PN1

THE DEPUTY PRESIDENT: Can I have the appearances?

PN2

MR T WARNES: If it pleases the Commission, my name is Warnes, initial T. With me at the Bar table is Mr Hunter, initial T.

PN3

THE DEPUTY PRESIDENT: Thank you.

PN4

MR T REABURN: If it please the Commission, my name is Reaburn, initial T. I'm an external lawyer, your Honour, appearing with Ms Ball, initial E, for Sydney Trains.

PN5

THE DEPUTY PRESIDENT: Yes. Well, as you're aware, the matter was previously before Bull DP, was permission granted on that occasion, I take it, or not.

PN6

MR REABURN: His Honour didn't grant appearance, but I did appear at those conferences.

PN7

THE DEPUTY PRESIDENT: He didn't?

PN8

MR REABURN: His Honour didn't make a formal order, but I certainly did appear at those conference.

PN9

THE DEPUTY PRESIDENT: Right. Well, there's no objection, I see from Mr Warnes so, to the extent necessary, permission is granted.

PN10

MR REABURN: Thank you, your Honour.

PN11

THE DEPUTY PRESIDENT: Well, the matter has been listed, in view of the urgency, at the request of the union. Has there been any developments in the matter that might impact on whether or not the matter proceeds to hearing?

PN12

MR WARNES: Not since the matter was filed and the material was - sorry, not since, yes, the matter was relisted and the material was filed in the matter. There hasn't been any development since then, aside from the fact that the election process continues to happen. They're my instructions anyway, in terms of what's happened between the time that the union notified that it wanted to press for its interim orders and today. But my friend might have a different view.

PN13

MR REABURN: Your Honour, I agree with that position. An offer was communicated to your Chambers this morning. It was made within the context of the conferences before Bull DP was rejected. There have been no further offers made between the parties.

PN14

THE DEPUTY PRESIDENT: Well, I must say, when I saw it I thought it was an offer that had only just been made in the last 24 hours, but then I noticed the note is - the date is 1 November.

PN15

MR REABURN: Yes, your Honour.

PN16

THE DEPUTY PRESIDENT: Well, a lot of things have happened since then.

PN17

MR REABURN: They have, your Honour.

PN18

THE DEPUTY PRESIDENT: But it's purely for completion of the record, is it?

PN19

MR REABURN: Yes. Well, if your Honour as minded to go into conference we thought it useful that your Honour had seen what offer had been made by the employer and rejected by the union. That is, realistically, the only offer made in any of the conferences before Bull DP.

PN20

THE DEPUTY PRESIDENT: Well, is there any scope for further conferences, bearing in mind that if the matter is required for hearing it's going to limit what I might say because it might otherwise go to another member, and I'm not going to inflict that on anybody else.

PN21

MR REABURN: I mean Sydney Trains' position is that a conference may be useful. We're mindful that your Honour's pressed for time this morning. It may be useful having a very short one, to see if anything can be achieved and if it can't we could proceed with a short hearing.

PN22

THE DEPUTY PRESIDENT: Yes. Well, in that context, are the witnesses required for cross-examination?

PN23

MR REABURN: Very briefly, your Honour. I might say two things about that. First is, the issues about cross-examination relate to two very small points in both their statements. I know it's an interim application, I'm happy to make submissions about those issues or cross. They're not particularly substantive issues, they're just matters that I think need clarification.

PN24

Given it's an interim order, I can do that in submissions, so long as my friend doesn't raise a rule in Browne v Dunn argument against me, in relation to those.

PN25

THE DEPUTY PRESIDENT: Well, it seems to me both - well, there's a statement from you, isn't there?

PN26

MR REABURN: There is, your Honour. I think that reflects the nature of the interim matter before your Honour, that there is a degree of hearsay we wouldn't object to and a degree of opinion we wouldn't object to. I can take your Honour to particular paragraphs.

PN27

THE DEPUTY PRESIDENT: In any event, it seemed to me, from looking at the material, that most of it is sort of background, factual information. There's exchanges and letters and the like. So I'm not sure that we're going into some hotly contested factual matter.

PN28

MR REABURN: I agree with that assessment, your Honour. And if your Honour's content for me to deal with those particular paragraphs in submissions, it may be a sensible way forward, given that it's an interim matter.

PN29

THE DEPUTY PRESIDENT: Yes. What's your view, Mr Warnes?

PN30

MR WARNES: Your Honour, I won't be cross-examining Mr Reaburn, and I'm more than happy for my friend to make submissions. I think the statements are relatively uncontroversial and attach correspondence between the parties. There is some I suppose you could probably put it as opinion at the end, which is probably what my friend's referring to, but we haven't had the chance to discuss it yet.

PN31

THE DEPUTY PRESIDENT: Yes. As you well know, I receive opinion evidence all the time.

PN32

MR WARNES: I know your practice, your Honour, and you'll give it the due weight that it deserves. As I said, I haven't spoken to my friend about what the particular parts are, but I can't imagine I'd be very long with the witnesses if they did have to cross-examine them.

PN33

THE DEPUTY PRESIDENT: All right.

PN34

MR REABURN: Your Honour, I might just say, there's one paragraph in each statement that reveal contents of material discussed at conferences that I'd be seeking to have struck before the statement was tendered.

PN35

MR WARNES: If that's the case, then we wouldn't object to having it struck, if it does, in fact, reveal contents of confidential conferences.

PN36

THE DEPUTY PRESIDENT: What do you say about a conference now, Mr Warnes?

PN37

MR WARNES: Look, I note the matter's been before Bull DP twice, for conference. There was progress made on the first occasion, I'm instructed, and unfortunately, in the interim period between the conference and the second conference that fell down. So I'm never one to say a conference would be futile, it might be worth speaking for 15 to 20 minutes to see if there is scope to fix all of it. But I'm not holding out a high degree of hope, considering the history of the matter.

PN38

THE DEPUTY PRESIDENT: All right. Well, I'm ever the optimist, so I'll adjourn into private conference.

OFF THE RECORD [8.41 AM]

ON THE RECORD [8.57 AM]

PN39

THE DEPUTY PRESIDENT: Yes, well the Commission is back on the record. That matter has not been able to be resolved and I will proceed to hear the application for interim orders.

PN40

MR WARNES: Thank you, your Honour. Thank you for your assistance just now.

PN41

The RTBU filed an F10 application, under section 739 of the Act, on 16 October 2019. The dispute is in relation to the process surrounding the election of health and safety representatives, under the Work Health and Safety Act 2011. The dispute is brought under clause 8 of the Sydney Trains Enterprise Agreement 2018.

PN42

Now, I just address you, quite quickly, on one of the jurisdictional points raised by the respondent, in written submissions. The disputes procedure, in clause 8 of the enterprise agreement, is about as broad as dispute clauses get. I'll direct your Honour to clause 8.2 which says:

PN43

This procedure shall apply to any dispute -

PN44

'Dispute' being a defined term in the agreement:

PN45

that arises about the following: matters pertaining to the relationship between the employer and employees.

PN46

And then subsection (b):

PN47

Matters pertaining to the relationship between employer and the employee organisations which also pertain to the agreement and/or the relationship between the employer and employees.

PN48

So, on our submission, that enables the Commission to deal with any dispute that arises between either Sydney Trains and employees, or Sydney Trains and the union, and any dispute that pertains to the employment relationship.

PN49

This is clearly a matter that pertains to the employment relationship, Sydney Trains being the employer who is, on our submission, imposing its election process, under the WHS Act, in a way that's inconsistent with the WHS Act, on its workers.

PN50

Now, at the same time as filing an F10, the RTBU filed an F1, which is an application for an interim order. That interim orders seeks the imposition of the status quo in the matter, which the status quo, in our submission, would be prior to the election process being commenced.

PN51

I'd like to direct your Honour, just quickly, back to clause 8.4 of the agreement. If your Honour goes to step 1, midway through that paragraph is the part that deals with the status quo. It reads:

PN52

The status quo, before the emergence of the dispute, shall continue while the dispute settlement procedure is being followed. For this purpose, 'status quo' means the work procedures and practice in place immediately prior to the change that gave rise to the dispute.

PN53

Now, we say that that clause obligates Sydney Trains, in the event that a dispute is raised, to maintain the conditions in place immediately before the dispute arose, to preserve the rights of all parties of the dispute while the disputes process is being undertaken.

PN54

Now, this dispute has quite a long history. It started with a decision to form 18 work groups by Sydney Trains, a decision that was challenged by the union, Mr Rolfe(?) in particular, who will be a witness in these proceedings.

PN55

The matter went to a SafeWork New South Wales inspector, who sided with Sydney Trains' formulation of the work group. The matter then went to the IRC, who did not seek to disturb the inspector's decision.

PN56

The RTBU accepted the decision of the New South Wales Industrial Relations Commission, didn't seek to take the matter further. The matter then proceeded onto the election of HSRs, according to the 18 work groups, as determined by Sydney Trains. That's when the matter hit a snag.

PN57

Now, just giving that background of the matter I think it's probably the appropriate time for me to tender the witness statements that the RTBU has filed in the matter. I understand that my friend wishes to make submissions on those witness statements, rather than cross-examine. If I've mischaracterised that I'm happy to be interrupted.

PN58

THE DEPUTY PRESIDENT: Proceed.

PN59

MR WARNES: So the first statement I seek to tender is a statement of Mark Rolfe. It is quite long, it's 29 paragraphs in length, signed on 3 December 2019, with 19 annexures. I'd seek to tender that statement.

PN60

THE DEPUTY PRESIDENT: Yes.

PN61

MR REABURN: There's one small objection to that, your Honour, and that is at paragraph 14. We would seek to have struck part of that paragraph, commencing, "Where we raised problems and examples", on the basis that it contains a repetition of materials discussed in private conference before the Commission and it ought not to have been put.

PN62

THE DEPUTY PRESIDENT: Well, it doesn't say what the problems and examples are, it's very general.

PN63

MR REABURN: It doesn't, your Honour.

PN64

THE DEPUTY PRESIDENT: Normally a dispute conference is raising problems and examples of potential problems, so I don't accept that that's a - - -

PN65

MR REABURN: Please the Commission.

PN66

THE DEPUTY PRESIDENT: - - - breach of confidentiality of the Commission's conference procedures.

PN67

Yes? Is that all, Mr Reaburn?

PN68

MR REABURN: That is, your Honour, other than my short address to you earlier about submissions rather than cross-examination.

PN69

THE DEPUTY PRESIDENT: Yes, thank you. I'll mark the witness statement of Mark Rolfe exhibit 1.

EXHIBIT #1 WITNESS STATEMENT OF MARK ROLFE DATED 03/12/2019, WITH ANNEXURES

PN70

MR WARNES: The second statement that we seek to rely on is a statement of Mr Terry Johnson. That statement is 20 paragraphs in length, signed on 3 December 2019, with five annexures. I seek to tender that.

PN71

MR REABURN: No objection, your Honour.

PN72

THE DEPUTY PRESIDENT: I mark the statement of Terry Johnson exhibit 2.

EXHIBIT #2 WITNESS STATEMENT OF TERRY JOHNSON, DATED 03/12/2019, WITH ANNEXURES

PN73

MR WARNES: And, your Honour, that's the applicant's evidentiary case.

PN74

Both Mr Rolfe and Mr Johnson have been extensively involved in this dispute, since in commenced on 31 August 2018. Now, we acknowledge, while I'm on my feet, that the dispute has evolved since it was first filed. That's not uncommon in industrial dispute settlement procedure proceedings before the Commission. It happens quite a bit that the dispute raised at first instance is not the exactly same dispute on the terms that was filed, at first instance, particularly in circumstances where the first dispute was filed on 31 August 2018 and it's now 6 December 2019.

PN75

So the dispute was filed on 31 August 2018. There was a further dispute raised by Mr Rolfe, on 4 November this year. That was, essentially, an effort to clarify what the dispute had become, rather than a new dispute. That followed conferences before the Commission and was an element of an ongoing saga of how the dispute evolved.

PN76

There are two dispute notices before the Commission, both relating to the same subject matter. It's probably proper that I take your Honour to exactly what the issue is in this dispute, because it will inform the Commission, in relation to whether there is a case to be heard in this matter.

PN77

THE DEPUTY PRESIDENT: When you say two applications, I only have one.

PN78

MR WARNES: No, there's on F10 application. But in terms of the dispute that's lodged with Sydney Trains, by the worker, at first instance - - -

PN79

THE DEPUTY PRESIDENT: I see. Right.

PN80

MR WARNES: - - - under the dispute settlement procedures. So Mr Johnson filed a dispute, on 31 August last year, and Mr Rolfe field a further one, on 4 November this year, to clarify that issue. Your Honour can find that at paragraph 15 in annexure MR9 of exhibit 1.

PN81

So the applicant is seeking an interim decision from the Commission, in relation to the status quo under the agreement to be imposed, in relation to the elections that have been - well, are in the process of being conducted by Sydney Trains.

PN82

The applicant - the respondent, rather, has been on notice that the applicant pressed the status quo to remain in place, since well before the election process began. That's not something that should come as a surprise to the respondent.

PN83

The applicant's case, in this matter, will revolve around the operation of section 64 of the Work Health and Safety Act, which is the section that sets out - sorry, I think it's 61, not 64, your Honour. It sets out that workers in a work group can determine how an election of health and safety representatives for a work group is to be conducted. That's subsection (1).

PN84

In this matter, and we say it's clear on the evidence, Sydney Trains have embarked on a process where it has determined how the election will take place. We do concede that it put out a communication to its workforce, seeking any views on the decision that it made, but the reality of what happened is that Sydney Trains determined how an election of a health and safety representative for a work group is to be conducted.

PN85

In fact, subsection (3) of section 61 of the WHS Act goes directly to what Sydney Trains have done here. So if a PCBU wishes to engage an external provider to conduct an election, subsection (3) sets out that a majority of workers in the work group must determine that that will be the case. The same goes with the assistance of a union. If a union is to run an election the majority in a work group need to make sure that takes place.

PN86

Now, if I can just draw an analogy here, because I anticipate that the submission that will be made against us will be that, "Sydney Trains put out a communication to its workers and said, "We're going to use this external provider, please tell us if you object"", and then didn't receive any objections. If the same were to be levelled at the RTBU, if the RTBU put out a communication to its members in a work group and said, "We're going to conduct the election, do you object?", and nobody objected. I'm sure Mr Reaburn and the representatives from Sydney Trains would be up on their feet saying, "Well, that's not the workers determining that you should run the election".

PN87

THE DEPUTY PRESIDENT: Well, why do you make that assumption?

PN88

MR WARNES: Experience.

PN89

THE DEPUTY PRESIDENT: Well, if you're going to make that sort of submission you really need to have a basis for it.

PN90

MR WARNES: Yes, that's fair. I mean I withdraw that, to the extent that any weight was going to be placed on it anyway. But it's a - that - the point I'm trying to make is that that's not determining - that's not the workers determining that the election should be conducted by either a union, other person or organisation. That's not the workers determining it, that's either, in the example that I put, Sydney Trains or the unions determining it and then seeing whether anyone has a problem with it. That's not determining whether that course needs to be pursued. So we say that the process embarked upon by Sydney Trains is one that's contrary to the Act.

PN91

There is another point surrounding the election of HSRs and deputy HSRs, in that both - elections of both positions need to be of the same ilk. I think you'll find that at, I think, it's section 64 but I may correct myself on that point, I don't have it in front of me. But we say that the process embarked upon by Sydney Trains, particularly in relation to that issue, is contrary to the Act and could have been avoided if the election process had been started in the proper manner.

PN92

We say that on those bases we have a good arguable case that, under the disputes procedure, we would be successful in obtaining a determination that these elections have not been conducted in accordance with Sydney Trains' obligations and, in fact, the workers' obligations, under the WHS Act.

PN93

Now, in our written submissions, filed on 2 November, we've addressed the balance of convenience too. Now, in anticipation of my friend's submission, in relation to which jurisdiction the union should be seeking to enforce the status quo, with respect there - I mean, obviously there is a mechanism for the union to pursue orders, in a jurisdiction like the Federal Court or the Federal Circuit Court but, with respect, industrial parties bargain for an enterprise agreement, it's often the claim, on this side of the table, that the disputes procedure is as broad as it possibly can be so that disputes can be resolved in a cheap, relatively informal and quick manner. That's what we're seeking to do today.

PN94

The Commission undoubtedly has the power to make interim orders, in matters before it, and we've put three points why we say the balance of convenience favours making an interim order in this matter, to halt the elections until such a time as the final dispute is resolved.

PN95

Now, the first point is particularly important, at 19(a) of our submissions, and that's in relation to if, ultimately, the elections are found to be either invalid or defective in some way, that if the elections are allowed to proceed and this matter goes to a hearing, you can potentially have HSRs out there, performing functions under the WHS Act, which there are some quite significant powers that HSRs hold, under the WHS Act, performing those roles, performing those functions, when they're not validly elected HSRs. That's not something that's in Sydney Trains' interest, it's not in the workers interests and it's certainly not in the public interest either. Because there are powers that WHS HSRs hold that have the ability, particularly in this industry, to affect commuters, and the general public at large.

PN96

The other points relate to our argued compliance with the status quo. It's in both parties interest, it's in the public interest that clauses in enterprise agreements are complied with and that they're complied with at all times. It's something we say that Sydney Trains, continuing with the election process as is it, is a breach of the status quo.

PN97

Now, there are remedies for us to pursue breaches and things like that, that's not in our interest at the current time. All we want is for the status quo to be maintained and until the matter is determined at the final state of the disputes procedure, at which time, as we say colloquially, the independent umpire makes its call and we all live with it. So the parties have come to an agreement that the status quo will remain until that happens.

PN98

In his case, that hasn't happened. The elections are continuing, despite a dispute, ongoing from 31 August. There's been multiple pieces of correspondence between the employer and the union, in relation to what that dispute is. There was a request made, and I should take your Honour to it, to Mr Johnson, about closing the dispute, to which Mr Johnson responded that the dispute shouldn't be closed. There was a technical point, picked up on by my friend, in his submissions, about Mr Johnson stating that, "The dispute should be open until all the recommendations of the IRC have been complied with", and that there were, in fact, no recommendations made by the IRC.

PN99

That would be fine, if that was the end of the matter, but correspondence between the parties continued around the dispute and around the RTBU's insistence that the status quo be maintained. That continued, virtually, up until the date that the RTBU informed the Commission that it sought to press for this interim order.

PN100

So this isn't a matter where the Commission should get caught up in overly technical readings of particular pieces of correspondence. These are - this is an industrial matter, this isn't a matter where each piece of correspondence is trawled over five or six times before it's sent. This is an industrial dispute. It needs to be remembered that that's the case. And the dispute has been going for 18 months now. The RTBU has insisted on the status quo applying, at least since August of this year, and that hasn't occurred.

PN101

So we say the balance of convenience favours the making of this order, for the reasons set out in paragraph 19 of our submissions and that there is a good, arguable case that the union has that these elections have not been held in accordance with the WHS Act. There hasn't been a proper process followed and that Sydney Trains should reset that process and start again, in accordance with the WHS Act.

PN102

So, unless the Commission has anything further, they're our submissions on the making of the interim orders sought by the union.

PN103

THE DEPUTY PRESIDENT: Thank you.

PN104

MR REABURN: Thank you, your Honour.

PN105

We have filed a rather extensive outline of submissions, your Honour, and we rely on those, and I don't seek to repeat them.

PN106

In terms of our evidentiary case, we have one statement, and that statement is from me, your Honour, so a statement of Thomas Robert John Reaburn, dated 3 December 2019, and I seek to tender that.

PN107

THE DEPUTY PRESIDENT: Any objection? I'll mark the statement of Mr Reaburn exhibit A.

EXHIBIT #A WITNESS STATEMENT OF THOMAS REABURN DATED 03/12/2019

PN108

MR REABURN: Thank you, your Honour.

PN109

Your Honour, I alluded to some parts of the evidentiary case of my friend, of which we took issue. I will take your Honour briefly to that. It's really more to clarify what is being put there. Does your Honour have the statement of Mark Rolfe, exhibit 1?

PN110

THE DEPUTY PRESIDENT: Yes.

PN111

MR REABURN: Can I take your Honour to paragraph 24?

PN112

Your Honour it says there, and I quote:

PN113

I was not given a reasonable opportunity to discuss the election process with my work group.

PN114

We submit that is against the weight of the evidence. We would say that there is nothing that prohibited Mr Rolfe from having a reasonable opportunity to discuss, at any time between 9 July 2019, when the IRC pronounced its decision, and now, to discuss the matter with workers in his work group. So we would say that that statement should not be given any weight at all.

PN115

Your Honour, I'll then take you to the statement of Mr Terry Johnson, which is exhibit 2 in these proceedings. Our observations are very similar to that of the statement of Mr Rolfe. At paragraph 17 Mr Johnson states:

PN116

The workers in my work group were not afforded an opportunity to speak with others in their work group regarding how they wished HSR elections to be conducted.

PN117

That cannot be true. There was nothing prohibiting workers, in any work group within Sydney Trains, from discussing this matter or how elections ought be held, from the moment the IRC pronounced its decision to now.

PN118

The same applies to 18, where complaint is made about, "Not given an opportunity to provide feedback". That is against the weight of the evidence. At any time any worker in any work group could have raised how they wanted HSR elections to occur. Indeed, in 19 of Mr Johnson's statement he refers to specific feedback sought.

PN119

Those are my submissions on those particular paragraphs, your Honour.

PN120

THE DEPUTY PRESIDENT: Apart from being hearsay.

PN121

MR REABURN: I beg your pardon?

PN122

THE DEPUTY PRESIDENT: Apart from being hearsay.

PN123

MR REABURN: Yes, your Honour.

PN124

And, your Honour, I pause there to observe that in the statements there is no evidence of Mr Johnson or Mr Rolfe speaking to workers in their work groups to say, "We're not happy with this process". You have before your Honour two statements from two people who expressed one singular concern about this process, out of 1500 workers.

PN125

I turn now to the jurisdictional issue. My friend says we're being overly technical, your Honour, unfortunately we're in a position where he must be overly technical. The Commission's jurisdiction arises only from the dispute settlement procedure. The case we refer to in our submissions, MC Labour by a Full Bench of this Commission, pronounces that the DSP must be followed absolutely.

PN126

The Full Bench, in that matter observed that:

PN127

Even if the DSP made it impossible for parties to comply with, the steps that precede the Commission having jurisdiction to arbitrate, the Commission couldn't have an overriding ability to arbitrate the matter.

PN128

So I don't accept what my friend says, that this is an industrial dispute and rules of technicality shouldn't apply. In this particular dispute, the Commission's jurisdiction arises only arises at step 4 of the DSP and it must be, in my respectful submission, satisfied that steps 1 to 3 have occurred properly, about the right dispute, before it proceeds to exercise any jurisdiction.

PN129

On that, my friend refers to two disputes, it is clear, and the RTBU embraced, that this dispute before your Honour was commenced on 31 October 2018. In our outline of submissions we deal with this extensively, but it is abundantly clear that dispute was not about HSR elections, it was about the determination of work groups. That is the single issue that was raised in that dispute, and my friend say that is how the DSP has been followed, is this was always arising from that dispute was initially raised.

PN130

What occurs, when your read out outline of submissions, your Honour, is the dispute is fundamentally changed about being about the determination of work groups, which is wholly resolved by the NSW IRC decision, to the matter now before the Commission about being about HSR elections. They are fundamentally different issues.

PN131

Indeed, your Honour, an obvious inference is available that the RTBU know the jurisdictional hurdle they face, which is why, in November this year, after a form F10 was filed in this Commission, a new dispute was raised about the particular issue that is now being agitated before your Honour.

PN132

Now, the inference obviously available from that is that they know, at the time of filing the F10 in October, that the DSP had not been followed, in relation to what was the original dispute, in October 2018. On that basis, the application before your Honour must be dismissed.

PN133

In respect of the November dispute, your Honour, we set out, in our submissions, why the DSP has not been followed, in relation to that. All that has happened with that dispute is it has been raised. The parties have not followed steps 2 or 3 and your Honour is not in receipt of a form 10 about that particular dispute. So the matters about a new dispute being raised about the very matter my friend's made submissions on, after the form 10 has been filed, must be considered irrelevant.

PN134

These jurisdictional issues are important, your Honour. Your Honour, this Commission does not have an overriding jurisdiction to determine matters. My friend has made extensive submissions on the preservation of the status quo, your Honour, those are not matters to be determined by this Commission. If my friend alleges a breach of the agreement, this is not the jurisdiction to do it.

PN135

My friend also alleges breaches of the Work Health and Safety Act, again, your Honour, this Commission is not the arbitrator of breaches of the Work Health and Safety Act. That is a matter for the regulator to press against it's duty holders, in the District Court.

PN136

What your Honour's power is arises under the DSP in resolving dispute. It is clear that the dispute before your Honour fundamentally changed during the DSP, to such an extent that the mandatory preconditions have not been followed and, therefore, the Commission is not at step 4 and cannot make any order.

PN137

Those are my submissions on the jurisdictional issue, and we have gone to some length, in our outline of written submissions, to address those particular issues, and I rely on them.

PN138

Now, your Honour, if we're wrong about jurisdiction and your Honour finds that we are at step 4 about a dispute on HSR elections, we would respectfully submit that there is no serious issue to be tried before this Commission.

PN139

Again, I reiterate my observations about jurisdiction. This Commission is not, in its jurisdiction under resolving disputes given to it by the agreement, determining breaches of the status quo in steps prior to step 4, that is a matter for the Federal Court or the Federal Circuit Court. This Commission does not sit as the arbitrator of the Work Health and Safety Act, that is a matter that rests with the regulator, SafeWork NSW, and the jurisdictions within which it prosecutes. And we make observations in our submissions, your Honour, that there is an absolute lack of evidence about any issue being raised with SafeWork NSW.

PN140

Now, the inference to be drawn from that is that it either hasn't, that is, the union is so concerned that the Act has been breached, the Work Health and Safety Act has been breached, but it has not told the regulator. The other inference is that it has told the work health and safety regulator, SafeWork NSW, and no action has been taken.

PN141

I then turn to the balance of convenience and we say that the balance weighs heavily against your Honour issuing an interim order. That's for a number of reasons.

PN142

Currently, your Honour, here are no health and safety representatives elected within customer service in Sydney Trains. The legislation is clear on that and 1500 workers currently, because of this - because of the NSW Industrial Relations Commission dispute, had not had HSRs for some time. That is a matter which we say should weigh against the issuing of interim orders. These workers have the right to have health and safety representatives elected to represent their interests and, to the extent that my friend says they should be deprived of that right for a longer period of time while this dispute is determined, should weigh against that order.

PN143

Restarting the process, as my friend submits ought occur after hearing by this Commission may extend this process for an unknown period of time. On the RTBU's case, it appears that they suggest that Sydney Trains should simply sit back and wait for its workers, 1500 of whom sit across 18 work groups, to tell Sydney Trains what it should do.

PN144

Your Honour, the evidence in this matter shows that 32 per cent of people have voted in this matter so it isn't, potentially, a matter about which all 15 workers have a particular interest in. The inference available is that if we were to accept what the RTBU have said, and Sydney Trains should simply sit back and wait to be told what workers want, is that elections may not happen for a very long time, if at all.

PN145

The Work Health and Safety Act does impose an obligation on Sydney Trains to enable HSR elections. We are exposed to a criminal penalty if we do not do that. We say that is what we have been doing in trying to facilitate this process.

PN146

Your Honour, you've heard evidence that the cost of the election consulting group is $16,000. If your Honour does issue interim orders those costs will be thrown away. Sydney Trains is an entity of the state and those $16,000 are taxpayers money. That is a factor, we say, weighs against the balance of convenience.

PN147

Allowing the current HSR election to be finalised, without delay, we say promotes the objects of the Work Health and Safety Act, and we extract those, your Honour, at paragraph 114(d) of the outline of submissions, and I don't repeat them before your Honour.

PN148

We say that they also, if your Honour was minded not to intervene, supports of objects of the Fair Work Act, which talks about enabling fairness and representation at work and the right to be represented at section 3 of the Fair Work Act.

PN149

What Sydney Trains is proposing is that HSR elections be finalised, so that workers have important representatives to represent their interests on matters of work health and safety. That is a factor we say weighs against the balance of convenience.

PN150

Your Honour, I've addressed you on the criminal penalty to which Sydney Trains is exposed.

PN151

Now, our most important submission, I think, on this issue is the delay of the RTBU. Your Honour, you're being asked, outside of normal sitting hours, to issue interim orders on what is described as an urgent basis, but the evidence weighs against this matter being an actual urgent matter. It was important to note the form 10 was filed 50 days ago. An application was made for interim orders 50 days ago. The New South Wales Industrial Relations Commission pronounced its decision on 9 July 2019.

PN152

Your Honour has an absence of any evidence from any worker, or the RTBU, about how HSR elections should be held, until your Honour receives evidence this week that two workers have a particular issue about being able to nominate the deputy HSR and HSR. That is the only issue the employer has heard from any of its 1500 workers about how elections should be heard. It is raised after ballots for nominations have opened and closed and voting as opened and is imminently close to being closed.

PN153

Messrs Johnson and Rolfe, in their statements, give no evidence about attempts to speak to workers in their work group or to put to Sydney Trains a proposal about how they wish HSR elections to occur. My friend is right if, after the decision of the New South Wales Industrial Relations Commission was pronounced, the PCPU heard from workers in a work group that, "We wish elections to occur by a show of hands, or with the involvement of the RTBU or to allow people to nominate for HSR and deputy HSR", absolutely the PCBU would have to respect the rights of workers in work groups to determine how HSR elections are held.

PN154

The reality is, we received no request from any worker, in any work group, so in complying with our obligation to enable HSR elections, proposed a way forward, asked for specific feedback to all workers and directly to the RTBU. No complaint was raised. Indeed, one email wrote back and said, "We support the recommendation".

PN155

So it is unfair for my friends to come to your Honour, on a Friday before elections close on the Monday, and seek orders to interrupt a process. It is practically almost impossible to disrupt that process. Voting is happening via way of paper tickets. That is, ballots were mailed out to home addresses of workers, many of which have already been filled out and returned, many of which may be in the mail now, many of which may be being posted today, or before a time when your Honour pronounces judgment on the jurisdictional issues and, if we're wrong about those, the interim orders.

PN156

It is akin to a parliamentary election occurring on a Saturday and your Honour being asked to disrupt the process at 4.30 pm. It is simply unfair. They have been on notice for months and months about what could have occurred and we've had absolutely no request from any worker in any work group to have elections determined in any particular manner, until we received these two statements this week.

PN157

Again, we note that the RBTU hasn't pursued jurisdictions or areas to resolve its disputes that were clearly open to them. There is no evidence of a request to SafeWork NSW to say, "We allege there's been a breach of the Work Health and Safety Act, inspector, you ought issue an improvement notice or a prohibition notice". There is no evidence of that.

PN158

Your Honour has heard my friend's complaints about the cost of going to the Federal Court. He says that this jurisdiction is cheap and that they have determined not to go to the Federal Court to enforce the status quo and, instead, put all their eggs in one basket, being this Commission with its powers only given to it to arbitrate disputes by the dispute settlement procedures.

PN159

We say all those factors weigh heavily against your Honour issuing an interim order, particularly when elections close, on Monday.

PN160

In response to my friend's submissions on the balance of convenience, we say there will be no issue with the validity of HSR elections. If your Honour doesn't issue an interim order, workers will be properly elected. The Work Health and Safety Act provides that workers can vote, they will be voting. We say there would be no cloud cast over the election of HSR representatives across Sydney Trains.

PN161

My friend's submissions on undermining the agreement and status quo were again submissions that should be made to this Commission but to a jurisdiction that may hear an application for a breach of the agreement on the status quo. They are, we say, irrelevant factors to be considered, in the balance of convenience.

PN162

My friend's written submissions finalise there is no prejudice to Sydney Trains if your Honour makes an interim order. Now, there is. There's that $16,000 thrown away now. That is a prejudice to the employer but, more importantly, the prejudice arises to the 1500 employees who may well be very happy with this process, who have nominated. One hundred and sixty-eight nominations received, 33 per cent of workers having voted in this election, as of Wednesday when the evidence was filed. The prejudice is against the workers. Your Honour received evidence from two workers dissatisfied, against a group of 1500.

PN163

For those reason we'd say if your Honour's against us on our jurisdictional issue, your Honour would not, we would respectfully submit, exercise a discretion to issue interim orders.

PN164

Unless I can assist your Honour further.

PN165

THE DEPUTY PRESIDENT: Thank you. Mr Warnes?

PN166

MR WARNES: I just want to pick up on because my friend kept talking about two workers against 1500. Mr Johnson is the secretary of the union subdivision which represents those 1500 workers, so it's a bit disingenuous of my friend to put that it's only two individual workers putting this matter forward. It's not, it's their representative of those 1500 workers putting these issues forward to Sydney Trains as issued to be resolved.

PN167

The issue around when certain matters were raised, particularly in relation to the issues around HSRs and deputy HSRs, with respect, they were raised in August this year. They weren't things that have just come to the fore now. The submission about the lateness of the union's interim order, as I said, that was filed back in October and it's just gone through the processes of the RTBU and Sydney Trains, in good faith, trying to resolve the issue before the matter needs to be heard. It's just unfortunate that we've gotten to the point where Sydney Trains has forged ahead with the elections, despite the union's contentions about status quo.

PN168

Now, just in relation to the jurisdictional issues raised by my friend, we say that all steps have been complied with, under clause 8 of the DSP. Your Honour has abundant evidence of multiple pieces of correspondence between the union and Sydney Trains about this very issue, particularly step 3. I would point your Honour to the fact that - so step 3 has - part of step 3 is to refer the dispute to Unions of New South Wales for conciliation.

PN169

Now, that's not something that to happen. What has to happen, in step 3, is that each party of the dispute has to advise the other party, in writing, of their respective positions and negotiations about the dispute need to be held between the employee representatives or the union official, the CEO of Sydney Trains, or their nominee, who will meet to include the discussion within 48 hours.

PN170

Now, the union wrote to Sydney Trains on multiple occasions to say, "Hey, we need to do this". It put its position to Sydney Trains. Those 48 hours in the clause elapsed. We say that that satisfies step 3 of the dispute. Sydney Trains can't just ignore the RTBU and expect that the dispute will remain in step 3, that's just not how it works. So we say that all the steps have been complied with.

PN171

Even if there was some technical breach of the DSP, we say that the - even despite that, the Commission is still empowered to make an interim decision, so long as the matter is before it. The matter is before the Commission. We're here today, we've made an application, under section 589, in conjunction with 739. If there is jurisdictional hurdles that need to be completed before we get to a final arbitration of the substantive matter then that can happen. But what we're seeking today is an order, under section 589, that certain things remain in place until that process is allowed to be completed.

PN172

So we say that there is no jurisdictional issue here. The disputes procedure has been complied with and has been complied with thoroughly. But even if there is some technical breach, as my friend alleges at some length in his submissions, that the Commission is still empowered to make this order so that the dispute procedure can continue in an orderly fashion, until it gets to the point where it goes to the Commission and the Commission is able to arbitrate the matter.

PN173

In relation to my friend's jurisdictional argument about the DSP not being the right place to bring this dispute, there may be other avenues in which this dispute could be run through, like going through SafeWork again and having prohibition notices and the like issued if possible, or seeking to have them issued. But that doesn't exclude this process from occurring. They're not mutually exclusive things. Just because there's another avenue open to the RTBU, or the workers in the work group, to pursue their rights, that doesn't preclude this process from taking place.

PN174

There's nothing in the Act, the agreement or in the WHS Act, for that matter, that says that these issues, between the employees, the RTBU and Sydney Trains, can't be dealt with under a disputes settlement procedure. They can be. It's as broad - the disputes clause is as broad as they get. This is a dispute between Sydney Trains, the union and the workers.

PN175

We say there can be absolutely no doubt that the Commission's empowered to hear disputes of this nature, regardless of where the dispute arises or whether there's other remedies available to both parties to pursue their rights.

PN176

There can be multiple scenarios where one could envision that there are other remedies that can be pursued, such as if a dispute is raised, in relation to surveillance requirements, there's particular places you can go to enforce your right under, say, the Workplace Surveillance Act, or the Surveillance (Devices) Act. But it's common for industrial parties to come to the independent umpire, under section 739 and dispute settlement procedure, to resolve the differences between them. There can be multiple reasons for that and I don't need to go into them. Just because there is a different remedy available doesn't mean that this process can't be engaged in.

PN177

Thank you, your Honour.

PN178

THE DEPUTY PRESIDENT: Thank you.

PN179

MR REABURN: Sorry, your Honour, may I have a very brief reply?

PN180

THE DEPUTY PRESIDENT: Brief.

PN181

MR REABURN: Thank you, your Honour. We note, in relation to Mr Johnson that, yes, he may represent just wages workers. Your Honour, there are three classifications, salaried, wages and cleaners. And whilst my friend says that Mr Johnson represents those people, your Honour has no evidence, even on hearsay, of any workers expressing views in support of Mr Rolfe or Mr Johnson.

PN182

We also disagree with what my friend says about the Commission having an overriding jurisdiction to issue interim orders. It can only, I would respectfully submit, issue interim orders if it's satisfied the DSP has been complied with. There isn't an overarching power on any matter, simply because we're here today, your Honour. We're here today as a model litigant pressing a jurisdictional issue. If your Honour doesn't have jurisdiction we respectfully say the Commission does not have power to issue interim orders.

PN183

THE DEPUTY PRESIDENT: All right. Well, I propose to adjourn now and consider what's been put and I'll ask the parties to return to the court at 10.15.

SHORT ADJOURNMENT [9.47 AM]

RESUMED [10.15 AM]

PN184

THE DEPUTY PRESIDENT: In view of the urgency of this matter I propose to issue a short, ex tempore decision.

PN185

The decision will not be as detailed or expansive as I would prefer, but I consider it captures the essence of the issues to be decided in the matter, in accordance with the Commission's relevant principles and authorities.

PN186

On 17 October 2019 the ARTBU filed a dispute, pursuant to section 739 of the Fair Work Act, with Sydney Trains. Shortly stated, the dispute concerns the election process for health and safety representatives and deputy health and safety representatives in a number of designated work group areas of Sydney Trains' operations but, specifically, in respect to the customer service areas.

PN187

The dispute was listed for two conferences before Bull DP, on 30 October and 27 November. However, due to interstate Commission commitments his Honour was unable to deal with this urgent application for interim orders, requested by the union, on 22 November and, subsequently, the matter was reallocated to me for that purpose.

PN188

The matter was listed for hearing on Wednesday this week but, due to the unavailability of the union representatives, it adjourned until today.

PN189

The relief originally sought by the union is that Sydney Trains, "Is not to continue with the process of conducting HSR elections until such time that the dispute between the parties is resolved, in accordance with clause 8 of the agreement", clause 8 being the dispute settlement provision.

PN190

At the hearing Mr Warnes and Mr Hunter appeared for the union and Mr T Reaburn appeared for Sydney Trains, with permission being granted, pursuant to section 596 of the Act, noting that Mr Warnes did not oppose Mr Reaburn's appearance.

PN191

The parties had filed short outlines of submissions and witness statements have been tendered from Mr Mark Rolfe and Mr Terry Johnson, both existing union delegates and HSR representatives, and Sydney Trains relied on a statement of Mr Thomas Reaburn, a solicitor from McCullough Robertson Lawyers. None of the witness were required for cross-examination.

PN192

I have considered and taken into account the parties submissions and, largely, uncontested facts surrounding the dispute.

PN193

While the scope of the dispute settlement procedure in the agreement is very broad and general, that does not mean such generality extends to compliance with the steps in the procedure. The Commission is only conferred with jurisdiction by the express terms of the dispute settlement procedure agreed to by the parties under the agreement. Compliance with the steps under the DSP are not mere technicalities or trivialities, see AWU v MC Labour [2017] FWCFB 5032.

PN194

In my view, the dispute before the Commission lacks jurisdiction, as the dispute settlement procedure at clause 8 of the agreement has not been followed. This is not the same dispute which was raised in October 2018. This is notionally acknowledged by the union's attempt to correct the missing step, or steps. Attempts at retrospectively curing any deficiency in a disputes procedure is impermissible. It is clear on its face, that the dispute settlement procedure has not been followed.

PN195

Moreover, if there is a claim that Sydney Trains has not complied with the status quo provisions, or are otherwise in breach of the agreement, then the union well knows it has rights to pursue such matters in a court of competent jurisdiction.

PN196

However, even if I am wrong about the jurisdictional impediment to the dispute being determined by the Commission, I decline to make the interim order sought by the union.

PN197

The well-established principles applicable to interim relief applications regularly applied by the Commission in this context, were explained by the High Court, in Australian Broadcasting Corporation v O'Neill:

PN198

(1) There must be a serious question to be tried as to the applicant's entitlement to relief.

PN199

(2) The applicant is likely to suffer injury, for which damages will not be an adequate remedy, and

PN200

(3) The balance of convenience favours the granting of an interlocutory order.

PN201

Distilled by Bromberg J, in Quinn v Overland into two main inquiries, incorporating the test of whether damages would be an adequate remedy into the wider test of balance of convenience as follows:

PN202

In determining an application for interlocutory relief, the court addresses two main inquiries; first, whether the applicant has made out a prima facie case in the sense that if the evidence remains as it is there is a probability that, at the end of the trail, that the applicant will be held entitled to relief. Second, whether the inconvenience or injury which the applicant would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the respondent would suffer if an injunction were granted.

PN203

The Full Court, in Samsung Electronics Company Limited v Apple, relevantly cautioned against considering the two main inquiries in isolation, however.

PN204

When considering whether to grant an interlocutory injunction the issue of whether the plaintiff has made out a prima facie case and whether the balance of convenience and justice favours the grant of an injunction are related inquiries. The apparent strength of the parties substantive cases will often be an important consideration to be weighed in the balance.

PN205

These considerations must be assessed when having regard to the nature of the substantive application, the jurisdictional context in which the application is being considered, and the circumstances of the parties.

PN206

Both of the tests enunciated by Bromberg J just be satisfied before the Commission's exercise of a discretion to grant interim relief. Given that:

PN207

(a) the election process for HSRs and DHRs commenced with the calling of nominations on 7 October and the ballot has been underway since 18 November, and closes next Monday.

PN208

(b) The application for interim orders was made on 22 November, well after nominations had opened, and after the voting had actually commenced, on 18 November, and 32 per cent of employees have already voted.

PN209

PN210

(d) The significant cost and inconvenience of conducting fresh elections.

PN211

(e) The fact the external provider is the same provider conducting the ballot for the enterprise agreement.

PN212

(f) Sydney Trains has sought the views of the relevant 1500 employees as to any concerns with the use of the external provider and, apart from the employees in this dispute, none were received, save for one who supported it.

PN213

(g) The union itself said, on 13 August 2019, "We cannot see any concerns with the use of an external provider to conduct the election."

PN214

The balance of convenience does not fall in favour of the interim orders being granted.

PN215

Accordingly, it is unnecessary for me to determine the second test of whether an arguable case has been established. However, I add that the union's arguments, as to an arguable case, are not persuasive. There has been no compelling rationale advanced as to why an external provider, conducting a secret ballot for the election, is not appropriate, let alone in breach of Sydney Trains' obligations, under the Work Health and Safety Act.

PN216

I consider the union's argument that the work groups must determine the election process to be misconceived. Section 61 of the Work Health and Safety Act provides:

PN217

The workers in a work group may determine how an election of an HSR for the work group is to be conducted.

PN218

It is trite that the word 'may' used in a statute does not connote 'compulsion' or 'obligation', it is a word of discretion. The operative word is 'may', not 'must'. Further, the union could not point to any other breach or alleged breach of the Work Health and Safety Act.

PN219

If there was some view that the Work Health and Safety Act had not been followed or complied with, then it seems to me that the agency responsible for that Act, SafeWork New South Wales, should have been asked for a ruling on the matter long before this.

PN220

In any event, alleged breaches of the Work Health and Safety Act are not matters which can be in any addressed, let alone determined, by the Fair Work Commission.

PN221

Further, if there is to be a challenge to the results of the ballot, then so be it. However, this is not a relevant consideration for this Commission.

PN222

I would refuse the application for interim orders sought by the union.

PN223

I now adjourn.

ADJOURNED INDEFINITELY [10.25 AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #1 WITNESS STATEMENT OF MARK ROLFE DATED 03/12/2019, WITH ANNEXURES.......................................................................................................... PN69

EXHIBIT #2 WITNESS STATEMENT OF TERRY JOHNSON, DATED 03/12/2019, WITH ANNEXURES.......................................................................................................... PN72

EXHIBIT #A WITNESS STATEMENT OF THOMAS REABURN DATED 03/12/2019 PN107