[2015] FWC 6282

The attached document replaces the document previously issued with the above code on 9 September 2015.

Endnote twenty-four has been corrected.

Associate to Commissioner Lee

Dated 17 September 2015.

[2015] FWC 6282
FAIR WORK COMMISSION

REASONS FOR DECISION


Fair Work Act 2009
s.424—Industrial action

KDR Victoria Pty Ltd T/A Yarra Trams
(B2015/1224)

COMMISSIONER LEE

MELBOURNE, 9 SEPTEMBER 2015

Application to terminate or suspend protected industrial action.

[1] On 24 August 2015 KDR Victoria Pty. Ltd. trading as Yarra Trams (the applicant) made an application pursuant to s.424 of the Fair Work Act 2009 (the Act) for an order to terminate protected industrial action that was being taken by the Australian Rail, Tram and Bus Industry Union (ARTBIU) and its members. Subsection 424(3) requires that the FWC as far as practicable, determine such an application within 5 days after it is made.

[2] The application was listed for hearing before me on the 25 August at 2.30pm. Permission to appear for counsel for both sides was granted on the basis that the matter was complex and would be more efficient. Witness evidence was provided and submissions were made in relation to the industrial action and its impact. Submissions were also made as to the approach the Fair Work Commission (the Commission) should take in applying s.424.

[3] At the conclusion of the proceedings in this matter, and after a brief adjournment I provided a decision to the parties. That decision was as follows:

[4] I now provide the reasons for the decision that was made.

[5] The application seeks an order to terminate protected industrial action by the ARTBIU and its members which is threatened impending or probable. The ARTBIU and its members were already at the time of the hearing engaging in a range of industrial action but that action did not give rise to a concern of the type contemplated in s.424. The action that was of concern to the applicant and gave rise to this application was described in paragraph 6 of the Form 37, which was derived from a letter to the applicant from the ARTBIU on the 13 August 2015. That action is as follows:

[6] The applicant submitted it is that action, of which they have been notified, that is threatening to endanger the personal safety or health or the welfare of a part of the population of Melbourne who rely on public transport generally and tram services in particular. However it is clear that the focus of the application was on the threat to the welfare of a part of the population.

[7] The applicant, Yarra Trams is the employer who will be covered by the enterprise agreement and is a bargaining representative for the agreement. The ARTBIU opposed the application.

The submissions and evidence

Background

[8] Yarra Trams submitted that their service provides an integral part of the Melbourne Trams System and that for many using the service during the stoppage it is the only transport option that they have.

[9] The applicant submits that the proposed stoppage threatens or would threaten to endanger the personal safety, health or welfare of that part of the population of Melbourne who rely on trams to attend medical appointments and/or other appointments such as carer appointments that cannot, or cannot easily, be rescheduled. Further, that the logistics associated with the stoppages mean that the impact of them will not be confined to the hours of 10am to 2pm and will spill over into general road use.

[10] Mr Edmiston the Manager of Operational Planning gave evidence as to the size of the Yarra Trams operation, the number of tram stops being 1763 and that there are 24 tram routes and eight tram depots including a CBD “tram hub.”

Ceasing and resuming normal services

[11] Mr Edmiston gave evidence related to the process of ceasing and resuming normal services in the event of a four hour stoppage from 10am to 2pm. His evidence was that it was anticipated that Yarra Trams would run a full service until about 9am after which the frequency of trams would decrease and trams may begin to return to depots. He confirmed during the hearing that the decision to implement this practice of what I will describe as “early cessation” had in fact been made and would be implemented. 2 The decision to do so flowed from concerns that people would be left stranded. Mr Lettoof, Manager of the Essendon lines gave evidence that for the Essendon lines this practice may result in some trams being cancelled from 9.30 am onwards.

[12] Mr Edmiston also gave evidence that it would take some time after 2pm to have the trams leave their respective depots and re-enter the system as there will be much more traffic on the road than in the early hours of the day which is the time trams normally leave en masse from the depots. He estimated that there would be approximately 40-50 trams departing each depot. The number of trams required to leave each depot, combined with the time of the day and the absence of traffic lights at a number of the depots, will combine to cause disruptions to traffic for up to an hour. Also, these factors will result in there being a significant impact on the system between 2pm and 4pm and that it would not be until 4 or 5 pm that trams would be running to schedule. I note this was not consistent with the evidence of Mr Lettoof who thought that Essendon services would return to normal by 3pm. Mr Altieri gave evidence that the traffic officers, depot starters, and traffic officer drivers who are empowered to stop and direct traffic will assist in managing disruption caused by trams exiting depots and that steps had been taken by way of Vic Roads making alterations to traffic light cycles to facilitate the flow of trams.

Patronage of trams

[13] Mr Edmiston provided statistical evidence on the patronage levels of trams during particular time periods of the day. The summation of that evidence is that it can be concluded that 22.7% of weekday patronage occurs between the hours of 10am and 2pm; 34.7% between 9am and 3pm and 44.7% between 9am and 4pm. It followed that if it is accepted that the disruption to service will in effect be from 9am to 4pm that 44.7% or in raw numbers 230 000 people who would normally travel would be affected.

[14] It was submitted by the union that this extrapolation did not take into account that these numbers were based on an ordinary day of travel and did not account for the fact that this was a highly unusual situation involving strike action which would lead to people making alternative arrangements. 3

[15] The age and profile of patrons was referred to. An attachment to the statement of Mr Edmiston provided evidence by way of a customer survey that approximately 7% of patrons are 60-69 years of age; approximately 2% of patrons are 70 or older and 42% of patrons have special mobility needs. Mr Edmiston gave evidence that these people would tend to have less transport options than the general populace. Mr Edmiston also suggested that it was possible that concession card holders that use the tram network would have fewer transport options than the general populace. However, on cross examination Mr Edmiston conceded that there were numerous alternative modes of transport that were available and that passengers could conceivably make alternative arrangements. Mr Edmiston also conceded that he had no idea who might be affected at all. 4 Mr Edmiston also gave evidence about accessible stops for passengers of limited mobility and some passengers having to disembark at non accessible stops meaning they will not be able to disembark safely. However, this concern was alleviated given the decision of Yarra Trams to implement early cessation.

Transport to hospital and other health facilities by tram

[16] Evidence was given that The Epworth, Royal Melbourne, Royal Childrens and Alfred hospitals are serviced by trams and that each of these provides various clinical services. A map attached to the statement of Mr Edmiston was provided that showed hospitals within 400 metres of the tram network. 5 Mr Edmiston gave evidence about the cohort of people attending hospitals including older people who may not be able or feel able to drive; that “many” treatments at hospitals result in the patient being unable to drive after the procedure and that it can be difficult and expensive to park in public hospitals. On cross examination he admitted the basis of this evidence was his personal experience with going to a hospital. 6 Mr Edmiston makes the claim that these hospitals are not easily accessed by other means of public transport pointing out the significant distance of train stations from Royal Melbourne, the Royal Childrens Hospital and the Alfred hospital.

Transport for school children

[17] It is not disputed that a number of students and teachers use trams to get to schools. A map was provided showing schools within 400 metres of the tram network.  7 Yarra Trams run a number of school extra tram services. As the extra trams are normally rolled out at 2.45pm Mr Edmiston submits that as a result of the problems referred to above under the heading of ceasing and resuming normal tram services, that the ability to roll out those trams “on time or at all” will be significantly compromised. Mr Lettoof said the stoppages would affect school children as it would take “some hours” to return the system to normal. I note this was inconsistent with his evidence that the system in Essendon would return to normal by 3pm which is one hour rather than “some hours”. I note that Mr Edmiston was aware that some schools had made arrangements to organise their own buses.8

Concerns about Shunting of trams

[18] Mr Cushion gave evidence about the risk that the uncontrolled and unsupervised shunting of trams may result in a collision between trams and that a number of shunt areas cannot be used safely or only used safely in certain circumstances for various reasons. 9 Mr Cushion also expressed concern about the proposal that trams that have already departed their respective depots being shunted back to the depot using the first available shunt after 10 am means that passengers on those trams may be left “stranded”. However, it became clear during the proceedings that the mitigation strategy of early cessation implemented by Yarra trams meant that both of these concerns were no longer an issue.10

Mitigation

[19] Mr Edmiston gave evidence as to the mitigation strategies Metro has implemented. As mentioned earlier, one of these is early cessation. Another is the hiring of replacement buses. His evidence in chief was that at most there are approximately 200 buses available on Friday 21 August. There were questions raised in cross examination as to the number of replacement buses available. Mr Edmiston made particular note by reference to a further map attached to his statement of the high tram usage associated with servicing the Deakin University Campus in Burwood and the RMIT and Latrobe University Campuses in Bundoora as these campuses are not serviced by the train network 11.

[20] Mr Edmiston also gave evidence about the significant number of buses required to replace the tram service on a one to one basis. 12 Depending on the hour, the numbers of buses required ranged from 440 at 10am to 464 at 2pm. Higher numbers would be required if matching one to one after 2pm though of course trams will be re- entering the system at that time. However, the use of and proposed deployment of replacement buses was outlined by Mr Edmiston as follows: “we have taken a view that with the trains running and with the normal bus network around Melbourne that we can allocate the resources through certain trunk routes and create a service offering so that people can still move around Melbourne”13. Mr Edmiston was clear that it is not possible to replicate where the trams go on a number of routes.14

[21] There seemed to have been little in the way of communication to the public as to the impending and likely industrial action. Mr Altieri gave evidence that while the union had made a public statement about the action, Yarra Trams had made no public statement. Mr Edmiston gave evidence that the company’s reluctance to communicate the likelihood of the action was motivated by a desire not to confuse customers should the strike not actually take place and they had to retract the statements. I also note that the initial action taken by the company to advise of the industrial action was, on the evidence of Mr Edmiston, stopped on advise by the state government. 15 I note that the company posted information on the website that the action was likely to occur prior to the conclusion of proceedings before me and evidence to that effect was tendered late in the proceedings.

[22] Ms Kazakof gave evidence about various means of alternative transport that could be used to access the various hospitals referred to in the evidence of Mr Edmiston she conceded on cross examination that it was possible that some people who had little difficulty attending a hospital on a tram might not be able to use the alternative transport referred to. 16

Comparisons with earlier train and tram strikes in Melbourne

[23] Mr Lettoof gave evidence about train and tram stoppages in the 1980’s and 1990’s. At the time Mr Lettoof was employed by the PTC. In his statement he made a general reference to transport stoppages from that time causing many problems and he being personally caught in traffic congestion.  17 Mr Lettoof went on to claim that the stoppage on 27 August will cause the same impact on the Victorian public as did the “transport stoppages” he recalled. Ultimately, Mr Letoof’s evidence was that the tram stoppages of that era caused general disruption and inconvenience to the people of Melbourne arising from the traffic congestion during those stoppages.

The Legislation

[24] S.424 of the Act is as follows:

[25] The parties referred me to essentially the same authorities in considering the approach to take in this matter, though as Mr O’Grady submitted, perhaps to different effect.

[26] The FWC must make an order under s.424(1) to either suspend or terminate the action that is being engaged in, or is threatened impending or probable if satisfied that it has threatened, is threatening or would threaten to endanger the personal safety or health, or the welfare, of part of the population.

[27] The explanatory memorandum states that it is not intended that these mechanisms be capable of being triggered where the industrial action is merely causing an inconvenience. Nor is it intended that these mechanisms be used generally to prevent legitimate protected industrial action in the course of bargaining. However, there should not be other criteria or tests substituted for those found in s.424(1). 18

[28] There must be an appropriate evidential basis to found the satisfaction of the matters in s.424(1). 19 In considering the welfare of the population, there needs to be a basis upon which it is reasonable to conclude, on an assessment of matters of fact and degree that the collective welfare is in peril or danger.20

[29] The meaning of the terms in s.424(1) have been considered in previous decisions of the Commission and its predecessors particularly the references to “welfare” and the concept of endangerment. 21 These are commonly used words and expressions which are widely understood in the community and which should be given their ordinary meaning.22

[30] A consideration of the actions open to an employer to mitigate the impact on notified protected action can properly be taken into account when assessing the likely impact of that action. 23

[31] The decision to terminate or not to terminate must be made on a case by case basis depending on the facts peculiar to the case. 24

[32] I will apply these principles as relevant in making my decision.

Consideration

[33] It is clear and not a particularly remarkable observation that Yarra Trams are an important part of the Melbourne public transport system. The tram routes cover a significant area of metropolitan Melbourne. Therefore, when the trams are not running, this will clearly have an impact on the ability of people to move about the city.

[34] Further, while the stoppage is scheduled to take place between 10am and 2pm, it is likely that when combined with the mitigation strategy of early cessation implemented by Yarra Trams and the fact that it will take some time to get a large number of trams out of the depots and onto the roads from 2pm, that the tram service will be affected for a longer period than just 10am to 2pm. How much longer is less clear. From 9.30am to 3pm is the evidence of Mr Lettoof when considering the Essendon service. However, Mr Edmiston gave evidence that suggested the disruption to normal services would extend from 9am until 4 or 5pm. In any case, it is clear that it is only the period between 10am and 2pm that there will be no trams running at all. The period from 9am or 9.30am to 10am and from 2pm to 4 or 5pm there will be disruptions to the service as the trams wind down and wind back up into service.

[35] It is also clear that 22.7% of average patrons of the service will not be able to travel on a tram at all between 10am and 2pm and this will have an impact on that group. Those who would normally travel between 9am and 10am and between 2pm and 5pm are more likely to suffer an impact in terms of likely delays in the service rather than an inability to use the service at all.

[36] There was some time spent during the hearing considering the risks associated with shunting large number of trams within a short time frame as well as the possibility that passengers would be forced to disembark trams at stops other than their planned destination, or in other words be left stranded, in order for the tram to return to the depot in time to comply with the 10am stoppage. However the concession was rightly made by Mr. O’Grady that the mitigation strategy implemented of early cessation will remove both of these risks. 25

[37] The mitigation strategy of Yarra Trams by way of replacement buses was extensive. While there was some contention as to whether additional buses could have been added, there is no doubt that those buses that were to be deployed would be done so in a manner that would best allow people to move around Melbourne accounting for the loss of tram services. The efforts to mitigate the action by Yarra Trams are to be applauded. However, I am concerned that more could have been done. In particular, other bus operators could have been approached as there was no contractual barrier to doing so. Also, earlier and more strenuous efforts should have been made by the company to communicate the fact of the action.

[38] I note that there were references to the stoppages in the 80’s and 90’s by Mr Lettoof these references were vague and of little utility.

[39] This leaves a consideration as to the evidence going to the impact of the stoppage on the ability of Yarra Trams patrons, including the entire demographic of travellers, young and old, concession card holders, students and the mobility impaired to attend medical or other appointments that cannot or cannot easily be rescheduled. On this point, the applicant submits that I can conclude that there will be significant numbers of people who will not be able to attend an appointment. The evidence supporting this proposition was not at all strong. For example, the evidence related to the claimed inability to attend medical appointments was based largely on the personal experience of a transport executive, Mr Edmiston and his attendance at a hospital 3 or 4 times. I have considered the “weight of the numbers” argument put forward by Mr O’Grady for the applicant. However, while it is clear enough that passengers will not be able to attend appointments by tram for a number of hours during the day, it was not clear to me that they would not be able to attend to those appointments at all utilising either the array of transport options that already exist or will be put in place through the provision of additional bus services.

[40] In summary, the evidence in this case supports a finding that there will be disruptions to the tram service and there will be inconvenience to members of the travelling public. The evidence is also to the effect that there will be a range of options for passengers to make alternative arrangements for travel using combinations of replacement buses, trains and other modes of transport. This will not be as convenient to the passenger if a tram was their preferred mode of travel. However it is not a sufficient basis to establish that the collective welfare is in danger or peril. I am urged by Mr O’Grady that I can be confident to infer from the weight of the numbers that there will be significant numbers of people who will have their welfare impacted upon. 26 I consider this to be a tenuous basis to make a finding that the circumstances in s.424(1) exist and would amount to doing so on the basis of a generalised prediction as to the likely consequences of the industrial action. To do so would be inconsistent with the authorities cited.

[41] It is for these reasons that the application was dismissed.

LeeC Seal

COMMISSIONER

Appearances:

C O’Grady of Counsel representing the Applicant

M Harding of Counsel representing the Respondent.

Hearing details:

2015

Melbourne:

August 25.

PR571260.

 2   Transcript at PN 397.

 3   Transcript at PN 836.

 4   Transcript at PN 304-317.

5 Exhibit O1, Annexure JE7.

 6   Transcript at PN 409.

 7   Exhibit O1, Annexure JE8.

 8   Transcript at PN 344.

 9   Exhibit O4 at [7]-[11].

 10   Transcript PN 722-733.

 11   Exhibit O2, Annexure JE12.

 12   Exhibit O2, Annexure JE13.

 13   Transcript at PN 219.

 14   Transcript at PN 220.

 15   Transcript at PN 293.

 16   Transcript at PN 600.

 17   Exhibit O3 at [9]-[10].

 18   National Tertiary Education Industry Union V Monash University [2013] FWCFB5982.

 19   Victorian Hospitals’ Industrial Association v Australian Nursing Federation [2011] FWAFB 8165, at 49.

 20   Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; 99 IR 309 at 6.5.

 21   For example, in relation to “welfare of the population”: see Coal & Allied Operations Pty Ltd v Construction, Forestry, Mining and Energy Union (1998) 80 IR 14, Victoria v Health Services Union of Australia (1995) 37 AILR 3-091; in relation to “endanger”: see Metropolitan Ambulance Service v Liquor, Hospitality and Miscellaneous Union (unreported, AIRC, Kaufamn SDP, PR950276, 30 July 2004), St John Ambulance Australia (NT) Inc v United Voice (2011)212 IR 258, Tyco Australia Pty Ltd (t/a Wormold) v Communication, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union (2011) 208 IR 243.

 22   Victorian Hospitals’ Industrial Association v Australian Nursing Federation [2011] FWAFB 8165, at 51.

 23   Ausgrid; Endeavour Energy; Minister for Industrial Relations (New South Wales) v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; Australian Municipal, Administrative, Clerical and Services Union; Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers' Union [2015]FWC 1600.

 24   Transport Workers Union of Australia v Transport Management Group Pty Ltd t/as Southern Coast Transit PR940030 (Acton SDP, Lacy SDP, Hingley C) at 19.

 25   Transcript at PN 722-732.

 26   Transcript at PN 740.

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<Price code C, PR571758>