Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch v Queensland Rail; Australian Federated Union of Locomotive Employees, Queensland Union of Employees v Queensland Rail [2006] ICQ 15 (2006) 181 QGIG 636

[Extract from Queensland Government Industrial Gazette, dated 13 April, 2006, Vol. 181, No .15, page 636-640] INDUSTRIAL COURT OF QUEENSLAND Industrial Relations Act 1999 - s. 341(1) - appeal against the decision of the industrial commission Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch AND Queensland Rail (C/2006/16) and the Australian Federated Union of Locomotive Employees, Queensland Union of Employees AND Queensland Rail (C/2006/17) PRESIDENT HALL 3 April 2006 REPORT ON DECISION (as edited) In giving a decision from the Bench on 20 March 2006, the President said: "On 10 March 2006, Queensland Rail filed a notice of industrial dispute which led to conferences in the Queensland Industrial Relations Commission on each of 10, 11 and 12 March 2006. The notice was in the following terms (formal parts omitted): "NOTICE is hereby given under section 229 on the Industrial Relations Act 1999 of an industrial dispute between Queensland Tail and the Australian Rail, Tram and Bus Industrial Union f Employees, Qld Branch (RTBU); Australian Federated Union of Locomotive Employees, Queensland Union of Employees (AFULE); and the notifier requests that the commission hold a compulsory conference of the parties to resolve the matter. Particulars of party notifying dispute: Name: Queensland Rail Address: 13th Fl 305 Edward Street Brisbane 4000 Telephone No: 07 3235 1897 Fax No: 07 3235 1315 Name of contact person: Paul Lucas Direct Telephone No: 07 3235 1897 Direct Fax No: 07 3235 1315 Place where dispute exists: Citytrain Traincrew depot and other locations Queensland Subject matter of dispute: Further to QR's previous application for a conference in case D/2006/28 on 3 February 2006 and subsequent conferences on that matter in dispute. QR considers the issues surrounding that matter have now caused a number of Citytrain cancellations to occur this morning and more particularly for this afternoon's peak hour services. QR has reached a conclusion that traincrew employees in the Citytrain network and other depots statewide, are conducting and / or participating in action which is designed to create havoc in QR's train services. The action being undertaken by employees in QR's view constitutes industrial action and has resulted in severe disruption this afternoon to the peak hour service and is likely to flow on to passenger services over the weekend particularly given that a Reds Rugby Union game and Broncos Rugby League game is also on this weekend. The industrial action QR's considered that is being undertaken includes ; Traincrew not working their leisure periods, not working as relief traincrew at out depots, not accepting brought forward sign on times, and more importantly excessively high levels of absenteeism in the Citytrain depots. QR has reached a conclusion that the action taken by the traincrew employees is a follow on from the recent strike actions under case D/2006/28 heard before Commissioner Brown. That matter was about QR's negotiations for a new Traincrew Agreement in both the Passengers and Freight divisions of QR. The outcome of those negotiations was that the offer proposed by QR to settle negotiations was not accepted by the Unions (RTBU and AFULE). QR strongly considers that the action by the traincrew employees at the Citytrain depots and other depots statewide is directly linked to the Traincrew Agreement negotiations.". At or about 12:56 p.m. on 12 March the Deputy President of the Commission, into whose hands the matter had fallen, concluded the conciliation had failed and moved to arbitration. In terms of s. 230(3) of the Industrial Relations Act 1999 that step was lawful only if there was an actual industrial dispute whose settlement by conciliation was unlikely and in those circumstances I treat such a finding as being implicit in the conclusion the conciliation's failed. In any event once the parties moved to the matter of arbitration and the Commission resumed in open Court there was considerable and quite explicit discussion about the alleged industrial dispute. Ultimately the Commission concluded: -- 1 of 5 -- 2 "This weekend has been identified by QR as one requiring a significant number of Citytrain employees to attend work. This is so because the events held in the city are football games, home and motor shows, et cetera. It was estimated that at one of the football hames over 40,000 seats had been sold to the public. The sick leave issue has not been raised as an issue to be addressed by any order of the Commission, suffice to say that the alleged high incidence of sick leave had been taken over some days preceding the weekend and also on Saturday 11 March. On today's date the level fo sick leave had fallen to a level which was considered unexceptional. Concerning the second issue, under normal circumstances QR recorded that there was an unacceptance rate of some 50 to 70 per cent of Citytrain employees prepared to work on these special occasions. From this weekend the acceptance rate had fallen below three per cent. Both unions refute any suggestions that there have been involve in any industrial action which may have brought about an adverse effect upon Q Rail and members of the public who would have normally used rail services to attend special events in the city. Both unions point to documentations which they have signed during the course of proceedings before the Commission, stating that they are not involved in any industrial campaign against QR. The RTBU also refers to commentary made in a press conference by its secretary to this effect. It has become evident during the course of proceedings before the Commission that it has not been business as usual for Q Rail and its employees over the last couple of days. The employees of Citytrain who are the subject of this consideration are all involved in single leisure periods and block leisure periods over the weekend. Against that background, the unions have referred the Commission to clauses within their certified agreement which show unambiguously that with the exception of the sick leave question, employees can determine whether or not they wish to work the extra hours required by Q Rail on a weekend such as this (see clauses 4.5.1, .2 and .3). Clause 2.1(3) also states that the train crew will work a reasonable amount of excess time during the work cycle when required. As the proceedings have evolved over the last three days before the Commission, it has become clear that a radical change has occurred in the manner in which work has been customarily performed by Citytrain employees at a time when there has been high demand for trains services in Brisbane. There is little question that there ahs been a heightened demand for train services over this weekend and that employees would have been well aware that, for a large number of them, their services would have been required and expected. I am well aware of the fact that the unions have stressed that there is no industrial dispute on foot between the Citytrain members and Q Rail. However, the overwhelming evidence speak for itself. There has been a radical change to work patterns, even accounting for the fact that this weekend makes the end of a work cycle and that there have been sporting and other events in Brisbane that Queensland Rail employees may have wished to attend. The only conclusion which can be drawn is that there is a de facto industrial dispute on foot and that it has been promoted by the unions in question.". The description of the dispute adopted by the Commission may, with respect, legitimately be criticised as failing to set the metes and bounds of the dispute, but when read with the dispute notification it sufficiently indicates the parties to the dispute, the geography of the dispute and the subject matter of the dispute. In particular it seems to me that the geography of the dispute was limited to the Citytrain network, that the parties were Queensland Rail and each of the two now Appellants and that the subject matter was the matter of train crews declining to accept work as relief train crews or otherwise to accept work offered to them during leisure periods. The Commission's jurisdiction under Chapter 7, Part 2, which deals with resolution of industrial disputes, is by s. 267 exclusive of the jurisdiction of this Court. An appeal is permitted to this Court only on the limited issues of error of law, and excess or want or jurisdiction. To establish an error of law in a case where there was no suggestion of procedural unfairness, it is necessary for the appellants to establish that there was not any evidence upon which the Commission might reach the findings set out above. Given the statistics about the change in work patterns it seems to me that the conclusion there was not any evidence to support the Commission's finding is not open. It is not unusual for an industrial commission dealing with allegations of strike activity or industrial disputation to infer concerted conduct from evidence of parallel conduct. The conclusion that the Unions were involved might, on appeal by way of rehearing, be open to criticism, but it cannot be suggested that that inference did not have any evidence behind it. I turn then to the question of the appropriateness, to use the language of s. 230(4)(b), of the order ultimately made (formal parts omitted): -- 2 of 5 -- 3 ORDER 1 Title This order shall be known as the Queensland Rail Order No 3 of 2006. 2 Parties bound by the order and duty to comply 2.1 This order is binding on Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch ("ARTBU") and on The Australian Federated Union of Locomotive Employees, Queensland Union of Employees ("AFULE") 2.2 This order applies in relation to work that is: (a) performed by employees of Queensland Rail, a body corporate established pursuant to the Government Owned Corporations Act 1993, and (b) that is regulated by the QR Enterprise Bargaining Certified Agreement Seven 2004 (CA34 of 2006) (EA7) and any certified agreement that replaced EA7. 2.3 The ARTBU and the AFULE shall through its Secretary, officers, employees, agents, delegates and members comply with this order. 3 Industrial Action to Stop 3.1 Industrial action as defined in this order shall not occur, or where occurring shall stop, be discontinued, or cancelled and withdrawn. 3.2 The ARTBU and the AFULE shall itself, and through its States President, Divisional Councillors, Secretary, officers, employees, agents or delegated (Union Representatives) immediately take all reasonable steps to ensure its City Traincrew members comply with this order and procure its members to carry out their normal duties in connection with the operation of Queensland Rail immediately and in accordance with their respective contracts of employment. 3.3 For the purposes of this order: (a) in respect of the "industrial action" by employees, means any of the following actions taken in relation to industrial issue which relates to work performed by the employees: (i)a ban, limitation or restriction on the performance of work, or any acceptance of or offering for work; (ii) the performance of work by an employee in a manner different from that in which it is customarily performed or the adoption of a practice in relation to work, the result of which is a restriction or limitation on, or a dealy in, the performance of work, specifically inr elation to Clauses 2.1(3) and 4.18 of the Queensland Rail traincrew Subsidiary Agreement Extension Certified Agreement 1998 and in relation to Clauses 2.8 and 6.1 (third dot point) of the Roster Code of Practice under clause 3.7 of the abovementioned Agreement regarding the working of a reasonable amount of excess hours, local operating procedures and alterations to rostered sign on times after posting of the roster. But shall not include: (A) action by an employee that is protected action; or (B) action by an employee that is authorised or agreed to by Queensland Rail; or (C) action by an employee if: (I) the action was based on a reasonable concern by an employee about an imminent risk to their health or safety; and (II) the employee did not unreasonably fail to comply with a direction fo Queensland Rail to perform other work whether at the same or other workplace, that was safe and appropriate for the employee to perform. (b) in respect of the ARTBU and the AFULE and its Union Representatives "industrial action" means to authorise, direct, organise, encourage or incite any of the members of the union to engage or participate in any conduct set out in 3.3 of this order. 4 Service of this order This order shall be served by Industrial Registrar by serving a copy on the President or State Secretary of the ARTBU and the AFULE. -- 3 of 5 -- 4 5 Term and Date of Effect 5.1 This order shall come into effect at 7.00pm on 12 March 2006 and shall remain in force until midnight 19 March 2006 or until otherwise ordered by the Commission. 5.2 Owen Doogan, State Secretary of the ARTBU is to file an affidavit with the Industrial Registrar by 4.30pm on 20 March 2006 as to whether there has been compliance with the Order and, if default of compliance, what steps (if any) have been taken to comply with the Order. 5.3 Greg Smith, State Secretary of the AFULE, is to file an affidavit with the Industrial Registrar by 4.30pm on 20 March 2006 as to whether there has been compliance with the Order and, if default of compliance, what steps (if any) have been taken to compl with the Order. 5.4 Queensland Rail is to file an affidavit with the Industrial Registrar by 4.30pm on 20 March 2006 as to whether there has been compliance with the Order and, if default of compliance, what steps (if any) have been taken to comply with the Order. Dated 12 March 2006.". In light of some of the submissions which were made on the application for a stay it behoves the Court to indicate the construction upon which the Court is proceeding. I proceed on the basis that the parties bound are those described at 2.1, namely each of the two appellant Unions. I proceed on the basis that each of those Unions acquired both negative and positive responsibilities. Negatively obligations arise from 3.1 which declares: "That industrial action as defined in the order shall not occur or where occurring shall stop, be discontinued or cancelled and withdrawn.", and from 3.3(b) which defines industrial action in respect of each of the two Unions, by requiring them to refrain from directing, organising, encouraging or inciting any of the members of the Union to engage or participate in the conduct set out in 3.3. Paragraph 3.3 was originally of some concern to me. On reflection it seems to me that the Commission is not restricted to making orders that industrial disputation or concerted conduct shall cease, but is entitled to determine for itself which steps, if taken or not taken, will lead to an end of an industrial dispute or contribute to the cessation of industrial action. In those circumstances the order is legitimate. The word "specifically" in paragraph 3.3(a)(ii) is a matter of concern. It could be taken to mean "in particular", in which case paragraph 3.3(a)(ii) would generically reach the customary performance of all work and, in particular, the customary acceptance of work and leisure time. Given that this order would only fall to be interpreted in penal proceedings, given the terms of the notification of dispute which led to the making of the order, and given the dispute described by the Commissioner, it seems to me that I should not read "specifically" as meaning "in particular", but should read it as limiting the scope of 3.3(a)(ii) to the conduct which follows "specifically". Positively, each of the Unions was directed to take all reasonable steps to ensure its Citytrain crew members comply with this order. In some circumstances such an order would fail for uncertainty, compare BHP Steel Limited v The Australian Workers' Union New South Wales (2003) 136IR240. But in this case the conduct in which the Unions are required to engage is given certainty by the definition of the work to which the order applies at paragraph 2.2, the definition of the conduct by employees which would constitute industrial action by employees at paragraph 3.3(a)(ii) and by the terms of the notice of industrial dispute and the findings of the Commission. That part of the order which follows from the words "procure its members" is an entirely different matter. It light of the decision in R v F ex part Attorney-General (Queensland) (2003) 140 Australian Criminal Reports 447, I have to accept that to procure an act to be done, one must ensure that the act is done. Given that that case concerned a very serious criminal offence, for which a lengthy term of imprisonment might be imposed, it is not legitimate to further read down the term "procure". On that basis it seems to me that that part of paragraph 3.2 is not an appropriate provision to be made to secure settlement of an industrial dispute. On the contrary it is properly to be characterised as an attempt by the Commission to burden the Union appellants with the Commission's own obligations under the Act and cause the Unions to bring a dispute to an end on pain of penal proceedings. That said, I am not satisfied that the inadequacies in that part of 3.2 following the words "procure its members" infect the earlier part of the order; neither can I see anything to suggest it was intended not to be severable. In those circumstances I declare invalid and set aside that part of 3.2 which provides "and procure its members to carry out their normal duties in connection with the operation of Queensland Rail immediately and in accordance with their respective contracts of employment". -- 4 of 5 -- 5 I confirm the order, including its expiry date, apart from that part of 3.2, which provides "and procure its members to carry out their normal duties in connection with the operation of Queensland Rail immediately and in accordance with their respective contracts of employment." Dated 3 April 2006. By the Court, [L.S.] G.D. SAVILL, Industrial Registrar. Released: 3 April 2006 Appearances: Mr L.S. Reidy of Carne Reidy Herd for Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch. Ms S. Keating, with her Mr G. Smith for Australian Federated Union of Locomotive Enginemen, Queensland, Union of Employees. Mr J. Murdoch SC, instructed by Corrs Chambers Westgarth, for Queensland Rail and Minister for Employment, Training and Industrial Relations. Government Printer, Queensland The State of Queensland 2006. -- 5 of 5 --