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TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1055565
SENIOR DEPUTY PRESIDENT HAMBERGER
B2018/50
s.424 - Application to suspend or terminate protected industrial action - endangering life etc.
Sydney Trains; NSW Trains
and
Australian Rail, Tram and Bus Industry Union; Association of Professional Engineers, Scientists and Managers, Australia, The
(B2018/50)
Sydney
8.06 AM, THURSDAY, 25 JANUARY 2018
PN1
THE SENIOR DEPUTY PRESIDENT: Mr Seck.
PN2
MR SECK: May it please, Senior Deputy President – we are in a position to commence calling witnesses, so subject to what anyone else has to say this morning, I propose starting to call the witnesses in support of our case.
PN3
THE SENIOR DEPUTY PRESIDENT: Just – I mean, Mr Howell, are there any witnesses you don't want to cross-examine, given I've already said there is a limit on how long I'm going to give you.
PN4
MR HOWELL: Your Honour, I hear what your Honour says but I have to rise to make an application for a further adjournment. I appreciate in light of the exchange we had yesterday what the position is likely to be but I am duty-bound to make the application. At least I've had an opportunity to read the material and get my head around the case that my client has to meet but what I've not had the opportunity to do is to obtain obstructions to meet it; that is to say, to obtain potential evidence in reply, to obtain instructions for productive cross-examination. There simply hasn't been the time available since we adjourned at approximately – I think it was 6 pm or thereabouts last night.
PN5
This morning, to canvas the entirety of the material which enables my client to effectively – a case in the distance and the order (indistinct) fairly sought.
PN6
THE SENIOR DEPUTY PRESIDENT: Yes, I hear what you say but I think you should kick on.
PN7
MR HOWELL: May it please.
PN8
THE SENIOR DEPUTY PRESIDENT: Okay.
PN9
MR HOWELL: I should say just for clarity, the application be adjourned until lunchtime because at least then I'd be better - - -
PN10
THE SENIOR DEPUTY PRESIDENT: Yes, no, I hear what you say but I've got to balance the considerations of – thanks.
PN11
MR SECK: Your Honour, I call Steven Charles Issa.
PN12
THE ASSOCIATE: State your full name and address.
MR S ISSA: Steven Charles Issa, 680 George Street, Sydney.
<STEVEN CHARLES ISSA, SWORN [8.08 AM]
EXAMINATION-IN-CHIEF BY MR SECK [8.09 AM]
PN14
MR SECK: Please state your full name for the record?‑‑‑Steven Charles Issa.
PN15
What is your current work address, Mr Issa?‑‑‑680 George Street, Sydney.
PN16
What is your current occupation?‑‑‑Executive director, Sydney Coordination Office.
PN17
Who is your employer?‑‑‑Transport for New South Wales.
PN18
Mr Issa, you have prepared a witness statement in these proceedings, that is correct?‑‑‑That's correct.
PN19
That witness statement is dated 23 January 2018?‑‑‑Yes.
PN20
Do you have a copy of that statement with you in the witness box?‑‑‑No.
PN21
We can provide you a copy of that witness statement. Have you read that witness statement recently?‑‑‑Yes, I have.
PN22
Do you wish to make any changes to the witness statement?‑‑‑No, I don't.
PN23
Are the contents of the witness statement true and correct to the best of your knowledge and belief?‑‑‑Yes, they are.
PN24
I tender the statement.
THE SENIOR DEPUTY PRESIDENT: Yes, Mr Issa's statement is exhibit 2.
EXHIBIT #2 WITNESS STATEMENT OF STEVEN CHARLES ISSA DATED 23/01/2018
*** STEVEN CHARLES ISSA XN MR SECK
MR SECK: May it please – no further questions.
CROSS-EXAMINATION BY MR HOWELL [8.10 AM]
PN27
MR HOWELL: Mr Issa, my name is Howell. I'll be representing the Professionals' Association and the RTBU this morning. I'll endeavour not to keep you long. You're in charge of the mitigation strategy to deal with the industrial action, that's right?‑‑‑That's correct, yes.
PN28
You've not dealt separately in your statement with the action being taken by Professionals Australia against Sydney Trains as opposed to against New South Wales Trains, have you?‑‑‑No.
PN29
And you've not dealt in your statement with the potential impact of the industrial action in the form of an overtime ban being taken by the RTBU against Sydney Trains as opposed to New South Wales Trains, that's right?‑‑‑Sorry, we've responded to the situation based on the network and the customer, not different applicants, and so we have a response plan for today. We have a response plan for tomorrow, Saturday, Sunday and Monday based on the fact that trains aren't operating. Some of the trains that are considering are for New South Wales Trains are the fact there are no trains from Central Coast and Wollongong and Katoomba, for example. So the way we've put the response together is for the customer and the network impact.
PN30
So I think the answer then to my question is you haven't delineated between the impact upon either Sydney Trains or New South Wales Trains between the action taken by the RTBU or Professionals Australia as well?‑‑‑So we - - -
PN31
Is that right or wrong, Mr Issa?‑‑‑I'm just trying to understand – basically, there's no trains running so it's a little - - -
PN32
Sorry, are you suggesting there is no trains running at all?‑‑‑So for Monday there's no trains running and for today it's based on the level of service. I'm not sure how you would delineate that but we've looked at the service frequency and the impact to customer, whether it's an inter-city fleet from New South Wales TrainsLink or a Sydney Trains train.
PN33
All right, but you know, don't you, that the RTBU has materially different coverage to Professionals Australia? That's right?‑‑‑They do, yes.
*** STEVEN CHARLES ISSA XXN MR HOWELL
PN34
You would accept that the scope of employees within New South Wales and Sydney Trains that the RTBU could represent would be very different to that which could be represented by Professionals Australia?‑‑‑I have no background with respect to - - -
PN35
You don't know?‑‑‑No, I don't.
PN36
Nonetheless, in terms of the mitigation strategy that you've described, the starting point is – you'd accept, wouldn't you, that – I'll use the expression, "the government", to accommodate both Sydney Trains and the Minister's Office, if you can proceed on that basis with me for a moment – you would accept, wouldn't you, that the government has been actively promoting the idea that persons who would otherwise use the train network on the day of a foreshadowed strike should if it is possible make alternate arrangements?‑‑‑Yes.
PN37
It's fairly blanket media coverage. You'd accept that?‑‑‑It's – yes, alternate arrangements where possible, absolutely, yes.
PN38
Right, and there would be a number of different arrangements that could meet a demand to attend for work, aren't there, including working from home?‑‑‑Yes.
PN39
It could be alternate travel arrangements, for example, using a bus service?‑‑‑Yes.
PN40
Or a car, taxi?‑‑‑Yes.
PN41
It could be a hailed taxi or a prebooked?‑‑‑That's correct.
PN42
There would be other options as well depending upon how far the commute was – so pedal power, for example, on a push bike?‑‑‑Yes.
PN43
Walk, ferry – there are a range of mitigation strategies that people can individually put in place to manage the impact of a network shutdown, right?‑‑‑There are but it's the level at which we can manage.
PN44
You don't know the level that – sorry, withdraw that. You, sitting there today, you can't say with any certainty or confidence how many people would still be called upon to use the network on days where there is an overtime ban?‑‑‑No, we can't foreshadow customer behaviour. We can predict it. We can also predict what we can service and what we can't service.
*** STEVEN CHARLES ISSA XXN MR HOWELL
PN45
Right. Now, in paragraph 11 of your statement you describe the potential impact of – sorry, I'll withdraw that. You describe the potential impact on the day – that is a question for 29 January – if everyone who would otherwise have caught a commuter train drives their car?‑‑‑In one hour.
PN46
Yes – you're not seriously suggesting that every person who would otherwise be catching a train would be in a car, are you?‑‑‑So we're explaining that the demand for train patronage significantly exceeds - - -
PN47
Mr Issa - - -?‑‑‑Sorry.
PN48
- - - can you answer the question I asked? You're not seriously suggesting that every person who would otherwise catch a train would get in a car and drive?‑‑‑No, they won't.
PN49
Indeed, whilst you can foreshadow that there would likely be an increase in commuter traffic on the roads, there is no way you can effectively model what that would actually mean in practise on the roads, is there?‑‑‑That's correct – we can model scenarios but we can't model behaviour, that's correct.
PN50
And indeed, there hasn't been a day's stoppage in the rail network for many, many years. That's right?‑‑‑That's correct.
PN51
So what you've based your mitigation strategies on is assumptions. That would be fair?‑‑‑Yes.
PN52
It's right, isn't it, that – sorry, I'll start that again. Leaving aside the action on 29 January, the strike day, in order to mitigate the effects of the overtime ban, you put in place – by, "you", I mean Sydney Trains and New South Wales Trains – you've put in place a Saturday train timetable, right?‑‑‑That's correct.
PN53
In your understanding, that reduces the overall demand on the network – that is to say, the number of trains in service?‑‑‑Reduces the service, yes, that's right, yes.
PN54
Which frees up some trains sets, that's right, that would otherwise be used on a weekly arrangement?‑‑‑Yes.
PN55
And it frees up some drivers, that's right?‑‑‑That's what I've been advised by Sydney Trains, yes.
*** STEVEN CHARLES ISSA XXN MR HOWELL
PN56
You're managing the mitigation strategy, aren't you?‑‑‑We're working across the network. I'm not in charge of every single component of it. Sydney Trains delivers their component. We work with them and they give us the inputs.
PN57
All right. Are you aware that Sydney Trains has rostered additional relief drivers to operate additional relief trains to deal with circumstances as they arise because of the reduced number of sets on the line?‑‑‑They've rostered – I think it was 15, they said, yes.
PN58
As opposed to the usual – do you know?‑‑‑Well, they've cut 1,300 services in a day and they're rostered 1,500 spare services so - - -
PN59
How many would be regularly used?‑‑‑I don't know.
PN60
All right. Now, one of the things that you would have overseen the coordination of is one of the foreshadowed impacts of the increase overtime ban being increased congestion at trains stations, right?‑‑‑Yes.
PN61
Increased congestion at stations – (indistinct) suggestion you're talking about passengers attending the station – that's something which frequently happens in our train network, isn't it, to deal with special circumstances such as events or New Year's Eve, as an illustration?‑‑‑Yes, it does.
PN62
Indeed, in some circumstances where you have prolonged increased demand those arrangements that are put in place to deal with an increased number of commuters and insure their safety can be put in place for prolonged periods, like during Sydney Olympics, for example?‑‑‑Yes, on significant amounts of overtime, though, so it's about the resource levels to service that significant increase in demand outside business as usual and what that requires from Sydney Trains, from Transport for New South Wales, from New South Wales Police to achieve that. So those events you're talking about are planned operations with significant overtime and relocation of resources from other parts of the business. They're not generally day-to-day business – everyday on the network. The level of congestion we have at a train station on a normal level day doesn't require that sort of response. It's when we have significant disruptions due to, you know, unforeseen issues or overtime bans and when we have those major, unplanned events we re-allocate resources and put people on overtime to deal with them.
PN63
That's what you've done on this occasion as far as you're able? So you've engaged the mitigation strategy design to insure safety at the train stations if they were to start to become congested?‑‑‑As best as we can, yes.
*** STEVEN CHARLES ISSA XXN MR HOWELL
PN64
Indeed, I think the CEO put out a publication yesterday afternoon which said contingencies had been put in place to deal with this very scenario, that's right? I think a moment ago you mentioned another – which I wanted to put to you. When you have those sorts of circumstances where there is congestion on a platform or at a station, it's not only the resources of Sydney Trains or New South Wales Trains that can be brought to bear to assist or potentially manage safety concerns? It includes other government organisations like the New South Wales Police, that's right?‑‑‑Yes.
PN65
Again, that is just an ordinary part of dealing with a circumstance where there is an increased demand, whatever the cause?‑‑‑That's correct.
PN66
Yes, thank you.
PN67
THE SENIOR DEPUTY PRESIDENT: Okay, thank you.
PN68
MR SECK: No further questions, your Honour.
THE SENIOR DEPUTY PRESIDENT: Okay, thanks very much, Mr Issa. You can step down.
<THE WITNESS WITHDREW [8.22 AM]
PN70
MR SECK: Your Honour, the next witness is Gavin Richard Kable. I call Mr Kable. With your Honour's leave, I propose asking Mr Kable just one or two further questions.
PN71
THE ASSOCIATE: Please state your full name and address.
PN72
MR G KABLE: Gavin Richard Kable, 477 Pitt Street, Sydney.
THE ASSOCIATE: Take the bible in your right hand and repeat after me.
<GAVIN RICHARD KABLE, SWORN [8.24 AM]
EXAMINATION-IN-CHIEF BY MR SECK [8.24 AM]
PN74
MR SECK: Could you please state your full name for the record?‑‑‑Gavin Richard Kable.
*** GAVIN RICHARD KABLE XN MR SECK
PN75
What is your work address?‑‑‑My work address is 477 Pitt Street, Sydney.
PN76
What is your current occupation?‑‑‑My current occupation is executive director people and communications for Sydney Trains.
PN77
Mr Kable, you have prepared two witness statements in these proceedings, that's correct?‑‑‑That's correct.
PN78
The first statement you prepared is – has 20 pages with 40 annexures, dated 23 January 2018, is that correct?‑‑‑That's correct.
PN79
You've also prepared a second statement which is dated 23 – sorry, 29 January 2018 of six paragraphs, is that correct?‑‑‑I believe - - -
PN80
Sorry, 24 January?‑‑‑24th, yes, correct.
PN81
Do you wish to make any changes to the contents of those statements?‑‑‑No.
PN82
I tender each of those statements.
PN83
THE SENIOR DEPUTY PRESIDENT: Yes, so - - -
PN84
MR HOWELL: No objection.
THE SENIOR DEPUTY PRESIDENT: - - - okay, thank you. Mr Kable's first statement of 23 January is exhibit 3 and this statement of 24 January is exhibit 4.
EXHIBIT #3 WITNESS STATEMENT OF GAVIN RICHARD KABLE DATED 23/01/2018
EXHIBIT #4 SECOND WITNESS STATEMENT OF GAVIN RICHARD KABLE DATED 24/01/2018
PN86
MR SECK: May it please. With the leave of the Commission I just wish to ask Mr Kable one or two further questions arising out of his second statement.
PN87
THE SENIOR DEPUTY PRESIDENT: Yes.
*** GAVIN RICHARD KABLE XN MR SECK
PN88
MR SECK: Mr Kable, if I can take you to exhibit 4, which is the statement that you signed yesterday - - -?‑‑‑Yes.
PN89
- - - you will see in paragraph 4 of your statement you refer to the RTBU, proposing to send out a text message to their members on the night of 23 January to ask whether or not the offer which had been last made by the rail entities was, "good enough", but you want to temporarily stop the industrial action. They were instructed to respond, "yes", to the text message if they wanted a temporary stop to the action, or, "no." To the best of your knowledge, do you know what the outcome of that text message was?‑‑‑Yes – to the best of my knowledge the outcome was of the RTBU members I recall 5.93 per cent of people responded to the text message.
PN90
What was the response from 5.93 of those?‑‑‑So they were responding as a, "yes", vote to stop the industrial action.
No further questions.
CROSS-EXAMINATION BY MR HOWELL [8.27 AM]
PN92
MR HOWELL: Mr Kable, my name is Howell. I'm appearing on behalf of the Professionals' Association and the RTBU. Now, you have been actively engaged in the bargaining process with the combined rail unions since the start, is that right?‑‑‑Correct.
PN93
It commenced on or around or in around mid-July 2017?‑‑‑Yes, that's correct.
PN94
The union has collectively been represented through single bargaining, in that they've named their collective rail unions, that's right?‑‑‑Correct.
PN95
With the assistance of Unions NSW?‑‑‑Correct – known as the combined rail unions.
PN96
Now, if I refer to it as the CRU, you'll understand I'm referring to the combined rail unions? Thank you. The CRU served a log of claims in or around late July 2017?‑‑‑That's correct.
PN97
That followed or occurred at approximately the same time as a series of meetings with representatives of both Sydney Trains and New South Wales Trains?‑‑‑That's correct.
*** GAVIN RICHARD KABLE XXN MR HOWELL
PN98
There have been a great many meetings since that time, would you agree?‑‑‑Yes, that's correct.
PN99
They happen about weekly?‑‑‑Yes, you would say weekly, now and then with a couple of pauses to go fortnightly.
PN100
None of the – I should say none of the parties at all to any of those meetings have refused to attend meetings or anything of that kind, have they?‑‑‑No, that's correct.
PN101
One of the claims which was advanced in the log of claims by the CRU was a 6 per cent wage increase, that's right?‑‑‑Correct.
PN102
That's been a subject of discussion?‑‑‑It has been the subject of discussion.
PN103
I'm not trying to squib this, Mr Kable, but no concession has yet been made on the 6 per cent, other than they would consider it as a part of the package, that's right?‑‑‑Yes, well, that's correct. Then obviously in recent times, discussions have advanced but no agreement has come to it.
PN104
Indeed, and discussions have been continuing despite the fact this action has been notified?‑‑‑Yes, that's correct.
PN105
Indeed, I think they are occurring right now aren't they?‑‑‑Yes, correct.
PN106
The union's position to date – unions collectively – has been 6 per cent. The position of the government at least until Monday of last week was – (indistinct) Monday of this week – was 2.5 per cent in accordance with the government's wages policy, that's right?‑‑‑That's right.
PN107
Now, again, up until at least Monday of this week there had been no concession on the 2.5 per cent by the government either, that's right?‑‑‑Sorry, can you ask the question again?
PN108
At least up until Monday of this week there had been no concession on the 2.5 per cent either?‑‑‑No concession on the 2.5 per cent but a clear representation as you are likely aware that government wages policy has the ability to go above that if there is an exchange of relevant cost offsets allowable under government wages policy.
*** GAVIN RICHARD KABLE XXN MR HOWELL
PN109
You understand that is what the unions have been highlighting in their correspondence to the representatives of Sydney Trains and New South Wales Trains in asking for information about workplace reform over the last three years and forecast workplace reform over the period of the proposed agreement, that's right? They would obtain information which enables them to engage with what is contemplated by the government's wages policy and looking at employee-related savings that have been made over the period of the last agreement and will likely be made over the forecast agreement, that's right?‑‑‑Yes, you can say they've been seeking information that they think is existing to inform themselves, yes.
PN110
You say the information just doesn't exist?‑‑‑The information – what we say is the information that they're requesting, the specific information they're requesting, doesn't exist.
PN111
Does that mean it doesn't exist as to its form or in the form it's been requested or - - -?‑‑‑So various amounts of information have been presented to the CRU during bargaining. The unions are insisting that they're after further information to a more detailed level but we're saying it's not in existence.
PN112
They're saying this to you in the context of them representing that they want to insure that the position that they adopt with respect to wages is feasible and I think it was fiscally sustainable was the language used in some of the correspondence?‑‑‑I can't recall, "fiscally sustainable."
PN113
All right. Have a look at paragraph 42(c) of your statement one, if you wouldn't mind? This is the RTBU's outline of submissions (indistinct) allocation?‑‑‑Yes.
PN114
Paragraph 27 of the written submissions?‑‑‑Sorry, can you just direct me to where you are?
PN115
Certainly – page 14 of your first affidavit, exhibit 3. This is the RTBU's outline of submissions and the good faith bargaining application, that's right?‑‑‑Yes.
PN116
What they've added at paragraph of those submissions, which is 42(c) of your - - -?‑‑‑Yes.
*** GAVIN RICHARD KABLE XXN MR HOWELL
PN117
- - - affidavit: "The CRU has not been prepared to accept a justification for the rail unions' pay offer above the 2.5 per cent, a flat statement divorced from the commercial realities of business that the rail unions wish to apply New South Wales government policy. The policy of the rail entities seems to apply the (indistinct) increases but are consistent with maintaining fiscal sustainability. The information sought concerning past and future costs savings will enable the RTBU to consider whether remuneration (indistinct) is consistent with fiscal responsibility", yes?‑‑‑Yes, well, that's their position. That's not words that we have said.
PN118
I think we might be at cross purposes, Mr Kable. I'm suggesting to you that is what the unions have said - - -?‑‑‑Yes.
PN119
- - - they wanted this information for?‑‑‑Yes, correct.
PN120
Now, that request for additional information was first made back on 24 July 2017, wasn't it?‑‑‑That's correct.
PN121
That's about a week after the bargaining commenced, I think?‑‑‑Correct.
PN122
Again, this was in the context where the rail entities, if I can put them together in that way, had provided some information about the position they were adopting in bargaining, that's right?‑‑‑Yes.
PN123
Now, bargaining has continued since then?‑‑‑Correct.
PN124
Weekly, right?‑‑‑Yes.
PN125
That bargaining has been in relation to a number of different (indistinct), right?‑‑‑That's correct.
PN126
You would accept, wouldn't you, that there has been significant advancement in the bargaining position and matters that are agreed and what remains outstanding since July of 2017?‑‑‑Yes, to some extent – you would say on the element of wages only in recent times have the parties really been bargaining on the issues because the CRU has actively sort of said that they don't want to talk about those issues until certain information is provided.
PN127
And until the package is clearer, would you accept that?‑‑‑When you say the package, what - - -
PN128
The package of arrangements that would ultimately pertain under any new agreement, that's right?‑‑‑Yes.
*** GAVIN RICHARD KABLE XXN MR HOWELL
PN129
To be fair, that's the position they've adopted since pretty much July, right?‑‑‑Yes.
PN130
Nonetheless, bargaining continued, yes?‑‑‑Yes.
PN131
The good faith bargaining application was made in November of last year?‑‑‑Correct.
PN132
Towards the end of November?‑‑‑Yes, correct.
PN133
Bargaining continued after that?‑‑‑Yes.
PN134
Did there continue to be weekly meetings?‑‑‑Yes, and some of it with the assistance of this Commission.
PN135
Indeed – I was going to suggest to you there's been at least a couple of conciliations in January of this year, that's right – one in December and one in January?‑‑‑One in December and one in January – sorry.
PN136
I misled you as to the timeframe – one in December and one in January?‑‑‑Correct.
PN137
I think it's right to say, isn't it, that there has actually been agreement on some of what were otherwise outstanding matters when the good faith bargaining application was made in November of 2017. Since that time there have been matters that have been agreed in the course of the bargaining?‑‑‑There has been some matters that have been agreed, yes.
PN138
For example, I think one of the – this is not an entirely apt description of the clause but there was a provision that dealt with contractors that's now been settled?‑‑‑You would say it is well advanced, yes - well advanced and you could almost say at an in-principle agreement. Look, there's further bargaining going ahead so I'd say, yes, you say a package. I'd say the whole package is not agreed and pretty much understood - - -
*** GAVIN RICHARD KABLE XXN MR HOWELL
PN139
Sorry, Mr Kable, don't misunderstand me. When I say agreed, I'm only talking in principle in the context of the bargaining and you'd agree, wouldn't you, that matter is in that way agreed in principle?‑‑‑Well, you know, a package was discussed – I think it was Tuesday night and you would say the bargaining caucus seemed satisfied. Certain drafting had been done but that drafting and the feedback on that is not complete yet.
PN140
I see, so substance, in-principle drafting in more precise terms still proceeding, is that right?‑‑‑On that part, yes.
PN141
On that part? Right, thank you. Now, I'll just pick up on something you said a moment ago. You mentioned it's only in recent times where the parties have really started to engage in bargaining around the wages figure. That's right, isn't it?‑‑‑Yes.
PN142
When you say recently, we are quite literally talking this week, right?‑‑‑Yes, that would be correct, yes, because in the Commission the combined rail unions refused to talk about anything in relation to pay matters because those matters were subject to another proceeding in this Commission.
PN143
That position has now changed, that's right? The parties are now discussing the wages figure, if I can call it that?‑‑‑You would say the rail entities are making offers available to the combined rail unions.
PN144
Indeed, they only happened as I think you've already agreed for the first time last Monday, right?‑‑‑Correct.
PN145
Monday of this week?‑‑‑Monday, yes.
PN146
Excuse me a moment – yes, thank you.
PN147
THE SENIOR DEPUTY PRESIDENT: Thank you.
PN148
MR SECK: There's no further questions in re-examination, your Honour. Might the witness be released?
THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Kable, you're excused.
<THE WITNESS WITHDREW [8.40 AM]
PN150
MR SECK: Your Honour, the next witness I call is Michael Anthony Croning.
*** GAVIN RICHARD KABLE XXN MR HOWELL
PN151
THE SENIOR DEPUTY PRESIDENT: Remember we provisionally marked as exhibit - - -
PN152
MR SECK: I think we did, your Honour.
PN153
THE SENIOR DEPUTY PRESIDENT: - - - yesterday after any objections.
PN154
MR SECK: I don't think I need to tender it again in those circumstances.
PN155
THE SENIOR DEPUTY PRESIDENT: Just to be clear, Mr Howell, do you have any objections to anything in Mr Croning's statement?
PN156
MR HOWELL: Just one other thing which is nothing to do with before we commenced in proceedings – again, if I can have 10 minutes to consider that proposition - - -
PN157
THE SENIOR DEPUTY PRESIDENT: Well, sorry to be cruel but the whole point of the adjournment last night was to allow you to do this. You know, I appreciate the pressure it put you under but I've got to - - -
PN158
MR HOWELL: Yes, your Honour. I was sure you would say that. Well, in the circumstances, no.
PN159
THE SENIOR DEPUTY PRESIDENT: Okay, so Mr Croning's statement, if you remember, was exhibit 1.
PN160
THE ASSOCIATE: Please state your full name and address.
MR M CRONING: Michael Anthony Croning, (indistinct).
<MICHAEL ANTHONY CRONING, SWORN [8.42 AM]
EXAMINATION-IN-CHIEF BY MR SECK [8.42 AM]
PN162
MR SECK: Your Honour, given that I took Mr Croning through the formalities yesterday, I don't think it's necessary for me to go through that again, other than to formally tender exhibit 1 and to change its status from a provisional exhibit to a formal exhibit.
*** MICHAEL ANTHONY CRONING XN MR SECK
PN163
THE SENIOR DEPUTY PRESIDENT: Yes.
MR SECK: Other than that, no further questions.
EXHIBIT #1 WITNESS STATEMENT OF MICHAEL ANTHONY CRONING
CROSS-EXAMINATION BY MR HOWELL [8.43 AM]
PN165
MR HOWELL: Mr Croning, one of the mitigation strategies that has been put in place to enable Sydney Trains to manage the imposition of an overtime ban is introduction of the Saturday service, that's right?‑‑‑That's correct.
PN166
Now, the introduction of the Saturday timetable frees up sets of trains, that's right?‑‑‑Yes, it does.
PN167
And it frees up drivers as well?‑‑‑It does.
PN168
That's enabled Sydney Trains to put on additional relief staff, right - - -?‑‑‑Yes.
PN169
- - - to do what one can to cover exigent circumstances as they might evolve over the course of the overtime – over the course of the overtime ban, that's right?‑‑‑That's right.
PN170
The services that you describe in paragraph 47 – this is where you're describing the introduction of the Saturday timetable. You're describing a significant number of reduction of services?‑‑‑Yes.
PN171
Would I be right in assuming that the reductions are as best you can manage them on non-peak times?‑‑‑The reduction in services is as a result of re-organising the resourcing throughout the day to cater for the peaks and troughs of the day, so you re-organise the rostered staff to be available and based on the availability the number of services are decided on – because we need to have the crews available.
PN172
I think the short answer to my question – yes, you've reduced those services so as to best insure you can meet your peak demand, right?‑‑‑As far as possible, yes.
*** MICHAEL ANTHONY CRONING XXN MR HOWELL
PN173
Right. Now, I think you were put this proposition yesterday – the Saturday timetable, if you leave aside for one moment 29 January where there is the stoppage, other than that what is contemplated at the moment if the overtime ban were to continue is the continued implementation of the Saturday timetable, that's right?‑‑‑That's correct.
PN174
You would accept, wouldn't you, that the rail entities – and you understand I'm referring to Sydney Trains and New South Wales Trains when I use that expression – they have the capacity to and regularly do put in place mechanisms to deal with increased numbers of commuters on stations, that's right, when there is a particular need – for example on New Year's Eve or on weekends?‑‑‑When there is a particular need, yes.
PN175
Indeed, I see you've been with the rail network for some 27 years?‑‑‑That's right.
PN176
You recall those sorts of arrangements put in place for extended periods during the Sydney Olympics?‑‑‑That was a completely different timetable based on the demand and capacity balance for that period and the environment was totally different.
PN177
But nonetheless there were mitigation strategies to insure safety on the platforms and the stations, that's right?‑‑‑Absolutely, that is our highest priority all the time.
PN178
Of course, and those sorts of mechanisms to manage safety on stations and platforms have been implemented as a part of your mitigation strategy as best one can once you were notified of the imposition of the overtime ban, that's right?‑‑‑Yes, to a point, yes – not entirely, though. Our priority here is safety. Now, if we cannot insure safety it doesn't really matter if a timetable can be delivered. We will have to take out services to insure the safety of our passengers.
PN179
That's rather my point?‑‑‑Yes.
PN180
The steps you've put in place will insure safety as you appreciate it?‑‑‑Yes.
PN181
Right, and if it wasn't you would cut a service, right?‑‑‑Absolutely, yes.
*** MICHAEL ANTHONY CRONING XXN MR HOWELL
PN182
Right, indeed one of the – I'm sorry, I withdraw that. You would accept that one of the ways that you can I would imagine (indistinct) necessary to do so but nonetheless one of the things the rail entities can do is draw upon the assistance of other government agencies like the New South Wales Police when it is necessary to deal with those sorts of safety concerns at a station or platform, that's right?‑‑‑Well, yes, all agencies come forward at a time of an emergency and we have an understanding with all agencies and they assist us as a matter of business as usual, yes.
PN183
As a matter of business as usual, right?‑‑‑Yes, there is always the rail management centre that monitors it, yes.
PN184
Indeed, you would agree, wouldn't you, that – and I'm focussing here on the overtime bans for a moment – it's indeed impossible to predict the actual impact of the overtime ban on any given day, would you agree with that?‑‑‑Yes, that's correct.
PN185
Now, there hasn't been a stoppage on the Sydney Train network for many years, right? In your position you don't have personal experience of having to try to manage the network when there was a stoppage, that's right?‑‑‑Yes, not in this position, yes.
PN186
No doubt doing the best you can it's right to say, though, isn't it, that what you say in your statement about the impacts of the industrial action are assumptions by you?‑‑‑No, they are not assumptions. They are based on network rules, standards and procedures that we have in place, for example, monitoring. If we can't monitor the system it's not considered to be a safe environment. We have to stop certain practices of certain things that happen. It depends on what we're monitoring and when we're monitoring.
PN187
I'm referring rather to the impact of what happens when you do that so, for example, what commuters will do in lieu of catching a train. You're working on assumptions as to what you believe people will do, rather than actual experience in recent times of what they would do?‑‑‑No, I think we have the numbers that actually tell us what are the number of people that travel on the network and yes, there is a very small percentage that will be influenced by communication and other things like that but at the end of the day there is a certain number of people that have to travel. Really one day would be different but people can't stay away from work indefinitely. They have to travel to work some way. They will have to use the rail system if they can't afford to drive or find any other means of transport.
PN188
But as you say, happily it's only one day, right?‑‑‑We're hoping it's only the day.
*** MICHAEL ANTHONY CRONING XXN MR HOWELL
PN189
Insofar as mechanisms that an individual might have to deal with the cancellation of a service or indeed to deal with a reduction in the number of services that are available through the implementation of Saturday timetable, you'd accept, wouldn't you, that there are a range of options that people may or may not have available to them in their individual circumstances to manage their transport, right?‑‑‑That's correct.
PN190
The government – and by government I mean both the rail entities and the Minister – have been out – a media blanket exercise in dealing with people – encouraging people to do precisely that for the last week, that's right?‑‑‑That's correct.
PN191
Now, indeed this is not – actually, I withdraw that. Thank you.
PN192
MR SECK: No further questions, thank you, your Honour.
THE SENIOR DEPUTY PRESIDENT: Mr Croning, you're excused.
<THE WITNESS WITHDREW [8.54 AM]
PN194
MR SECK: Your Honour, I call Dale Robert Merrick.
PN195
THE ASSOCIATE: Please state your full name and address.
MR D MERRICK: Dale Robert Merrick, 470 Pitt Street, Sydney.
<DALE ROBERT MERRICK, SWORN [8.55 AM]
EXAMINATION-IN-CHIEF BY MR SECK [8.55 AM]
PN197
MR SECK: Could you please state your full name for the record?‑‑‑Dale Robert Merrick.
PN198
And what is your current work address?‑‑‑470 Pitt Street, Sydney.
PN199
What is your current occupation?‑‑‑Direct of network services for New South Wales Trains.
PN200
Mr Merrick, you have prepared a witness statement in these proceedings, that's correct?‑‑‑That's correct.
PN201
It's dated 23 January 2018?‑‑‑That's correct.
*** DALE ROBERT MERRICK XN MR SECK
PN202
You have a copy of your statement in front of you at the moment?‑‑‑I do.
PN203
I understand you wish to make a small change to your statement, is that right?‑‑‑That's correct, yes.
PN204
Can you please tell the Commission the changes you wish to make?‑‑‑In clause 36, second to last sentence, it makes reference to 50 per cent less capacity while working a Saturday timetable. It would be truer to say as of today that's a large portion as opposed to a specific percentage.
PN205
THE SENIOR DEPUTY PRESIDENT: So what should that read?‑‑‑"A large number."
PN206
As opposed to - - -?‑‑‑Half.
PN207
Hang on, sorry - - -?‑‑‑The reason being that - - -
PN208
- - - just – we're talking about the sentence beginning, "The Saturday timetable also has approximately 50 per cent less capacity"?‑‑‑Correct.
PN209
So what should it say?‑‑‑It should say, "A large proportion", or, "A large number."
PN210
MR SECK: If we were just to read out the words then, Mr Merrick - - -
PN211
THE SENIOR DEPUTY PRESIDENT: Can you read out the sentence as you want it to be?‑‑‑"The Saturday timetable also has approximately 50 per cent less capacity" - - -
PN212
MR SECK: What do you want to say instead?‑‑‑It should say, "A reduced capacity."
PN213
You wish to make – I think you said, "A large number." So - - -?‑‑‑My comment is that where normally it would be 50 per cent less capacity, as it is today it's not exactly 50 per cent, it's fluctuating.
PN214
THE SENIOR DEPUTY PRESIDENT: Do you mean more, less?‑‑‑IT can be either – it can be both.
*** DALE ROBERT MERRICK XN MR SECK
PN215
So just to be clear – because the sentence before still says, "The Saturday timetable", rather than - - -?‑‑‑It does.
PN216
- - - "approximately 50 per cent less services"?‑‑‑It does.
PN217
So why – if you're running a Saturday timetable - - -?‑‑‑Your Honour, my reference is that normally we would run a full-car consist or set as a result of that timetable. Today we're actually running a mixture of four and eight.
PN218
So it would be something better than 50 per cent?‑‑‑Yes.
PN219
Or not?‑‑‑Well, that's – yes, I can't determine that.
PN220
Okay?‑‑‑To put a figure on it would not be accurate.
PN221
Okay.
PN222
MR SECK: No further questions, your Honour. I tender this statement of Mr Merrick.
PN223
THE SENIOR DEPUTY PRESIDENT: This makes - - -
PN224
MR HOWELL: No objection.
THE SENIOR DEPUTY PRESIDENT: - - - this statement is exhibit 5.
EXHIBIT #5 STATEMENT OF DALE MERRICK DATED 23/01/2018
CROSS-EXAMINATION BY MR HOWELL [8.58 AM]
PN226
MR HOWELL: Indeed, Mr Merrick, you've just given some evidence about Saturday – sorry, withdraw that. The timetable which is being put in place at the moment to mitigate the effect of the overtime ban – that's what is being done - - -?‑‑‑Yes.
PN227
- - - involves the use of eight-car train sets, that's right, in some respects?‑‑‑Correct.
*** DALE ROBERT MERRICK XXN MR HOWELL
PN228
Indeed, it's right to say, isn't it, that as a part of the ordinary Saturday timetable there are still eight-car train sets but not in some parts of your network - - -?‑‑‑Correct.
PN229
- - - for example, from Sydney to Wollongong?‑‑‑Correct.
PN230
Port Kembla?‑‑‑Correct.
PN231
I think there's also one which runs to Newcastle?‑‑‑Correct.
PN232
Isn't it only the Blue Mountains line which runs the four-car sets?‑‑‑No, all regionals run the four-car sets on the Saturday timetable.
PN233
But the inter-city runs - - -?‑‑‑A mixture of eight and four-car sets.
PN234
All right, and that's on an ordinary Saturday timetable?‑‑‑Sorry, what's that?
PN235
That's on an ordinary Saturday timetable?‑‑‑Correct.
PN236
What you're running now is in addition to the ordinary Saturday timetable?‑‑‑We're trying to provide additional customer capacity by building what would be four-car sets to eight-car sets. That's not a guaranteed outcome.
PN237
So in managing – sorry, I think I should take a step back?‑‑‑Yes.
PN238
New South Wales Trains is a very different entity to Sydney Trains; that would be fair to say?‑‑‑Yes, correct.
PN239
It covers a much larger geographical area, but it deals with a much smaller consumer demand; that would be right?‑‑‑Correct.
PN240
As a consequence, the impact of the overtime ban on New South Wales Trains is materially different to the impact on Sydney Trains; you would accept that? I'm not suggesting it doesn't have an impact, I'm suggesting it's less?‑‑‑I would suggest it's different.
*** DALE ROBERT MERRICK XXN MR HOWELL
PN241
It's different?‑‑‑Yes.
PN242
Meaning it's more able to be managed in the context of New South Wales Trains, for example by replacing the entirety of your regional services with coaches?‑‑‑That would be the outcome, yes.
PN243
That is what's happening; that's right?‑‑‑That's the plan, yes.
PN244
When you say "the plan", that's the mitigation strategy you have put into effect?‑‑‑It is, yes.
PN245
To the extent we say anything here in your statement about the "impacts" of the industrial action, at least on the regional networks, we should understand that it's not referring to the regional networks because they are going to be managed by coaches; that's right?‑‑‑They will be provided another type of service. That's not to say the impact is any less on those particular customers.
PN246
What you're referring to there is the knock-on consequence of being in a coach rather than a train - that's right - and what happens when you get to the end and you might need to make some sort of connection; is that what you're talking about?‑‑‑I'm talking more about the specifics of a regional customer as opposed to an inner city-based customer for us or New South Wales Trains.
PN247
The illustration I think you describe is, "If I'm on a coach as opposed to a train, the timing might be different and that might mean I have some difficulty, for example, getting from Central to the airport if I'm coming from a regional area"?‑‑‑Potentially, yes.
PN248
That's the sort of illustration you're talking about?‑‑‑In addition to the personal circumstances of every customer that we have regionally, yes, so they all have their own personal requirement to travel.
PN249
You wouldn't sit here telling the Commission that you can give any sensible evidence about what the actual impact will be on any given individuals?‑‑‑No.
PN250
Or, indeed, on any particular population of the networks you service?‑‑‑No.
PN251
Or, I should say, the communities that you service?‑‑‑No.
*** DALE ROBERT MERRICK XXN MR HOWELL
PN252
Mr Merrick, in paragraph 39, you say your staff are not interoperable. Can I suggest to you, if someone is qualified on a particular line and they are otherwise available to be redeployed, they can be redeployed and are regularly redeployed from different depots within your network; that's right?‑‑‑If they have the qualification for that route and the traction type with which they are to operate.
PN253
Indeed, for want of a better way to describe it, a driver has to have a ticket to operate on a particular line, experience on the line and an understanding of what - - -?‑‑‑That's correct.
PN254
Provided they have got that, someone could be deployed from one depot to another?‑‑‑Correct.
PN255
Indeed, would I be right in assuming that that is one of the mechanisms that you're using to try and meet your current timetable in the environment of the overtime ban, where it is able to be done?‑‑‑Where it's able to be done is very limited.
PN256
Paragraph 41, can I just ask you to read that to yourself. Drivers, guards or on-boarders, those three positions are otherwise known as the "train crew"; right?‑‑‑Correct.
PN257
You know, don't you - I should rephrase that to be fair to you. Are you aware that the union, as long ago as 18 January of this year, communicated to the representative of the rail entities that the train crew will complete - despite the imposition of the overtime ban, the train crew will complete late-running shifts, daily overtime and shifts over eight hours? Are you aware of that?‑‑‑Yes.
PN258
Specifically to deal with a safety concern?‑‑‑I understood that was the intent, yes.
PN259
Indeed, I want to suggest to you that what you have said in paragraph 41 is wrong. The union has told you that those train crew will finish their rostered shift, won't they?‑‑‑If that is the outcome, that would be right.
PN260
You know that's what the union has been telling the rail entity since 18 January; right?‑‑‑Correct.
PN261
So what you have got in your affidavit is wrong; right?‑‑‑If that was the outcome, potentially, yes.
*** DALE ROBERT MERRICK XXN MR HOWELL
PN262
Can I ask you something about paragraph 42: "Training, Briefings and Meetings." Training is not done on overtime, is it?‑‑‑Some is, yes.
PN263
Training, for example, on network rule changes, briefings and training on network rule changes involves a driver being provided with a folder of documents called "Safety Critical Documents" which they read at their leisure; that's right?‑‑‑That's correct.
PN264
There's no physical training session per se; that's right?‑‑‑For that example, no.
PN265
For that example. Can I ask you something about paragraph 43. You will see there, you refer to the wearing of campaign material as causing a concern, the concern that it might obscure PPE (indistinct) instead of PPE. You are not aware of any circumstance where that has actually happened, are you?‑‑‑No.
PN266
Indeed, you would accept, wouldn't you, that one of the things the union always says in its public communications about the industrial action that it's taking is, "Safety is first"?‑‑‑I accept that, yes.
PN267
Thank you.
PN268
THE SENIOR DEPUTY PRESIDENT: Anything?
PN269
MR SECK: No further questions, your Honour.
THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Merrick, you're excused.
<THE WITNESS WITHDREW [9.08 AM]
PN271
MR SECK: Your Honour, there's only one further witness and I am told by Mr Howell that she is not required for cross-examination, so might I formally tender the witness statement of Isabel Kate Hewitt dated 24 January 2018.
THE SENIOR DEPUTY PRESIDENT: Ms Hewitt's statement is exhibit 6.
EXHIBIT #6 STATEMENT OF ISABEL KATE HEWITT DATED 24/01/2018
*** DALE ROBERT MERRICK XXN MR HOWELL
PN273
MR SECK: Your Honour, that completes the evidence that Sydney Trains and New South Wales Trains wish to adduce in these proceedings.
PN274
Can I formally say, your Honour, that given that the applications which are being made by Sydney and New South Wales Trains are being heard concurrently with the application which has been made by the Minister for Industrial Relations, Sydney and New South Wales Trains formally relies upon the material which has been filed and which will be tendered by the Minister in both sets of proceedings.
PN275
THE SENIOR DEPUTY PRESIDENT: Okay, thank you.
PN276
MR SECK: May it please.
PN277
THE SENIOR DEPUTY PRESIDENT: Mr Easton?
PN278
MR EASTON: Thank you, your Honour, and likewise the Minister relies on the material led by Sydney Trains and New South Wales Trains.
PN279
The first witness that the Minister wishes to call is Dr Michael Warlters - W-a-r-l-t-e-r-s. He is available for cross-examination and we understand he is required for cross-examination.
PN280
THE ASSOCIATE: Please state your full name and address.
DR WARLTERS: Michael Warlters, (address supplied).
<MICHAEL WARLTERS, AFFIRMED [9.11 AM]
EXAMINATION-IN-CHIEF BY MR EASTON [9.11 AM]
PN282
MR EASTON: Sir, you have already stated your name and address for the record. You have made a witness statement in these proceedings. Do you have a copy of that statement in front of you?‑‑‑Yes.
PN283
Is it true and correct to the best of your knowledge and belief?‑‑‑Yes.
PN284
I seek to tender the statement of Dr Michael Walters made yesterday. I understand a couple of different copies were filed, electronically at least, and I am hoping that your Honour has the copy - - -
*** MICHAEL WARLTERS XN MR EASTON
PN285
THE SENIOR DEPUTY PRESIDENT: I have got a signed copy dated 23 January 2018 and it has got 19 paragraphs. It has got five pages plus attachments.
PN286
MR EASTON: The key difference between the versions filed is the number of attachments. There should be 21 numbered pages in total.
PN287
THE SENIOR DEPUTY PRESIDENT: I see. I think I've got that. I will just check. Yes, I've got 21, yes, I've got that.
PN288
MR EASTON: Thank you, yes, I formally seek to tender that statement.
THE SENIOR DEPUTY PRESIDENT: Dr Warlters' statement is exhibit 7.
EXHIBIT #7 STATEMENT OF DR MICHAEL WARLTERS DATED 24/01/2018
PN290
MR EASTON: Thank you. I have no other questions.
MR HOWELL: Your Honour, I note we have not had the opportunity to brief an expert to be able to analyse this material. It is one of the procedural matters upon which my client is disadvantaged and, again, I say that with no disrespect but simply to note it for the record.
CROSS-EXAMINATION BY MR HOWELL [9.13 AM]
PN292
Dr Warlters, your modelling, financial modelling, of the impact of the industrial action doesn't differentiate between the impact of the industrial action on Sydney Trains on the one hand as opposed to New South Wales Trains on the other, does it?‑‑‑No.
PN293
It doesn't delineate between the impact of the action either in respect of - sorry, I withdraw that. It doesn't delineate in respect of estimating costs of the overtime bans being imposed by the RTBU on the one hand as opposed to Professionals Australia on the other, does it?‑‑‑No.
PN294
Pardon me if I get this wrong, but, as I understand it, the New South Wales Treasury measures the overall performance or, I should say, one of the measures that New South Wales Treasury uses for the overall performance of the state economy is their gross state product?‑‑‑Yes.
*** MICHAEL WARLTERS XXN MR HOWELL
PN295
That's the principal indicator, isn't it?‑‑‑It's a measure of the output of the entire economy.
PN296
But as a measure of - I withdraw that. In your statement, you refer to some published statistics on the gross state product in New South Wales at annexure G; that's right?‑‑‑Yes.
PN297
Can I ask you to turn that open for me for one moment. As I understand it, the right-hand column shows the annual gross state product in the millions cumulative for each year from June 1990 through to June 2017; that's right?‑‑‑Yes.
PN298
In the year to June 2017, the state's gross state product was 576 billion 716 million, approximately?‑‑‑Yes.
PN299
Indeed, I think that's on a trajectory of significant growth?‑‑‑Yes
PN300
When I say "significant", above, I think what your published economic outlook describes as "the trend of 2.5 per cent", is in excess of 2.5 per cent?‑‑‑Yes.
PN301
I think the latest economic forecast which is published by the New South Wales Treasury identifies the forecast nominal gross state product for the 2017/2018 year increasing by approximately 4.75 per cent. Does that accord with your recollection?‑‑‑I don't recall the precise growth rate, but it will be of that order, yes.
PN302
Of that order?‑‑‑The forecast GSP for 17/18 is around $600 billion for New South Wales.
PN303
Sorry, moving from 576 billion to 600 or thereabouts?‑‑‑Yes.
PN304
So an increase in the order of 4-plus per cent or thereabouts. Yes, thank you.
PN305
MR EASTON: No further questions.
THE SENIOR DEPUTY PRESIDENT: Thank you very much, you are excused.
<THE WITNESS WITHDREW [9.17 AM]
*** MICHAEL WARLTERS XXN MR HOWELL
PN307
MR EASTON: The next witness I wish to call is Mr Graeme - G-r-a-e-m-e - Loy - L-o-y. We have filed a statement by Mr Loy.
PN308
THE ASSOCIATE: Please state your full name and address.
MR LOY: Graeme Loy, (address supplied).
<GRAEME LOY, AFFIRMED [9.18 AM]
EXAMINATION-IN-CHIEF BY MR EASTON [9.18 AM]
PN310
MR EASTON: Sir, you have already given your name and address for the record. You have made a statement in these proceedings yesterday, have you not?‑‑‑Yes.
PN311
Do you have a copy of that in front of you?‑‑‑I do.
PN312
Is it true and correct to the best of your knowledge and belief?‑‑‑It is.
PN313
I seek to tender the statement of Mr Loy.
THE SENIOR DEPUTY PRESIDENT: Mr Loy's statement is exhibit 8.
EXHIBIT #8 STATEMENT OF GRAEME LOY DATED 24/01/2018
PN315
MR EASTON: Thank you. I have no other questions for Mr Loy.
MR HOWELL: Sorry, your Honour, if your Honour would bear with me for one moment.
CROSS-EXAMINATION BY MR HOWELL [9.19 AM]
PN317
MR HOWELL: Mr Loy, my name is Howell, I'm appearing on behalf of the RTBU and Professionals Australia. I won't keep you long this morning. At paragraph 21 of your affidavit, you say:
PN318
*** GRAEME LOY XN MR EASTON
*** GRAEME LOY XXN MR HOWELL
(Indistinct) a significant number of front line staff who may be unavailable because they will need to take care of (indistinct).
PN319
Sitting here now in the witness box, you're not able to tell his Honour with any confidence precisely how any of your employees will, in their individual circumstances, set about managing either a late-running train or the unavailability of a train, are you?‑‑‑That's correct.
PN320
You would accept, wouldn't you, that if we're dealing with either an absence or a late-running train, there are a great many mechanisms that an individual in their personal circumstances might be able to take to ensure that they could get to work on time?‑‑‑That's correct.
PN321
Buses is one?‑‑‑Depending on where they live, possibly, yes.
PN322
They could drive themselves, potentially?‑‑‑Potentially.
PN323
Maybe they could jump on a pushbike?‑‑‑Again, depending on where they live and whether they have access to those items, yes.
PN324
You can't say that it is probable that any given number of people will or won't turn up on a particular day; that's right?‑‑‑Not without asking them, that's correct.
PN325
You can't say - sorry, I withdraw that. That's the cross-examination.
PN326
THE SENIOR DEPUTY PRESIDENT: Thank you.
PN327
MR EASTON: Nothing arising.
THE SENIOR DEPUTY PRESIDENT: Thank you very much, Mr Loy, you are excused.
<THE WITNESS WITHDREW [9.21 AM]
PN329
MR EASTON: The next witness is Ms Vicki - V-i-c-k-I - Telfer - T-e-l-f-e-r. Ms Telfer has a statement which we have filed already.
PN330
THE ASSOCIATE: Please state your full name and address.
*** GRAEME LOY XXN MR HOWELL
MS TELFER: Vicki Telfer, (address supplied).
<VICKI TELFER, AFFIRMED [9.22 AM]
EXAMINATION-IN-CHIEF BY MR EASTON [9.22 AM]
PN332
MR EASTON: Ms Telfer, you have made a statement in these proceedings and you have a copy of that in front of you, do you not?‑‑‑That's correct.
PN333
Is that statement true and correct to the best of your knowledge and belief?‑‑‑Yes, it is.
PN334
Thank you. I wish to tender the statement of Ms Telfer.
PN335
MR HOWELL: I object to paragraphs 9, 10 and 11.
PN336
THE SENIOR DEPUTY PRESIDENT: On what basis?
PN337
MR HOWELL: I should additionally add 12. Ms Telfer purports to put in evidence briefing notes or other communications from third parties which themselves purport to record hearsay about the impact of the industrial action either generally or on their particular organisation. Take, for illustration, paragraph D. This is a briefing note from - - -
PN338
THE SENIOR DEPUTY PRESIDENT: Sorry, are you talking about - which one are you talking about?
PN339
MR HOWELL: So paragraph 9.
PN340
THE SENIOR DEPUTY PRESIDENT: Paragraph 9, yes.
PN341
MR HOWELL: Annexure D. Sorry, I withdraw that.
PN342
THE SENIOR DEPUTY PRESIDENT: Is this the material we have just received from Mr Warlters?
*** VICKI TELFER XN MR EASTON
PN343
MR HOWELL: No, no, I'm sorry, I shouldn't say the whole of the paragraph, that's wrong. I beg your Honour's pardon, bear with me for one moment.
PN344
THE SENIOR DEPUTY PRESIDENT: I mean, this is a bit of an irony, at least in relation to this one, but this is the one where we actually did get evidence directly from Dr Warlters. I don't think she is purporting to put in evidence the estimate by the Sydney Business Chamber. I think that's background as to why she sought a different view and she actually comes up with a different figure from Dr Warlters. I don't want to tell you how to do it, but I think the others are bit more - there's more of an issue with the others.
PN345
MR HOWELL: I beg your Honour's pardon.
PN346
THE SENIOR DEPUTY PRESIDENT: That one is actually - - -
PN347
MR HOWELL: I have included paragraph 9 and I ought not have.
PN348
THE SENIOR DEPUTY PRESIDENT: Yes.
PN349
MR HOWELL: It's 10 and 11 and 12 about which we would object.
PN350
THE SENIOR DEPUTY PRESIDENT: Yes.
PN351
MR HOWELL: The first illustration I should then use is E, which I don't have. Have you got a copy with all the annexures?
PN352
THE SENIOR DEPUTY PRESIDENT: Presumably you object to 10, 11 and 12 where there are - - -
PN353
MR HOWELL: The documents to which they refer.
PN354
THE SENIOR DEPUTY PRESIDENT: Yes.
PN355
MR HOWELL: The illustration can be made by any of them; the point is the same.
PN356
THE SENIOR DEPUTY PRESIDENT: Yes.
*** VICKI TELFER XN MR EASTON
PN357
MR HOWELL: I don't know the basis of any of these claims; I can't test any of these claims; they are being put up as statements of fact about the impact and, respectfully, hearsay is one thing, dealing with expedition is another thing, but this sort of material is grossly prejudicial and it, with respect, ought not be received. It is not probative and, in my respectful submission, is inadmissible.
PN358
THE SENIOR DEPUTY PRESIDENT: Mr Easton?
PN359
MR EASTON: Your Honour has a discretion to receive evidence in any particular form deemed appropriate and not bound by the rules of evidence, obviously subject to acting in equity and good conscience. These kind of matters move quickly. Ms Telfer's affidavit or statement is helpful and probative and admissible in these proceedings because it brings together other important information that will assist your Honour determining the matters that your Honour has to determine.
PN360
The material that Ms Telfer refers to is of a similar kind to other material that you have already received in the matter and akin to interlocutory proceedings where, even in superior courts of record, formal rules of evidence don't necessarily apply as strictly. Your Honour has a capacity to receive the information and ought receive the information.
PN361
THE SENIOR DEPUTY PRESIDENT: I must say, though, while I might technically be capable of receiving it, I don't know what possible weight I could give something of this nature, so I actually propose not to allow into evidence paragraphs 10, 11 and 12 of Mr Telfer's statement and the associated attachments. I uphold that objection.
PN362
MR EASTON: In that case then, we don't press Ms Telfer's statement at all.
PN363
THE SENIOR DEPUTY PRESIDENT: Yes, all right. So, you are withdrawing the statement, effectively?
PN364
MR EASTON: I am.
THE SENIOR DEPUTY PRESIDENT: All right. We might still leave it as technically marked exhibit 9. No, I haven't given it a number, I'm sorry, I am losing track. So, it is not marked and, Ms Telfer, you are excused.
<THE WITNESS WITHDREW [9.27 AM]
*** VICKI TELFER XN MR EASTON
PN366
MR EASTON: I now seek to call Ms Robyn Bale. Robyn is R-o-b-y-n and Bale B-a-l-e. If my count is correct, if your Honour admits Ms Bale's statement that will be exhibit 9.
PN367
THE SENIOR DEPUTY PRESIDENT: Yes, thank you.
PN368
THE ASSOCIATE: Please state your full name and address.
MS BALE: My name is Robyn Bale, (address supplied).
<ROBYN BALE, SWORN [9.28 AM]
EXAMINATION-IN-CHIEF BY MR EASTON [9.28 AM]
PN370
MR EASTON: Ms Bale, you have made a statement in these proceedings and do you have a copy of that in front of you?‑‑‑Yes.
PN371
Is your statement true and correct to the best of your knowledge and belief?‑‑‑Yes.
PN372
I seek to tender Ms Bale's statement.
THE SENIOR DEPUTY PRESIDENT: Yes, Ms Bale's statement is exhibit 9.
EXHIBIT #9 STATEMENT OF ROBYN BALE
PN374
MR EASTON: Thank you. With your Honour's leave, I wish to ask another couple of questions of Ms Bale.
PN375
Ms Bale, in relation to paragraph 17, you refer there to students having an increased period of time spent at railway stations without supervision, increasing the risk to some students, particularly those in their early years of secondary school, primary aged students and students with a disability. Do you see that there in paragraph 17? What I want to ask you about is, the reference there to "students with a disability", does that include students with disabilities in the form of mental health disabilities?‑‑‑Yes.
*** ROBYN BALE XN MR EASTON
PN376
I will show you another document. This is a document provided to everybody yesterday. I understand, Ms Bale, you have caused this document to be prepared. Can you tell the Commission what this excerpt is?‑‑‑This report is a survey, a national survey undertaken on the mental health of children and adolescents in Australia.
PN377
I understand you wish to refer particularly to page 4. What do you understand to be the incidence of students of school age having mental disorders in the previous 12 months?‑‑‑This survey was completed for school-age children from four to 17 years of age and, through this survey, it was found that 13.9 per cent of the total population of Australian children within that age group have a mental disorder - 13.9 per cent.
PN378
You refer particularly to anxiety matters as well in paragraph 15 of your statement. What do you understand to be the incidence of children of school age with anxiety disorders?‑‑‑6.9 per cent of the population.
PN379
THE SENIOR DEPUTY PRESIDENT: 6.9 per cent of the school-age population?‑‑‑That's right.
PN380
MR EASTON: I wish to tender this excerpt of the Mental Health of Children and Adolescents Report on the Second Australian Child and Adolescent Survey of Mental Health and Wellbeing.
PN381
MR HOWELL: I object. Relevance? We don't know whether any one, more, all, what percentage or however many of these school-age population across Australia, not New South Wales, catch trains and we don't know what proportion or what the breakdown is in New South Wales of those various disorders, and we don't know what proportion of those who are in New South Wales and have those disorders or fit within those statistics catch trains.
PN382
THE SENIOR DEPUTY PRESIDENT: Are you able to help us with any of those questions just raised?‑‑‑Yes, look, this survey, this report that's been undertaken, is the second report undertaken. It's considered a credible report, relevant to all states and territories in Australia. There's been a significant focus on wellbeing of children, particularly in schools, in our own organisation.
PN383
It's not so much about the general credibility of the report, I think the issue really is we don't know how many school children that would be suffering from the kinds of disorders referred to here catch the train?‑‑‑No, we don't, but we do know anxiety is a rising issue and we do know that a number of our schools where students use trains have increasing levels of anxiety within their student population.
*** ROBYN BALE XN MR EASTON
PN384
MR HOWELL: No doubt both important considerations in the line of work which Ms Bale does, but they do not relate to the issues in these proceedings, with respect. It's irrelevant.
PN385
MR EASTON: It is relevant. My friend might make a submission about the exactness of the proof, but we are talking about, from Ms Bale's figures, 50,000 school students a day on the trains, and so even if - - -
PN386
THE SENIOR DEPUTY PRESIDENT: The trouble is we don't know how many of - - -
PN387
MR EASTON: Even if it's 13 per cent or 10 per cent or 15 per cent in New South Wales, it is going to be a large number of students.
PN388
THE SENIOR DEPUTY PRESIDENT: Can I put it to you it's plausible that students who suffer from anxiety are less likely to catch the train than other students?
PN389
MR EASTON: Well, Ms Bale - - -
PN390
THE SENIOR DEPUTY PRESIDENT: I don't think - - -
PN391
MR EASTON: Well - - -
PN392
THE SENIOR DEPUTY PRESIDENT: Can I put it to you, Ms Bale, can I put that to you. In other words, I'm not saying that there are no - I am obviously not in a position to know this - I am not saying there are no students who suffer from anxiety or related disorders who catch the train - I'm not saying that - but it is plausible, at least, isn't it, that if you were a parent of a student who you knew was suffering from anxiety, you would be less likely to send your child to school on a train?‑‑‑I'm not sure that it's less likely. It is plausible. However, I would say from our point of view, for any one child within our care, we would be concerned if there was an increase in anxiety.
PN393
Sure, but I suppose what I'm coming to is that the exact figures, you couldn't extrapolate and say, "Well, there are 5.6 per cent of school children who suffer from anxiety disorder, therefore 5.6 per cent of the 50,000 children who travel to school each day using the train would suffer from anxiety disorder", could you?‑‑‑Correct, no.
*** ROBYN BALE XN MR EASTON
PN394
I am willing to accept - I don't even think it's even worth arguing about that there would be some children who travel to school who suffer from anxiety disorder and if their train timetable is disrupted, it would probably make them more anxious - that almost goes without saying - but, the figures that are in this report are not about children travelling to school and what method they use. As far as I can tell, there's nothing in there about that, I think, and the figures, while interesting in themselves, are not ones we could rely on as particularly relevant to the issues before me. I don't really that should be accepted into evidence, so I'm not going to.
PN395
MR EASTON: Well - - -
PN396
THE SENIOR DEPUTY PRESIDENT: I will give you one more chance to persuade me.
PN397
MR EASTON: You will give me one more chance.
PN398
THE SENIOR DEPUTY PRESIDENT: I don't think I have fully given you a chance.
PN399
MR EASTON: If I may just ask Ms Bale an extra couple of questions about that?
PN400
THE SENIOR DEPUTY PRESIDENT: Okay.
PN401
MR EASTON: Has the department identified any particular pockets of the education system where there's a higher incidence of a student population with anxiety disorders?‑‑‑The department hasn't identified. However, we do have anecdotal information because my particular area has a school counselling workforce and we work with our counsellors on a daily basis and there are some schools where there are higher levels of anxiety for a whole range of reasons.
PN402
Are there any distinguishing features about the kinds of schools where that higher level of anxiety has been observed?‑‑‑Some of the - across a range of schools. It could be schools where you've got students that are performing at a very high level in their academic work, but it is also schools in other communities as well.
PN403
Are you referring there to selective schools?‑‑‑Yes. That's not to say all students in selective schools have levels of anxiety, but there are some pockets.
*** ROBYN BALE XN MR EASTON
PN404
Do you have any understanding of the drawing pool for the selective schools in terms of geography and the incidence of travel for students at the selective schools?‑‑‑My understanding is our selective schools draw from a very broad area, potentially across the whole Sydney metropolitan area.
PN405
I press the report. Again, my friend seemed to be searching for some exactness of proof as to numbers. Your Honour has to recognise by these quite alarming percentages and by the sheer volume of students that are on the rail network every day, your Honour has to observe and accept that there is a large number of students in the rail network that are, by this sheer weight of numbers, subject to anxiety disorders and the like.
PN406
THE SENIOR DEPUTY PRESIDENT: To be honest, I'm not sure that's an inference that could be drawn without more evidence, to be frank. I am not willing to draw that inference based on this report and based on what I have heard.
PN407
MR EASTON: All right.
PN408
THE SENIOR DEPUTY PRESIDENT: I am not saying there are none - I am sure there are some - but any kind of saying it's a "large number", I just don't think you can draw that, and so, given that, I really question the value of - well, I am going to reaffirm the decision I said I was inclined to, which is to not allow this report into evidence.
PN409
MR EASTON: I pressed that and your Honour has ruled against me, so I won't pursue it any more.
PN410
THE SENIOR DEPUTY PRESIDENT: Yes, so that's that.
PN411
MR EASTON: I have no other questions for Mr Bale.
THE SENIOR DEPUTY PRESIDENT: Okay.
CROSS-EXAMINATION BY MR HOWELL [9.39 AM]
PN413
MR HOWELL: Ms Bale, my name's Howell, I'm appearing on behalf of the RTBU and the Professional Association - Professionals Australia - I should get my client's name correct.
*** ROBYN BALE XXN MR HOWELL
PN414
THE SENIOR DEPUTY PRESIDENT: I don't know that they're not still registered as APESMA.
PN415
MR HOWELL: I don't think they are APESMA.
PN416
THE SENIOR DEPUTY PRESIDENT: I think they are technically still APESMA, it's just that when they are marketing, they call themselves Professionals Australia. So, you're okay, it's all right.
PN417
MR HOWELL: I will move on. Nevertheless, I won't keep you long, Ms Bale. Ms Bale, maybe you know something I don't, but school kids typically travel on the train network to and from school around school hours; right?‑‑‑Correct.
PN418
Which is, at least as far as the public school system is concerned, 9 till about 3.30; that's right?‑‑‑Correct.
PN419
Can you please tell me what the frequency of the trains will be on the altered timetable that Sydney Trains has implemented? Can you tell me how much the difference is at those points in time over the course of a day?‑‑‑No, I cannot, but I understand that there will be something like a 50 per cent reduction in trains, but I cannot tell you the specific timetables across the specific locations our students will be travelling to.
PN420
Would it surprise you to learn that the evidence which has already been given to this Commission is they endeavour, that Sydney Trains - I will say "the rail entities", which I think it was the way in which it was put to the witness - that the rail entities are implementing this Saturday timetable in a way designed to meet its peak demand?
PN421
MR EASTON: I object. That wasn't the evidence, that wasn't the evidence.
PN422
THE SENIOR DEPUTY PRESIDENT: I thought it - okay.
PN423
MR HOWELL: All right, I will ask a different question.
*** ROBYN BALE XXN MR HOWELL
PN424
Suffice it to say, sitting here today, you can't say with any confidence whether or not the train frequency at times relevant to school children will be altered, can you?‑‑‑I cannot comment on the individual train timetables of students going to particular schools. We do have students, however, that also travel during the course of the day to go off to different work experience, TAFE, other courses in other parts of their study.
PN425
Again, you haven't seen the timetable, so you can't say what, if any, impact there will be on the ability of students to continue to use the timetable; right?‑‑‑I cannot comment on the timetable other than what I've been told about the 50 per cent reduction potential.
PN426
You would accept, wouldn't you, that, depending upon their individual circumstances, an individual child and their family, whatever that family might look like, could take a number of different steps to accommodate either the unavailability of a train or the altered timetable of a train; that would be right?‑‑‑For the number of students that would be using the trains - in the order of 50,000 - it wouldn't be appropriate for me to comment. Many parents will be working parents, so they wouldn't be taking their child to the train; children could be getting there themselves, so I can't really comment about the capacity of the parents' or carers' ability to make other arrangements for their child to get them to or from the train station.
PN427
So when you say, in paragraph 15 of your statement, that:
PN428
The reduced frequency of trains can be expected -
PN429
pause there - we should now understand your evidence that you don't have an understanding about whether there will be a reduced frequency of trains at times relevant to school children; that's right?
PN430
MR EASTON: I object to that. That is not the evidence that Ms Bale has even just given. My friend is asking about specific timetables and now extrapolating that out to some wider proposition that is not fair to Ms Bale.
PN431
MR HOWELL: I will do it again.
PN432
Have you seen the altered timetable, Ms Bale, anywhere in the train network?‑‑‑No, I have not, other than the Saturday train timetable that I use myself from time to time to come to and from the city.
*** ROBYN BALE XXN MR HOWELL
PN433
You do not know, do you, sitting here today, whether or not any particular train timetable will have a reduced frequency of trains at a time relevant to school students; that's right, isn't it?‑‑‑As I've mentioned, I can't comment on the individual train trips of the 50,000 students that catch trains each day.
PN434
And, indeed, you can't comment on the individual circumstances of students and parents and what they may or may not be able to do to accommodate an altered train timetable?‑‑‑Correct.
PN435
For example, you don't know what the impact was on any of these people on the recently-introduced new timetable which was brought in, I think, in November of last year?‑‑‑Correct. I haven't had an opportunity to talk to families, schools and others. I was actually overseas at the time.
PN436
In paragraph 15, when you say it can be "expected" to result in students being late, should the Commission understand that to mean it is "possible" that they could be late?‑‑‑Paragraph 15 was an example of what might happen if there was a reduced frequency and, yes, that could be an example or is an example I've provided.
PN437
But the point is, it's a possibility, an assumption on your part, rather than something which you can say with any confidence would be expected; would you agree with that?‑‑‑Correct, an assumption based on the information I've been provided.
PN438
Again, at paragraph 16 - we're dealing here with vulnerable or at risk students - you say they "may" choose to truant. Again, what you're describing there is something which is possible, but you can't tell this Commission whether it's more or less probable, can you?‑‑‑I can't talk about the individual circumstances, but I can tell you we do have students that I believe could make the decision not to go to school if their train was delayed.
PN439
Indeed, and, of course, no one would want to see that and, indeed, that could be the circumstance if a train was delayed for any reason; you would accept that?‑‑‑Correct.
PN440
Can I ask you to go to paragraph 19 of your statement, Ms Bale. Please don't misunderstand this question. I am not suggesting that what you say in the first sentence of paragraph 19 is not possible. The issue I want to raise with you is the use of the word "likely". You say:
PN441
Less frequent train services is likely to impact on the ability of parents and carers to attend school on time to collect their children.
*** ROBYN BALE XXN MR HOWELL
PN442
Again, you don't know how an altered timetable will impact on the circumstances of any given individual, do you?‑‑‑I cannot comment on the number of students we have across the state. However, I am aware that we do have parents who use transport - who work, use the transport to go and collect their children from school. In those circumstances, there could be a delay in them collecting their child.
PN443
Again, of course, nobody would want to see that, but you don't know how those various families across the state might be able to manage that circumstance, do you?‑‑‑Not individual families, no.
PN444
And so you can't say that it is "likely" that it will have the impact that you have described in paragraph 19? You would accept it's possible; right?‑‑‑It's possible and likely for some families.
PN445
All right, I'll leave it at that, thank you.
THE SENIOR DEPUTY PRESIDENT: Thank you very much.
<THE WITNESS WITHDREW [9.49 AM]
PN447
MR EASTON: The next witness I wish to call is Mr Michael Baldi B-a-l-d-i.
PN448
THE ASSOCIATE: Please state your full name and address.
MR BALDI: Michael Baldi, (address supplied).
<MICHAEL BALDI, SWORN [9.50 AM]
EXAMINATION-IN-CHIEF BY MR EASTON [9.50 AM]
PN450
MR EASTON: Mr Baldi, you have already stated your name and address for the record. You have made a witness statement in this matter, haven't you?‑‑‑Yes.
PN451
You have got a copy of that in front of you at the moment?‑‑‑I do, thank you.
PN452
Is it true and correct to the best of your knowledge and belief?‑‑‑Yes.
PN453
I wish to tender Mr Baldi's statement, which hopefully will become exhibit 10.
THE SENIOR DEPUTY PRESIDENT: Yes, Mr Baldi's statement is exhibit 10.
*** MICHAEL BALDI XN MR EASTON
EXHIBIT #10 STATEMENT OF MICHAEL BALDI
MR EASTON: I have no other questions for Mr Baldi.
CROSS-EXAMINATION BY MR HOWELL [9.52 AM]
PN456
MR HOWELL: Mr Baldi, my name is Howell, I'm appearing on behalf of the RTBU and APESMA. I won't keep you long this morning. You describe in your statement the potential impact on a range of different agencies within the Justice portfolio; that's right?‑‑‑Correct.
PN457
Again, you have no information from those various networks about how the employees within those various parts of the networks were intending to manage late-running or unavailable trains, do you?‑‑‑Our respective division heads have done an assessment of the likely impact or the estimated impact based on their knowledge of their staff.
PN458
When you say "the estimated impact on their staff", there hasn't been - sorry, I'll withdraw that. Do you know the nature of the enquiries that they have made of these people?‑‑‑They've done - - -
PN459
Have they done surveys or how has it been done; do you know?‑‑‑No, no direct survey of employees.
PN460
So how have they found out this information, so far as you are aware?‑‑‑With the sort timeframes to submit information, it has been an estimate of the potential impact of staff who might travel to various sites where they particularly travel by train.
PN461
So, no doubt doing their best, but it's really a guesstimate rather than anything based on any empirical figures?‑‑‑In terms of travel impact, that's correct.
PN462
Again, sitting here today, you are not able to tell the Commission what proportion of the employees within the Justice network which you have broadly described here will adopt some alternate or different mechanism for getting to work to deal with a late-running train or the absence of a train, are you?‑‑‑We estimate that 40 to 45 per cent of people will be impacted and not be able to attend for work on the day of the strike, but that's an estimate.
*** MICHAEL BALDI XXN MR HOWELL
PN463
Leave aside the strike for one moment, you have not done an estimate of what the impact is of the altered train timetable with the introduction of a Saturday timetable, have you?‑‑‑No.
PN464
Again, to the extent you have an estimate that that number of persons might not be able to turn up for work, that's not based on information you've got from the employees, that's the guesstimate that you've got from the people who have reported to you?‑‑‑That's correct.
PN465
Thank you.
PN466
MR EASTON: Nothing further.
THE SENIOR DEPUTY PRESIDENT: Thank you very much?‑‑‑Thank you.
<THE WITNESS WITHDREW [9.55 AM]
PN468
MR EASTON: The final witness I wish to call is Ms Susan Pettifer - P-e-t-t-i-f-e-r.
PN469
THE ASSOCIATE: Please state your full name and address.
MS PETTIFER: Susan Pettifer, (address supplied).
<SUSAN PETTIFER, AFFIRMED [9.56 AM]
EXAMINATION-IN-CHIEF BY MR EASTON [9.56 AM]
PN471
MR EASTON: Ms Pettifer, you have already stated your name and address for the record. You have a copy of a statement in front of you. This is your statement in these proceedings, isn't it?‑‑‑Yes.
PN472
Is that statement true and correct to the best of your knowledge and belief?‑‑‑Yes, it is.
PN473
Thank you. I wish to tender that.
THE SENIOR DEPUTY PRESIDENT: Yes, Ms Pettifer's statement is exhibit 11.
*** SUSAN PETTIFER XN MR EASTON
EXHIBIT #11 STATEMENT OF SUSAN PETTIFER
PN475
MR HOWELL: No objection.
MR EASTON: No other questions.
CROSS-EXAMINATION BY MR HOWELL [9.57 AM]
PN477
MR HOWELL: Ms Pettifer, in paragraph 16, you describe contingency plans being implemented to deal with a reduction in the availability in train services; yes?‑‑‑Yes.
PN478
They are ready to be deployed, or are they being deployed at the moment, given the overtime ban as now in place?‑‑‑Yes, they're ready to be deployed.
PN479
Sorry, are your contingency plans dealing with the day of strike or dealing with the overtime ban?‑‑‑Both. We have contingency plans for both.
PN480
When you say "both", the contingency plan is dealing with the unavailability of the service; is that right?‑‑‑Yes.
PN481
In paragraph 14, you refer to - - -
PN482
THE SENIOR DEPUTY PRESIDENT: Just to be clear, in paragraph 12, you say:
PN483
As a result of the proposed strike action and proposed overtime ban, the City of Sydney will activate its business continuity plans which will prioritise essential services. Non-essential services will be reduced.
PN484
Then you give some examples. Are you saying that is already in place today?‑‑‑Yes.
PN485
So you are already reducing non-essential services?‑‑‑Yes.
PN486
All right.
PN487
MR HOWELL: When you come to paragraph 14, you say:
*** SUSAN PETTIFER XXN MR HOWELL
PN488
There may be a cancellation of, or reduced booking of, clean-up services, street cleaning and the like.
PN489
You are not suggesting they won't be done, are you? These things will just be delayed; that's right?‑‑‑Yes, I think they will be delayed.
PN490
Again, when you are dealing with rangers and the availability of rangers in paragraph 13, there are two matters I wanted to raise with you: firstly, sitting here today, you can't tell the Commission how one or more of those 140 city rangers will come to deal with the delay in a train service or the unavailability of a train service, can you?‑‑‑Sorry, can you repeat your question?
PN491
There are a range of ways that someone can deal with the unavailability of a service; right?‑‑‑Yes.
PN492
Particularly if you have notice of it; right?‑‑‑Mm-hm.
PN493
You would have seen, over the last week or so, the government is - I think the description someone else has accepted is "engaged in a blanket media exercise", telling everybody to put in place alternate arrangements to try and ensure that they can attend to whatever they need to attend to that they otherwise would have used the rail network for; right?‑‑‑Mm-hm.
PN494
Sitting here today, you can't tell the Commission how the 140-odd city rangers that you refer to in paragraph 13 are going to set about attending to come into work in circumstances where a train might be delayed or otherwise unavailable, can you?‑‑‑I think I can.
PN495
You have spoken to the 140 city rangers that you refer to?‑‑‑A manager of city rangers has.
PN496
Spoken to the 140 of them, has he?‑‑‑Has spoken to the over 70 people who would be rostered on Monday.
PN497
All right. You have not given this evidence in your witness statement; is there a reason for that?‑‑‑It was part of our contingency planning.
PN498
So these are enquiries that you've made?‑‑‑Yes, yes.
*** SUSAN PETTIFER XXN MR HOWELL
PN499
And you have taken into account the enquiries you have made in your contingency plan?‑‑‑Yes.
PN500
No doubt your contingency planning would have been directed to ensure the safety of the citizens of this great city?‑‑‑Yes.
PN501
And your deployment of rangers would have been directed towards ensuring the safety, health and welfare of the citizens of the city?‑‑‑Correct.
PN502
Do you agree with that?‑‑‑Yes.
PN503
Indeed, the contingency arrangements that you have put in place will ensure the safety and the welfare of the citizens of the city, won't it?‑‑‑I believe so.
PN504
Nothing further, thank you.
THE SENIOR DEPUTY PRESIDENT: Thank you very much, Ms Pettifer, you are excused.
<THE WITNESS WITHDREW [10.02 AM]
PN506
MR HOWELL: I have had someone busily preparing a statement to attend to the protective industrial action question, if I can describe it in that way.
PN507
THE SENIOR DEPUTY PRESIDENT: So what - - -
PN508
MR HOWELL: To deal with the section 409 and section 413 considerations which your Honour must have regard to when dealing with these applications. There's a pre-condition that - I think it's the Full Federal Court in Australian International Pilots Association - the Commission must form its own view on whether or not it's protected industrial action before you can do anything under 424 or 425.
PN509
THE SENIOR DEPUTY PRESIDENT: Yes.
PN510
MR HOWELL: I think it is a matter which most certainly arises in Mr Harmer's application in any event.
*** SUSAN PETTIFER XXN MR HOWELL
PN511
THE SENIOR DEPUTY PRESIDENT: Yes.
PN512
MR HOWELL: So might I ask the Commission - - -
PN513
THE SENIOR DEPUTY PRESIDENT: When do you think that would be available?
PN514
MR HOWELL: I am not sure if it's available immediately, but if we could have - 15 minutes would be much appreciated.
PN515
THE SENIOR DEPUTY PRESIDENT: Yes, okay, we will adjourn till 20 past 10.
PN516
MR HOWELL: Thank you.
SHORT ADJOURNMENT [10.03 AM]
RESUMED [10.24 AM]
PN517
MR HOWELL: Senior Deputy President, I think it now falls to my two clients as the respondent to open its evidential case. In that connection, I hand up a statement of Alison Rudman, the director of organising for the Australian Rail, Tram and Bus Industry Union. To be fair to my learned friends, I've quite literally only just given it to them and I doubt they will have had the opportunity to read it.
PN518
MR HARMER: If the Commission pleases, your Honour, rest assured I'm only standing to reconfirm the procedural outcome of yesterday. The comments prior to the break indicated that this is also relevant to our application. I've, again, just received it. I just wanted to confirm that I will take no part in this application, and your Honour, would reserve my rights - - -
PN519
THE SENIOR DEPUTY PRESIDENT: Yes, I mean, the only thing I suppose - I was thinking about this during the adjournment - if this is designed to establish that the industrial action is protected, I think - to be fair to Mr Harmer, I think he should be allowed to be involved, if you like, in this part of the matter, because obviously it essentially deals with the critical issue that your application deals with.
PN520
MR HARMER: That's what I understand, your Honour. If I may just raise this and as I understand it, this is not - I've had the opportunity to discuss it with my friend, Mr Howell, and his instructor. The alternative is that, consistent with what has happened this morning, this application proceed without our involvement. We'd reserve our position. If orders are made stopping the industrial action, it may be we do not have to further deal with the matter. Alternatively, there may be a need to briefly recall, but it would be very brief I would think, your Honour, and I have only just received this literally. So in my respectful submission, that might be the more appropriate course for now, and that will allow this application to move forward without it crossing - - -
PN521
THE SENIOR DEPUTY PRESIDENT: Okay, thank you.
PN522
MR HARMER: Thank you.
PN523
THE SENIOR DEPUTY PRESIDENT: Okay.
PN524
MR HOWELL: Your Honour, we have no difficulty with that proposition, particularly if the witness doesn't have to be cross‑examined twice. I understand no one from the left other than Mr Harmer is taking any point on - - -
PN525
THE SENIOR DEPUTY PRESIDENT: Yes, so you don't want to cross‑examine Ms Rudman?
PN526
MR HARMER: I'll let them speak for themselves.
PN527
THE SENIOR DEPUTY PRESIDENT: Yes. I'm looking at - but you've obviously had a chance to work that out, or not?
PN528
MR SECK: Your Honour, my clients don't propose cross‑examining Ms Rudman.
THE SENIOR DEPUTY PRESIDENT: Okay. Well, then we can just accept her evidence as exhibit 12. Thank you.
EXHIBIT #12 STATEMENT OF ALISON RUDMAN
PN530
THE SENIOR DEPUTY PRESIDENT: Is there any other evidentiary material?
PN531
MR HOWELL: Not on behalf of the RTBU or Professionals Australia.
PN532
THE SENIOR DEPUTY PRESIDENT: In terms of submissions, and we've just had an adjournment, do you want to further - - -?
PN533
MR HOWELL: It would be very much appreciated.
PN534
THE SENIOR DEPUTY PRESIDENT: Yes. I mean, I had always intended that there would be a short break before you had to make submissions. So we've got all the evidence?
PN535
MR HOWELL: Yes, except we haven't marked that one - sorry, your Honour.
PN536
THE SENIOR DEPUTY PRESIDENT: Exhibit 12.
PN537
MR HOWELL: Thank you.
PN538
THE SENIOR DEPUTY PRESIDENT: I had indicated that I want to be in a position to make a decision around noon, I think, or lunchtime anyway.
PN539
MR HOWELL: Yes.
PN540
THE SENIOR DEPUTY PRESIDENT: It's only half past 10. How long do you both think you're going to go for, in terms of submissions? That's probably putting you a bit on the spot, but I mean - - -
PN541
MR SECK: Your Honour is probably - having read now the material and the grounds of the application, your Honour can probably appreciate the submissions I'm going to make, and I don't wish to repeat anything which we've already said.
PN542
THE SENIOR DEPUTY PRESIDENT: Sure.
PN543
MR SECK: But what I was hoping is just to hit the major points and answer any questions your Honour may have about the case that we're making, and I'd take your Honour to the requisite statutory precondition for the Commission making an order suspending the industrial action, whether that be under section 424 or 425 of the Fair Work Act, and I'd be otherwise content to rely upon the contents of the statements and the evidence which has been elicited in cross‑examination in support of our application, without going to that in detail, unless your Honour wishes me to do so.
PN544
THE SENIOR DEPUTY PRESIDENT: No, and Mr Easton, are you going to make - I presume you'll make your own submissions?
PN545
MR EASTON: Indeed.
PN546
THE SENIOR DEPUTY PRESIDENT: Yes. So the outline is yours - I've got a written outline - yes, it's yours, isn't it - yes? You haven't done a - so the only one I've got is - - -
PN547
MR SECK: No written submissions from Trains.
PN548
THE SENIOR DEPUTY PRESIDENT: Yes. It's hard to say, I know, but roughly how long do you think you'll be?
PN549
MR HOWELL: Your Honour, I'm notoriously bad at this point in the estimate. I would guesstimate half an hour to 40 minutes.
PN550
THE SENIOR DEPUTY PRESIDENT: Yes, that's what I was going to say, probably half an hour. If we adjourn till 11, is that going to be enough time for you to get your thoughts together?
PN551
MR HOWELL: Yes. Your Honour, I'll take what time I can.
PN552
THE SENIOR DEPUTY PRESIDENT: Let's adjourn again to 11 o'clock, and then we'll have submissions.
PN553
MR HOWELL: Thank you, your Honour.
SHORT ADJOURNMENT [10.29 AM]
RESUMED [11.04 AM]
PN554
MR SECK: As your Honour is aware, there are two applications on foot at the moment. There's an application which has been made by Sydney and NSW Trains and the Minister for Industrial Relations to suspend the industrial action under section 424 of the Fair Work Act, and an application only by Sydney and NSW Trains to suspend the industrial action under section 425 of the Fair Work Act. Both provisions empower this Commission to make orders suspending the protected industrial action, and in our respectful submission, the Commission has heard sufficient evidence to satisfy itself that orders can be made pursuant to either section or both sections. As a matter of procedure, the Commission - it doesn't really matter from our point of view, your Honour, whether or not the order to suspend the protected industrial action occurs under section 424 or 425 - the Commission can be satisfied that both sections apply and rely upon both sections; the Commission may be satisfied that the circumstances in one section is enlivened and not in the other but still make the orders, or simply say one is sufficient and the Commission defers determining the other one. There are a number of ways forward for the Commission to make the order to suspend the protected industrial action. It is a matter for the Commission as to the method by which it wishes to - or the power upon which it relies in suspending that industrial action.
PN555
There are a number of common elements to both the applications made under section 424 and 425, both in terms of the legal requirements that need to be met as well as the evidence to support each of the applications, and I just wish to address the Commission on some of those common legal elements before I delve into the separate issues arising under each of the provisions. The first thing to note, Senior Deputy President, is that under section 424, there needs to be protected industrial action which is either being engaged in or threatened, impending or probable. Under section 425, the Commission's powers are only enlivened where protected industrial action is being engaged in. There cannot be any doubt based on the evidence which is before this Commission that there is industrial actions being engaged in at the moment. There is obviously the wearing of campaign material by RTBU and APESMA members, but there's also a broader industrial campaign that's taking place, which commenced as of 12.01 this morning, to impose an overtime ban. In my submission, there is sufficient evidence for the purposes of both section 424 and 425 in terms of the protected action being engaged in to enliven the Commission's powers to suspend. In addition, under section 424, there is no doubt that by virtue of the notices that have been issued and the public statements which have been made by officials from the RTBU and from Unions NSW that there is threatened, impending or probable industrial action which will take place on 29 January 2018.
PN556
The next point to note, Senior Deputy President, is that the Commission merely has to be satisfied of the particular circumstances which apply either under section 424 or 425. The word "satisfaction" has been considered significantly in the case law, and what it doesn't require is strict legal proof. The Commission is entitled to rely upon its knowledge and experience, both as acquired in performing the functions as a Commission member from time‑to‑time, in your Honour's circumstances as the panel head of the Transport panel, and also to rely upon your Honour's own personal experience as a member of the community and a citizen of the country, and based on the totality of that knowledge and experience, your Honour can form impressionistic judgments as to whether or not you as the Commission is satisfied that the particular circumstances which enliven the Commission's powers to suspend the protected industrial action under either provision have been met.
PN557
That must also take into account the fact that the applications must be heard in a short timeframe and in urgent circumstances, and necessarily, the quality and content of the evidence which will persuade this Commission as to the requisite level of satisfaction that the circumstances enlivening the Commission's powers have been met will be less. So it doesn't need to be empirical or statistical evidence, which would ordinarily require a court of law to be persuaded of, for example, the economic impact of any proposed protected industrial action; the Commission merely has to be comfortably satisfied that the circumstances have been met. My learned friend, Mr Howell, said yesterday that the Commission had a discretion to make the orders to suspend the industrial action. As counsel for the Minister for Industrial Relations said yesterday, there is no discretion that is given to the Commission in making orders. So long as the Commission is satisfied of the particular circumstances, it is mandatory for the Commission to either suspend or terminate the protected industrial action pursuant to either provision.
PN558
Can I then deal with, firstly, the application which is made by my clients under section 425 of the Fair Work Act? As your Honour knows, all that your Honour needs to be satisfied of is that the suspension of the industrial action is "appropriate" taking into account the particular matters which are specified in paragraphs (a) to (d) of section 425. Quite plainly, the word "appropriate" is a broader (indistinct) standard and it is left to the good judgment of the Commission to determine whether or not suspension of the protected industrial action is appropriate in all the circumstances. It is obviously limited by reference to the scope, subject matter and the objects of the Fair Work Act, and self‑evidently, given the title in section 425 and the reference in the first factor under paragraph (a) to suspending the industrial action to assist the parties in resolving the matters in issue, one of the chief objects of section 425 is to advance the purpose of allowing the parties to resolve the matters in dispute between them without recourse to industrial action. Your Honour can also have regard to the objects under section 3(f) of the Fair Work Act, which refers to good faith bargaining and clear rules governing industrial action, and section 171 of the Fair Work Act, which also deals with good faith bargaining, and that becomes important in understanding the particular context and circumstances of where the parties are at in terms of bargaining at the moment.
PN559
Might I then take the Commission quickly through each of the statutory factors that the Commission is required to take into account under section 425(1)? The first one is that it must be demonstrated that the suspension would be beneficial to the bargaining representatives for the agreement because it would assist in resolving the matters in issue. The principal evidence which goes to dealing with this particular matter is set out in Mr Kable's witness statement, both exhibit 3 and exhibit 4.
PN560
Your Honour will appreciate from having read the application in Mr Kable's first statement that whilst there has been extensive bargaining which has been taking place between the parties since July 2017, and that has been occurring on a weekly basis, there is still a number of significant issues outstanding between the parties, in particular the issue of pay. Mr Howell this morning asked questions of Mr Kable about when the issue of pay first had been discussed, and the first time it had been discussed was Monday this week, and the reason for that is because the unions had expressed the view that it wasn't prepared to discuss the issue of pay until it had been provided particular information which is being sought in the application for good faith bargaining orders, which is currently before this Commission, namely - - -
PN561
THE SENIOR DEPUTY PRESIDENT: What's the timeframe on that proceeding?
PN562
MR SECK: That application is to be heard by Sams DP on Tuesday and Wednesday next week.
PN563
THE SENIOR DEPUTY PRESIDENT: Next week.
PN564
MR SECK: So that's 30 and 31 January 2018. The application was made on, I think, 17 November 2017. There has been a program put in place for the filing and serving of material, and what is apparent from reading that material, your Honour, is that the unions have placed a critical level of importance in obtaining information to support their case that they are justified in sharing the gains of employee‑related cost savings that had been made between 2014 and 2017 and prospectively, and they've indicated in forceful terms that without that information bargaining cannot progress in relation to the issue of pay as part of an integrated package.
PN565
THE SENIOR DEPUTY PRESIDENT: To be honest, they might have said that at - they might even say to that material - but it does seem from what has been happening this week that in fact the unions have been willing to engage on the issue of pay, even though at the moment they haven't got that information. So they seem to have - if I can put it this way, if what you say is true, they seem to have shifted their position somewhat anyway on that.
PN566
MR SECK: From Monday, your Honour.
PN567
THE SENIOR DEPUTY PRESIDENT: Yes, this week.
PN568
MR SECK: So there has only really been - only this week, and the bargaining has only occurred, if one thinks about timeframe, over two days in relation to the issue of pay. By any standard, the issue of pay is the central issue in dispute between the parties, and with respect, two days is in most circumstances rarely going to be enough time to enable the parties to share information, discuss positions to enable each party to understand the other side's position, in order to reach an agreement. Indeed, it's the very antithesis of good faith bargaining, in my respectful submission, to have bargaining take place with the threat of industrial action hanging over the heads of the parties.
PN569
THE SENIOR DEPUTY PRESIDENT: Can I just make an observation that I don't think that, as the good faith bargaining requirements or the good faith requirements are in the Act, that actually taking or threatening to take protected industrial action is a breach of those requirements.
PN570
MR SECK: It isn't.
PN571
THE SENIOR DEPUTY PRESIDENT: And I'm pretty sure there's - I can't point you to the exact decisions, but I'm pretty even I have actually made a decision to that effect. I mean, I understand that some of those people say it, but I don't think there's any authority to say that.
PN572
MR SECK: We don't put it as high as that, your Honour. We don't say necessarily that the unions cannot take industrial action, but we do say, however, that there needs to be appropriate bargaining on the key issues between the parties to enable a proper exchange of information and a proper understanding of the respective positions that have been advanced by the parties in negotiations about a central issue in dispute, and it's plain from the evidence which has been given by Mr Kable today, and in his witness statements, that the issue of pay has not been discussed, and the industrial action has been threatened in circumstances where there's an extant application before this Commission dealing with the very information which the unions assert are central to presenting their case. So in my submission, whilst it's not an absolute barrier to good faith bargaining, it doesn't assist in good faith bargaining if the application for orders, for relevant information which the unions assert will assist them in bargaining, has taken place, and indeed, what it would suggest is it supports the consideration set out under section 425(1)(a) that more time between the parties, without the heat of potential industrial action taking place, would assist the parties in resolving the matters in issue - cooling off, as it were, as identified in the heading to section 425. Sams DP indeed has made comments on transcript that if one is coming to the Commission seeking orders for good faith bargaining, there's an expectation that it's not under the cloud of industrial action happening or being threatened, and whilst we don't say it's a buy, it's absolutely a relevant consideration in my respectful submission.
PN573
Can I then deal with the question of the duration of the protected industrial action under paragraph (b)? The duration of the protected industrial action is indefinite in respect of the overtime ban and in respect of the wearing of campaign material. So given the indefinite nature of the overtime ban, that is another factor which weighs in favour of suspension of the industrial action. It's not for a short period of time. It will be ongoing.
PN574
Paragraph (c) says the suspension would not be contrary to the public interest or inconsistent with the objects of this Act. There is nothing, in my submission, in the objects to the Act which would apply here where suspension would be inconsistent with those objects - quite the contrary, as I've pointed out, given that one of the objects is good faith bargaining. In my submission, good faith bargaining should occur in the context where industrial action is not occurring, and indeed, suspension doesn't eliminate the power of the unions to take industrial action at some time in the future. Cooling off by its very nature only means it's for a limiting period of time. So if the parties are given a further period of time - and I'll come to the period shortly as what we say is appropriate - to see whether or not the extant good faith bargaining application can be determined, and if there is further information which is ordered to be produced, that information is produced to allow a better understanding of the respective parties' positions. That doesn't prevent at some future point in time the members of the RTBU and APESMA being able to take protected industrial action once the suspension ends or is lifted. So in my submission, the suspension wouldn't(?) not be contrary to the public interest or inconsistent with the objects of the Fair Work Act.
PN575
Paragraph (d) provides the Commission with a discretion as to what it considers relevant in suspending the protected industrial action, and this is where there obviously is an overlap between the application made under section 425 and the application made under section 424. In my submission, the Commission is entitled to take into account under paragraph (d) of subsection 425(1) the same factors which would enliven the Commission's power to suspend the industrial action under section 424, namely, the threatened endangerment to life, personal safety and health, or welfare, of the population or part of it, and the obvious significant damage which may be caused to the Australian economy or an important part of it, and it's to those points I wish now to come.
PN576
Can I make one more point, your Honour? Your Honour heard this morning evidence given with leave of the Commission by Mr Kable about the vote - or the straw poll, I think would be more accurate - which had been taken by the RTBU of its members as to the offer that had been made by Sydney and NSW Trains, and can I just take your Honour to that evidence quickly. If your Honour goes to exhibit 4, which is Mr Kable's second affidavit, as your Honour heard there have been negotiations which have been taking place on 22 and 23 January, and the proposal that was presented by Sydney and NSW Trains is set out in the presentation which is annexed, and the deal which has been proposed has received some media publicity. But your Honour will see that there has been some, if not significant, movement which has been made by Sydney and NSW Trains in terms of the pay rise - and I won't read all that out - and then the total value of the package which has been presented to the unions is 3.45 per cent per annum, and that is, as I understand it, 2‑and‑a‑half per cent plus 0.095 per cent in terms of employee‑related savings under the second limb of the NSW Public Sector Wages Policy.
PN577
THE SENIOR DEPUTY PRESIDENT: But just to understand that, there are two aspects. One is, in terms of it being worth 3.45 per cent to employees, how is that calculated?
PN578
MR SECK: As I understand it, your Honour, there's the 2.75 per cent pay increase, which has been granted; then you take into account the additional bullet points thereafter. So there's the $1000 payment - - -
PN579
THE SENIOR DEPUTY PRESIDENT: But how's that - because that's a one‑off, isn't it? That's not into people's rates or anything?
PN580
MR SECK: It's obviously calculated on an average, and then there's travel passes, which is given a particular value, and then there are particular reforms, which the unions will support, so - - -
PN581
THE SENIOR DEPUTY PRESIDENT: So the government, if you like, or the employers have said that these reforms are worth - - -?
PN582
MR SECK: 3.45 per cent to the employee.
PN583
THE SENIOR DEPUTY PRESIDENT: Well - no, to the employer, I'm just trying to understand. So the difference between 2.5 and 3.45 is about a per cent per annum, just under - 0.95 per cent per annum. These reforms are worth that, if you like, in terms of cost savings - is that the logic of it? From the employer's point of view? I'm just curious, I suppose.
PN584
MR SECK: In part, that's the logic of it, but I think what the 3.45 per cent per annum - yes, that's the logic behind it. What it reflects, your Honour, is that it's 2.75 per cent, plus the $1000 payment, plus the travel passes.
PN585
THE SENIOR DEPUTY PRESIDENT: Yes.
PN586
MR SECK: And then once one assigns a value to the $1000 payment and the travel passes, the total value of the package which is being offered to employees is 3.45 per cent per annum.
PN587
THE SENIOR DEPUTY PRESIDENT: Okay.
PN588
MR SECK: So that is the deal which has been put on the table by Sydney and NSW Trains on Tuesday, and your Honour heard evidence this morning from Mr Kable that there was a - and I don't think there's any controversy, because it has been in the media on this issue - a text which was sent out by the RTBU to its members to identify their attitude to whether or not the offer was sufficient to temporarily stop the industrial action, and Mr Kable's evidence is that only 5 per cent of people responded. So only a small number of people in the timeframe which has been permitted have expressed a view on it. What suspension of the industrial action would allow is for the RTBU to more fully canvass its membership as to the offer which is being made by Sydney and NSW Trains, and simply doing it by text message in the form that it has been sent, and only getting 5 per cent response, would tend to suggest that perhaps the offer hasn't been fully ventilated, understood, and not all members have been given the opportunity to express their views as to the quantum of the offer which is being made by Sydney and NSW Trains. That is another reason or another factor which supports the suspension of the protected industrial action.
PN589
Can I then, your Honour, deal with the application under section 424 of the Fair Work Act? There quite plainly are some important differences between 424 and 425. I just wish to highlight the criteria that the Commission must be satisfied of in making an order suspending or terminating the protected industrial action. Firstly is the word, your Honour has to be satisfied that the protected action would "threaten", and the word "threaten" generally means that your Honour considers it probable that something will occur. Then (c) says:
PN590
to endanger the life, the personal safety or health, or the welfare, of the population or of part of it.
PN591
Can I just unpack paragraph (c) of subsection (1) quickly? One has to only show it endangers safety or health or welfare, so one of them, not all of them, and it doesn't have to be the whole of the population; it just has to be part of the population. That is in contrast to paragraph (d) where the damage has to be significant, and it has to be to an important part of it. The difference in the language which is used in paragraph (c) and (d) is quite instructive, and the case law certainly supports the propositions which I'm about to identify.
PN592
Firstly, the endangerment doesn't have to be significant. There just has to be an endangerment. The fact that the word "significant" is used in paragraph (d) and not paragraph (c) suggests that so long as the Commission is satisfied of the endangerment to life, personal safety, health or welfare, then that is sufficient. Secondly, your Honour doesn't have to be satisfied that a significant part of the population will have its life, safety, health or welfare endangered. It just has to be part of it, and based on its natural and ordinary meaning, part of it can mean a very small part of it, and if your Honour is satisfied - and it came out in some of the dialogue between your Honour and the witnesses this morning - that there were only a few people who were affected, that is part of the population, and once your Honour is satisfied that a few people are affected by it, the part of the population requirement of paragraph (c) of subsection (1) is satisfied.
PN593
In relation to paragraph (d), it merely has to cause significant damage. So the threat your Honour has to be satisfied of is significant damage to an important part of it. An important part of the Australian economy can be a particular industry, it could be a particular sector, it could be a particular geographic region, or it could be a particular service. So in terms of part of the Australian economy, there are several ways that one could characterise that part of the economy, and in my submission what the evidence has demonstrated is that the proposed industrial action, in terms of the overtime bans and the threatened strike action on 29 January 2018, will cause significant damage to important industries which rely upon the rail network; it will cause significant damage to particular people including commuters who use the rail network on a daily basis; and it will impact upon downstream industries which rely on the workers who use the network to attend their service‑related, customer‑facing jobs, and I want to come to that evidence in a bit more detail.
PN594
Can I deal with the economic issue first, because the evidence there, in my submission, is absolutely compelling? Your Honour has heard evidence from Mr Warlters from the NSW Treasury about the economic modelling of the cost of the industrial action. The cost of the strike action on 29 January 2018 is estimated to be $51.7 million, and if one adds in the overtime just between the period of 25 January to 31 January 2018 - the overtime ban - the cost to the economy will be $90.8 million. Those are the headline figures. That's in the context of Sydney being the largest city in terms of population and in terms of its economic size relevant to other cities in Australia, and NSW being the largest state. Your Honour can take it from your own experience that Sydney forms part of a network throughout the Australian economy. A number of companies have their headquarters based in Sydney, so it's potentially likely to have an impact on other states and cities as well. The way that people move around Sydney and NSW is chiefly on the Sydney and NSW train network. The people who rely upon the train system include people who need to get to work, who need to attend school, people working in essential services, and it's important just to focus on some of the key figures which demonstrate how important the Sydney and NSW rail network is to the movement of people in this city and in this state: the one million journeys which take place daily in the Sydney Trains network; at peak hours between 6 am to 10 am, 420,000 people use the Sydney train network; between 3 pm to 7 pm, 440,000 use the Sydney train network; on the NSW network on the Intercity trains, 121,700 use it, and the regional network with 3,600. So those numbers are significant, and the train network is used as the link between major urban centres and precinct for a whole range of industries, including education, retail, hospitality, medical and health. The figures also show in terms of public transport use, 56 per cent of all people who use public transport use the rail network, and the latest figures, which are from October 2017, show that 33 million passengers use the rail network in one month.
PN595
I want to come to the mitigation strategy shortly, but your Honour has heard the evidence that an eight‑carriage train carries about 1200 employees. If one was to use buses - and I just want to compare it, because buses have been identified as a means of seeking to mitigate the impact of the industrial action - a bus carries 69 passengers, so there would need to be 18 buses used to be the equivalent of one H‑carriage train. Mr Issa gave evidence your Honour will recall about the mitigation strategy for the Sydney rail network, and he says that what is proposed is that 480 buses will be used. If one assumes during peak hour a bus may do one trip, at a maximum two trips, then it can probably carry, based on those figures, 64,320 passengers. Now compare that to the number of people who usually use the rail network, that is, between 420‑440,000 people. That means less than 15 per cent of the people who ordinarily use the Sydney train network during peak hour will be able to be carried using buses, just using those particular numbers, and that assumes that the buses can be used to fill both ways, and it won't necessarily be the case because most people will be coming into the major urban centres and you won't necessarily have people leaving in equal numbers back from those urban centres. So even using those crude figures, it demonstrates that the use of buses is unlikely to significantly mitigate the impact of the proposed industrial action due to take place on 29 January.
PN596
The industrial action which the unions have threatened is designed to cause maximum inconvenience to the community. That much is clear from reading the public statements of the RTBU. In particular, 29 January is the first day of school term for private schools; it is a development day for teachers at public schools, and most people will now be returning to work after school holidays on 29 January. So it has been timed optimally to cause maximum damage and maximum inconvenience to the patrons who use the rail network and the businesses and employers who rely upon the workers who use that rail network.
PN597
What are the likely impacts? It'll mean that there will be some employees who just won't be able to attend work on that day or will come in to work late. The ability for employees to work from home will be limited in those industries where they're in customer‑facing roles. It's an uncontroversial proposition I would have thought, your Honour, that Sydney relies upon service industries more than other cities in Australia, in particular in the hospitality, retail and tourism industries. So those employees will have a limited ability to work from home on those particular days. For those employers which need minimum staffing levels to work on, for example, production lines, they may not have the minimum staffing levels, and it may result in the entire workforce having to be stood down for that particular period.
PN598
There's obviously going to also result in congestion and traffic jams, which will result in a delay, and this feeds into a separate point, which will be expanded upon by my learned friend, Mr Easton, on behalf of the Minister for Industrial Relations in terms of the quality and extent of the essential services that can be provided to ensure health, welfare and safety of members of the community and vulnerable members. It will also have an adverse impact on the movement of freight, in particular coal to ports, power stations and containers, and people moving on airports. These are only some of the impacts that will be visited upon the economy, and by any standard, in my respectful submission, your Honour, those impacts meet the test of causing significant damage to the Australian economy or an important part of it, namely, the industries which I have identified: retail, hospitality and tourism, and Sydney itself.
PN599
Can I then deal with the impact of the overtime ban? As your Honour has already heard, it's too late for today obviously, and it's probably too late for tomorrow, the rail timetables and the rostering arrangements rely upon overtime being worked by Sydney and NSW Trains staff. In the Sydney Trains network, there's about a 10 per cent overtime that's built in. In the NSW train network, there's a 5 per cent overtime that has been built in. It's meant, as your Honour has heard, that the trains will need to operate on the Saturday timetable on reduced services in the context of Australia Day, which usually has special events, and significant numbers who rely upon the train network to watch events on the weekend, including what is estimated to be about 50,000 people to go and watch the Foo Fighters concert in Homebush. There's also the Rugby Sevens tournament which is occurring this weekend, and various other concerts.
PN600
As a result of a Saturday timetable being implemented, the evidence demonstrates that the number of services being provided and the number of people being moved is around 50 per cent, and at peak hour 67 less services will be provided, and that in terms of practical figures means on an hourly basis during peak hour around 80,400 people or journeys cannot be carried on the train network which would ordinarily be carried during peak hour on a weekday. It also means that the Sydney and NSW train network is vulnerable to unplanned absenteeism. It means the coverage is limited, and if there is a small spike in employees taking sick leave during that time - or the blue flu - then services will need to be cancelled, and something less than the Saturday timetable will have to be provided.
PN601
What is also impacted by the overtime is maintenance. There needs to be maintenance carried out every 24 hours. This is known as a preparation process. That means there need to be checks and inspections conducted by Sydney and NSW Trains to certify those trains fit for purpose, and if there's an overtime ban placed on work, then this is likely to also have knock‑on effects in terms of those inspections being conducted to ensure trains are fit and ready to undertake the tasks required of them.
PN602
There are just a few other features in terms of the mitigation strategy which has been put in place by Sydney and NSW Trains. I've already taken your Honour to the figures about how the buses can probably only move less than 15 per cent of the number of people who ordinarily use the rail service during peak hour on a weekday. Those limitations are increased once one takes into account fatigue laws. So bus drivers will not be able to be deployed indefinitely to drive those buses, and over time the impact of the overtime will be far greater, just because there will be less bus drivers available to conduct that work because they need to take mandated rest times under relevant legislation. The buses will obviously be slower because there will be increased traffic congestion, and there will be cancellation of standard school bus services and other bus services during that period, and the cost in implementing that mitigation strategy, just for Monday, will be $2,250,000 to the taxpayer.
PN603
A point has been made by the unions that there hasn't been sufficient differentiation between, firstly, the Sydney and NSW train networks, and secondly, between the membership who are taking industrial action between the RTBU and APESMA. So I just want to address those points, your Honour. What the evidence demonstrates is that the Sydney train network and the NSW train network have a level of interconnectedness; for example, if one wants to catch an Intercity train, one might stop at Strathfield, Hornsby then Newcastle, so there's going to be a level of interconnectedness there, and people sometimes need to get from one spot to another spot, which relies upon partly the Sydney network and partly the NSW network. So there's an artificiality in seeking to distinguish the impact of industrial action on the NSW train system and the impact on the Sydney system as it relates to commuters, because most commuters will use both at one stage or another, at least if they're coming in and out of Sydney. The reduction in services in one network will have a potential reduction in services in another network as well, and there's evidence from Mr Merrick on that point. The distinction that the unions sought to make in cross‑examination about a purported failure of the witnesses to distinguish between the two is without substance in my respectful submission, given that level of interconnectedness.
PN604
In terms of the industrial action being taken by the RTBU and APESMA, the evidence reveals the RTBU has coverage - and one has to merely look at the eligibility rules of the RTBU, and I don't think this is in controversy - throughout all parts of Sydney and NSW Trains. For obvious reasons, Sydney and NSW Trains do not have membership figures of the RTBU so we do not know which employees are members and who will be taking industrial action on Monday, and for that matter in respect of the overtime bans, because we just don't have access to those figures. But needless to say, given the breadth of the RTBU's rules, it has the potential to cover all aspects of their operations. In terms of APESMA, they have coverage over engineers with certain qualifications, and there's an overlap obviously with both the RTBU's rules, the ETU's rules, as well as the AMWU's rules, but what we can safely say is that there are some members of APESMA, and generally speaking they cover engineers. What the evidence shows is that engineers will be required in relation to network operations and supervision, maintenance and potentially electricity. If there are not engineers there to do those tasks, if there is some failure of the network, then there may not be engineers available to ensure it gets up and running again, and given the primary objective of Sydney and NSW Trains is the safe operation of the rail network, the industrial action which is being threatened and currently being taken by APESMA members, in my submission, will meet the two limbs of either endangering life, personal safety, health or welfare of the population or part of it, or cause a significant damage to the Australian economy or an important part of it.
PN605
What I haven't mentioned in detail, your Honour, is the impact it's likely to have on safety, health and welfare, and most of the evidence which is being adduced by the Minister for Industrial Relations is directed to that issue so I don't necessarily want to traverse that in too much detail. But needless to say, the people who use the network cuts across a whole range of essential services, including police officers, firefighters, ambulance officers, health workers, correctional officers, city rangers and the like. If even some of those employees do not attend work as they're rostered and there's going to be less than the optimal staffing or rostering for those employees, then it obviously is going to potentially compromise health, welfare or safety of the community. If you have less than the full complement of police officers, and one can assume that police officers are rostered to ensure that there is safety, then there is that potential. All the Commission needs to be satisfied of is that there is a threatened endangerment, and it's not a large leap and it's certainly a reasonable inference for the Commission to draw that like any other member of the community those employees working in those essential services sectors rely upon the Sydney and NSW Train network to get to work. There has been other evidence in relation to education. I'll let my learned friend, Mr Easton, address those issues.
PN606
Can I then just lastly deal, your Honour, with the proposed order that is being sought by Sydney and NSW Trains? I think your Honour has been sent a copy of the proposed order which my client seeks. It has about nine paragraphs, it's about two‑and‑a‑bit pages, and we can provide a copy if your Honour wishes. Does your Honour have a copy of that?
PN607
THE SENIOR DEPUTY PRESIDENT: Yes.
PN608
MR SECK: Your Honour will see in the art draft order that we have prepared that we say it's pursuant to both sections 424 and 425. Obviously your Honour may form the view that we've only satisfied one or the other, or simply just rely on one provision and not the other. Secondly, your Honour will see that the date for the suspension ending is 6 pm, 4 April 2018. There is some logic to that. It is this: that there are proceedings before Sams DP next Tuesday and Wednesday; there may be some time before Sams DP hands down a decision; once that decision is handed down it might involve further discussions taking place between the parties to seek to resolve the matters in dispute; and there obviously needs to be some time period before industrial action starts up again, because we need to take appropriate steps to mitigate any industrial action once the suspension finishes. So that is the logic behind the date of 6 pm on 4 April 2018. That doesn't prevent the parties from approaching the Commission to seek to re‑list the matter with liberty to either vary or set aside the time and replace it with a different time. In my submission, the time that we've nominated there is reasonable.
PN609
The orders that we seek are otherwise quite standard. I simply draw to your Honour's attention that paragraph 5 requires that the employees not take any industrial action once the industrial action is suspended for the duration of the suspension, and paragraph 6 requires the unions to take particular steps to communicate the orders to its members, in accordance with their rules, and to ensure that the employees comply with the order, and we've provided the time for that in paragraph 7 of 9 am on 25 January 2018. That needs to be probably modified to a more realistic time. It could be, if the orders are made this afternoon, maybe by 5 pm today. And then there are provisions in terms of service in paragraph 8. Mr Howell quite properly points out paragraph 3 talks about the order coming into operation at 6 pm, Wednesday 24 January. That obviously will need to be amended to reflect some time after your Honour makes your decision. A similar change will need to be made to paragraph 9(a) in terms of the effect of the order, your Honour will see. Unless your Honour has any questions, those are my submissions.
PN610
THE SENIOR DEPUTY PRESIDENT: No. Thanks very much.
PN611
MR SECK: May it please.
PN612
MR EASTON: Thank you, your Honour. I'll be brief. The Minister has a separate standing under the Act to make his own application as the Minister who is responsible for workplace matters in NSW. The Minister submits that there are two bases upon which the Commission is required to make an order. The primary basis is that the threatened action, or the action that has already commenced at 12.01 this morning, threatens to cause significant damage to the Australian economy or an important part of it, and then secondarily, that the threatened action for next week would threaten to endanger the life or personal safety, health or welfare of the population or a part of it. The evidence from Dr Warlters puts figures to what your Honour must intuitively know to be true, that the action - particularly next Monday, but the action that has already commenced as well - will cause significant damage to the economy of Sydney and NSW.
PN613
The evidence from Dr Warlters provides the modelling that he and his colleagues have done, and when one looks at Dr Warlters' qualifications, including his PhD in theoretical and applied economic modelling, one can take some comfort with the methodology that he applies, and his evidence provides not only a detailed methodology but the figures that sit behind that methodology, including figures that are derived from ABS statistics in relation to populations and the like. So your Honour can, from that evidence, be satisfied that the immediate economic impact of the proposed action is likely to be between 50 and 90 million dollars. That is only aspect of the damage to the economy that your Honour can see is likely to occur from this proposed industrial action, and we can see, as my friend has already alluded to, the other consequences for the economy from this proposed industrial action.
PN614
I anticipate from the cross‑examination that your Honour saw this morning that the RTBU and APESMA may be going to make a submission to you that $90 million is not significant compared to the $600‑billion economy projected for NSW over the next financial year. That submission, firstly, if it is going to be made, would be extraordinary, but it doesn't direct itself in any event to what the legislation requires you to direct yourself to, and that is to the question of whether there would be significant damage to the economy caused by this industrial action.
PN615
That is not significant damage as a percentage of the overall economy, or anything of the same. In absolute terms you can be satisfied that there will be significant damage caused by this ongoing industrial action, and one can see that from the words of the Act where the thing that has to be significant is the damage as opposed to a significant part of the economy.
PN616
Again I am anticipating what my friend might submit about that, but we don't need to see damage to a significant part of the economy, we need to see significant damage to the economy, and on the evidence of Dr Warlters that conclusion, in my submission, is inescapable and your Honour can only but form the satisfaction that this industrial action will cause that damage to the economy. I don't think anyone would suggest that the economy of Sydney or of New South Wales is not an important part of the Australian economy, and in my submission your Honour is compelled to act and make an order.
PN617
There is some discretion as to what order you can make, but your Honour is compelled to act by the terms of section 424, and your Honour can also note in that regard that section 424(1)(c) and (d) directs the Commission's attention to parties other than the parties that are engaged in the bargaining process. The legislation obviously permits industrial action in certain circumstances, but provides and indeed mandates that industrial action where it has certain impacts on parties outside of the parties who are bargaining requires the Commission to act and requires the Commission to intervene, and in my submission that is exactly what you ought do in this instance.
PN618
The second basis upon which the Minister says that you are required to intervene is that you can only be but satisfied that the threatened action is likely to - it would threaten to endanger the life, personal safety or health of welfare of the population or a part of the population, and I have provided in my submissions some of the general principles derived from earlier decisions of the Commission, and as my friend Mr Seck has already alluded to the authorities are clear that you cannot import additional terms into the legislation to apply a higher test than what parliament requires you to do, and in this instance you have significant evidence led by my client as to that endangerment. I am not sure that I need to take you through the ins and outs of that evidence at this point, and the evidence is, and again I am perhaps answering a submission that my friend might not ever put, but the evidence is - - -
PN619
THE SENIOR DEPUTY PRESIDENT: He probably will, whatever it is.
PN620
MR EASTON: I don't want to give him any clues. The evidence from the Minister is predicated upon the assumption that there will be no trains on Monday, and to the extent that at least some of the Minister's witnesses were cross-examined about their knowledge of the timetable for the other days where there's overtime bans and all of those kinds of things your Honour should frankly disregard that evidence and conjecture there, because what is clear is that the evidence from the Minister is predicated upon the fact (1) that there will be no trains on Monday, and (2) that on the other days that are covered by this industrial action there is severely compromised rail services.
PN621
The evidence is that in those severely compromised rail services other consequences will flow for parts of the community such as the health sector where we can see from the statement of Mr Loy that some elective surgery on Monday will be cancelled, and in other aspects of the health sector, for example the Sydney Dental Hospital, they will only be dealing with emergency appointments, and that's not speculation, that's not dealing with possibilities, they are clear statements of what will have to happen on Monday if the industrial action goes ahead.
PN622
Again for expedience of time we have provided a draft order. Frankly the order that we have provided yesterday was pinched from orders made in an earlier matter. They are simpler than the orders that Trains New South Wales seek in the proceedings. We don't have a submission as to which order is better. We provide a simple alternative for your Honour to consider in terms of the orders. The only problem we have with our orders that we have provided to your Honour is that we put the wrong date in.
PN623
THE SENIOR DEPUTY PRESIDENT: More importantly the length of the proposed suspension is different to I think what - - -
PN624
MR EASTON: That's the mistake I am alluding to. The Minister's position is slightly different because he is not the employer.
PN625
THE SENIOR DEPUTY PRESIDENT: But how long are you proposing the suspension be?
PN626
MR EASTON: We adopt the ten week proposal that the other applicant has sought. Frankly it's not a matter that the Minister could be or should be engaged in terms of the ongoing effect on the bargaining process. That's not the purpose of the Minister for Industrial Relations application here.
PN627
THE SENIOR DEPUTY PRESIDENT: No, but if I was to suspend the industrial action I need to know how long. Obviously there's an end to a period of suspension. I need to know what your position is on the proposed term of the suspension that you have just told me you agree with.
PN628
MR EASTON: Obviously we endorse that application, and of course I have been very brief in my submission. If there is any particular matter that I can assist your Honour with I am happy to do that, but otherwise - - -
PN629
THE SENIOR DEPUTY PRESIDENT: Thanks very much, Mr Easton. Mr Howell?
PN630
MR HOWELL: Thank you, your Honour.
PN631
THE SENIOR DEPUTY PRESIDENT: Make sure you cover all those matters - - -
PN632
MR HOWELL: Sorry, your Honour?
PN633
THE SENIOR DEPUTY PRESIDENT: You better make sure you cover all those matters that have already been answered.
PN634
MR HOWELL: He has already addressed them for me. Might I start, your Honour, by doing what my learned friends didn't do, and that is to refocus your attention on what it is you are being invited to do. The orders that are sought in these proceedings are directed towards very specific applications for industrial action; two unions with very different coverage, two employers, separate legal entities. So far as the overtime ban is concerned in one respect they have already commenced, both unions this morning. In another respect they haven't yet commenced, and insofar as the other union is concerned there's a stoppage which is scheduled for 29 January.
PN635
The reason I am emphasising that at the outset is the statute requires you to form particular opinions about the industrial action to which the order will relate. It's no doubt true that if an order is made, whichever one it might be, that has a knock-on consequence for whether any other action could be protected action. That's the effect of section 413(7), but before one is empowered to make any order under section 424 or 425 one must be satisfied that it is appropriate to make that order in relation to that action, and it's the statutory tests contemplated by sections 424 and 425 about that action which must be satisfied, and that was the point in taking my learned friend's witnesses to the fact they have not delineated in their evidence between the action being taken by the RTBU in the form of an overtime ban against Sydney Trains, the overtime ban being taken against New South Wales Trains in the form of overtime ban by the RTBU.
PN636
Can I stop there for one moment. The evidence otherwise makes plain that firstly they are very different entities which deal with very different networks, and more importantly the impact of the action on those two respective employers is very different. Just to use a very simple illustration I think it was Mr Merrick's evidence that so far as New South Wales Trains is concerned they can cover all of their regional areas with coaches. The impact is very different.
PN637
What my learned friends submissions, with the greatest of respect to them, didn't do and what their evidence doesn't do is drill down into the action that is identified in each of the specific notices to which orders are directed, and respectfully that is what this Commission is required to do, and if authority is needed for that proposition you will see it in Australian International Pilots Association v Fair Work Australia & Ors. That's reported at [2012] 202 FCR 200, and in particular paragraphs 69 to 72 for his Honour Justice Lander, 128 to 130 for Justice Buchanan, 179 to 180 and 182 for Justice Perram, and it was subsequently picked up by the Full Bench of this Commission in National Tertiary Education Union v Monash University [2013] FWCFB 5982-54.
PN638
What I propose to do, your Honour, is briefly address section 425, which is one of the provisions relied upon by the rail entities, and then move to section 424, which is relied upon by both. In accordance with what had been – the way the matter proceeded I don't intend to say anything about the (indistinct) application this afternoon.
PN639
Can I ask your Honour then to open section 424. You have been taken to it already. The substantive question which the Commission has to ask itself is whether it is appropriate to make the order taking into account a series of identified matters, and of course I would accept what my learned friend Mr Seck said, that invites a broad evaluative judgment, of course confined by the subject matter and scope, and they are the matters which one must take into account as identified in subsections (a) through (d).
PN640
We take a very different view however on each of those matters as you might be not surprised. Subclause (a) invites consideration of whether the suspension will be beneficial to the bargaining representatives to the agreement because it would assist in resolving the matters in issue. My learned friend Mr Seck said the substantive matter in issue as we stand here today is pay, and I think that's probably a fair characterisation of it, but what he didn't do in dealing with Mr Kable's evidence was address how and why it would facilitate bargaining the matters in issue, namely pay, when the only substantive bargaining on Mr Kable's evidence that has begun about pay started this week after the notice was issued and is continuing today.
PN641
We have had bargaining since July of last year. The parties have been at loggerheads about all sorts of matters. Many of them have resolved. The substantive issue outstanding is pay. There is a good faith bargaining order application on foot and it will come to be heard next week, and it may or may not produce additional information. According to my learned friend's witnesses it doesn't exist, it's unlikely to produce additional information in which case there would be no purpose served in delaying or suspending this action. But the point is one doesn't need to have that information in order for bargaining to continue, it has continued over the last six-odd months and it continues today. Whilst it would certainly assist and it may very well facilitate bargaining it's not a necessary precondition to effective bargaining. Suspending the action will not assist in resolving the outstanding issue.
PN642
The second thing I should say about that is suspending the action might very well have precisely the opposite effect. You will see in some of the media statements made by Mr Claassens which are in evidence that the action that is being organised, at least as far as the RTBU members are concerned, arises because of a strength of feeling amongst the membership. The language which is used in one of the media statements is they want to punch them in the nose I think it was. This action is not topped down. The evidence doesn't permit that conclusion. Suspending it now is likely to do very little to assist in resolving the outstanding issues.
PN643
The second mandatory consideration is the duration of the action, and again one needs to draw the distinction here between a single day stoppage and the ongoing industrial action in the form of an overtime ban, and indeed the ongoing action in the form of the stickers and livery. My friend didn't refer to the stoppage action in this case, emphasising the words "engaged in". I won't take that further, suffice to say so far as your Honour has regard to the stoppage it is a single day; that protected action ballot order and the ballot which followed authorised stoppage action of a much more significant nature, including up to indefinite strike action. Yes, it is a significant imposition, but it is on one day alone. It's a reasonable and measured form of stoppage, no doubt conscious of the impact upon the community of stopping the rail network.
PN644
The overtime ban whilst of an indefinite nature has only today been implemented. It has been in operation now for several hours. We have no evidence or submission that there is some dramatic impact arising immediately, and the evidence which my learned friends led doesn't suggest that it will happen immediately. The industrial action ought be afforded some time to run before it is suspended, if it is to be suspended at all, in order that it can serve the purpose that it is therefore in the Act.
PN645
There is an old Federal Court case which described protected industrial action as legitimised industrial warfare, and I think there's a subsequent case which decries the use of that sort of language, but fundamentally the purpose of protected industrial action is to enable parties to apply pressure to their opponent in the bargaining. That's its purpose. It is not the antithesis of good faith bargaining, it is simply one of the mechanisms that is designed to facilitate good faith bargaining.
PN646
THE SENIOR DEPUTY PRESIDENT: Yes, they used to be disputed or you couldn't be expected to talk to anybody while they were taking industrial action, but I think that is not consistent with the philosophy of the Act I have to say.
PN647
MR HOWELL: I think that was back in the day when wildcat industrial action wasn't done lawfully.
PN648
THE SENIOR DEPUTY PRESIDENT: I think that's right. I think some people still have that in the back of their minds.
PN649
MR HOWELL: Perhaps certain members who used to be in the New South Wales Commission that would be ringing loudly in their ears.
PN650
THE SENIOR DEPUTY PRESIDENT: I am not going to comment on that.
PN651
MR HOWELL: I will leave that by the by. Next whether the suspension will be contrary to the public interest or inconsistent with the object of the Act. In my submission suspending the industrial action now would be inconsistent with both public interest and the objectives of the Act.
PN652
Section 3(f), my learned friend has already taken you to, contemplates enterprise bargaining, collective enterprise bargaining supported by simple rules, simple and clear rules governing industrial action. My clients have done nothing more than engage the right given to them as bargaining representatives under the Act. To withdraw the action for no reason other than they have availed themselves of that right would be, in my respectful submission, inconsistent with that object, and it would be contrary to the public interest because it is likely to do no more than prolong what has been a fairly extended period of bargaining and otherwise inflame those who are providing instructions to me, namely the membership.
PN653
Any other matter that the Commission considers relevant; there are a series of matters, in my respectful submission, which are relevant in this Commission. The first and most obvious is that it appears, at least so far as Mr Kable's evidence is concerned from this morning, industrial action is having a facilitative effect on bargaining. After the notice is served is the first time the government has put forward a specific proposition above the two and a half per cent in the wages policy, conditioned by trade-offs, but nonetheless it's the first movement from two and a half per cent, and that's it.
PN654
The proper inference to be drawn from the chronology, your Honour, is that that in all likelihood is at least significantly contributed to by the fact that these notices were issued and the industrial action is pending. So it appears that the action is serving the purpose that the Act provides it for.
PN655
The second thing is whilst any inconvenience to the travelling public is regrettable, and it is certainly regretted by my client, the action that they have organised when one looks at what was authorised is moderate. There could have been much more significant action. My client has taken a moderate and reasonable approach to the use of the industrial action powers that it was given by its membership and authorised to the ballot, is a relevant consideration in determining whether or not it ought be suspended, particularly in circumstances where the bargaining appears to be progressing and the bargaining appears to be significantly influenced at least by the existence of the action.
PN656
The third thing is that my clients have been meeting the good faith bargaining requirements, and you will see that's addressed in Ms Rudman's evidence, exhibit 12, but she goes through each of the considerations in that respect. In my submission there is nothing inconsistent in asking for information, pursuing a good faith bargaining order that involves the production of that information and at the same time concurrently using one of the other mechanisms available to an industrial organisation under the Act in the form of protected industrial action.
PN657
In all the circumstances, particularly given the action that has only just commenced, it would not be appropriate, in my respectful submission, to suspend either of the indeterminate overtime bans. There doesn't appear to be any reason at all to issue an order that involves suspending the wearing of livery and badges, and so far as the one day stoppage is concerned, again in my respectful submission, in all the circumstances, given my client is only doing what it is authorised to do under the Act – rail workers no doubt are critical to the economy, but they are also entitled to engage the mechanisms available to them under the Act to pursue their employer for a fair wages deal and conditions under an enterprise agreement. So they ought not be denied the opportunity to do so, in my respectful submission, by a mechanism available to them under the Act. In the circumstances it would not be appropriate to make an order under section 425.
PN658
Can I then go to section 424, and can I say without taking you to any particular passage the row that the submissions will hoe is ultimately consistent with what led to Commissioner Gregory in Metro Trains Melbourne Pty Ltd [2015] FWC 6037 refusing to make suspension or termination orders for industrial action in the Victorian rail network, albeit action of a different kind. It was a four hour stoppage and another form of action which appears to be described as an overtime ban or in the nature of an overtime ban, but the point which Commissioner Gregory makes, and is the point that I emphasised in the Commission, is one has to look at the nature of the action and the impact of it when looking at the statutory tests in section 424(1)(c) and (d). Sorry, I will take them in reverse order if I may.
PN659
Firstly the economic impact. When approaching section 424 the starting point is to appreciate that it's part of the scheme of the Act that empowers the suspension or termination of industrial action, and that part of the Act, or this part of the Act, because it has been previously characterised by the Full Bench, has powers intended to be used in exceptional circumstances and where significant harm is being caused by the action. You will see that in National Tertiary Education Union v The University of South Australia [2010] FWA 1014.
PN660
When one comes to consider the application for statutory tests to the different types of action that are contemplated you will see that there is a lacuna in the evidence. The evidence collects the various forms of action together, and it does it both with respect to the two different employers, with respect to the two different organisations, and in some respects with respect to both types of action, the overtime bans and the stoppage, which will make it very difficult, with respect, for the Commission to be able to identify, as it must, whether any particular action will give rise to the statutory consequence.
PN661
In order for the Commission to be satisfied of the criteria in section 424(1)(c) or (d) there must be what has been characterised as an appropriate evidential basis. That's from Victorian Hospitals Industrial Association v Australian Nursing Federation [2011] volume 214 of the Industrial Reports 148 at 49. No doubt what it's inviting your Honour to do is form an impressionistic judgment, as my learned friend Mr Seck said, but there must be an appropriate evidential basis. What the High Court Chief Justice Gleeson, Gaudron and Hayne described in Coal and Allied v Australian Industrial Relations Commission case dealing with a statutory predecessor in this way:
PN662
The decision-maker must have some basis for his or her satisfaction over and above generalised predictions as to the likely consequences of the industrial action in question.
PN663
A basis over and above generalised predictions. That is the purpose of the cross-examination that you hear and it's why when you come to look at the evidence of the alleged harm you will not be able to form the view, in my respectful submission, that it is probable or the evidence extends in some way beyond generalised predictions about the likely consequences. Everything is framed around may do this, may do that.
PN664
Mr Issa accepted these were broad assumptions they are making. They don't have any recent experience of industrial action of this kind in the rail network. They are not facing this on some empirical assessment. They are doing their best no doubt in identifying what the potential consequences would be, but your Honour has to be satisfied that the probable consequence will be on the evidence that either (c) or (d) in section 424(1) will be made out.
PN665
If your Honour is looking for authority for that submission, namely that one has to look to what is probable rather than what is possible, you will see it in Metro Trains Melbourne Pty Ltd [2015] FWC 6037 at 25, and there Commissioner Gregory was embracing what had been said by the better known decision of Deputy President Kaufman in Ambulance Victoria v ALHWU [2009] 187 Industrial Reports 119 and 29.
PN666
Can we then briefly go to section 424(1)(d). What the statute asks is whether or not you are satisfied that the action would threaten to cause significant damage to the Australian economy, i.e. (indistinct) the whole, or to an important part of it. As a general submission the evidence on economic harm simply does not enable you to distinguish between the action by the RTBU or the action by Professionals Australia.
PN667
The factual circumstance contemplated by section 424(1)(d) to some extent involves a valued judgment, but as his Honour Justice Giudice had said in the Full Bench in the Coal and Allied Operations and CMFU decision at (1998) 80 Industrial Reports 14 and 33:
PN668
The valued judgment is dependent on both the degree of damage and on the field in which it operates.
PN669
The only evidence of the field here is the evidence in my learned friend Mr Easton's client, the good doctor from New South Wales Treasury, who describes a financial impact on the New South Wales economy. That's the only part of the Australian economy for which you will see some evidence. What the provision here is inviting is an assessment of the degree of damage. My learned friend Mr Easton might describe it as an extraordinary submission, but it's a submission which is based on the statutory provision. You identify the part and you assess whether or not what will happen in relation to that part of their claim can be characterised as significant damage, and, yes, the submission is no doubt significant numbers, but the evidence of New South Wales Treasury in the context of the gross state produce of in excess of $600b is miniscule.
PN670
It is no doubt a lot of money, but you cannot characterise that sort of consequence in a $600b economy growing at, I think it was four and three-quarter per cent, as significant damage. That's what the statute requires, and you certainly can't form that view disjunctively about any one particular of the industrial action to which the application is directed.
PN671
Again so far as the other – I think Mr Seck described them as segments of the economy, and by segment I assume my learned friend is suggesting that these various segments have formed important parts of the Australian economy. In that respect he refers to Emergency Service Workers, and otherwise – I think it was the Hospitality Industry and other service industries that operate in Sydney.
PN672
I don't make a submission that none of those can properly be characterised as an important part of the Australian economy, but the evidence just again doesn't let you form the view that it would be probable that there will be significant damage to any of those entities, and that can be said about both the impact of the overtime ban or the impact of the one day stoppage. In my respectful submission the evidence simply doesn't enable you to be satisfied beyond general speculation what the impact would be on any of those parts of the economy, or a part of it.
PN673
Can I then ask your Honour to consider section 424(1)(c), and again I don't cavil with the characterisation of what the Commission is required to assess in this respect by either of my learned friends. It is true that one looks to life, personal safety, health or welfare disjunctively. One doesn't need to meet more than one, and it's true that they each have been given their ordinary meaning, so that one doesn't take personal safety or health as being a benchmark welfare by itself, it would be enough, welfare given its ordinary meaning.
PN674
Again what is required is firstly the identification of a group, that is the collective notion of population or part of it. It's not an individual, it must be a group identified and identifiable in the evidence, and that group, that population, that collective part of the population must be able to – sorry, your Honour must be able to be satisfied that it is probable that the action to which the order is going to be directed would impel either life or personal health or safety or welfare, and again you must distinguish between the industrial action in the nature of an overtime ban, you must distinguish between the industrial action in the form of a 24 hour stoppage.
PN675
So far as the industrial action in the form of an overtime ban is concerned the only health/safety welfare consequence that is raised in the Minister's application, and indeed my learned friend Mr Seck's application, is the impact of crowding on stations that arises from a reduced number of services and the potential for there to be an increased number of persons waiting for trains or trying to get on trains. But the evidence of Mr Issa was an increased demand leading to crowding on platforms and trains was an ordinary part of the business. It's an ordinary part of the business which they have mechanisms to manage and they have implemented.
PN676
They can, if safety is an issue, draw assistance from other parts of the New South Wales public sector such as the New South Wales Police Force, and as the director of planning Mr Croning has said in cross-examination the measures they have taken to mitigate the impact of the overtime ban, in his view and in the rail entities view, will provide safety and if it didn't they would have cancelled the relevant service.
PN677
Again the evidence doesn't enable you to be satisfied that the probable consequence of the overtime ban will fall within 424(1)(c). The impact of the 24 hour stoppage, again what we see in the evidence is may, possible. The people who were cross-examined were not able to say with any confidence to this Commission that there would or that it was probable that certain things would happen or that people would or wouldn't be able to get to work, or that people would or wouldn't be able to avail themselves of any other many mechanisms by which people can transport themselves to or from work or to or from school. The evidence just doesn't get you to the point where you can be satisfied that it is probable there will be a part of the community that is relevantly in danger.
PN678
Can I then briefly say something about – I should say for those reasons respectfully the Commission would not make either of the orders sought. If the Commission is against me and one comes to look at the form of the orders the substantive issue here is the duration, and what both parties have sought is a ten week suspension. The bargaining has only been going for six weeks. The action was foreshadowed a week ago and - - -
PN679
THE SENIOR DEPUTY PRESIDENT: The bargaining started in July last year.
PN680
MR HOWELL: Six months. I said six weeks. I beg your Honour's pardon, six months. They are looking to suspend the action for ten weeks. That is an excessively long period, and the rationale for the excessively long period, with respect, just doesn't frankly make sense. The application for good faith bargaining order was made last November. It falls to be heard next week, but there has been bargaining throughout, it hasn't stopped bargaining. There is no need to await the outcome of whatever that good faith bargaining order application might produce before my client should be able to avail itself of one or more forms of action. Indeed there is no reason why bargaining couldn't continue almost immediately.
PN681
Your Honour might form the view for example that by stopping the network for a day or by putting in place an indefinite overtime ban my client has overstepped the mark and for one of the reasons contemplated by section 425 or 424 you consider it appropriate to suspend the action. No one has asked for it to be terminated. If you came to that view you could very well simply suspend it and suspend it for a week or even a shorter period, and your reasons may contain the reasons why, and my client could then take what steps were available to it under the Act to take some other or different form of action in pursuit of a bargained outcome for its members. I am not inviting your Honour to do that, I am simply suggesting ten weeks is an excessive period.
PN682
THE SENIOR DEPUTY PRESIDENT: I appreciate it's your secondary submission and not your primary submission.
PN683
MR HOWELL: I will get lynched if I walk out the door if you think otherwise, but ten weeks is on any view, in my respectful submission, an excessively long period and a much shorter period would entirely accommodate any concern. Unless there is something further from the Commission those are our submissions.
PN684
THE SENIOR DEPUTY PRESIDENT: Thank you very much. Mr Seck?
PN685
MR SECK: Thank you, your Honour. I just wish to address some points which have been raised by Mr Howell on behalf of the unions. Mr Howell started off in submission by saying that the industrial action which the Commission should be addressing is the particular industrial action that is taking place. That's not how the statute is structured, nor does the authorities support the proposition which is being advanced by the union.
PN686
THE SENIOR DEPUTY PRESIDENT: If you look at one of the authorities that I was taken to, this is the Australian and International Pilots Association v Fair Work Australia [2012], the Full Federal Court decision in what I would call the Qantas matter, where there were comments made by say for example I think this is Justice Buchanan, he says:
PN687
Section 424 empowers FWA to make an order terminating or suspending protected industrial action as identified in section 408. Necessarily that imports a limitation which confines attention to the particular protected industrial action in question. It follows in my view that a separate consideration must be given to each of the protected industrial actions which are to be terminated or suspended, i.e. each of which has been notified. That may not mean each must be considered in isolation, but that is a question for another day.
PN688
He wasn't the only judge who made similar comments in that case.
PN689
MR SECK: Can I address that point, your Honour, because it's not inconsistent with the proposition I am making.
PN690
THE SENIOR DEPUTY PRESIDENT: All right.
PN691
MR SECK: The words which are used by Justice Buchanan in the Qantas case where he refers to the particular industrial action does not refer to the particular industrial action which has been notified, but it refers to the particular industrial action which has been authorised by the ballot, and that is consistent with the Full Bench's decision, and I want to take your Honour to this case in Maritime Union of Australia v Patrick Stevedores Holding Pty Ltd [2016] 256 Industrial Reports at 137.
PN692
THE SENIOR DEPUTY PRESIDENT: I don't want to sort of be difficult, but he does say, and actually I think I read this out, "i.e. each of which has been notified", and this is after I missed out the bit about – he goes through the sections of the Act about notification.
PN693
MR SECK: Can I put it in this context, your Honour, that your Honour will remember that in the Qantas dispute what happened initially was that there was a notification of lock-outs made by Qantas, and that the response action or the employee response action taken by the members of – but the industrial action which is being addressed, and my learned friend Mr Howell just reminded me, is that they were wearing red ties and I think there was some bans on announcements. There was lock-out action taken by Qantas in response, and there was a termination of the lock-out. So what was being dealt with there was that particular industrial action, because the one which had been notified, but also the one which had been authorised.
PN694
In my submission when one goes to – and I understand what your Honour is saying – when one goes to the MUA v Patrick Stevedores case what is plain is that one looks at the particular protected industrial action which has been approved by a protected action ballot, and I might just read out the relevant paragraphs, this is paragraphs 26 and 27 of the Full Bench's decision, because it makes plain that is the proper interpretation of the language in 424 and 425. So the Full Bench said this:
PN695
We reject the MUA's submission that the order was invalid because it did not identify the specific industrial action which was being engaged in and it was therefore suspended by the order. That submission was founded upon an interpretation of section 525(1) that we likewise reject, namely the duty to make an order suspending protected industrial action where such a suspension is appropriate it is confined to suspending of the particular protected industrial action which is identified as being engaged in at the time a decision is made under section 525(1).
PN696
While the MUA's interpretation of section 525(1) is one that may be available on the language of the provision a range of contextual considerations strongly indicate that it does not accord with the meaning of the provision intended by the legislature. We consider the correct interpretation of section 525(1) is that the purpose and effect of any order required to be made under the provision is to suspend the protection or immunity attaching to any industrial action authorised to be taken by a protected action ballot.
PN697
So in my submission the case, the weight, the authorities, and we say it's not inconsistent with what was said in Qantas, but in any event the Full Bench has made its position clearer subsequently in a 2016 decision, is that one just simply doesn't focus on the immediate threat of industrial action or the industrial action which is taking place. One looks at all forms of industrial actions which have been authorised under the ballot to be taken, and that's the proper way of looking at it. But in any event if one looked at the particular industrial action, and let's assume Mr Howell is correct, the evidence is quite specific in dealing with both the overtime bans as well as the strike action which is to take place on 29 January 2018.
PN698
So in my submission he's wrong as a matter of law in terms of how you approach it, because you look at all forms of authorised industrial action which has been voted by a valid majority of the members of the union, but in any event the evidence is more than sufficient to satisfy you as the Commission, Senior Deputy President, that the industrial action will engage the relevant considerations under 424 and 425.
PN699
The second point to make, Mr Howell made some criticism about not knowing what the impact of the overtime ban was today, but plainly the Commission – the proceedings started here at 8 am this morning, we were going to be in an impossible position to adduce evidence of that today, so I don't think that's a valid criticism which can be made by Mr Howell in terms of any lacuna in the evidence in not demonstrating how the overtime ban might be impacting upon the commuters and the general Sydney/New South Wales train system, and if it's necessary, your Honour, if it's an issue which is on your mind we can elicit evidence on that point today about the impact of the overtime ban. It is quite clear from the media coverage that the impact has been quite significant. Can I also deal with the point - - -
PN700
THE SENIOR DEPUTY PRESIDENT: I would be very reluctant to rely on media coverage, with all due respect to everybody from the media here.
PN701
MR SECK: For obvious reasons, your Honour. The other point which has been raised by my learned friend in terms of a section 424 application is that the issue of pay was only dealt with for the first time on Monday. The reason why it has only been dealt with for the first time on Monday is not because of anything which has come from Sydney/New South Wales Trains. We have always been prepared, and this is from the evidence of Mr Kable, to discuss pay. The reason why pay had not been discussed until Monday is because the RTBU and other members of the combined rails unions have refused to discuss pay until Monday. So the fact that it started only on Monday cannot be laid as the responsibility of Sydney and New South Wales Trains. It's the other way around. It was their preparedness only to discuss pay at a very late stage which has resulted in only two days negotiation on quite clearly the most central issue as part of the negotiations, and that supports our proposition that suspending the industrial action for a period would facilitate and be beneficial for bargaining.
PN702
My learned friend refers to the industrial action as being moderate. That is quite frankly quite an astounding submission given the numbers which have been thrown around this morning, but just to compare to for example the Qantas case, your Honour, where the figures which were used there was $20m per day. That was the evidence accepted by the Fair Work Commission in deciding to terminate the industrial action. If $20m per day was sufficient in Qantas and we apply them, we have got $50m a day here which is more than two times. So if we are looking at fair numbers it is not moderate, it is significant.
PN703
There was also reliance placed on the Metro Trains case. Commissioner Gregory was only looking at industrial action there which occurred, as my learned friend Mr Howell conceded, between 10 am and 2 pm and it was only in relation to part of the network and it was only an overtime ban. So there is no comparability in terms of circumstances between what Commissioner Gregory was considering in that case, Metro Trains, and what's the situation here.
PN704
The last point I wish to make is in terms of the approach in terms of the mitigation strategy. What your Honour is required to determine under section 424 is that the protected industrial action has threatened, is threatening or would threaten either endangering the life, et cetera, of the population or part of it or to cause significant damage. That doesn't take into account any mitigation strategy.
PN705
So it's the industrial action or protected industrial action per se which must be taken into account, and one doesn't factor into that evaluation the fact that Sydney/New South Wales Trains might put in place to the best extent possible some measures to mitigate that particular issue, and even if one takes that into account what the evidence suggests is that the mitigation is imperfect. Whilst we will attempt to make our best endeavours to ensure that the safety of passengers are ensured at train stations or on trains obviously that is going to be limited in nature, especially in circumstances where the industrial action occurs quickly and it's not a planned event, such as the Olympics where appropriate steps can be taken and overtime can be required of employees to ensure that there's adequate coverage.
PN706
Given the overtime ban there are significant limitations which are placed upon Sydney and New South Wales Trains to address those particular issues. Unless your Honour has any further questions those are my submissions.
PN707
THE SENIOR DEPUTY PRESIDENT: Mr Easton?
PN708
MR EASTON: I will be very brief. My friend Mr Howell is trying to make a simple job sound complicated, and he is trying to do that because his fundamental submission is it's too complicated, you should do nothing, your Honour, and the problem with that is that the Act is crystal clear on what you are required to do, and if you are satisfied that there is protected industrial action that is going to cause these consequences then you have to do something.
PN709
We have the evidence of two unions acting in concert to cause a 24 hour stoppage of the rail network on Monday, and no one has suggested factually that anything different is the case. Now that as far as the statute is concerned is enough. That should satisfy you that the provisions of 424 have been enacted, and you are required to make orders about that protected industrial action that is happening in concert between those two unions and you should make those orders immediately.
PN710
The Qantas case is interesting and where the Full Court of the Federal Court said that the Full Bench of the Commission went wrong was in deciding that the action by Qantas causes damage to the economy and the action by the unions didn't cause the damage to the economy, and the Commission erred in making orders about the action taken by the union.
PN711
Ultimately in the Federal Court that was found to be and identified to be a distinction without a difference in terms of the consequences of the whole of the industrial action that was taking place. If there is any doubt about that Justice Buchanan makes that clear at paragraph 182 of his decision. Going back a couple of paragraphs he finds that the Commission erred in making an order that the action by the unions stop, but then at paragraph 182 says:
PN712
But it doesn't matter because the Commission properly found that the action by Qantas causes the making of the order, and the consequences of making the order because of Qantas's action is that the action by the union is no longer protected action.
PN713
So translating that to this situation you have abundant evidence of the section 424 being activated for Monday's action. If nothing else make that order, and then the consequences for the rest of the action are activated by way of the rest of the provisions of the Act. But don't be confused about this to be, as my friends say, to inaction, don't be confused into inaction about this. The statute requires you to make the orders. If nothing else make the order about the Monday, but there is ample evidence for you to make orders about both kinds of industrial action that are being pursued here, being the overtime bans and the full 24 hour stoppage by both of the unions that are subject to these applications, and the Minister's application lays out those various elements clearly and the evidentiary foundation is there for you to make orders against all four of those forms of industrial action, i.e. the two different kinds of action by the two different unions.
PN714
To the extent that Mr Howell says you should do nothing reject that application as a matter of urgency given the timing that we have. I am sorry, I am just standing corrected here – the action by the RTBU on Monday of the 24 hour stoppage is sufficient to enact the provisions of 424 and that engages the requirements of the legislation for you to act, and then the other actions by APESMA and by the RTBU then have consequences for them as well.
PN715
MR HOWELL: This isn't tennis, but I should just rise to say two things very briefly if I may. Firstly, a slip that my learned friend has made highlights my point. My learned friend said two unions engaging in stoppages on Monday. There's one - - -
PN716
THE SENIOR DEPUTY PRESIDENT: Yes, I am aware of that.
PN717
MR HOWELL: - - - consider them separately. That's the point. So far as the MUA v Patrick's decision is concerned with respect it's not inconsistent with what I was putting to you before about the proper approach to the considerations which lead you to make an order. MUA v Stevedores is about the form of the order. The point that the MUA was trying to make is, well you only consider this one so you could only make a finding and an order about that one. What the Full Bench have said was, no, you don't actually have to have been engaged in – this was a section 425 application – engaged in the action at the time that the order was made in order for the order ultimately made to justify killing off all forms of action, because when you construe the provision section 413(7) has the effect of killing off the action in any event, which was the same point which Justice Perram was making in the International Pilots case, the Qantas case. That's why jurisdictional error that was identified didn't lead to the order, it had no practical effect.
PN718
That doesn't deny the submission that I put, which is you have to consider the statutory test against each form of order. You might do certain things if you come to a view that one of the statutory tests is met, but you have got to get to that point first. That was the point I was making.
PN719
THE SENIOR DEPUTY PRESIDENT: All right, thanks. We will adjourn for 20 minutes. So come back at 1.20, I will give you my decision.
SHORT ADJOURNMENT [1.00 PM]
RESUMED [1.24 PM]
PN720
THE SENIOR DEPUTY PRESIDENT: Just before I give my decision I just wanted to thank the parties for helping me deal with this matter expeditiously.
PN721
Having heard the parties and considered the evidence I find that the indefinite ban on overtime by employees of Sydney Trains and New South Wales Trains who are members of the RTBU and APESMA that commenced at 12.01 am today and the stoppage of work for a 24 hour period by employees of Sydney Trains and New South Wales Trains who are members of the RTBU that is due to commence at 12.01 am on Monday 29 January 2018 constitute protected industrial action for a proposed enterprise agreement that has either been engaged in, in the case of the overtime ban, or is threatened in the case of the 24 hour stoppage.
PN722
The proposed 24 hour stoppage will almost certainly mean no train services on Monday 29 January 2018. Moreover the overtime ban will greatly reduce the level of train services available from today. I am satisfied based on the evidence that this industrial action taken together or indeed separately threatens to endanger the welfare of a part of the population, including the large number of people in Sydney and surrounding areas who rely on the services provided by Sydney Trains and New South Wales Trains to get to work, attend school or otherwise go about their business, as well as all those who will suffer from the increased congestion on the roads that would be an inevitable consequence of the industrial action.
PN723
I am also satisfied based on the evidence that the industrial action threatens to cause significant damage to the economy in Sydney, the largest and most economically important city in Australia.
PN724
Accordingly I am required by section 424 of the Act to make an order suspending or terminating the protected industrial action. I have decided that it would be appropriate to suspend the industrial action for a period of six weeks from 6 pm today ending at 6 pm on Thursday 8 March 2018. I would expect the parties to use this period of time to continue to negotiate and I trust reach mutually acceptable enterprise agreements for both Sydney Trains and New South Wales Trains. An order to this effect will be published with this decision and more detailed reasons for my decision will be published at a later date. Thank you.
ADJOURNED INDEFINITELY [1.27 PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
STEVEN CHARLES ISSA, SWORN................................................................... PN13
EXAMINATION-IN-CHIEF BY MR SECK....................................................... PN13
EXHIBIT #2 WITNESS STATEMENT OF STEVEN CHARLES ISSA DATED 23/01/2018................................................................................................................................... PN25
CROSS-EXAMINATION BY MR HOWELL..................................................... PN26
THE WITNESS WITHDREW.............................................................................. PN69
GAVIN RICHARD KABLE, SWORN................................................................ PN73
EXAMINATION-IN-CHIEF BY MR SECK....................................................... PN73
EXHIBIT #3 WITNESS STATEMENT OF GAVIN RICHARD KABLE DATED 23/01/2018................................................................................................................................... PN85
EXHIBIT #4 SECOND WITNESS STATEMENT OF GAVIN RICHARD KABLE DATED 24/01/2018................................................................................................................. PN85
CROSS-EXAMINATION BY MR HOWELL..................................................... PN91
THE WITNESS WITHDREW............................................................................ PN149
MICHAEL ANTHONY CRONING, SWORN.................................................. PN161
EXAMINATION-IN-CHIEF BY MR SECK..................................................... PN161
EXHIBIT #1 WITNESS STATEMENT OF MICHAEL ANTHONY CRONING PN164
CROSS-EXAMINATION BY MR HOWELL................................................... PN164
THE WITNESS WITHDREW............................................................................ PN193
DALE ROBERT MERRICK, SWORN............................................................. PN196
EXAMINATION-IN-CHIEF BY MR SECK..................................................... PN196
EXHIBIT #5 STATEMENT OF DALE MERRICK DATED 23/01/2018...... PN225
CROSS-EXAMINATION BY MR HOWELL................................................... PN225
THE WITNESS WITHDREW............................................................................ PN270
EXHIBIT #6 STATEMENT OF ISABEL KATE HEWITT DATED 24/01/2018 PN272
MICHAEL WARLTERS, AFFIRMED............................................................. PN281
EXAMINATION-IN-CHIEF BY MR EASTON............................................... PN281
EXHIBIT #7 STATEMENT OF DR MICHAEL WARLTERS DATED 24/01/2018 PN289
CROSS-EXAMINATION BY MR HOWELL................................................... PN291
THE WITNESS WITHDREW............................................................................ PN306
GRAEME LOY, AFFIRMED............................................................................. PN309
EXAMINATION-IN-CHIEF BY MR EASTON............................................... PN309
EXHIBIT #8 STATEMENT OF GRAEME LOY DATED 24/01/2018.......... PN314
CROSS-EXAMINATION BY MR HOWELL................................................... PN316
THE WITNESS WITHDREW............................................................................ PN328
VICKI TELFER, AFFIRMED............................................................................ PN331
EXAMINATION-IN-CHIEF BY MR EASTON............................................... PN331
THE WITNESS WITHDREW............................................................................ PN365
ROBYN BALE, SWORN..................................................................................... PN369
EXAMINATION-IN-CHIEF BY MR EASTON............................................... PN369
EXHIBIT #9 STATEMENT OF ROBYN BALE.............................................. PN373
CROSS-EXAMINATION BY MR HOWELL................................................... PN412
THE WITNESS WITHDREW............................................................................ PN446
MICHAEL BALDI, SWORN.............................................................................. PN449
EXAMINATION-IN-CHIEF BY MR EASTON............................................... PN449
EXHIBIT #10 STATEMENT OF MICHAEL BALDI..................................... PN454
CROSS-EXAMINATION BY MR HOWELL................................................... PN455
THE WITNESS WITHDREW............................................................................ PN467
SUSAN PETTIFER, AFFIRMED...................................................................... PN470
EXAMINATION-IN-CHIEF BY MR EASTON............................................... PN470
EXHIBIT #11 STATEMENT OF SUSAN PETTIFER.................................... PN474
CROSS-EXAMINATION BY MR HOWELL................................................... PN476
THE WITNESS WITHDREW............................................................................ PN505
EXHIBIT #12 STATEMENT OF ALISON RUDMAN.................................... PN529