NATIONAL RAIL SAFETY LEGISLATION



NATIONAL RAIL SAFETY LEGISLATION

The National Office has been working with the National Rail Safety Regulator Project Office to ensure any new regulations meet the expectations of the RTBU and its members – particularly with respect to fatigue management, drug and alcohol testing and the assessment of competencies.

This work is ongoing – with support being sought from state based ministers, parliamentarians and departments for RTBU positions on these issues.

While submissions also continue to take place behind the scenes, the National Office has developed the Put Rail Safety First Campaign to let RTBU members, and the public, know that we need to see positive changes in rail safety in Australia.

The intention of the campaign is to inform members that, while the federal government is reviewing safety laws for Australia’s railways, they are setting the bar too low and giving employers too much say over our safety at work.

A flyer/petition has been sent to all branches, and a website has also been developed to allow members and the public to outline their concerns to their respective transport ministers.

The website .au is still in operation.

The National Office has also pursued other opportunities to bring attention to this issue.

A mail-out of all RTBU members was recently undertaken which included a rail safety survey, and details of the National Rail Safety Roadshow taking place across Australia – to give members an opportunity to have their say on the proposed laws.

There was an overwhelming response to the survey from members – with the survey results collated and used to form the basis of the National Office’s submission to the National Transport Commission’s proposed draft laws.

The National Office also secured a guest speaker role at a major industry Rail Safety Conference held in Sydney in March 2011; as well as being the subject of numerous national news bulletin stories on ABC television and radio.

• Public Transport Solution to Australia’s Road-Toll

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National Rail Safety Regulator Project – Substantive policy stocktake

Two years since the last National Council, a decision has been made to create a national rail safety regulator based in Adelaide - and the development of national rail safety laws using legislation 'hosted' in South Australia.

In addition, a decision has been made by ministers for the ATSB to be the national investigator for rail accidents.

A National Rail Safety Regulator Project Office was established in Adelaide in mid-2010 to oversee the development of the national regulator and the national rail safety law. Major weaknesses of the overall project have included

• Timelines for the project have been unrealistically tight, and driven by a timetable of being seen to deliver on reform. As a consequence, decision making and consultation has suffered.

• The layers of decision making within the project make it difficult for union views to be considered. A range of major decisions have been made at Project Board level without union input and without decisions and minutes being made available.

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These major weaknesses have made it essential for the National Office and branches to lobby prior to Project Board, Standing Committee on Transport (SCOT) and Australian Transport Council (ATC) meetings. This lobbying is the mechanism by which the RTBU is able to shape the agenda beyond the limited structures which could override the views of the RTBU.

The Governments of NSW and Victoria have previously undertaken extensive reforms of their rail safety acts following the reports of special commissions of inquiry and internal reviews.

They have been reluctant to forgo the rail safety regulatory frameworks that have developed in their states and have worked to ensure the gains they have made are not eroded by a light handed national rail safety regulator.

The RTBU has strategically targeted a number of issues in the rail safety legislation.

Workers Rights

As a consequence of the National WHS review and recommendations, the National Office has argued that the WHS provisions relating to the objects of the act (which set the framework for the legislation); consultation provisions; and training of rail workers should be included in rail safety legislation.

Some progress has been made on the National Office’s position, though implementation remains difficult.

The rail safety legislation package to be presented to ministers in November indicates that some demands have been met - though further argument and lobbying by the RTBU will be required.

Concerning the objects clause, the National Office’s position has been partially agreed to in the following form: “to make provision, through consultation and co-operation, for the effective involvement of relevant stakeholders, in the safety of rail operations.”

The provision does not include a direct reference to unions - and stakeholders are not defined. The National Office will press vigorously for the new national regulator, in their first corporate plan, to allocate the necessary resources to ensuring the RTBU is involved in all decisions.

With respect to training for workers and health and safety representatives (HSR) in their rights and responsibilities, this issue has been harder to crack.

The National Office has worked to produce draft training units, however, the project has stalled due to a lack of NTC support and push back from employers.

We will continue to lobby the federal Minister for Education, Employment and Workplace Relations, Senator Chris Evans, to further advance this issue.

With respect to consultation provisions, the new national rail safety law will contain a few improvements – however, there is still much work to be done.

Areas where practical improvements can be made to bring Australia’s rail safety workers rights into line with recent WHS developments include:

• development of training rights for rail safety workers and their representatives underpinned by units of competency and paid training leave

• the development of a concrete program to provide advice, education and information to rail safety workers

• ensuring effective participation in establishing, varying or reviewing a rail transport operators’ safety management systems

• the involvement of rail workers in risk assessments, and the development and testing of risk controls

• the participation of HSR’s in audits and inspections

• a role for unions in taking action for the non-observance of the law by an RTO or regulator

Assessment of Competence

The mandating of qualifications and units of competency has been a long standing contentious issue between the RTBU, regulators and the ARA.

The National Office has been informed that that a Jurisdictional Advisory Group (JAG) had resolved to dilute the mandated nature of the current national model bill’s assessment of competence provisions.

The proposed new clause is in two parts.

Firstly, the Australian Quality Training Framework may be avoided if it is ‘not practicable’ for a Registered Training Organisation to assess the competence of a rail safety worker. No definition is given as to what is or is not practicable. In past debates, a number of regulators have argued that remoteness or scale of operations may be areas where the AQTF is not utilised.

The Regulator will issue guidance material as to what is practicable.

Secondly, the rail transport operator has to satisfy the regulator that the worker has otherwise acquired the necessary qualifications and competencies available for the rail safety work; and that the worker has the knowledge and skills to carry out the work safely.

No mention is made as to what these qualifications and competencies are.

Presumably they could be an in house certificate or competency or ones issued by an unaccredited training organisation. Presumably it could cover qualifications and competencies gained overseas. These issues were not explained at the meeting.

The National Office has outlined its opposition to these decisions. We have argued that RTBU members could be disadvantaged, in both a career and financial sense, by an RTO not assessing competence and/or the commission not being satisfied in accordance with the new provision.

The National Office has argued that such a determination or decision by the commission should be made reviewable, with the RTBU being an eligible party for the purposes of an appeal.

Fatigue Management

The Project Office has continued to recommend a three tiered scheme which incorporates flexible hours of work, and only places limits on hours depending on the ‘nature of work’ involved; fatigue risks in that work; and consequences of fatigue related errors.

The multi-tiered scheme states that “outer limits of work and rest are made more restrictive as the consequences of fatigue related error are increased” and that a “fatigue risk management system may otherwise restrict work to be conducted within the proposed outer limits”.

This approach will weaken standards contained in several jurisdictions strictly mandating detailed rail operator fatigue management plans – including maximum work hours and minimum rest breaks.

Furthermore, no discussion has taken place as to how rail workers are to be allocated into each of those tiers or what an occupation or task may mean for existing hours of work for employees. The RTBU has not been given an opportunity to determine the content of the tiers or population of hours of work tables.

It is noted that the NTC’s recommendation is inconsistent with world leading fatigue research. This research has underpinned widely accepted fatigue management schemes which include a ‘safety net’ of absolute minimum rest and maximum work hours. Indeed, the risks faced by train drivers are more pronounced than road users given the size/weight of the locomotives and the potential passenger lives at risk.

A recent human factors review conducted for the ARTC by Lloyds Register concluded that “when driving down long sections of track all day every day drivers don’t need distractions to lose concentration”. It concludes that the threat of ‘micro-sleeps’ could occur at any time given long sections of repetitive “bland sections of track”.

We remain concerned about how the recommended position will enhance rail safety.

Despite a resolution moved by the NSW and Commonwealth Ministers for the Project Office to provide:

• Full details on processes associated with each of the three tiers and evidence as to how the three tier scheme appropriately manages fatigue

• Sound evidence being provided that the proposed three tier scheme will deliver safety outcomes, in particular the use of bio-mathematical models;

...that evidence has not been forthcoming.

In light of the absence of detailed scientific research, the National Office is obtaining its own scientific research from Monash and Sydney Universities. This research will determine the best practice management of fatigue. Evidence with respect to bio-mathematical models will be reviewed and the scientific basis of the Fatigue Expert Panel’s conclusions reviewed.

The RTBU, at national and branch level, will continue to lobby against many of the recommendations of this deeply flawed report.

The basic concepts behind the ‘Expert Panel’s’ fatigue recommendations are:

• Fatigue should be separated out from all other issues impacting on working time arrangements e.g. work/life balance; and

• Fatigue should be transferred to the rail safety legislation. No analysis was undertaken of the Australian context where 98% of employers are covered by collective agreements and 90% of rail safety workers are unionists. Many rail EBA’s have fatigue provisions in them. No evidence was presented that the current arrangements have failed or there has been an increase in fatigue related incidents in Australia.

As mentioned previously, the risk based system proposed is based on four risk tiers. There is considerable controversy about these four tiers.

The fourth tier is the ‘black zone’ where the risks are so great (e.g. working beyond 16 hours) that no controls exist. Yet, a distinction is later made between planned and unplanned work where 16 hours can be exceeded.

This is against a number of OHS legal decisions.

The mechanisms being proposed could allow employers to make an application to the regulator to have them exempted from current working time arrangements.

When a decision is made by the regulator, the onus would be on the RTBU to pursue an application in the Federal Court to have the regulator’s decision overturned because it conflicts with a federal industrial agreement.

Legal advice received by the National Office indicates that federal industrial law (and EBA’s under them) would override state rail safety law. However the RTBU would need to initiate the action.

The National Office has been vigorously opposing the implementation of the panel’s recommendations.

Strategies that are, and can, still be pursued by the National Office include:

• That the national rail safety legislation include a provision that any fatigue management should be based on the rail safety work being carried out in accordance with applicable industrial agreements. Any proposal for exemptions must be subject to review by the union.

• The unqualified rejection of the quantitative approach based on bio mathematical models and proprietary models such as FAID as recommended by the Expert Panel. Research is being prepared on this point.

• The preparation of model fatigue clauses by the RTBU in order to maintain fatigue as an industrial issue, and to reduce the opportunity for employers to exploit EBA’s which have only minimal provisions for hours of work and rest breaks

• The RTBU conducting legal challenges to employers who breach industrial agreements and initiating claims for additional wages and/or conditions should the employers breach the no extra claims provisions of EBA’s.

The Expert Panel has also recommended an expert sub group to look at the hours of work dimension that should be included in the tables. The NTC, despite a decision of the working group to the contrary, has not collaborated with the RTBU while work takes place within this group.

Furthermore, the sub-group – which consists of academics - has produced a report which went to the recent meeting of the Project Board for in principle endorsement without consultation.

The Project Board, facing opposition from a number of governments and RTBU lobbying, has deferred endorsement of the report until further work is undertaken and consultation has occurred.

The National Office will continue to campaign, in conjunction with the branches, against the implementation of the expert panel’s recommendations.

Drug and Alcohol Testing

The National Office has previously accepted that the risks associated with the use of drugs and/or alcohol are well established and that drug and alcohol management plans are an important workplace safety measure.

The NTC has previously recommended a “flexible non-prescriptive approach to risk management... [and] the development of D and A management guidelines in order to reinforce the current good practices which have been developed across the nation”.

Current practices include ad-hoc drug and alcohol management regimes and invasive urine testing which detects the presence of drugs, rather than impairment from drug use.

A Drug and Alcohol ‘Expert Panel’ has been constituted to investigate a range of issues, though RTBU priorities - including mandating the use of saliva testing for drug testing - were not covered by the panel.

The Expert Panel’s recommendations included: rail operators should undertake testing according to their drug and alcohol management plans and address breaches according to their internal policies; offences being included in legislation if a worker has a blood alcohol concentration exceeding 0.02; a new offence of presence of a drug; and that post incident testing be undertaken by the regulator for workers involved in a ‘Category A’ incident.

The Expert Panel recommendation concerning the 0.02 blood alcohol content has since been overturned by the Project Board, which has demanded a zero blood alcohol level.

The Project Board has also determined that the national regulator will have its own testing program across Australia, and will take prosecutions against workers in civil courts for offences. Fines of up to $10,000 will apply.

The National Office remains concerned about the primacy that is still being given to the drug and alcohol management plans of employers – without the requisite protections.

Some states have regulations indicating what should be in the plans; others have little guidance. Few employers have consulted with employees and unions about the requirements of these plans (including whether testing will be by swabs or urine) and there is a wide disparity between the drug and alcohol plans of employers.

The issue of swabs versus urine testing remains a key point of contention for the National Office.

Independent research has consistently criticised urine testing: as an unreliable and inaccurate method of determining an individual’s fitness for work; as an invalid method of detecting impairment; and for failing to address the legislative policy objectives of reducing drug related risk in the workplace.

We particularly note the following conclusions from Flinders University academic, Ken Pidd:

“The most popular form of workplace testing (urinalysis) is particularly problematic as it detects past, rather than current use. More importantly, drug use that occurs in the immediate four to eight hours prior to sample collection can remain undetected by urinalysis”; and

“Employers who utilise testing in the workplace are rightly perceived by workers as taking on a policing role in a moral/legal issue, rather than a management role in a workplace safety and productivity issue”.

Given the concerns about the efficacy of urine testing, and the unnecessarily invasive nature of those tests, the National Office has submitted that any random testing should begin with a saliva sample followed – only on a positive reading – by a urine test.

If saliva testing is the national standard for drug screening for motorists and heavy vehicle drivers, there is no reason why the rail industry should be different.

Furthermore, no detailed rationale is provided by the NTC in support of its adoption of a flexible non-prescriptive approach to risk management. It is noted that the aviation industry is regulated by a prescriptive regime – including prescribed education, testing and response programs. Further analysis into why such a regime could not be adopted in a rail setting is warranted.

It is noted that a new swab test will soon receive accreditation under Australian Standards for onsite indicative saliva testing – which now also tests for benzodiazepines where they couldn’t in the past. The smaller range of drugs able to be detected by swabs has, in the past, been used as a reason why urine has been preferred.

On accreditation of this test, that argument will be weakened.

The RTBU will advocate that further analysis must be undertaken into the benefits of swab testing, particularly in light of the new comprehensive tests becoming available.

In the interim, drug and alcohol issues can continue to be addressed through EBA negotiations. The Queensland Branch has used this avenue to gain considerable improvements in the then Queensland Rail drug and alcohol management policy.

The National Office can assist with the preparation of draft drug and alcohol clauses where required.

ATSB and Rail Accident Investigation

A decision by the ATC and Council of Australian Governments has allocated national rail safety investigations to the ATSB.

In an important development, the RTBU policy of establishing a confidential reporting scheme has been accepted and will be incorporated into regulations.

The ATSB has released a discussion paper on its proposals for a confidential reporting system. The National Office has made a detailed submission with respect to issues including: protection for personal information; ensuring reports remain confidential; and protections for those who report.

Rail Industry Safety and Standards Board,

Australian Network Rules and Procedures Project.

• National rule status

A comprehensive suite of nationally applicable safeworking rules and procedures for rail operations is being developed for use within Australia.

• National rules development

A national group of rail access providers, operators, and the RTBU, have been working to develop a complete suite of rules and procedures applicable to the Australian Rail Industry.

So far this has taken almost 10 years to develop with about 78 Rules and Procedures so far already validated. Meetings are now being held monthly.

This suite of rules will be adopted and implemented by Access Providers in a coordinated manner that meets the needs of those organisations.

The latest Rules and Procedures that are being validated are Track Occupancy Authority (TOA) and Using a Track Occupancy Authority.

• Underlying principles

The ANRP will consist of rules and procedures that represent good practice with regard to treatment of the generic risks that are common to the various Australian Access Providers.

The initial sections of the ANRP may be, in part, an amalgam of existing rules and procedures in use throughout Australia by the various Access Providers

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• Structure

• ACoP structure

The ANRP will exist within the document structure of the Australian Code of Practice (ACoP) which is owned and managed by the RISSB. The ACoP contains four types of documentations as shown.

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