DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Australian Rail, Tram and Bus Industry Union
v
Sydney Trains
(C2020/3044)

Appeal against decision [[2020] FWC 1457] of Deputy President Bull at Sydney on 9 April 2020 in matter number C2019/2880.

1. Background

[1] This is an appeal, for which permission is required, by the Australian Rail, Tram and Bus Industry Union (RTBU or the Appellant) against a decision of Deputy President Bull [2020] FWC 1457, issued on 9 April 2020 (Decision). The Decision concerned a dispute between the RTBU and Sydney Trains (Respondent) conducted under the terms of the dispute resolution procedure of the Sydney Trains Enterprise Agreement 2018 (Agreement).

[2] The dispute between the parties was fundamentally about the decision of Sydney Trains 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.

[3] The RTBU opposed the removal of the GAC before the Deputy President on the basis that the decision by Sydney Trains did not “comply” with clause 35 of the Agreement and/or with the Respondent’s obligations under section 19 of the Work Health and Safety Act 2011 (NSW) (WHS Act), and/or that the Respondent’s removal of the GAC was unreasonable in all the circumstances. The Appellant also sought at first instance an order that the Respondent not remove the GAC at Liverpool station until such time as an acceptable alternative was constructed.

[4] The application for the Commission to deal with the dispute was made under s.739 of the Fair Work Act 2009 (Cth) (FW Act). There was no contest before us that the Commission had the necessary jurisdiction to determine the outcome of the dispute given the operation of the FW Act and the terms of the Agreement. 1

2. The Decision

[5] Having set out the background to the matter, including that Hubs have been introduced across Sydney Trains’ network since July 2013 2 and that the Deputy President was assisted by an inspection conducted at Liverpool Station,3 and setting out the positions and evidence of each party, the Deputy President summarised the justification for the decision taken by Sydney trains as follows:

“[71] 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.”

[6] The Deputy President then considered the matter and made findings under three headings that reflected the major submissions of the parties.

“Safety

[72] 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

•  Central

•  Wynyard

•  Circular Quay

•  North Sydney

•  Martin Place

•  Hurstville

•  Redfern and

•  Auburn.

[73] 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. 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.

[74] 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.

[75] In opposing the removal of the GAC, the RTBU in its written submissions 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.

[76] Following the provision of these undertakings the RTBU submitted that it was ‘not amenable’ 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.

[77] I accept that there is a risk that the Station employees may encounter an altercation or interaction with passengers or members of the public 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.

[78] 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.

[79] 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.

[80] 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.

[81] 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.

[82] 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.

[83] 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.

Engineering Standards

[84] 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.

[85] 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.

[86] 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.

Reasonableness

[87] 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 Wales 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.”

[88] 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.

[89] 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.

[90] 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.

Footnotes omitted.”

[7] The ultimate conclusion of the Deputy President was stated as follows:

“[91] 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.

[92] 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.”

[8] We observe that the clause 35 – Workplace Health, Safety and Environment of the Agreement referred to by the Deputy President is in the following terms:

“35. WORKPLACE HEALTH, SAFETY AND ENVIRONMENT

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.

35.3. The Employer will also monitor and seek to improve systems and processes to ensure that both its statutory obligations and objectives of this Agreement are met.

35.4. Employees must, while at work, take reasonable care for the health and safety of people who are at the Employer's place of work and who may be affected by the Employee's acts or omissions at work.

35.5. Employees must, while at work, co-operate with the Employer or other person{s) so far as is necessary to enable compliance with any requirement under relevant legislation and associated regulations and/or codes of practice that are imposed in the interests of health, safety and welfare on the Employer or any other person.

35.6. Employees must bring to the notice of their supervisor or manager, any situation where they genuinely believe a risk of injury or damage exists.

35.7. Subject to relevant legislation and associated regulations, the Employer will continue to consult Employees on matters concerning workplace health and safety in accordance with WorkCover NSW endorsed Codes of Practice on Consultation.

35.8. The requirements under the Consultation Code of Practice will continue to apply where they are not inconsistent with, but additional to, the relevant legislation and associated regulations.”

3. The grounds of appeal

[9] The Appellant’s three grounds of appeal are set out below:

3.1 The Member at first instance was guided by irrelevant factors

[10] The RTBU contended that the Member at first instance was guided by the following factors that it claims were irrelevant:

•  That the Appellant had not raised issue with the fact that the GAC did not exist or was removed at other train stations on the Respondent’s network.

•  That the Appellant had not contacted the safety regulator in respect of the GAC.

•  That the Appellant had not called evidence as to how other train stations operated without a GAC in respect of a safe space for employees.

•  That the Appellant was not amenable to the undertakings made by the Respondent, and the failure by the Appellant to agree to such undertakings

3.2 The Member at first instance mistook the facts

[11] The RTBU contends that the Member at first instance mistook the following facts:

•  That the removal of the GAC was necessary to install additional Opal gates.

•  That the Customer Service Attendants who use the GAC no longer perform ticket barrier attendant duties.

•  That the secure workplace can be accessed with no more difficulty than the GAC.

3.3 The Member at first instance failed to take material considerations into account

[12] The RTBU contends that the Member at first instance failed to take into account the material considerations that that the GAC was a superior safe space in respect of the following:

a. visibility of employees, passengers, and members of the public;

b. the ability for the GAC to enable an employee to de-escalate passengers and members of the public;

c. instances where the GAC has been used in the past; and

d. the views of the employees at Liverpool train station.

Admission of further evidence

[13] The RTBU also sought that if permission to appeal was granted, this Full Bench exercise its discretion under s.607(2) of the FW Act to admit further evidence as part of this appeal concerning the utilisation of the GAC during the COVD-19 pandemic. In that regard it noted that the matter was last heard on 10 March 2020, prior to COVID-19 being declared a global pandemic by the World Health Organisation on 11 March 2020.

[14] The RTBU contends that since the decision was handed down, Sydney Trains has directed staff to utilise the GAC as a safe space to work from, and to remain passenger facing during the pandemic. In that light, due to the timing of the matter, the decision and the emergence of COVID-19, such evidence could not be admitted at first instance. The new evidence, from Richard Tudor, Customer Service Attendant, Liverpool Railway Station and elected RTBU delegate, was said to be relevant as it would inform the Commission of the reasonableness of the Respondent removing the GAC.

4. The submissions advanced in the appeal

4.1 The RTBU

[15] The RTBU contends that the appeal is in the public interest as it relates to the health and safety of not only employees of the Respondent, but passengers and members of the public. Further, or in the alternative, the appeal is in the public interest because, if leave is granted to lead further evidence of the use of the GAC during the COVID-19 pandemic, it raises real issues in respect to the reasonableness of managerial prerogative during a public health crisis.

[16] The RTBU also submits that the Full Bench should grant permission to appeal, allow the additional evidence to be admitted, allow the appeal, quash the decision and make a decision according to law, or remit the matter to another member of the Commission for determination.

[17] The Appellant accepted that for the Decision to be appealable it must be affected by errors as identified in House v The King. 4 It contends that each of the grounds of appeal have been made out and justify the Decision being reviewed and overturned.

[18] In respect of appeal ground 1 (irrelevant considerations), the RTBU submits that:

•  The Decision did not concern the existence or removal of GAC’s generally, or at other train stations on the Respondent’s network, but rather at Liverpool Train Station;

•  The Member at first instance was guided by the irrelevant factor that the Appellant had not contacted the safety regulator in respect of the removal of the GAC. The Appellant submits that this factor, taken into account at first instance is irrelevant as it is a matter for the Appellant as to how they are to run their case, and their decision to approach a safety regulator or not is not a matter that should be taken have guided the decision maker when considering whether the conduct of the Respondent was reasonable.

•  The Member at first instance was guided by the irrelevant factor that the Appellant was not amenable to the undertakings made by the Respondent, and the failure of the Appellant to agree to such undertakings. In this respect, the Appellant again submits that the consideration of the Appellant’s conduct in approaching its case is an irrelevant factor that the Member at first instance was guided by when considering whether the conduct of the Respondent in removing the GAC was reasonable.

[19] As to appeal ground 2 (mistaken facts), the RTBU contends:

•  The Member at first instance mistook the fact that the removal of the GAC would facilitate the installation of additional Opal gates at Liverpool Train Station. The Appellant submits that the evidence of the witnesses was that when removed, the GAC would be replaced with glass panelling and not Opal gates. In this respect the Appellant submits that the Member at first instance mistook these facts, leading to an incorrect approach by the Member at first instance about the reasonableness of the removal of the GAC.

•  Secondly, the Member at first instance mistook the fact that the Customer Service Attendants who use the GAC no longer perform ticket barrier attendant duties. The Appellant submits that the Customer Service Attendants do still perform ticket barrier attendant duties, and that by mistaking this fact the Deputy President was again led into error in making an assessment as to whether the removal of the GAC was reasonable.

•  Finally, the Member at first instance mistook the fact that the secure workplace can be accessed with no more difficulty than the GAC. In this respect, the Appellant submits that there was sufficient evidence before the Member at first instance that established that the GAC was a superior and more easily accessible safe space to that of the secure workplace. In this regard, the Appellant submits that the this led the Member at first instance into error in respect of the reasonableness of the removal of the GAC.

[20] The RTBU supported appeal ground 3 on the basis of the assertion that the Member at first instance failed to take into account the material considerations that the GAC was a superior safe space in respect of a number of factors set out in that ground. Further, it contends that these material facts, if properly considered, would have led the Deputy President to find that the removal of the GAC was unreasonable on the part of the Respondent.

4.2 Sydney Trains

[21] Sydney Trains primary submission is that permission to appeal should be refused and there were no error or public interest considerations that warranted a review of the Decision on appeal. 5

[22] As to the claimed public interest, Sydney Trains submits that the dispute involves a single, small, decades old, 6 glass workplace structure (the GAC) at one of its 175 stations. The dispute is unique to a single employer, at a single workplace. It submits that this appeal concerns a bare attempt to relitigate the merits of the substantive dispute. Further, it contends that this matter does not, contrary to the Appellant’s submission, have an ‘impact on the health and safety of the Respondent’s employees and the travelling public at large’. This is particularly so as GACs generally did not, and do not, exist at all stations and, at some stations, have already been removed.

[23] As to appeal ground 1 (irrelevant matters), Sydney Rail contends that each of the matters cited by the Appellant were relevant to the consideration and determination of the application and no error was present. In particular:

•  What occurred with GACs at other stations is relevant to the reasonableness of the managerial prerogative to remove the GAC at Liverpool. If Sydney Trains had removed GACs at other train stations without opposition or difficulty, then it must be relevant to assessing whether it was also reasonable to do so at Liverpool Station.

•  It is also relevant to Sydney Trains’ duties under the WHS Act and clause 35 of the Agreement, as a proper risk management approach would include consideration of controls present, or absent, at other stations across Sydney Trains’ business or undertaking.

•  The concession of a union official in cross-examination that the safety regulator, SafeWork NSW, was not contacted about the subject matter of the dispute (namely the safety issues, and alleged breaches of the WHS Act and safety clause of the EA, at Liverpool Station) was relevant as if a genuine safety issue existed, it seems reasonable to infer that a reasonable and logical step for the RTBU to have taken is to have raised the issue with the relevant safety regulator to investigate and take further action. As SafeWork NSW has responsibility for the regulation of work health and safety and had expertise and coercive powers to enforce compliance.

•  The proffering of the undertakings by Sydney Trains was relevant to demonstrate that it was prepared to act reasonably to address the concerns of the Appellant to resolve the dispute. The rejection of these offers provided insight into the Appellant’s preference to retain the GAC ‘at all costs’, despite any other alternatives being offered. The proffering, and rejection, of these undertaking are relevant, because the Appellant made the issue the subject of the undertaking relevant. No error is disclosed.

[24] In relation to appeal ground 2 (mistaken facts) Sydney Trains contends that:

•  The finding that the removal of the GAC would ‘facilitate more Opal gates being installed and ensure an unobstructed view of the unpaid concourse of persons approaching the Opal gates’ was open on the evidence including the unchallenged evidence of Ms Jasmin Streimer, Principal Manager Workplace Relations.

•  Given that there is no identifiable part of the Decision which stands for the submission now advanced by the Appellant about the ticketing duties, and that there was no dispute about the duties of the Customer Service Attendant, there is no proper basis to put the submission that there was any mistake of fact, or that any such mistake led the Deputy President into error.

[25] As to appeal ground 3 (failure to take relevant matters into account), Sydney Trains contends that the views of the employees who gave evidence were relevant, but the Deputy President found these were, simply put, a ‘preference’. As to the asserted benefits of the GAC, the Deputy President expressly deals with the evidence that the GAC ‘allows employees to remain customer facing’ at [80], however, his Honour found that Sydney Trains existing safety models ‘do not require employees to continue to provide passenger services when they consider they are under threat’ at [80]. This was central to the Respondent’s case at first instance. That is, if there is a risk of customer aggression, providing customer service is suspended.

5. Consideration

[26] Section 604 of the FW Act provides as follows:

“604 Appeal of decisions

(1) A person who is aggrieved by a decision:

(a) made by the FWC (other than a decision of a Full Bench or an Expert Panel); or

(b) made under the Registered Organisations Act by:

(i) the General Manager (including a delegate of the General Manager); or

(ii) the Registered Organisations Commissioner (including a delegate of the Commissioner);

may appeal the decision, with the permission of the FWC.

(2) Without limiting when the FWC may grant permission, the FWC must grant permission if the FWC is satisfied that it is in the public interest to do so.

Note: Subsection (2) does not apply in relation to an application for an unfair dismissal (see section 400).

(3) A person may appeal the decision by applying to the FWC.”

[27] An appeal under s 604 of the FW Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker; see: Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ. There is no right to appeal and an appeal may only be made with the permission of the Commission. Subsection 604(2) requires the Commission to grant permission to appeal if satisfied that it is in the public interest to do so. Permission to appeal may otherwise be granted on discretionary grounds.

[28] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment; see: O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44]-[46]. The public interest is not satisfied simply by the identification of error, or a preference for a different result; see: GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26]-[27], 197 IR 266 (‘GlaxoSmithKline’); Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], 202 IR 388, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe (‘NSW Bar Association’); Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28]. In GlaxoSmithKline, a Full Bench of the Commission identified some of the considerations that may attract the public interest at [27]:

‘… the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters…’

[29] Other than the special case in s 604(2), the grounds for granting permission to appeal are not specified. Considerations which have traditionally been treated as justifying the grant of permission to appeal include that the decision is attended with sufficient doubt to warrant its reconsideration and that substantial injustice may result if leave is refused; see also: CFMEU v AIRC (1998) 89 FCR 200 and Wan v AIRC (2001) 116 FCR 481.

[30] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error; see: Wan v AIRC (2001) 116 FCR 481 at [30]. However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.

[31] Further, in considering permission to appeal, and any appeal more generally, the Full Bench should read decision as a whole and fairly. There is no requirement for a decision-maker to refer to every piece of evidence and every submission in a decision, provided that the decision-maker deals with those matters which are centrally relevant and sets out the reasoning which leads to the outcome which is determined. 6

[32] In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal; see: Trustee for The MGTI Trust v Johnston [2016] FCAFC 140 at [82]. However, it is necessary to engage with those grounds to consider whether they raise an arguable case of appealable error.

[33] We do not consider that permission to appeal should be granted in this matter on public interest or discretionary grounds. The appeal does not raise important or novel questions, there is no diversity of opinion on the approach to be adopted to matters of this kind, and the appeal grounds do not raise an arguable case of appealable errors. Further, the matter is of limited compass and we do not consider that the Decision manifests an injustice, or that the result is counter intuitive. In addition, the legal principles applied do not appear disharmonious when compared with other recent decisions dealing with similar matters.

[34] We consider that the matters claimed by the RTBU as irrelevant matters were material to the determination of the application or that any error in this regard has been demonstrated. The fact that the GACs had been removed from other stations operated by Sydney Trains without apparent negative consequences was relevant to the assessment of the RTBU’s case and its underpinning propositions. This aspect was not of itself decisive and there is no indication that the Deputy President considered the matter in that manner or that he failed to have regard to the particular circumstances of the Liverpool Station.

[35] The absence of an approach being made by the RTBU to the Safety Regulator was cited by the Deputy President as part of assessing the substance of the competing positions. There is no indication that this formed a significant part of the rationale for the conclusions made in the Decision. In any event, this observation was relevant, albeit marginally.

[36] In terms of the treatment of the Undertaking provided by Sydney Trains, this was responsive to the concerns raised in the evidence advanced by the RTBU and which were in part accepted by the Deputy President. The Undertaking, and the absence of an agreed position arising from such, were relevant considerations and we do not consider that the Deputy President made any error in his approach to that element.

[37] We do not consider that there is any substance in the alleged mistakes of facts. Each of the findings that were made were open on the evidence and any fair reading of the Decision indicated that the relevant factors were appropriately taken into account by the Deputy President. Further, some of the observations made in the Decision about the position advanced by Sydney Trains as relied upon by the RTBU in appeal ground 2, were not in themselves factual findings.

[38] As to appeal ground 3, it is apparent from the Decision that the Deputy President accepted that the retention of the GAC was sought by members of the Appellant as the preferred facility and that there were some legitimate concerns with its removal. However, the Deputy President found that this preference, while understandable, was not made out based on a safety case and that in all of the circumstances he was not satisfied that the proposal to remove the GAC at the Liverpool Station was contrary to any Agreement provision or could be viewed as an unreasonable exercise of the Respondent’s right to manage its operations. 7 This, and the related findings, were open on the evidence and we do not consider that any arguable case of error by the Deputy President in reaching these conclusions has been made out.

[39] We have decided that permission to appeal will not be given, and given the basis upon which the proposed new evidence was advanced by the RTBU, this aspect is moot. In any event, the principles relating to the exercise of discretion under section 607(2) of the FW Act are generally summarised in Power Projects International Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union 8 and include:

•  It must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial;

•  The evidence must be such that there must be a high degree of probability that there would be a different verdict; and

•  The evidence must be credible.

[40] In this matter, there is no dispute that the foreshadowed evidence may be credible. However as submitted by Sydney Rail, the events concerned occurred prior to the Decision being handed down and no application was made to reopen the matter. Further, for reasons also largely advanced by Sydney Trains we do not consider that evidence is such that there is a high degree of probability that there would be a different outcome given all of the circumstances.

6. Conclusions and disposition of the appeal

[41] For the reasons set out above, we do not grant permission to appeal the Decision and the appeal is dismissed.

DEPUTY PRESIDENT

Appearances:

A Guy, of counsel, with permission with G Morgan-Cocks on behalf of the Appellant.

M Seck, of counsel, with permission with T Reaburn for the Respondent.

Hearing details:

2020
June 24
By Telephone.

Printed by authority of the Commonwealth Government Printer

<PR721677>

 1   The Deputy President had earlier issued a decision on jurisdiction, [2019] FWC 6693, and this was not contested by the Respondent on appeal.

 2   Decision at [3].

 3   Decision at [11].

 4   (1936) 55 CLR 499 at 505.

 5   In the alternative, Sydney Trains variously contended that if permission to appeal was granted, the appeal should be dismissed, the statement of Richard Tudor should not be admitted; and in the further alternative, if the appeal was upheld, the matter be remitted to Deputy President Bull for rehearing.

 6   see Linfox Australia Pty Ltd v Fair Work Commission [2013] FCAFC 157 at paras [47] to [49].

 7   Decision at [91].

 8   (2011) 210 IR 357 at [12], citing Atkins v National Australia Bank (1994) 34 NSWLR 155.