assessments" prepared by Lloyd's Register Group 25 June 2010. 6 [2021] FWCFB 3089. -- 8 of 17 -- 9 Are the Unions able to demonstrate that the 9-board arrangement will lead to an increase in risk? [29] The ARTBU submits that as deposed in the affidavits of Mr S. Peacock and Mr J. Harris, two Network Controllers acquainted with the proposed changes and this dispute, there is an understanding the increase in workload will increase the propensity of risk in the workplace.7 [30] Further, prior to 2012 there were 9 boards, although in a different arrangement to this being proposed now, when it was identified that a 9-board configuration was inadequate in managing Network Controllers' workloads, increasing the propensity of mistakes being made and other unsafe work practices.8 Submissions of Respondent [31] Consistent with ss 102C(2) and 102E of the WHS Act, the Respondent submits the Commission should decline to exercise its discretion to arbitrate and refrain from dealing with this matter further. [32] This dispute concerns a proposal (Proposed Change) by Aurizon to: (a) reconfigure the current control boards in Aurizon's Central Queensland Coal Network (CQCN) from 11 control boards to 9 control boards based in Rockhampton; (b) relocate and integrate the Callemondah Yard Control to the Rockhampton Control Centre; and (c) relocate and integrate the Jilalan Yard Control to the Rockhampton Control Centre. Rationale for the Proposed Change [33] The Respondent submits the current control board structure has been in place for approximately 10 years. Since its introduction, Aurizon has implemented other controls which have reduced risks associated with Network Control operations (New Controls)9 such that the current control board structure is no longer necessary to ensure safety so far as is reasonably practicable. [34] Between 21 January 2020 and 11 February 2020 Aurizon consulted with workers, the Unions and other stakeholders in respect of the Proposed Change and among other things provided: (i) a draft risk assessment of the initial proposal and incorporated their feedback into an updated risk assessment; and 7 Affidavit Mr Stephen Peacock filed 19 July 2021; Affidavit of Mr Jon Harris filed 10 August 2021. 8 Affidavit of Mr Jon Harris filed 10 August 2021, [60]-[62]. 9 Affidavit of Mr Barry Milburn, Manager Train Control, Aurizon Network Pty Ltd filed 23 July 2021, [62]. -- 9 of 17 -- 10 (ii) a workload assessment report completed by external consultant INDEC in respect of the Initial Proposal (INDEC Report). [35] On 18 February 2020 Aurizon communicated its decision to implement the Initial Proposal effective 3 July 2020. Following consultation, Aurizon made a number of adjustments including changes to boundaries and training plans. As a result of COVID-19 pandemic, implementation of the Initial Proposal was postponed until early 2021. [36] On 11 November 2020 the ARTBU commenced the current proceedings. A conference before the Commission was held on 26 November 2020 at which time it was agreed Aurizon was to complete and communicate to stakeholders a further risk assessment by 17 December 2020. [37] A further risk assessment was finalised by Aurizon and sent to workers and the Unions on 18 December 2020. In their feedback the workers and the Unions indicated they were dissatisfied with the further risk assessment and the INDEC Report. [38] To address these concerns Aurizon decided to conduct a workload assessment in the form of a 'Day in the Life of" (DILO) real time study of Network Controllers at the Rockhampton Control Centre. Aurizon engaged external consultant, Siecap to conduct the study over a 2 week period, from 8 March 2021 to 21 March 2021 with observations conducted across 11 boards. [39] The findings of the DILO study were provided to the workers and the Unions on 29 April 2021. After reviewing the data from the DILO study Aurizon decided to proceed with a consolidation of control boards from 11 to 9 and informed relevant workers of this decision on 26 May 2021. [40] After meeting with the Unions on 8 and 17 June 2021 to discuss the findings and the Proposed Change the parties were unable to reach a resolution. Response to Unions [41] The Respondent submits the ARTBU's application concerns a dispute about whether or not Aurizon has discharged its obligations under the WHS Act and in particular that the current 11-board system is a reasonably practicable means of eliminating risks to health and safety, and therefore must be preserved. [42] The ARTBU's argument is misconceived in that it misunderstands Aurizon's safety duties under the WHS Act by mischaracterising the relevant "risk" that such duties require Aurizon to control; and it wrongly assumes that elimination of the relevant safety risks is a reasonably practicable control measure. -- 10 of 17 -- 11 [43] Further, the ARTBU's argument is flawed because the "new" risk identified (i.e., the "increased propensity of risk") cannot properly be described as a new risk or even a risk at all. In particular, an "increased propensity of risk" is not itself a risk, but a description of the propensity of an actual risk. The risk which the train control board structure (howsoever configured) seeks to control is the underlying risk associated with Aurizon's railway operations. Whether the number of boards is 11 or 9, the nature of those risks is the same.10 [44] The position is the same for risks associated with Network Controller workload.11 Workload risks exist regardless of board configuration, including under the current board structure. It is accepted by Aurizon that some of the "risks" expressed in the latest risk assessment presuppose (or are expressed to be conditional upon) a reduction of boards from 11 to 9. Such risks are not new risks but rather existing risks which are and will continue to be controlled so far as is reasonably practicable by, among other things, the New Controls.12 [45] The Respondent submits the ARTBU wrongly assumes that elimination of risks is reasonably practicable as the current 11-board system is no longer a reasonably practicable control measure, such that Aurizon is no longer required to maintain it. This is because the risk reduction provided by the current control measure (the 11-board structure) has reduced due to the risk reduction achieved by other or new controls (including the New Controls).13 [46] The validity of such an approach is recognised by the Office of the National Rail Safety Regulator (ONRSR) in the context of the Rail Safety National Law (Queensland) which is applied as a law of Queensland by the Rail Safety National Law (Queensland) Act 2017. For present purposes this is analogous to the WHS Act. [47] Despite this, the ARTBU asserts that the Commission "must come to a similar conclusion" to the FWCFB decision in Sydney Trains.14 The Respondent submits that case was premised on the fact that it was reasonably practicable for the relevant PCBU to retain the system of work in question and thereby eliminate new risks associated with changing that system.15 Moreover, there was evidence in that case that the new system would introduce two well-defined risks (which neither party disputed). For the reasons set out above, that is not the case here. 10 Affidavit of Mr Barry Milburn, Manager Train Control, Aurizon Network Pty Ltd filed 23 July 2021, [65]. 11 Ibid, [65]. 12 Ibid, [61-64]. 13 Ibid, [61-64]. 14 Sydney Trains v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2021] FWCFB 3089; Submissions of the ARTBU and AMACSU filed 19 July 2021, [57]. 15 Sydney Trains v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2021] FWCFB 3089, [60]. -- 11 of 17 -- 12 Minimising risks so far as is reasonably practicable [48] As it is not reasonably practicable for Aurizon to eliminate risks to health and safety, Aurizon must minimise such risks so far as is reasonably practicable. Aurizon demonstrates it will do so if the Proposed Change is implemented: (a) the current board structure is no longer a reasonably practicable control measure because the risk reduction provided by that control has reduced due to other controls, including the New Controls; (b) Aurizon has thoroughly identified, assessed and determined controls in respect of all risks (in consultation with workers and the Unions) and has determined that implementation of the Proposed Change will not introduce new risks or increase residual risks. Although the Proposed Change may result in some increase in Network Controller workload, such an increase will not translate into new or increased risk. Rather, Aurizon has determined that any increase to Network Controller workloads will be within safe and tolerable levels, so as to have no material affect on the risk profile of Network operations or the health and safety of Network Controllers. That finding is strongly supported by the DILO study which found that 40% (and for some boards, 56%) of total Network Controller activity time was uncategorised, indicating that Network Controllers are currently significantly under-utilised.16 (c) it is clear from Aurizon's risk assessment that risks will continue to be controlled so far as is reasonably practicable.17 (d) Aurizon anticipates the centralisation of control boards (and therefore Network Controllers) in one location (Rockhampton) will better control other Network Control risks by ensuring:18 (i) a more even distribution of workload among Network Controllers; (ii) a more consistent approach in the management of Rail Traffic and Track Work across Network Controlled Territory; (iii) a standardised approach of contacting Network control; (iv) a supervisory and peer support structure for Network Controllers that is not currently available at the Jilalan and Callemondah locations; and (v) improved capacity to support planned and unplanned shift changes for Network Controllers. [49] The Respondent submits Aurizon's risk management approach has been informed by a thorough process including: (a) consultation with workers, the Unions and other stakeholders; (b) the completion of a risk assessment (which, as noted above, was the subject of consultation with workers and the Unions and has undergone numerous iterations); (c) the commissioning of the INDEC Report; and (d) the commissioning of the DILO Report.19 16 Affidavit of Mr Barry Milburn, Manager Train Control, Aurizon Network Pty Ltd filed 23 July 2021, [46]. 17 Ibid. 18 Ibid, [66]-[68]. 19 Ibid, [59]. -- 12 of 17 -- 13 [50] The above process has provided Aurizon with the confidence, as risk owner, that it is managing risks so far as is reasonably practicable. [51] The Respondent submits that despite the above process, the ARTBU maintains that Aurizon will have failed to comply with its safety duties if it proceeds with the Proposed Change. In particular, the assertion that a 9-board system was identified as being inadequate in managing Network Controllers' workloads following a fatality in 2007.20 [52] This assertion is flawed because it fails to account for the additional controls that have been introduced to ensure the safety of network operations since the incident, including the New Controls. The findings of the investigation into that fatality do not recommend anything about control board structure on the CQCN. In addition, the ARTBU has failed to say why the New Controls do not manage risk so far as is reasonably practicable only that there is "no evidence" that they do.21 The Commission should decline to arbitrate the dispute [53] The Commission's power to deal with a dispute by means of arbitration pursuant to s 102C(2) of the WHS Act is a discretionary one. The question now is whether the Commission should exercise that discretion. [54] Also relevant to the Commission's exercise of discretion are ss 447(2) and 531(3) of the Industrial Relations Act 2016 (Qld) (IR Act). Section 531(5)(a) of the IR Act states the Commission must consider the public interest, and in doing so must consider the main purpose of the IR Act. [55] The Respondent submits that a decision to arbitrate the current dispute would be inconsistent with the IR Act for the following reasons: (a) the material before the Commission demonstrates that Aurizon has complied and is complying with its duties under the WHS Act; (b) the Unions have failed to produce any evidence to refute point (a); (c) the dispute has been before the Commission since 11 November 2020; (d) the two safety regulators with responsibility for enforcing matters the subject of the dispute, namely WHSQ and ONRSR have declined to intervene, despite having been made aware of the ARTBU's complaints;22 and (e) Aurizon has participated in conciliation before the Commission in good faith, including agreeing with the Unions to commission the DILO Report. [56] Section 102E(1)(b) of the WHS Act provides for the Commission to decide not to deal with a dispute about a WHS matter if it considers the matter is, among other things, misconceived or lacking in substance. Further, s 102E(2) states "subsection 102E(1) 20 Submissions of the ARTBU and AMACSU filed 19 July 2021, [83]-[88]. 21 Ibid, [88]. 22 Affidavit of Mr Barry Milburn, Manager Train Control, Aurizon Network Pty Ltd filed 23 July 2021, [69]-[71]. -- 13 of 17 -- 14 does not limit the grounds on which the Commission may decide not to deal with the dispute". [57] The Respondent submits the ARTBU's application is misconceived or lacking in substance as described above as Aurizon has complied, and is complying, with its duties under the WHS Act. The ARTBU has not demonstrated otherwise and therefore the Commission should decline to deal further with the dispute. [58] Declining to deal with the dispute at this stage will not prejudice the ARTBU. Should any further safety concerns arise, the ARTBU will be at liberty to attempt to resolve the dispute with Aurizon and, if that is unsuccessful, reapply to the Commission under Division 7A of the WHS Act. [59] As already submitted, the Respondent states the Commission is empowered to, and should, exercise its power under s 102E of the WHS Act. [60] The Unions rely on a number of High Court authorities which outline the principles applicable to summary dismissal and the exercise of similar discretion.23 Aurizon accepts that these authorities are relevant in that the Commission should exercise its discretion in this matter with caution. However, a decision to exercise its discretion to decline to deal with this matter further is justified in this case and consistent with those authorities. [61] The Unions assert the absence of any authority regarding ss 102C and 102E of the WHS Act is a basis for continuing to deal with the dispute by way of arbitration. However, that assertion is flawed for the following reasons: (a) the High Court authorities do not establish, and it does not automatically follow, that the absence of authority prevents the exercise of a power to summarily dismiss proceedings; (b) the language of ss 102C and 102E of the WHS Act is plain and clear; and (c) the Commission is empowered to reach its own conclusions about the operation of the WHS Act and has been provided with detailed submissions from the parties to allow it to do so.24 [62] The Respondent submits in all of the circumstances, the Commission should decline to arbitrate and refrain from dealing further with the dispute, in accordance with ss 102C and 102E of the WHS Act. Consideration [63] Aurizon's ultimate decision to reduce the number of control boards from 11 to 9 was informed by: 23 Submissions of the ARTBU and AMACSU filed 19 July 2021, [56]. 24 Submissions of the Respondent filed 23 July 2021, [6.3]. -- 14 of 17 -- 15 • A consultation process with key stakeholders including workers and Unions; • The Final Risk Assessment (including Risk Assessments 1,2 and 3); • The INDEC Workload Assessment; and • The DILO Report. [64] It is not in contention that Aurizon has a primary duty under the Work Health and Safety Act 2011 (Qld) to eliminate risks and hazards in the workplace. Nor is it in contention that Aurizon as a PCBU must seek to eliminate risks to health and safety so far as is reasonably practicable. If a PCBU cannot eliminate a risk, they must minimise the risks so far as is reasonably practicable. For certain risks, the WHS Regulations provide that where it is not reasonably practicable to eliminate risks to health and safety the PCBU must apply the hierarchy of control measures in minimising risks to health and safety. [65] In response to the dispute filed by the ARTBU, Aurizon argues that the proposal will not result in an "increased propensity of risk". [66] What can be gleaned from the original dispute application are the following key elements: First, the reduction in the number of control boards will increase the workload levels on existing Train Controllers located at the Rockhampton Rail Control Centre; Second, the propensity for Aurizon workers and others to encounter high risk situations will occur more often, due to the increased workloads on the remaining Train Controllers. Aurizon introducing measures which increase the propensity of risk in the workplace stands in contradiction to their duties under the law as a PCBU. [67] What has been advanced by the ARTBU is the argument that the reduction in the number of boards will increase risk. However, the independent assessments commissioned by Aurizon do not necessarily support the Unions' contention. It will be recalled that the ARTBU undertook their own assessment of the potential workload on controllers arising out of the proposal to amalgamate control boards. Aurizon argues that the analysis undertaken by them is flawed in the following respects: First, the modelling does not compare workload activities for combined boards on the same day; Secondly, the modelling incorrectly assumes that under the proposed change the work of two boards will be subsumed within one board (that is, Board A will be wholly incorporated into board B). That is incorrect. Under the Proposed Change, parts of some boards will be performed by another board; and Thirdly, work that cannot be completed within a particular hour can, in any event, be deferred to the next hour, shift or another person. [68] Notwithstanding what has been submitted by the ARTBU, there is no question of law to be determined through arbitration. What the ARTBU has submitted is, at its highest, a suspicion that the proposed new system will not perform as is suggested and, as a consequence, some of its members may come under pressure in the performance of their duties. -- 15 of 17 -- 16 [69] In Australian Rail, Tram and Bus Industry Union of Employees v Aurizon Operations Ltd25 the Commission was called upon to determine whether it should decline to exercise its discretion to refer the dispute pursuant to s 102E of the Work Health and Safety Act 2011 on the basis that the dispute was misconceived or lacking in substance. [70] In that case, a female Locomotive Driver was alleged to have been sexually harassed by a fellow male employee. The sexual harassment was said to have left the woman with a psychological injury. A formal complaint was made to the employer, but it determined that the sexual harassment occurred outside of work. The employer permitted the harasser to remain at the same workplace as the victim but under instructions not to approach or attempt to speak with the woman. The ARTBU requested that the alleged harasser be relocated to another depot, but this was, for various reasons, declined. The ARTBU contended that the employer was empowered to direct that the alleged harasser be relocated to another depot. In failing to do so, the employer had not met its obligations under the WHS Act. [71] That case raised issues of both fact and law. A live question to be considered by the Commission was whether the Aurizon Coal Enterprise Agreement 2019 prohibits Aurizon from forcibly relocating the alleged harasser to another workplace. Moreover, the issues concerning the interrelationship between the WHS Act and the FW Act were raised. Importantly, it also raised the question as to whether and to what extent should an industrial tribunal become involved in the settlement of a dispute where the result may amount to an interference with the autonomy of management to decide how the business enterprise shall be conducted. [72] I do not consider that this case is one where there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it.26 At the highest, there is a suggestion by the ARTBU that the implementation of the new control board arrangements will increase the propensity of risk. In support of that assertion, the Applicant relies on Sydney Trains. However, in Sydney Trains there was an acceptance by both parties that the proposed switching system would introduce two new identified risks. The consequences of the risks were described by the Commission at first instance, as "dire".27 The provision of personal protective equipment would not be sufficient to afford protection to the body of workers if an arc occurred. In Sydney Trains, there was a clear and readily identifiable question to be arbitrated, namely: "Can Sydney Trains lawfully and reasonably direct relevant Electrical Systems Supervisors and Electrical System Operators to perform work in connection with the trial of the proposed sequential switching procedure having regard to its obligation under subclause 35.2 of the Sydney Trains Enterprise Agreement 2018?” 25 [2021] QIRC 263. 26 See: Dey v Victorian Railways Commissioners (1949) 78 CLR 62. 27 [2020] FWC 3727, [45]. -- 16 of 17 -- 17 [73] I do not accept the argument that there are new risks or that there is a higher propensity of risk. The risks associated with Network Controller workload exist irrespective of board configuration. The risks associated with the operation of the control boards is the risk of Aurizon undertaking its rail activities. What the risk assessment identifies is that there will be some increase in workload, but any such increase is within safe levels. The DILO Report recognises that 40% of total Network Controller activity time was uncategorised and, on some boards, it was 56%. Moreover, the DILO Report identified opportunities to utilise latent capacity in relation to the Jilalan and Callemondah Yard Boards; to explore further alternative shifts and Network Board combinations to align with workload.28 [74] Having regard to the authorities, I am mindful that caution needs to be exercised in considering the application of s 102E of the WHS Act to ensure that the Applicant is not improperly deprived of an opportunity of a hearing before the Commission. [75] However, in considering the relative merits of the application, the Commission is alive to the objects and purpose of the WHS regime being to protect workers, and others, at a worksite. The Commission is also mindful of the duties and responsibilities of the respondent as a PCBU. Declining to submit this dispute to arbitration does not diminish or remove the obligations imposed on Aurizon to ensure it fully complies with the provisions of the WHS Act. Importantly, it does not remove the ability of the ARTBU to bring a dispute application under s 102B of the WHS Act seeking, in the first instance the regulator to appoint an inspector to assist in resolving the dispute and thereafter, seeking the assistance of the Commission. Order 1. Application to remit the dispute to arbitration is dismissed. 28 Affidavit of Mr Barry Milburn, Manager Train Control, Aurizon Network Pty Ltd filed 23 July 2021, Exhibit BM-3 - Siecap Report. -- 17 of 17 --