| FWC 1457 [Note: An appeal pursuant to s.604 (C2020/3044) was lodged against this decision - refer to Full Bench decision dated 2 September 2020 [ FWCFB 4178] for result of appeal.]|
|FAIR WORK COMMISSION|
Fair Work Act 2009
s.739 - Application to deal with a dispute
Australian Rail Tram and Bus Industry Union
DEPUTY PRESIDENT BULL
SYDNEY, 9 APRIL 2020
Dispute about removal of enclosure at Liverpool Railway Station NSW. Site inspection conducted. Whether unsafe, unlawful or unreasonable action by employer.
 The Australian Rail Tram and Bus Industry Union, NSW Branch (RTBU), has filed a dispute application pursuant to s.739 of the Fair Work Act 2009 (the FW Act). The application requests that the Fair Work Commission (the Commission) resolves a dispute under the Sydney Trains Enterprise Agreement 2018 (the Agreement) approved by the Commission on 24 April 2018. 1
 In October 2017, Sydney Trains advised the RTBU that it intended to remove the existing Gate Array Control known as the ‘Garrison’ or GAC Booth (GAC) from the paid concourse area of the Liverpool Railway Station in the south-west of Sydney (Liverpool Station) and install a ‘Hub’.
 The Hub intended to be installed by Sydney Trains is a stainless-steel workstation which allows employees to access Sydney Trains’ information systems on the platforms and the paid concourse of the station and provide face to face customer service. Hubs have been introduced across Sydney Trains’ network since July 2013.
 Many stations have already had their GACs removed (where installed) and replaced with Hubs; these include the largest and busiest stations:
• Town Hall (the busiest station)
• Central (the second busiest)
• Wynyard (the third busiest)
• Circular Quay (the fifth busiest) and
• North Sydney (the eighth busiest).
 The GAC is an enclosed space of aluminium construction, comprised primarily of glass for optimal passive surveillance. The Liverpool Station GAC includes a small bench/work area to accommodate computers and communication facilities.
 The RTBU expressed concerns that the GAC’s removal would adversely impact employee safety and interfere with the operational requirements at the Station.
 The application states under the heading (3) - Relief Sought that a determination is sought from the Commission that:
1) A finding that the removal of the Garrison does not comply with the obligations on Sydney Trains in clause 35 of the Agreement.
2) Further, or in the alternative, a finding that the removal of the Garrison does not comply with Sydney Trains’ obligations under section 19 of the Work Health and Safety Act 2011.
3) Further, or in the alternative, a finding that the removal of the Garrison is unreasonable in the circumstances.
4) An order that Sydney Trains does not remove the Garrison from Liverpool Station until such a time that an acceptable alternative is constructed.
 Sydney Trains opposes the application and the remedy sought by the RTBU.
 It was initially put by Sydney Trains that the dispute was outside the jurisdiction of the Commission to determine. This matter was dealt with in a decision of the Commission dated 26 September 2019 wherein it was determined that the dispute was capable of being resolved by the Commission. 2
 Part 6-2 of the FW Act titled "Dealing with Disputes" at s.738(b) provides the Commission with the ability to deal with disputes arising out of an enterprise agreement which includes a term that provides a procedure for dealing with disputes. The jurisdiction for the dispute to be dealt with by the Commission is contained in the Dispute Settlement Procedure (DSP) at clause 8 of the Agreement which allows unresolved disputes to be dealt with by the Commission by conciliation and, if not resolved, by arbitration.
 The Commission was assisted in hearing this matter with a site inspection of the Liverpool Station with all parties in attendance on 9 September 2019. Both parties were granted leave pursuant to s.596(2)(a) of the Act to be legally represented in presenting their cases.
 The RTBU has members that work for Sydney Trains based at the Liverpool Station whom it is said have safety concerns should the GAC’s removal proceed. The safety concerns identified in the RTBU’s application to the Commission concerned the following issues:
• Evacuation of employees and vulnerable passengers
• Medical emergencies
• Degraded mode (trains not running according to timetable)
• Out of course running; and
• Crowd control.
 Clause 35 of the Agreement is titled: Workplace Health, Safety and Environment and states that the employer must ensure the health, safety and welfare at work of all its employees. The RTBU submits that in removing the GAC Sydney Trains is not complying with its safety obligations under the Agreement.
 Sub sections 35.1 and 35.2 of the Agreement state as follows:
“35.1 The work health and safety of all Employees, contractors, visitors and customers is the primary concern of the Employer. The parties to this Agreement share an ongoing commitment to ensure and to promote the work health, safety and welfare of all Employees, contractors, customers and visitors, and nothing in this Agreement shall be designed or applied in ways that reduce or diminish this objective.”
35.2. The Employer must ensure the health, safety and welfare at work of all its Employees.”
 It is contended by the RTBU that the GAC provides employees with the opportunity to quickly retreat in instances of imminent danger arising from the public, particularly at night. It also provides a cool space on a hot day while at the same time allowing for customer service to continue due to the clear glass construction of the GAC.
 In prosecuting its application, the RTBU case was supported by the evidence of:
• Mr Trent Hunter - RTBU Organiser
• Ms Deborah Nelson - Customer Service Attendant Liverpool Station
• Mr Ajita Jago - Customer Service Attendant Flemington
• Mr Richard Tudor - Customer Service Attendant Liverpool Station
• Mr Jesse Baldwin - Station Duty Manager Liverpool Station
 Sydney Trains raised a number of objections 3 to the evidence of the witnesses of the RTBU based on the evidence being either hearsay, opinion or irrelevant. As requested, these objections have been taken into consideration in assessing this evidence.
 The evidence of Mr Hunter was contained in two witness statements 4 and he was subject to cross examination. Mr Hunter set out the history of the dispute from the perspective of the RTBU which commenced in November 2017 when he was advised that Sydney Trains wished to commence consultation for the introduction of Hubs at the Liverpool and Campbelltown Railway Stations.
 Mr Hunter stated that Liverpool Station staff had expressed to him that they relied on the GAC for their safety during periods of ‘rail meltdowns’ and ‘out of course running’ on New Year’s Eve.
 Mr Hunter’s evidence included the witnessing of numerous police officers at the Liverpool Station and reference to research into media articles and social media posts regarding the safety risks the Liverpool Station staff are exposed to when on duty. Mr Hunter was also of the view that Sydney Trains was not compliant with the mandated station engineering standards.
 Mr Hunter accepted that the previous electronic stripe ticketing system had now been replaced throughout all of Sydney Trains’ operations5 and replaced with the automatic Opal card system and more recently the use of credit cards. Further, Mr Hunter acknowledged that during negotiations the RTBU position was that the GAC needed to remain in some shape or form. Mr Hunter accepted that the Duty Station Manager’s office at Liverpool Station was, in addition to the GAC, a safe place of retreat for staff.6
 Ms Nelson stated in her evidence that she had used the GAC to retreat to in situations when she felt threatened by a customer. She also used the GAC to assist customers with lost property enquiries and rail information. Ms Nelson accepted in cross examination that there was no seating in the GAC, and that the Duty Station Manager’s office is a place that a sick or injured customer could be taken7 provided it was not locked. If the Duty Station Manager’s office was locked the waiting room leading into the Duty Station Manager’s office could be accessed as a safe space.
 Mr Jago stated in his evidence that he has at various times worked at the Liverpool Station and has used the GAC as a safe place when necessary. He also used the GAC to report and store lost property, and in periods of extreme heat or cold weather. Mr Jago who spent most of his time at the Flemington Railway Station acknowledged that it did not have a GAC and that he was able to use Flemington Station office as a safe area to retreat.8
 Mr Jago stated in his evidence that he was aware of Sydney Trains’ focus on customer service over the last few years which requires station staff to be visible and available on the concourse and platforms to proactively engage and assist customers.9 Mr Jago stated that in the office area of Liverpool Station you cannot be seen by customers, whereas in the GAC you can be seen by and talk to customers.10
 Mr Tudor gave evidence that he had used the Liverpool Station GAC to provide customers with timetables and brochures, and lost property enquiries. The GAC also provided a safe retreat from customer abuse and threats.
 Mr Baldwin is a Duty Station Manager whose home station is Kingsgrove, but he also works at the Liverpool Station. Mr Baldwin stated that he had used the GAC at the Liverpool Station on several occasions as a retreat from situations he deemed as unsafe. He had also used the GAC for lost children and to make announcements and provide customer information during out of course running and degraded mode. Mr Baldwin was concerned that the waiting room unlike the GAC was not under Closed Circuit Television (CCTV) surveillance, although this concern would be removed if a camera was installed.11
 The RTBU submitted that the GAC is an enclosed air-conditioned large room, surrounded by thick glass windows in which staff can speak and communicate with customers using a microphone. It was put by the RTBU that the GAC assists concourse staff members to safely remove themselves from threats and crowded areas while safely rendering assistance to the public. Whereas a Hub is an open workstation containing a computer; it is exposed to the public and requires employees operating the Hub to have their back to the concourse.
 On the submissions of the RTBU there is no opposition from staff to the installation of a Hub, however the GAC should remain in conjunction with the Hub for safety and operational purposes.
 The RTBU submits that there have been incidents where employees have needed to retreat into the GAC due to safety concerns. The GAC has allowed staff to provide visible customer service and perform their roles safely. The Duty Station Manager’s office and waiting room was said to be more unsafe than the GAC12 because it is not monitored by CCTV or easily visible to other people.
 The GAC provides respite from extreme weather and is a safe place for staff in case of emergencies.
 The RTBU also relies upon crime statistics from a number of sources in asserting that there is a high level of criminal activity at the Liverpool Station and its surrounds.13
 The RTBU contends that that the GAC is a superior safe space to that of the Duty Station Manager’s office and the interview/waiting room, and is preferred by employees 14 as it is under CCTV coverage and can be entered without staff having to turn their back on potential threats. It is primarily see-through glass from approximately four feet from the ground up, with a lockable door and ability to use an address system to make contact with those outside the GAC. Removal of the GAC will reduce the number of safe spaces for station staff. By reducing the overall level of health and safety measures it is argued by the RTBU that Sydney Trains is acting contrary to its obligations under the Agreement in respect to ensuring the health, safety and welfare at work of its employees and s.19 of the Work Health and Safety Act 2011 (NSW).
 It is also put by the RTBU that the engineering standards applying to Sydney Trains requires a GAC to be installed at the Liverpool Station. The current RailCorp Engineering Standards (ESB 000-004) Station and Buildings Station Design Standard Requirements at ESB 004 provides that a GAC be installed at stations requiring the direct supervision of the ticket barrier. While the RTBU accepts that there are no longer ticket barrier attendants, the engineering standards also states that “In the event that the ticket barrier attendant feels under threat, staff can retreat to the booth and activate a duress alarm button,” which is said by the RTBU to remain relevant to staff.
 The Liverpool Station is said to be a dangerous train station with the GAC being the preferred safe space for staff.
 In addition to the alleged breaches of the Agreement and safety legislation the decision of Sydney Trains to remove the GAC from the Liverpool Station is said by the RTBU to be unreasonable and unjust, and a declaration (amongst others) is sought by the RTBU that Sydney Trains retain the GAC until such time as an acceptable alternative is constructed.
 It is contended by the RTBU that Sydney Trains has not put forward any genuine justification for the GAC’s removal. The removal of the GAC is unreasonable as there is no reasonable basis upon which its removal can be justified.
 The GAC does not presently obscure visibility due to its design and its removal is basically on the grounds of aesthetics. 15
 Sydney Trains does not accept that its proposal to remove the GAC is in breach of the Agreement, WHS legislation, or engineering standards; or that it is an unreasonable exercise of its managerial rights.
 In support of its position Sydney Trains relied upon the evidence of Mr Andrew Barry Acting Team Manager Safety Delivery within Customer Service and Ms Jasmin Streimer the Principal Manager Workplace Relations. Objections to this evidence were raised by the RTBU on similar grounds as raised by Sydney Trains to the RTBU’s evidence.
 Mr Barry’s evidence was that Sydney Trains eliminates or minimises as far as practicable any risk that employees may encounter with customers or members of the public. This is achieved through implementing a number of measures.
 Mr Barry stated that one measure implemented by Sydney Trains is in the design of new train stations, or the refurbishment of existing stations, to include the promotion of long lines of sight from the concourse to approaching customers. The installation of glass in lieu of hard barriers and installing long walkways to the concourse to provide employees with a clear line of sight of approaching customers are further measures taken to minimise risk station employees.
 CCTV is used to enable station employees to view workplaces or parts of workplaces before they enter them. CCTV at stations can also be accessed remotely by security personal at the Security Control Centre. If any issues exist staff at train stations can request that a station’s CCTV be monitored remotely, and assistance can be deployed if required.
 Duty Sheets which set out an employee’s work tasks are designed to eliminate or minimise risks to health and safety, for example some tasks are only performed in daylight hours.
 Safe locations are provided for employees to retreat to if needed and random patrols by the NSW Police Force and the Police Transport Command are conducted at stations.
 Station employees receive safety training which includes dealing with customer-initiated violence, security awareness, using two-way radios and awareness of station specific escape routes, safe spaces, location and operation of duress alarms where installed.
 At the Liverpool Station third party security guards operate on Thursdays between 10:00pm and 2:00am and on Fridays between 7:00pm and 3:00am. 16
 During cross examination, Mr Barry conceded that he had not made any enquiries regarding criminal activities at Liverpool Station, however there was no risk rating attached to train stations. 17 Mr Barry had only attended the Liverpool Station to inspect the GAC as part of the site inspection requested by the Commission. Mr Barry accepted that the GAC was one of the safe places at the Liverpool Station18 and that having more than one safe place was a ‘good thing’.19
 Ms Streimer’s evidence was that the Liverpool Station which is currently the 32nd busiest station on Sydney Trains’ network was originally built in 1879-80 and has since been updated due to increased rail capacity, patronage and advances in technology. The GAC was constructed in the year 2000. The Liverpool Station operates 24/7 and has three active platforms.
 The station concourse has a paid and unpaid area which are separated by eight Opal card gates which provide entry and exit for customers accessing the Station. An increase in patronage through Liverpool Station requires the installation of additional Opal card gates to ensure less congestion and a faster passage for passengers during peak periods. This makes for a more efficient and safer entry and exit process for passengers and staff.
 Sydney Trains expects its staff to spend the whole of their shift working in the open customer environment except when taking breaks, extreme weather, accessing the desktop computer or where there is a work health and safety reason to leave the open area. Customer Service employees have been directed to interact more with customers in line with a focus on customer service.
 Ms Streimer stated that prior to the introduction of Opal cards in around 2012, passengers used magnetic stripe tickets to open station gates. GACs were installed to control gates and were not intended to be used as a ‘safe space’ for employees. The GAC contained computers and information needed to operate the gates and service the needs of passengers, which is now redundant with the introduction of staff-issued iPhones and the installation of Hubs.
 IPhones and Hubs have been introduced to assist employees to work in an open customer environment to provide improved customer service. They have eliminated the need for station staff to access desktop computers, desktop-based microphones for the public address systems, and desktop phones; and allow staff to access emails, timetables and live run data remotely, call security or emergency services, and make station announcements over the public address system.
 The magnetic stripe tickets have now been completely phased out across the Sydney Trains network with the last paper ticket sold in August 2016. Opal cards resulted in the ticket office becoming obsolete resulting in the removal of tickets sellers, cash handlers, and an overall reduction in station staff.
 Ms Streimer’s evidence was that the removal of the GAC will allow for installation of a glass wall and additional Opal gates in place of the existing GAC, as well as a new Hub increasing the view through to the unpaid concourse area, which is currently obstructed by the GAC.
 Extending the view into the unpaid concourse area improves security by allowing Sydney Trains staff, Transport Officers and NSW Police Force officers carrying out their duties from the paid concourse to better assess customers proceeding towards the Opal gates and assess potential security threats from a greater distance. The glass wall is to have a door and swipe card access to improve access for paramedics, cleaning staff and maintenance workers between the unpaid and paid areas of the Station’s concourse.
 Ms Streimer stated that with the removal of the GAC, Station employees would continue to have access to a secure space being the secure workplace across from the GAC. This secure workplace consists of the Duty Station Manager’s office, a waiting/interview room and has bathroom and first aid facilities.
 The secure workplace has two separate and alternate entry and exit points, whereas the GAC has a single point of entry and exit. It is secured and not visible to the public except for an existing window in a solid automatically locking door. It has a computer and telephone access, as well as access to the public address system. The secure workplace has television screens displaying CCTV footage of the concourse and platforms in the Duty Station Manager’s office.
 In seeking to remove the GAC with the agreement of the RTBU, Ms Streimer outlined the consultation process undertaken by Sydney Trains which included facilitating a risk assessment which has not been finalised due to the ongoing dispute.
 In cross examination, Ms Streimer agreed that while the GAC was not built for the purpose of being a safe space it can be used for that purpose. 20 Ms Streimer stated that with the removal of the GAC employees could utilise the safe spaces on the platforms where there are control rooms and the safe workplace detailed above. Ms Streimer also opined that the public toilets could be a safe space where an employee could retreat.21
 Ms Streimer stated that if an employee feels unsafe, they are to follow Sydney Trains’ ‘safe model’ and retreat to a safe place regardless of the incident. 22 This includes where an employee may feel intimidated or harassed.23
 Sydney Trains submits that removal of the GAC, allowing for installation of a glass wall, will increase visibility of customer activity beyond the GAC and will provide an increased chance of responding appropriately to any perceived or actual security threat.
 Sydney Trains, in opposing the RTBU’s application, submits that it is within its managerial prerogative to make changes to the configuration of its train stations which are not unreasonable in the circumstances or in breach of any safety or engineering obligations.
 It is said that the GAC is redundant to the needs of the station and its removal will facilitate more Opal gates being installed and ensure an unobstructed view of the unpaid concourse of persons approaching the Opal gates. The additional Opal gates will decrease congestion at the existing gates. Extending the view into the unpaid concourse will improve security by allowing staff, Transport Officers and NSW Police Force Officers better access.
 Sydney Trains contends that there exists a secure workplace for staff in the event of a staff member wishing to retreat from the concourse area when they are of the belief that there is a safety risk if they remain on the public concourse.
 The secure workplace is immediately opposite the existing GAC, accessible only with an access card provided to all Station employees. In conjunction with the Hub, the secure workplace provides superior operational tools, facilities and work health and safety controls than the GAC.
 In addition, the secure workplace has two separate entry and exit points whereas the GAC has a single point of entry and exit. The secure workplace is secure and not visible to the public, except for an existing window and has the following services:
• computer and telephone access
• access to the public address system
• television screens displaying CCTV footage of the concourse and platforms
• bathroom facilities
• first aid facilities; and
• an interview/waiting room.
 Since the GAC was installed in the year 2000, technology used by Sydney Trains has advanced significantly resulting in changes to the way in which it delivers services to customers. Opal cards have replaced paper tickets, and station employees have been provided with iPhones which allow them access to operational tools whilst working in the open concourse and providing customer service.
 In respect of any safety obligations Sydney Trains submits that its obligation to ensure the health, safety and welfare at work of its employees has been met by:
• identifying and assessing the risk of personal safety of station employees
• implementing appropriate control measures to eliminate, or minimise so far as is reasonably practicable, those risks
• consulting with station employees about the risks and the control measures and
• consulting with employees about the proposed installation of the Hub, and removal of the GAC.
 It is put by Sydney Trains that the removal of the GAC and installation of a Hub does not involve the removal of any existing control measures already in place, but involves removal of a less effective work health and safety control being the GAC and the retention of a superior work health and safety control, being the secure workplace described above.
 Sydney Trains submits that the majority of incidents of assault relating to the Liverpool Station involve customer interactions, 24 with security incidents at the Station involving passengers and members of the public remaining low in their totality. Since 2014 there have been four incidents of customer violence involving staff at the Station, however the existence of the GAC was not a factor in any of these incidents.25
 Sydney Trains wishes to make structural changes to the Liverpool Station following the introduction of new technology, increased patronage and its emphasis on customer service. This is said to necessitate the removal of the GAC to allow for installation of a glass wall and additional Opal gates, in conjunction with the installation of a Hub. Installation of the Hub is not opposed by the RTBU, however the removal of the GAC is opposed for the reasons outlined above. There was no argument taken with Sydney Trains’ assertion that passenger increases at the Liverpool Station requires the installation of additional Opal card gates.
 The RTBU does not dispute the assertion of Sydney Trains that at many stations where GACs were previously installed they have been removed without any apparent safety issues arising. These stations include:
• Town Hall
• Circular Quay
• North Sydney
• Martin Place
• Redfern and
 It is also not disputed by the RTBU that some stations have never had a GAC installed, with the Flemington Railway Station named as an example. Other than referring to it as a red herring, the RTBU did not make clear why its concerns have not arisen at other stations where the GAC has been removed or does not exist. Further, no explanation was provided as to why the safety regulator, SafeWork NSW, had not been contacted concerning the allegation that Sydney Trains would be breaching its safety obligations in removing the GAC. 26 No party called evidence as to how other stations operated without the provision of a GAC in respect of the provision of a safe space for employees.
 I do, however, reject any suggestion that the Liverpool Station public toilets should be considered a safe space for staff when faced with a risk to their safety as was stated by Ms Streimer in her oral evidence. 27
 In opposing the removal of the GAC, the RTBU in its written submissions 28 and witness evidence made much of the fact that the Duty Station Manager’s office and the interview/waiting room were not monitored by CCTV. Further, the possibility that the Duty Manager’s office is on occasions locked and not accessible to other staff in an emergency is unsatisfactory. These concerns, which I consider as valid, were addressed by Sydney Trains during the Hearing in the provision of undertakings that CCTV coverage would be installed in the secure workplace29 and that the Duty Station Manager’s office would always remain accessible to staff.30
 Following the provision of these undertakings the RTBU submitted that it was ‘not amenable’ 31 to the undertakings, which the Commission takes as not having alleviated its concerns. This position appears consistent with the contention of Sydney Trains that the removal of the GAC is opposed period by the RTBU, irrespective of what measures Sydney Trains may take to mitigate the concerns raised.32
 I accept that there is a risk that the Station employees may encounter an altercation or interaction with passengers or members of the public 33 that causes an employee concern for their safety. On this basis Sydney Trains should as far as is reasonably practicable put in place measures to eliminate or reduce this risk. In doing so it is well understood that this duty does not require an employer to take every possible step available to maintain a safe working environment, only those that are reasonably practicable.34
 The secure workplace identified by Sydney Trains is directly opposite the existing GAC; while preferred by employees it is no more accessible than the secure workplace identified by Sydney Trains. The GAC does not have many of the services the secure workplace provides, particularly following the undertakings provided by Sydney Trains to address the genuine concerns raised by the RTBU.
 The preference of Station employees is that the GAC remains in conjunction with the installation of a Hub. This preference, while understandable, was not made out based on a safety case. While the GAC is the employees’ preferred safe place, it is not the only safe space at the Liverpool Train Station. While on the platforms employees are able to retreat into the buildings on the platforms and when in the paid concourse area can access the Sydney Trains-nominated secure workplace (which is also accessible from the unpaid area of the concourse) with no more difficulty than accessing the GAC.
 It is true that the GAC allows employees to remain customer facing. Under the Sydney Trains SAFER or THREAT models personal safety is an employee’s first priority and the models do not require employees to continue to provide passenger services when they consider they are under threat. Sydney Trains throughout this Hearing made it clear that customer service is not required when an employee is under a safety threat.
 While the GAC provides an additional safe space for station staff it has not been demonstrated to be either essential to the provision of a safe space for station employees or a superior safe space to that of the secure workplace Sydney Trains has made available for employees when a safety risk is identified.
 Having regard to the evidence of Ms Streimer (which was not seriously contested on this point) I am satisfied that Sydney Trains has consulted with the relevant employees and their representative the RTBU, and has undertaken a risk assessment on the removal of the GAC as per its Agreement obligations in regard to providing a safe workplace.
 Sydney Trains has identified the risks associated with its proposed change, has put in place appropriate control measures, and has provided during the proceedings undertakings to take further measures to resolve the concerns raised by the RTBU. I am therefore satisfied that Sydney Trains has complied with its safety obligations.
 The RTBU submits that Sydney Trains in proposing to remove the GAC does not meet established engineering standards. Although Sydney Trains submits that this is a last-minute submission that did not form part of the original dispute notification, and should not be considered, it can in any event be disposed of primarily on the reasons put forward by Sydney Trains.
 The engineering standard Station Services and Systems ESB 004 which forms part of the Engineering Standard Stations and Buildings - Station Design Standard Requirements document was issued in 2010 before the introduction of Opal cards. The requirements are not referrable to the Opal ticketing system and reference to the GAC in ESB 004 is made in the context of the old ticketing system when the position of ticket barrier attendant was required. ESB 004 has an important caveat contained on page 8 stating that the station operation systems and infrastructure systems and services are not necessarily definitive for particular locations and may change periodically due to changes in technology. This approach is confirmed in the report obtained by Sydney Trains from the Asset Standards Authority (ASA) in holding that the ESB Standards are not necessarily definitive for a number of reasons including that the reference standards are not current for the Opal ticketing system. 35
 Based on the response from the ASA it is made clear the proposal to remove the GAC is within the parameters of ESB 003 and ESB 004. Nothing was put by the RTBU to contradict the advice provided by the ASA.
 Sydney Trains submits that its intention to remove the GAC falls squarely within its right to manage its own business. A Full Bench of the Australian Industrial Relations Commission in Australian Federated Union of Locomotive Enginemen v State Rail Authority of New South Wales36 in addressing managerial prerogative, said:
“It seems to us that the proper test to be applied and which has been applied for many years by the Commission is for the Commission to examine all the facts and not to interfere with the right of an employer to manage his own business unless he is seeking from the employees something which is unjust or unreasonable.”
 This extract was relied upon by Sydney Trains in submitting that its right to manage its business cannot be interfered with by the Commission other than in limited circumstances. The Commission accepts an employer is free to manage its business in the most effective manner possible and that industrial tribunals should not interfere unless, as the RTBU submits, the employer is acting contrary to an industrial agreement, creating a safety risk or proceeding on an unreasonable basis and, additionally in this case, not following stipulated engineering standards.
 In an ideal world the GAC would remain as an additional safe space, but it is not able to be retained based on implementing the objectives of Sydney Trains. The GAC was used to display the mode of each gate aisle, change the direction and mode of each aisle to suit passenger flow and analyse a ticket’s magnetic information; these are now redundant functions following the introduction of Opal and credit card ticketing.
 Sydney Trains wishes to install additional Opal gates and create an unobstructed view of the unpaid concourse and have its Station employees focus on providing customer service. This justification does not raise any issue of an unreasonable exercise of Sydney Trains’ managerial right. It has been demonstrated to the Commission’s satisfaction that the reasons to remove the GAC which has already occurred at other stations within Sydney Trains’ rail network are based on sound management principles.
 The Commission, having regard to the above and the undertakings provided by Sydney Trains in the course of the hearing of this matter, is not satisfied that the proposal to remove the GAC at the Liverpool Station is contrary to any Agreement provision including clause 35 - Workplace Health, Safety and Environment, engineering standard; or can be viewed as an unreasonable exercise of its right to manage its operations. In reacting to any perceived or actual security threat, staff undertaking customer service duties on the paid area of the concourse can access the closest safe space either on Platforms 2 and 3, or the designated secure workplace adjacent to the existing GAC.
 The application made by the RTBU and dealt with by way of arbitration by the Commission pursuant to the Agreement’s Dispute Settlement Procedure is therefore dismissed.
Applicant: Mr A Guy of counsel and Mr T Warnes Director of Organising for the RTBU
Respondent: Mr Y Shariff of counsel and Ms R Gall of counsel for Sydney Trains.
Printed by authority of the Commonwealth Government Printer
1 AE428119;  FWCA 2318
2 Australian Rail Tram and Bus Industry Union v Sydney Trains  FWC 6693
3 Respondent's Objections to Applicant's Submissions, marked Exhibit R1
4 Witness Statement of Trent Robert Hunter dated 7 August 2019 and marked Exhibit A1; Further Witness Statement of Trent Robert Hunter dated 28 August 2019 and marked Exhibit A2
5 Transcript PN258
6 Transcript PN292
7 Transcript PN417
8 Transcript PN469
9 Transcript PN497
10 Transcript PN516
11 Transcript PN695
12 Outline of Written Submissions of the RTBU dated 28 August 2019 at 
13 Outline of Written Submissions of the RTBU dated 9 August 2019 at 
14 Outline of Written Submissions of the RTBU dated 31 January 2020 at ,  and 
15 Ibid at 
16 Witness Statement of Mr Andrew Barry dated 26 August 2019 and marked Exhibit R2
17 Transcript PN886, 915
18 Transcript PN934
19 Transcript PN953
20 Transcript PN1110
21 Transcript PN1194
22 Transcript PN1224
23 Transcript PN1232
24 Attachment JS 11 to Witness Statement of Jasmine Streimer dated 26 August 2019 and marked Exhibit R3
25 Outline of Written Submissions of Sydney Trains dated 26 August 2019 at 
26 Transcript PN277
27 Transcript PN1194
28 Outline of Further Written Submissions of the RTBU dated 31 January 2020 at 
29 Transcript PN1273
30 Transcript PN1357
31 Response on Transcript 10 March 2020
32 Transcript PN276
33 See Sydney Trains’ concession at  of Outline of Written Submissions of Sydney Trains dated 26 August 2019
34 Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92 at  and 
35 Attachment JS35 to Witness Statement of Jasmine Streimer dated 26 August 2019 and marked Exhibit R3
36 (1984) 295 CAR 188 at 191