The RTBU provided the following submission to the Department of Transport, Infrastructure, Regional Development and communications in response to the Productivity Commission's report in transport regulatory reform.
RE: PC REPORT OF NATIONAL TRANSPORT REGULATORY REFORM
The Rail, Tram and Bus Union (RTBU) appreciates this opportunity to provide comment on the Productivity Commission Inquiry Report on National Transport Regulatory Reform.
In our submission to the Productivity Commission, we noted that our Union has always supported the principle of nationally consistent rail safety laws. A strong national regulatory framework delivers important safety benefits to rail workers and the general public, and improves the productivity of the rail industry. Indeed, in 2011, the National Transport Commission (NTC) estimated the net benefit of the proposed Rail Safety National Law (RSNL) to be between $28 and $71 million. However, the RBTU has long held concerns that the development of these laws was undermined by compromises on safety which could have a detrimental effect on the general public, as well as rail workers.
Indeed, the RTBU has argued that there is a need for a thorough examination of the practical operation of the risk-based co-regulatory framework, and a critical assessment of why it has failed to achieve nationally consistent and harmonised outcomes. To that end, the RTBU contends that the primary inhibiting factor is the flawed relationship between the Office of the National Rail Safety Regulator (ONRSR), the Rail Industry Safety and Standards Board (RISSB) and rail operators.
In effect, the practical application of a risk-based co-regulatory framework has established a national process to bring about a regime of national inconsistency. Despite the best intentions, it has not resulted in increased collaboration within workplaces.
The Productivity Commission fails to address this issue, and therefore fails to address the core problem with Australia’s rail regulatory environment. This is extremely disappointing, and a missed opportunity for the industry.
The RTBU provides the following specific comments on the findings and recommendations of the Inquiry Report
RECOMMENDATION 5.2: GOVERNANCE OF ONRSR
Recommendation 5.2 suggests changes to the governance structure of ONRSR, with the creation of an Advisory Board of up to 5 non-executive members and including the National Rail Safety Regulator.
The RTBU supports this recommendation, and respectfully suggests that the RTBU should have representation on this Advisory Board.
FINDING 4.2: DEROGATIONS FROM ROAD AND RAIL LAWS UNDERMINE CONSISTENCY
RECOMMENDATION 6.4 RISK-BASED FATIGUE MANAGEMENT IN RAIL REGULATION
Recommendation 6.4 asserts that:
The amendments to the Rail Safety National Law and other legislation should remove detailed fatigue management requirements from legislation and empower the National Rail Safety Regulator to:
- Publish ‘acceptable means of compliance’ with fatigue management regulations;
- Set outer limits on driving hours;
- Provide concessions from prescribed aspects of fatigue management regulation, where the National Rail Safety Regulator is satisfied that more effective systems of fatigue management are in place.
The RTBU strongly opposes this recommendation. To put it simply, the only acceptable level of compliance with fatigue management regulations should be complete compliance, and there should be no concessions from prescriptive rules that were put in place to protect lives.
Employers in the industry and their representatives have routinely called for the removal of prescriptive outer limits of work hours that exist in NSW and Queensland. Fundamentally, the position put forward by employers (and repeated by the Productivity Commission) is based on two flawed arguments. Firstly, employers claim prescriptive requirements are a cost and regulatory burden. And secondly, they claim there is no evidence that such limits improve safety outcomes. Both claims are wrong and have the potential to reduce safety on our railways, with no productivity gain.
The RTBU’s position on fatigue management has consistently been underpinned by evidence, and in particular the Evidence Based Review of Shift Work Risk Factors for Fatigue and Accident/Injury Risk in the Rail Industry by Anderson, Rajartnam and Grunstein.[1] A stand-out feature of the Evidence-Based Review is the link established between fatigue, reduced performance and elevated risk of injury. The Evidence Based Review identified numerous studies capturing accident data spanning ample years/personnel/ accident reports revealing unequivocal increases in accident risk with increased shift duration. For example, the Review found that there is a 30.4% increased risk of an occupational accident during the night shift and a clear exponential increase in accident risk beyond the 8th or 9th hour on shift.
The Evidence Based Review examines the international experience in the rail industry and other sectors of the transport industry to determine what the international benchmark for maximum work hours and minimum rest periods. Internationally, Australia is the odd country out with its purely risk-based, co-regulatory approach. The international evidence, in the words of the US Federal Aviation Administration, is that “hour of service limits should be the central part of any fatigue risk management system.”
The Evidence Based Review concluded:
“Based on current practice within other countries and occupational sectors and taking an evidenced based approach to risk from fatigue, this review supports that hours of service limits should be a central part of fatigue risk management within the rail industry, with additional fatigue risk management strategies incorporated within these limits."
The RTBU has many reservations about a purely risk-based approach to fatigue management and any attempts to downgrade prescriptive hours of work regimes simply in the name of ‘flexibility’. These include:
- Bullet point style 1 reservations about the lack of involvement of rail safety workers in risk assessment, and whether they have the requisite skills to comply with a combined approach to risk;
- reservations about the maturity of many accredited parties to understand and apply a risk-based approach; and
- reservations about regulators’ ability to pro-actively manage risk.
Based on current practice within other countries and occupations – and taking an evidence-based approach to risk from fatigue – hours of service limits are a central part of fatigue risk management within the rail industry, with additional fatigue risk management strategies incorporated within these limits. Specifically, the following should apply to all rail safety workers in general (noting the specific hours for traincrew in NSW and Queensland, which should apply for traincrew across all Australian jurisdictions):
- Minimum time between shifts;
- Maximum shift duration ranging between 9-12 hours depending on the occupation;
- Maximum number of shifts and hours which can be worked over any 14-day period; and
- Minimum length of breaks during shifts.
FINDING 4.4: RAIL NETWORK STANDARDS AND RULES ARE A BARRIER TO CONSISTENCY
The RTBU agrees that rail network standards and rules are a barrier to consistency. In turn, this inconsistency can create a safety hazard in itself, as it leads to confusion about safe working rules - especially for workers who have to contend with multiple sets of rules.
A prominent example of this situation is the failure to achieve national standardisation of safe working rules. The tragic fatal derailment near Wallan (Victoria) in February 2019, for example, highlighted the differences in safe working rules between jurisdictions and between track managers. For example, under ARTC rules, the train which derailed was allowed to travel at normal speed while under the guidance of a pilot. If the train had been travelling under V/Line or Metro safe working rules, however, it would have been limited to a speed of 25km/hr. If it had been travelling under the same conditions in NSW it would have been subject to different rules again.
A recent report commissioned and released by the Australasian Railways Association (prepared by consulting firm LEK) highlights the complexity caused by inconsistencies across rail networks. While the LEK Report, Finding the fast track for innovation in the Australian rail industry, is focused on industry growth and innovation rather than safety, its findings supports the RTBU’s contention that Australia’s co-regulatory model has failed to deliver industry harmonisation as it was initially intended.
The report states:
The Australian rail sector is highly fragmented, with both national and state-based rail systems. This fragmentation creates a fractured buyer market for new technology, and requires multiple paths to market for the same products… Fragmentation also causes duplication if adjoining sections of network infrastructure have different rail owners, with different state and national rules applying, and different standards intersecting.
To date, Australia’s various railway operators have implemented 10 different signalling technologies, so that one operator traversing a metropolitan network may find itself navigating multiple systems in a single journey… Despite efforts to set national rail standards through the Rail Industry Safety and Standards Board (RISSB), national standards only cover a small proportion of state-based standards. Rail operators also often interpret RISSB’s standards differently, and are under no obligation to adopt them.
Sydney’s inner-city network, Tasmania’s freight rail service and a mining railway in the Pilbara have significantly different operational requirements, and therefore require different standards. However, networks with similar requirements, for example Sydney and Melbourne Metro networks, do not have aligned standards …[2]
The RTBU reiterates that regulatory consistency should not be considered an end in itself. Where consistency can be a means to improved safety, however, then it should be pursued in a manner that lifts safety standards across the board.
CONCLUSION
The RTBU supports the adoption of recommendations and findings relating to the governance of ONRSR and to greater national consistency of safe working rules. Any attempt to water down safety standards, particularly in relation to fatigue management, however, will be vigorously opposed.
Yours sincerely,
Mark Diamond
National Secretary
[1] Clare Anderson, Shantha M.W.Rajartnam and Ron Grunstein, Evidence Based Review of Shift Work Risk Factors for Fatigue and Accident/Injury Risk in the Rail Industry. (Monash University and University of Sydney), March 2012.
[2] L.E.K., Finding the fast track for innovation in the Australasian rail industry, October 2020, pp20-23.