Application by Sydney Trains and NSW Trains

Case •

[2025] FWCFB 46

•

26 FEBRUARY 2025
[2025] FWCFB 46

FAIR WORK COMMISSION
REASONS FOR DECISION

Fair Work Act 2009

s.425—Industrial action

Application by Sydney Trains and NSW Trains

(B2025/255)

JUSTICE HATCHER, PRESIDENT
DEPUTY PRESIDENT EASTON

COMMISSIONER HARPER-GREENWELL

SYDNEY, 26 FEBRUARY 2025

Application for an order suspending protected industrial action in relation to bargaining for a proposed enterprise agreement to replace the Sydney Trains and NSW TrainLink Enterprise Agreement 2022 – cooling off – protected industrial action suspended until 1 July 2025.

Introduction

  1. On 14 February 2025, Sydney Trains and NSW Trains filed a joint application under s 425 of the Fair Work Act 2009 (Cth) (FW Act) for an order that protected industrial action being engaged in by employees represented by the Australian Rail, Tram and Bus Industry Union (RTBU) be suspended until 6 September 2025. The application arises out of enterprise negotiations for a proposed agreement (proposed agreement) to replace the Sydney Trains and NSW TrainLink Enterprise Agreement 2022[1] (2022 Agreement). 

  1. The application was listed for hearing on an expedited basis on 19 February 2024. At the completion of the hearing we made an order[2] suspending protected industrial action being engaged in for the proposed agreement until 1 July 2025. Our orders were accompanied by short reasons.[3]  As foreshadowed, we now publish our full reasons.

Statutory framework

  1. The FW Act provides for a framework for the taking of ‘protected industrial action’ in relation to bargaining for an enterprise agreement. In brief summary, protected industrial action is defined in ss 408–411 of the FW Act and includes ‘employee claim action’ (s 409), ‘employee response action’ (s 410) and ‘employer response action’ (s 411). Section 415 provides that no action lies under any law in force in a State or Territory in relation to ‘protected industrial action’ unless it involves or is likely to involve personal injury, wilful or reckless destruction of or damage to property, or the unlawful taking, keeping or use of property. For employee claim action to be ‘protected’ under s 415, it must be authorised by a ‘protected action ballot’ of relevant employees pursuant to an order made by the Commission for conduct of such a ballot (see s 409(2) and Div 8 of Pt 3-3). Further, employee claim action must be notified in advance to the employer in accordance with s 414.

  1. ‘Industrial action’ is defined in s 19(1) and includes:

. . .

(a)the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work;

(b)a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee;

. . .

  1. Employers are prohibited from making payment for any day that an employee engages in protected industrial action (s 470(1)) unless the protected action is a partial work ban as defined in s 470(3). Partial work bans, which will fall within paragraphs (a) or (b) of the definition in s 19(1) above, may be distinguished from what is usually known as a ‘strike’ – that is, a failure or refusal to perform any work at all.

  1. Section 471 concerns employees’ entitlement to payment when they engage in a partial work ban. Of particular relevance in this matter are ss 471(4)–(5), which provide:

Employer gives notice of non‑payment

(4)If:

(a)an employee engaged, or engages, in protected industrial action against an employer on a day; and

(b)the industrial action is a partial work ban; and

(c)the employer gives to the employee a written notice stating that, because of the ban:

(i)     the employee will not be entitled to any payments; and

(ii)     the employer refuses to accept the performance of any work by the employee until the employee is prepared to perform all of his or her normal duties;

then the employee is not entitled to any payments in relation to the period (the industrial action period) referred to in subsection (5).

(4A)If:

(a)an employer has given an employee a notice under paragraph (4)(c); and

(b)the employee fails or refuses to attend for work, or fails or refuses to perform any work at all if he or she attends for work, during the industrial action period;

then:

(c)the failure or refusal is employee claim action, even if it does not satisfy subsections 409(2) and 413(4), if the related industrial action referred to in paragraph (4)(a) is employee claim action; or

(d)the failure or refusal is employee response action, even if it does not satisfy subsection 413(4), if the related industrial action referred to in paragraph (4)(a) is employee response action.

The industrial action period

(5)The industrial action period is the period:

(a)starting at the later of:

(i)     the start of the first day on which the employee implemented the partial work ban; or

(ii)     the start of the next day, after the day on which the notice was given, on which the employee performs work; and

(b)ending at the end of the day on which the ban ceases.

  1. Of significance in this matter is that, where the employer gives a notice under s 471(4)(c) in respect of a partial work ban that is employee claim action and an employee fails or refuses to attend for work in response, the effect of s 471(4A)(c) is to deem that non-attendance to be employee claim action which consequently attracts the protection in s 415.

  1. Division 6 of Pt 3-3 contains provisions empowering, or requiring, the Commission to suspend or terminate protected industrial action in specified circumstances. Section 425, pursuant to which this application is brought, provides:

425FWC must suspend protected industrial action--cooling off

(1)The FWC must make an order suspending protected industrial action for a proposed enterprise agreement that is being engaged in if the FWC is satisfied that the suspension is appropriate taking into account the following matters:

(a)whether the suspension would be beneficial to the bargaining representatives for the agreement because it would assist in resolving the matters at issue;

(b)the duration of the protected industrial action;

(c)whether the suspension would be contrary to the public interest or inconsistent with the objects of this Act;

(d)any other matters that the FWC considers relevant.

(2)The FWC may make the order only on application by:

(a)a bargaining representative for the agreement; or

(b)a person prescribed by the regulations.

  1. The prerequisite for the enlivenment of s 425(1), once an application has been made in accordance with s 425(2), is that ‘protected industrial action for a proposed enterprise agreement… is being engaged in’. The expression ‘is being engaged in’, by its use of the present participle, connotes contemporaneity.[4] The precise degree of contemporaneity required does not arise for consideration on the facts of this case, as we discuss below. In its requirement for engagement in protected industrial action, the statutory prerequisite does not distinguish between employee claim action, employee response action and employer response action, nor does it prescribe who must be engaging in the relevant protected industrial action. Thus, any bargaining representative, including a bargaining representative who is engaging in protected industrial action, can apply for an order under s 425(1).

  1. Once s 425(1) is enlivened, the Commission must make a suspension order if the Commission reaches a state of satisfaction that the suspension would be ‘appropriate’. The criterion of appropriateness requires the making of an evaluative judgement which may be characterised as discretionary in nature. The Commission’s consideration of appropriateness must take into account the matters specified in paragraphs (a)–(d) and, to this extent, the section guides the formation of the Commission’s evaluative judgment. The matters must therefore be given weight and treated as fundamental elements in the Commission’s consideration,[5] but no individual matter is necessarily determinative.

  1. Where the Commission makes an order suspending protected industrial action under s 425, it must specify in the order the period for which the protected industrial action is suspended: s 427. The FW Act does not otherwise include any constraint or guidance about the determination of the duration of suspension orders made under s 425. The determination of the length of the suspension is therefore within the discretion of the Commission, and the matters which it may take into account are unconfined except insofar as they may be found in the subject matter, scope and purpose of s 425 and the relevant objects of the FW Act.[6]

  1. No industrial action for the proposed enterprise agreement is protected by s 415 during the operation of a suspension order: s 413(7)(a).

Factual findings

  1. The applicants relied upon four witness statements made by Fatima Abbas, the Executive Director of People and Culture for Sydney Trains, respectively dated 14 February 2025, 15 February 2025, 17 February 2025 and 19 February 2025. Ms Abbas was the subject of cross-examination.

  1. The union respondents appearing in opposition to the application, being the RTBU, the Association of Professional Engineers, Scientists and Managers, Australia (APESMA), the Australian Municipal, Administrative, Clerical and Services Union (ASU), the Australian Manufacturing Workers’ Union (AMWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), relied upon the witness statements made by the following persons, which were all dated 18 February 2025:

·Toby Warnes, the Secretary of the NSW Branch of the RTBU;

·Tara Koot, an organiser and official of the New South Wales (NSW) and Australian Capital Territory (ACT) Branch of the Electrical, Energy and Services Division of the CEPU;

·Giovanna Bonelli, a train driver trainer employed by Sydney Trains;

·Alex Reed-Joyce, a guard working for Sydney Trains and NSW Trains; and

·Elgak Fagir (employment status not identified but apparently a train driver).

  1. Only Mr Warnes was required for cross-examination.

  1. An individual bargaining representative, Nerida Mullally, also filed a witness statement dated 18 February 2025 which was received into evidence.

  1. On the basis of the above witness statements, the oral evidence given by Ms Abbas and Mr Warnes, some documentary exhibits and the Commission’s record of proceedings relating to bargaining for the proposed agreement, we make the findings of fact set out below. We note that, for the most part, there was no contest as to the primary facts, with the parties rather disputing how those facts were to be characterised. Where there was a contest of significance about any factual matter, we identify the evidence which we preferred in making our findings.

  1. There is no dispute that the applicants are, by virtue of s 176(1)(a) of the FW Act, bargaining representatives for the proposed agreement and are therefore competent to make the application under s 425(2)(a).

  1. Sydney Trains is the Network Control Manager of the Sydney metropolitan rail network and the intercity trains network. As such, Sydney Trains carries out the day-to-day management of the Sydney Trains timetable and is responsible for the overall control of the network, including timetabled services and all other train movements undertaken on the network. Sydney Trains is solely responsible for the delivery of all agreed access to the rail network, including infrastructure maintenance and freight operations. Most relevantly for present purposes, Sydney Trains operates passenger train services in the Sydney suburban area and on the intercity rail network (which extends to Kiama in the south, Lithgow in the west and Newcastle in the north). Sydney Trains runs approximately 3,200 train trips per weekday and 2,500 over the weekend. On a typical weekday, Sydney Trains moves approximately 1.1 million passengers, and about 65 per cent of the usage of Sydney Trains’ passenger services relates to travel to and from work. Sydney Trains also facilitates significant freight rail usage, including moving grain, containers, and coal for export and for use in power stations.

  1. NSW Trains operates extensive regional rail and coach services throughout regional NSW and into Victoria, South Australia, Queensland and the ACT.

  1. The 2022 Agreement covers all employees of Sydney Trains and NSW Trains. Its nominal expiry date was 1 May 2024. On 31 May 2024, Sydney Trains and NSW Trains issued a notice of employee representational rights to all employees under s 173(1) of the FW Act. This initiated bargaining for the proposed agreement. In accordance with past practice, Sydney Trains and NSW Trains bargained with the group of unions known as the Combined Rail Unions (CRU). The CRU is convened by Unions NSW and consists of the RTBU, the Australian Workers’ Union (AWU), the Construction, Forestry and Maritime Employees Union (CFMEU), the APESMA, the ASU, the AMWU and the CEPU (also referred to as the ‘ETU’). The RTBU’s membership extends to about 60 per cent of the workforce of Sydney Trains and NSW Trains, and the RTBU is therefore the most significant union in the CRU.

  1. The CRU provided Sydney Trains and NSW Trains with a log of claims for the proposed agreement on 15 April 2024, and this was updated to include further claims by the CEPU on 28 August 2024. The log contained a large number of matters and, most significantly, included a claim for wage increases totalling 32 per cent over a period of four years.

  1. Bargaining has occurred at a number of levels. Firstly, there has been ‘big room’ bargaining, so called because the CRU representation includes a large number of workplace delegates such that participants at meetings totalled approximately 90 in number. About 30 of these meetings have occurred since June 2024. Secondly, there have been smaller meetings involving representatives of the CRU, Sydney Trains and NSW Trains, and the NSW Government including at least 26 working groups involving representatives of each. Third, the CRU has had direct meetings with the Premier, the Treasurer and the Minister for Transport. Fourth, there were two weeks of daily ‘mutual gains’ meetings in late November to early December 2024 involving representatives of the CRU and the NSW Treasury to identify potential savings that could be used to fund claims made by the CRU. Finally, there has been bargaining occurring under the auspices of conciliation proceedings conducted by the Commission.

  1. Sydney Trains and NSW Trains made two wages offers in the course of bargaining during 2024. On 2 July 2024, they proposed wage increases totalling 9.5 per cent over three years plus superannuation increases. On 15 November 2024, they made a further offer which improved on the 2 July 2024 offer and involved total wage increases of 10 per cent over three years as well as superannuation increases.

  1. Bargaining initially proceeded on the basis that the proposed agreement would be a single-enterprise agreement. However, on 6 December 2024, the Commission granted an application by the RTBU for a single interest employer authorisation under s 249 of the FW Act[7] and from that date, the parties have been bargaining on the basis that the proposed agreement will be a single interest employer agreement.

  1. The RTBU obtained a protected action ballot order (PABO) on 1 August 2024[8] and a further PABO on 11 December 2024[9] following the making of the single interest employer authorisation. In both cases, the members of the RTBU subsequently approved by ballot the taking of industrial action. PABOs have also been obtained by the ETU, the AMWU, the APESMA and the ASU, and in each case industrial action has been approved by ballot of the relevant union’s members. Protected industrial action commenced in September 2024 and, apart from some short intervals, has been undertaken continuously by members of the RTBU and the ETU since early October 2024. The interruptions to protected industrial action have occurred as follows:

·On 8 December 2024, the applicants applied to the Federal Court of Australia for an injunction restraining the unions from engaging in protected industrial action previously authorised by protected action ballots, on the basis that the single interest employer authorisation established a new notification time under s 173(2)(a).[10] The applicants were successful in obtaining an interlocutory injunction against the taking of previously-notified industrial action on the same date. The substantive application was heard on 16 December 2024 and, on 19 December 2024, the Court dismissed the application and vacated the interlocutory injunction.[11] In the interim, as noted above, the unions, bar the AWU and the CFMEU, had obtained new PABOs, which led to the authorisation of protected action by members on 16 and 17 December 2024 and notifications of industrial action to commence on 28 December 2024. However, the RTBU and the CEPU announced the immediate resumption of protected industrial action after the Court’s decision.

·On 19 December 2024, after the announced resumption of protected industrial action intended to occur over the Christmas/New Year period, Sydney Trains and NSW Trains applied to the Commission for an order under s 424 of the FW Act suspending protected action. This was listed for hearing on 24 December 2024, but the application was discontinued after the unions withdrew or suspended 103 forms of industrial action and gave an undertaking not to organise new industrial action that posed a threat to services on New Year’s Eve.

·On 16 January 2025, Sydney Trains and NSW Trains filed a further application under s 424 for the suspension or termination of protected industrial action. This application was listed for hearing before a Full Bench on 24 January 2025. The application was discontinued on that day after the RTBU, the AMWU, the APESMA, the ASU and the CEPU withdrew all current notices of protected industrial action (except for ‘campaign bans’ and ‘solidarity bans’) and gave undertakings about future industrial action. However, immediately after the discontinuance, the CEPU notified stoppages of work to occur on 4 and 5 February 2025.

  1. On 13 December 2024, Sydney Trains and NSW Trains filed an application under s 240 of the FW Act for the Commission to deal with its bargaining dispute with the CRU. As a consequence, conciliation conferences conducted by the Commission occurred on 17–18 December 2024, 10 January 2025 and 13 January 2025. On 14 January 2025, arising from the conference of the previous day, Sydney Trains and NSW Trains made an open offer to the CRU and employees for a total 15 per cent wage increase over four years, a new $1,310 per annum all-purpose training allowance and further changes to a range of conditions beneficial to employees. From the applicants’ perspective, the beneficial changes to conditions needed to be funded through productivity improvements to arise from modifications to existing provisions concerning risk assessments and consultation and a new provision concerning the introduction and implementation of technological change (change provisions). The CRU did not accept this offer and, on 20 January 2025 at a further conference in the Commission, made a ‘without prejudice’ counter-offer which was not accepted by Sydney Trains and NSW Trains.

  1. On 2 February 2025, the RTBU notified Sydney Trains and NSW Trains pursuant to s 414 of the FW Act of the following work ban (which had been approved by RTBU members following the 11 December 2024 PABO):

A limitation on the manner in which work is performed in the form of a restriction on the maximum speed Train Crew will operate trains being 23km/h less than the posted speed limit on sections of track that are 80km/h or higher, if fares have not been reimbursed.

For the purposes of this notice ‘fares have not been reimbursed’ if by 12:01 am on any given day the NSW Government has not committed to reimbursing all fares charged to passengers for using Sydney Trains or NSW Trains services in the period of 13-17 January 2025 inclusive.[12]

  1. The notice indicated that the ban (go-slow action) would commence on 12 February 2025 and remain in place for a period of two weeks (that is, until 26 February 2025). Arising from continuing discussion between the CRU, Sydney Trains and NSW Trains, and the NSW Government, the RTBU agreed to postpone the implementation of this ban until 14 February 2025 (although we note that this understanding would not have removed the protection upon any implementation of the ban by any RTBU member from the notified date). A conciliation conference that was to have occurred in the Commission on 3 February 2025 was adjourned on request of the CRU, and by agreement the next conference in the Commission was listed for 17 February 2025.

  1. On 5 February 2025, Sydney Trains issued a notice to employees under s 471(4)(c) of the FW Act. The notice referred to the go-slow action and relevantly stated:

In accordance with section 471(4)(c) of the Fair Work Act, you are hereby notified that:

1.if you engage in the above partial work ban, the Rail Agencies refuse to accept the performance of any work by you, until you are prepared to perform all of your normal duties; and

2.because of the ban, you will not be entitled to any payments for the industrial action period.

The industrial action period is the later [of]:

i.the start of the first day on which you implemented the partial work ban; or

ii.the start of the next day, after the day on which this notice is given, on which you perform work; and

iii.ending at the end of the day on which the ban ceases.

This notice is issued today, 7 February 2025.

In accordance with Regulation 3.23 of the Fair Work Regulations 2009, the notice will take effect from the later of:

i.the start of the first day of the partial work ban; and

ii.the start of the first day after the day on which the notice is given to you, if you perform work on that day.

The notice will cease to have effect at the end of the day on which the partial work ban ceases.[13]

  1. This was not the first time Sydney Trains had issued s 471(4)(c) notices. This had previously occurred on 22 December 2024 and again on 15 January 2025 in response to partial work bans which had been notified at those times.

  1. There is evidence that around this time if not earlier, some dissension began to arise about the CRU’s bargaining strategy amongst the unions’ membership with a more radical approach being urged. One group called the ‘Combined Rail Workers Action Group’ issued the following communication calling for strike action:

We don’t need more negotiations with Sydney Trains! Strike action can win!

All CRU rail workers need to strike alongside ETU! Rally 10am Hyde Park North, march to Parliament House.

It is fantastic that the ETU is striking a full 8hr day on Wednesday 12th of Feb, the first for the ETU in 23 years! All CRU workers should be joining them to fight for; a real pay increase, to keep safety clause 35a and scrap the technology clause which will introduce driverless trains and remote switching of high voltage (currently done no where else in the country).

Instead the RTBU is again stuck in Fair Work conciliation meetings or hearings about good faith bargaining! The RTBU leadership has ridiculously told Fair Work that there will be no further strike action.

Our fight for a real pay increase has been derailed over and over again by the courts, government and threats of arbitration using anti-strike laws. Sydney Trains and the former Transport Minister Jo Haylen, have been desperately trying ways to impose their wage-cutting agenda on all rail workers.

While Jo Haylen was using government chauffeurs to attend winery lunches and ferry her children to sporting events, she was lecturing rail workers they should cop a real wage cut.

We should be escalating our industrial action!

Sydney Trains’ latest offer is an insult. The idea of giving up guards on the New Intercity Fleet is completely unacceptable. The “offer”, of 14 per cent pay and 1 per cent super over 4 years, will not make up for what we have lost to inflation in previous years. It will be a real wage cut!

The NSW Labor government can afford to pay. They told the Daily Telegraph it would cost them $2 billion to pay the union’s full claim. But they had no trouble affording the Metro which blew out to $20 billion, and another $17 billion on Westconnex.

We don’t need more negotiations with Sydney trains! Strike action can win!

For almost a year, RTBU leadership has ducked and weaved, imposing and then lifting bans to please the courts or when management docked or threatens to dock pay of workers participating in PIA using s471(4)(c) of Fair Work Act.

The strategy has meant the campaign has lost momentum. Workers have been divided, and members of different unions are taking individual actions rather than fighting together.

We can’t let the scare of a fine stop our fight for wage justice!

Nurses and teachers have faced down ‘no strike’ orders from the state commission. The CFMEU has also successful defied Fair Work orders not to strike.

More than ever we need united and determined action, in defiance of the Fair Work Commission if necessary, and bring the fight against the government to a head. Our action can create a crisis that Chris Minns and the interim transport minister John Graham can’t ignore.

An all-out strike can win!

Nurses are still fighting for a one year increase of 15% and have called a rally next Thursday 13th of Feb at Parliament House the day after the ETU strike. A win for the rail workers will be a win for every worker suffering as their living standards drop with the cost of living crisis.

Instead of RTBU giving up all of our PIA actions in the courts, we should be walking off the job on Wednesday, alongside the ETU, with the rest of the CRU, calling for a mass meeting to escalate our campaign![14]

  1. There were further negotiations on 12 and 13 February 2025. There was a contest in the evidence as to the extent of progress that was made during these negotiations. Ms Abbas’ evidence was that it did not appear to her that the parties were close to an agreement and there remained a number of outstanding issues, although she did accept that there was broad agreement as to the ‘funding envelope’ for wages.[15] Mr Warnes’ evidence was that the discussions on 12 and 13 February 2025 involved himself and representatives of the other unions, and took place with an official from the NSW Treasury present and, on the 13th, with Josh Murray, the Secretary for Transport. He said that there was an agreement in principle for a three-year agreement with a 4 per cent wage increase in the first year (with this increase also to be back-paid to May 2024) and a 5 per cent increase in the second year. There had also been agreement in principle as to the enhanced conditions and new allowance referred to in Sydney Trains and NSW Trains’ open offer of 14 January 2025, and a ‘landing’ had been reached as to the change provisions.[16] The only major issue that remained was the wage increase for the third year of the new agreement: 3.5 per cent had been offered but, from the unions’ perspective, this was still too low. Nonetheless, from Mr Warnes’ perspective, they were ‘within a whisker’ of reaching an agreement.[17]

  1. We prefer Mr Warnes’ evidence, since he was present at all the discussions, whilst Ms Abbas was not present at all of them. Moreover, Mr Warnes’ evidence is consistent with correspondence sent by lawyers acting for Sydney Trains and NSW Trains to the presiding member’s chambers at about 11:30 am on 13 February 2025. This correspondence advised that the parties were ‘extremely close to an agreement’ and asked for a conference to be listed to assist in ‘closing the matter’.[18] We therefore find that, by the middle of the day on 13 February 2025, the parties had reached an agreement in-principle about all substantive matters except the quantum of the wage increase in the third year of the proposed agreement.

  1. The bargaining process was derailed when, later the same day, the CRU advanced a claim in respect of a ‘sign-on’ bonus of $4,500 to be paid to all employees. From the perspective of Sydney Trains and NSW Trains, this was an entirely new claim which had never been raised before and did not form part of the CRU’s log of claims. From the CRU’s perspective, the sign‑on bonus was an existing ‘entitlement’ under clause 11.6 of the 2022 Agreement and, in the absence of any indication to the contrary, was implicitly agreed to be retained in the proposed agreement. The CRU sought to trade off this ‘entitlement’ for a higher wage increase in the third year of the proposed agreement. This caused the negotiations to collapse, although the evidence did not make it clear precisely how this happened. Mr Warnes’ evidence was simply that ‘[t]he discussions ended with no future date set for discussions or bargaining meetings’.[19]

  1. There appears to have been an immediate reversion to the position that the previously-notified go-slow action would commence the following day and that, consequently, the s 471(4)(c) notices would be enlivened. At this time, the RTBU repeatedly characterised the s 471(4)(c) notices as ‘lockout notices’ in its communications to members and the public. For example, on the evening of 13 February 2025, Mr Warnes sent the following communication to the RTBU’s members under the heading ‘Negotiations fall over at the final hurdle’:

Unfortunately, tonight the negotiations with the Government failed to achieve an agreement.

We were extremely close to getting an agreement, but Transport for NSW once again decided to stick its nose in and seek to remove a further clause from the enterprise agreement. This time it was the clause achieved last agreement to give a $4,500 payment at the start of each new agreement.

At no time was this claim by Transport raised during negotiations, or discussed it was simply assumed that they could remove it without asking us.

This means that the go-slow action starts again tomorrow at 0001hrs, as do the associated s.471 lockout notices. The effect of the s.471 notices is to lock[ ]out members from their employment.

Some key facts about the s.471 lockout notice:

1.You don’t have to tell anyone of your intentions at any time – silence is golden.

2.You can simply not go to work.

3.You don’t have to tell anyone you are coming back the next day, you just have to turn up.

4.You will not be paid for the entire shift that you either don’t show up for, or enforce the go-slow. If you are found to have been enforcing the go-slow, you may lose your full shift of pay.

5.If you choose to apply a ban, or don’t show up, you only lose that shift’s pay, not the full 2 week period.

We asked Transport for NSW on multiple occasions to withdraw its lockout notices and just observe the go-slow (an action with minimal disruption). However, it refused to do so.[20]

  1. Similarly, Mr Warnes said in a radio interview early on 14 February 2025:

… the employer last Friday issued 5000 train crew workers with lockout notices. Um, those lockout notices were meant to take effect on Wednesday. The government postponed the activation of those lockout notices in an attempt to get a deal, which we all worked very hard over the course of the last couple of days to try and achieve. [Un]fortunately, when that fell over last night, we asked the government to rescind those lockout notices because of the uncertainty that may have created today, but that was unfortunately refused.[21]

  1. When it was put to him in the interview that there was no lockout he replied:

Well, I mean, they can say that, um, 5000 workers got lockout notices, so I think that’s a bit rich.[22]

  1. Mr Warnes went on in that interview to call on the NSW Government to ‘rescind those lockout notices… and allow our people to go back to work’.[23]

  1. The RTBU leadership denies encouraging or organising its members not to attend for work in response to the s 471(4)(c) notices, with its stated position being that it is a matter of choice for each individual. However, there is evidence of the organisation of non-attendance at work by RTBU members at the workplace level. In particular, on 13 February 2025, Mr Adam Doyle, a RTBU workplace representative at Eveleigh, sent a text message to RTBU members stating:

Due to the Government’s refusal to negotiate in good faith, the go slow is on tomorrow. You are under no obligation to inform management of your intentions.

If you can’t afford to take the hit to your pay you don’t have to show up to work at all.

You do not have to inform management or TCAC just don’t show up.

Let’s fuck the network up.[24]

  1. Mr Warnes’ evidence was that Mr Doyle was acting independently of the RTBU’s leadership.

  2. The evidence does not establish that the commencement of the go-slow action itself had a significant effect on Sydney Trains’ operations. Ms Abbas’ evidence was that it was not necessarily easy for Sydney Trains to detect the occurrence of this action since there may be a number of reasons why a train might be driven slower than the speed limit. She said that this difficulty was exacerbated by the additional ‘REM’ ban in place (a ban on entering Network Incident Notices into the Rail Emergency Management system for all reportable incidents), which meant that performance-related incidents and slow running would not be recorded.

  1. However, Sydney Trains’ operations have been significantly disrupted by the non-attendance at work by train drivers and guards. On 14 February 2025, some 652 train crew and guards who were rostered to work on 14 February 2025 failed to attend for work, of whom 320 called in sick and 332 gave no reason for their non-attendance (labelled in Sydney Trains’ record as ‘FNA’, an acronym for ‘Fail to Notify Absence’). This resulted in a position whereby Sydney Trains’ punctuality performance was only 13.9 per cent and that, by 1:00 pm, a total of 57 per cent of services had been cancelled with customer numbers down by at least 70 per cent.

  1. This position continued over the weekend of 15–16 February 2025. On 15 February 2025, 376 drivers and guards rostered to work were absent, of whom 226 called in sick and 150 gave no reason. On 16 February 2025 (to 2:00 pm), a total of 273 drivers and guards did not attend for rostered duty, of whom 176 called in sick and 97 gave no reason. Non-attendances significantly diminished over 17–19 February 2025, but there remained employees not attending for work without reason and elevated levels of sick leave.

  1. It is clear, having regard to the factual context we have earlier described and by comparison with the number of FNAs in periods where there has been no s 471(4)(c) notices in operation, that drivers and guards not attending for work without giving a reason are in fact refusing to attend for work pursuant to s 471(4A). The level of sick leave being taken is also at significantly elevated levels compared to periods when no s 471(4)(c) notice has been in operation, and we infer that this is likely the result of drivers and guards choosing to access paid sick leave rather than attending for work with the possibility of not being paid.

  1. Sydney Trains and NSW Trains lodged the application the subject of this decision, together with an application for an order to stop the occurrence and organisation of non-protected industrial action under s 418 of the FW Act, in the early afternoon of 14 February 2025. Both matters were the subject of an initial directions hearing before the presiding member from about 2:30 pm. The s 418 application was set down for hearing on the following day. In relation to the s 425 application, Sydney Trains and NSW Trains sought an interim order suspending protected industrial action until the hearing and determination of the matter. This was refused, but the presiding member went on to say:

… Ms DeBoos [for Sydney Trains and NSW Trains] has said, correctly, that there is a conciliation conference scheduled before Commissioner Matheson on Monday, that is, two days before the hearing, and I accept her submission that that conference is likely to be more productive and allow the attendance of critical personnel if industrial action is not occurring then or before that time. I consider that submission has considerable force. The parties have that opportunity before the hearing to engage constructively in conciliation and attempt, even at this late stage, to reach an agreement prior to the hearing. I would encourage the parties to engage to the fullest extent in that conciliation conference and take advantage of that last opportunity before the hearing to try to reach an agreement.

Therefore, it would be my recommendation that protected industrial action be suspended to allow that conference to occur for the reasons I have indicated. In the event that that recommendation is not accepted and the unions wish to continue to take advantage of their legal right to take protected industrial action prior to the hearing next Wednesday, Ms DeBoos, you can make an application for the conference on Monday to be vacated or adjourned to another date.[25]

  1. Deputy President Roberts heard the s 418 application, which centred on the contention that the elevated levels of sick leave constituted non-protected industrial action being organised by the RTBU, on 15 February 2025. On 16 February 2025, the Deputy President issued his decision.[26] He dismissed the application on the basis that he was not satisfied that industrial action was happening amongst the employees, or was threatened, impending or probable, or was being organised by the RTBU.

  1. On 16 February 2025, Sydney Trains and NSW Trains applied for the conference in the s 240 matter listed for 17 February 2025 to be vacated consistent with the statement made by the presiding member set out above. By email of the same date, the RTBU opposed this on the basis that it was not organising any ‘operationally relevant’ industrial action to occur on 17 February 2025, that there would be no disruption attributable to RTBU action at all (unless there was employer response action) and that the RTBU was presently encouraging members to attend for work.

  1. In the morning of 17 February 2025, the parties were advised that the conciliation conference was vacated.

  1. On 18 February 2025, the RTBU, the APESMA, the AMWU and the ASU sent Mr Murray a letter containing an open offer for resolution of the negotiations for the proposed agreement. This letter was said to re-communicate an offer made verbally on 13 February 2025 and in writing on the evening of 17 February 2025. This offer involved, in summary, the following elements:

(1)The incorporation of all conditions and entitlements agreed on during the course of negotiations, including on 12–13 February 2025, into the proposed agreement.

(2)The ‘sole unresolved matter’, being the one-off $4,500 payment, would be included in the proposed agreement as it stood in the 2022 Agreement, but would then be referred to the Commission after approval of the new agreement for arbitration determining whether ‘Transport’s interpretation of the purpose of the payment is correct’.

(3)Confirmation that Sydney Trains and the NSW Government would not seek to withdraw or alter previously agreed conditions.

(4)A commitment to suspension of all protected industrial action until a vote on the new agreement occurred (for which the RTBU would recommend a ‘yes’ vote).

  1. Ms Abbas’ evidence was that the above offer was not capable of acceptance because it did not contain any information or detail about the terms and conditions the unions were offering to agree to, Sydney Trains and NSW Trains did not agree to arbitrate the $4,500 payment, and the offer did not include the CEPU.

Consideration

Engagement in protected industrial action

  1. It was not in dispute, and we are satisfied, that protected industrial action for the proposed agreement is being engaged in. This protected industrial action includes the following:

·The go-slow action notified by the RTBU on 2 February 2025 to commence on 12 February 2025 and to continue until 11:59 pm on 26 February 2025 (although the extent of engagement in this form of action is unclear).

·The REM ban notified by the RTBU on 8 September 2024 to commence on 18 September 2024 and continue indefinitely.

·A ban on the service of alcohol on regional trains, which was notified on 2 February 2025 to commence on 12 February 2025 and continue indefinitely.

·‘Campaign bans’ in the nature of promoting the unions’ bargaining campaign while at work, notified on various dates in September 2024 and continuing indefinitely.

·Non-attendances at work in response to the s 471(4)(c) notices relating to the go‑slow action notified on 2 February 2025, constituting protected industrial action under s 471(4A).

  1. The prerequisite for the operation of s 425 is satisfied. It is therefore necessary for us, in accordance with the principles earlier stated, to make an evaluative judgment about whether the suspension of industrial action is appropriate. In undertaking this consideration, it is necessary for us to state our conclusions as to the matters required to be taken into account under the section.

Section 425(1)(a) – would suspension be beneficial to the bargaining representatives for the proposed agreement by assisting in resolving the matters at issue?

  1. Notwithstanding that the unions strongly oppose any order for the suspension of industrial action, we consider that such a suspension would be beneficial to the bargaining representatives because it would assist in resolving the matters at issue. In this respect, a focus on the events of last week is necessary. As we have found, the bargaining representatives appear to have been close to reaching an agreement in principle last Thursday, 13 February 2025, with the issue of the sign-on bonus having arisen as a last-minute impediment. A mature approach would have been for the parties to have worked through this problem with the assistance of the Commission at the conference that was scheduled to occur on Monday, 17 February 2025. It would have been a simple matter for the RTBU to defer the commencement of the go-slow action — which the RTBU insists would not of itself had any significant disruptive effect — to allow that conference to occur. That in turn would have rendered the s 471(4)(c) notices of no effect and obviated any further protected industrial action by way of non-attendance at work pursuant to s 471(4A).

  1. Instead, the RTBU’s communication to members on the evening of 13 February 2025 (set out at [36] above) treated the impediment which had arisen as automatically justifying the commencement of the go-slow action the following morning, with the consequence that the s 471(4)(c) notices would become operative. The same communication, as we discuss further below, falsely characterised the s 471(4)(c) notices as ‘lockout’ notices and, on one view, provoked non-attendance at work in response thereto. It is not clear what was intended to be achieved by this in terms of reaching a bargaining outcome and, in retrospect, it is clear that nothing was in fact achieved. The availability of, and engagement in, further protected industrial action had the consequence that there have been no further substantive negotiations and the conference in this Commission scheduled for 17 February 2025 was cancelled in the circumstances earlier described. Sydney Trains has had to concentrate on managing the consequences of the protected industrial action, and the RTBU has had to deal with anger amongst its membership about the potential or actual loss of pay resulting from the operation of the s 471(4)(c) notices, as we discuss further below. The parties have engaged in mutual public recrimination, and both sides have come under significant pressure because of a public backlash against the disruption to train services and associated media attention upon this.

  1. In this context, we consider that a suspension would be beneficial to allow the parties to return to the position they had reached on 13 February 2025, namely agreement in principle on all major issues except that of the sign-on bonus (and the related issue of the wage increase in the third year of the proposed agreement). The suspension would allow the parties to ‘nail down’ the agreed matters and then to focus on the merits, rationale and affordability of the outstanding claim for a sign-on bonus free of these pressures. We note that this would essentially reflect the terms of the RTBU’s settlement offer of 18 February 2025 summarised in paragraph [50] above, apart from the RTBU’s proposal for the arbitration of the sign-on bonus issue — a matter to which we will return. We consider that this course would maximise the prospects of the bargaining representatives reaching an agreement.

Section 425(1)(b) – duration of the protected industrial action

  1. Protected industrial action has been taken in various forms for about five months. The unions submitted that the use of the definite article ‘the’ in s 425(1)(b) directed attention, not to protected industrial action generally, but to the specific types of protected industrial action currently being undertaken such as to enliven the operation of s 425. We doubt the correctness of this submission but we do not need to determine this because it makes no difference in that at least some of the forms of protected industrial action being engaged in commenced in September 2024.

  1. We accept that it may be inferred that the pressure caused by the protected industrial action over this five-month period has contributed to Sydney Trains and NSW Trains improving their wages offer over time and thus has narrowed the gap between the parties. However, we consider that the bargaining has reached a point whereby the continuance of protected industrial action is very unlikely to contribute to the finalisation of the dispute about the claimed sign-on bonus, having regard to evidence concerning NSW Government funding constraints upon Sydney Trains and NSW Trains. Indeed, the mutual recrimination engendered by events since 13 February 2025 suggest that further protected industrial action may result in the parties moving further apart. Thus, the duration of the protected industrial action, considered in the entire factual context, weighs in favour of the grant of a suspension.

Section 425(1)(c) – whether the suspension would be contrary to the public interest or inconsistent with the objects of the FW Act

  1. The reference to the public interest in s 425(1)(c) plainly invokes considerations wider than the direct interests of the parties. We consider that a suspension would not be contrary to the public interest and indeed would positively be in the public interest. In this respect, we take into account as bearing most significantly upon the public interest that a suspension would pause any disruption to train services in Sydney and regional NSW and would allow public confidence in the reliability of the rail network to be restored. In the absence of a suspension, we consider it likely that the protected industrial action will continue for a considerable period of time, and perhaps escalate, given the NSW Government’s publicly-stated immovable opposition to the payment of the sign-on bonus, with consequent disruption to train services. Certainly, Mr Warnes’ evidence indicated escalated industrial action would be on the cards:

… So, I mean, we have other types of industrial action available to us — obviously we’ve got four questions up into protected action ballot orders — but like any decision being made around industrial, we’d look at what we think is the best way to try and move the government. Whether that happens or not is another question entirely, but our experience is that we don’t get the government to come to the table unless there’s at least a threat of industrial action happening.

So does that mean that to the extent that the government would not move about the bonus issue, you would be looking at taking more serious and disruptive forms of industrial action?---Not necessarily. We haven’t got that far yet. We’re obviously dealing with the current issue, which is what we perceive is the 471 notices. At some point we will have to consider what the next step is, be that protected industrial action or something else, but we need to have a tool available to us to try and get the government back to the table. That’s a problem that we’ve faced throughout this entire bargaining, is getting the government or the trains entities to actually sit down with us at the table and discuss the issue.[27]

  1. For completeness, we do not accept the unions’ submission that the effects of protected industrial action on third parties is not relevant, or is not to be given significant weight, under s 425 because it is dealt with specifically in s 426 as part of a separate mechanism by which protected industrial action may be suspended. The concept of the public interest in s 425(1)(c) is a broad one about which the Commission must make a value judgment.[28] In the context of protected industrial action, it is apt to encompass the economic and community effects of that action. In addition or alternatively, s 425(1)(d) assigns to the Commission a broad judgment as to what matters may be considered relevant to its judgment as to the appropriateness of the suspension of protected industrial action. Neither provision is, in our view, to be read down by reference to the separate criteria for suspension for which s 426 provides.

  1. We do not consider that a suspension would be inconsistent with that part of the object of the FW Act in s 3(f), which concerns ‘achieving productivity and fairness through an emphasis on enterprise-level collective bargaining underpinned by simple good faith bargaining obligations and clear rules governing industrial action’. The purpose of the suspension remains to assist the parties to make an enterprise agreement covering Sydney Trains and NSW Trains, and we would understand the ‘clear rules governing industrial action’ to include the temporary deprivation of the right to take protected action by way of a suspension under s 425. In terms of the specific enterprise bargaining objects in s 171 of the FW Act, we likewise consider that a suspension would not be contrary to those objects since we consider it would improve the prospects of an enterprise agreement that ‘deliver[s] productivity benefits’[29] to be achieved.

Section 425(1)(d) – any other matters the Commission considers relevant

  1. The other matter which we consider relevant is that the views of some RTBU members appear to have been inflamed by adverse publicity about the protected industrial action, the s 471(4)(c) notices, and the false characterisation of these by the RTBU as lockout notices.

  1. The witness statements made by Mr Reed-Joyce, Mr Fagir, Ms Bonelli and Ms Mullally illustrate the effect of adverse media reports concerning the industrial action being undertaken. For example, Mr Reed-Joyce said in his witness statement:

I have not received a pay increase since May 2023. Yet, while dealing with the financial strain of rising living costs, I see the Premier vilifying my colleagues and me in the media, with public discourse portraying us as greedy and inconsiderate whilst his Ministers scoot between holiday houses. The rhetoric used by the government has fuelled hostility toward railway workers, making it unsafe for many of us simply to do our jobs.[30]

  1. Mr Fagir similarly stated:

… when I look at the SMH I see the Premier vilifying me and my co-workers, and see the comments full of people calling me greedy and inconsiderate.

It has been months now of the NSW government refusing to genuinely negotiate, using mouth pieces in the media to slander us in a way that makes all railway staff genuinely unsafe as a result of the anger resulting from their rhetoric being directed towards us. While publicly stating their desire to negotiate and reach an agreement, behind closed doors it has been the exact opposite.
. . .
Even as recently as today, Chris Minns has been in the media blaming railworkers for disruptions caused by the Sydney and NSW Trains’ own s 471 notices, mischaracterising it as ‘completely outrageous industrial blackmail’. He has made repeated references to a ‘blank cheque’ when that’s not what we’re asking for, we’re asking for fairness. By suggesting we’re after a blank cheque he’s deliberately creating a narrative in the public’s mind that this is driven by greed, rather than a fair deal for employees in the highest cost of living city in the country.

In the same interview he’s made clear he won’t bargain with us, he’ll look for every opportunity to prevent railworkers from taking lawful industrial action and depriving us of any bargaining power.[31]

  1. Ms Bonelli conveyed the views of RTBU members she had canvassed as follows:

Numerous members cited prior goodwill gestures, such as the suspension of industrial action, which were met with inaction, media misinformation, and statements that misrepresented the union’s position, leading to increased risk for staff. One member stated, ‘There’s no chance that removing action will make them more likely to start bargaining fairly and in good faith. We’ve withdrawn actions repeatedly only for them to not turn up, not engage, and to direct lies to the media that place staff at risk of real harm.’

A widespread sentiment of frustration and disillusionment exists among members regarding the Government’s handling of negotiations. A worker stated, ‘I’ve never felt more disillusioned or disheartened by our alleged leadership. I don’t have any faith that they have any respect for us as people, let alone as employees.’[32]

  1. Protected industrial action is a legitimate bargaining tool. Indeed, the unions submitted that an order under s 425 would ‘destroy the sole source of industrial leverage’ available to the workforce. However, when bargaining collapsed on 13 February 2025 the resort to further protected industrial action impeded proper bargaining between the bargaining representatives in the already-inflamed environment. As we have earlier found, the disruption to the Sydney Trains network on 14 February 2025 and the following weekend was the result of RTBU members not attending for work in response to the s 471(4)(c) notices. The RTBU’s position was to blame this on a concern on the part of employees that they would not be paid if they attended for work. However, we consider that the characterisation of these notices by the RTBU as constituting ‘lockout’ notices was a significant factor in aggravating the degree of non-attendance at work. This characterisation was plainly false. A ‘lockout’ is defined in s 19(3) of the FW Act as meaning conduct by an employer that ‘prevents the employees from performing work under their contracts of employment without terminating those contracts’. This is consistent with the ordinary meaning of ‘lockout’, which refers to the employer preventing employees from attending work and performing and being paid for their normal duties. A notice under s 471(4)(c) does not have that effect. Any employee subject to such a notice is entitled to attend for work, perform their contracted duties and be paid in full. Mr Warnes’ attempted defence of the RTBU’s ‘lockout’ characterisation in his oral evidence was not credible.

  1. Mr Warnes denied that the RTBU organised the non-attendances which occurred on 14 February 2025 and the days following. There is no direct evidence that the officials of the RTBU organised what occurred, notwithstanding that their misleading communications (particularly the communication to members set out at [36] above) inflamed the situation and, on one view, provoked non-attendance. However, Mr Doyle’s communication set out at [40] above went a step further and may be characterised as amounting to organising disruption of the Sydney Trains network. Mr Warnes’ evidence that Mr Doyle acted independently of the RTBU’s leadership is indicates that the RTBU is not fully in control of the industrial conduct of its membership. Further indications of this are that Mr Warnes has stated publicly, and in his evidence, that the RTBU cannot control what action its members may take in response to the s 471(4)(c) notices. The RTBU is a bargaining representative and must meet the good faith bargaining requirements set out in s 228 of the FW Act. Mr Doyle, and other ‘independent’ actors are not bargaining representatives. The fact that RTBU members were engaging in protected industrial action facilitated the disruptive actions referred to above. Similarly, we note that the communication issued by the ‘Combined Rail Workers Action Group’ is demonstrative of a desire of some members to take a more radical approach, and we also note that the evidence of Mr Fagir and Mr Reed-Joyce hints at dissatisfaction with the current course of bargaining by the RTBU. For example, Mr Fagir said in his witness statement:

If the industrial action is suspended, my resentment toward Trains and the government will increase again. I will ask the union to go back to the drawing board and ask for a set of conditions which I believe are fair, which would be significantly better for workers than the proposals currently being exchanged. I will not vote in favour of any agreement which provides for a 4% or 5% wage increase. I will encourage my colleagues to do the same, and will advocate for the workforce and the union to double down in the fight.[33]

(underlining added)

  1. We consider that a cooling off period achieved by a suspension would reduce ongoing adverse media publicity and render the s 471(4)(c) notices redundant. This would allow the pressure on employees to subside and provide the RTBU leadership the opportunity to re-establish a greater degree of control over events.

  1. Finally, there were two matters raised by the parties which we do not consider to be of significant relevance:

(1)The applicants sought to place significant weight on an application made by the RTBU on 4 February 2025 for the single interest bargaining authorisation to be varied to add the two Transdev entities operating light rail services in Sydney as justifying a suspension. The strategic purpose of this application is obscure but, having regard to Mr Warnes’ evidence that this application would likely fall by the wayside if an agreement were reached with Sydney Trains and NSW Trains, we do not consider that this is a matter of particular relevance.

(2)The unions initially suggested in their case that the decision of Sydney Trains to issue the s 471(4)(c) notices had been a step taken to ‘engineer’ a situation justifying the suspension of protected industrial action. There was no evidence of this, and we therefore reject this as being a matter of relevance.

Conclusion re suspension

  1. The conclusions we have reached in respect of each of the matters falling for consideration under s 425(1) all favour the grant of a suspension. For the reasons stated, we consider that a suspension of protected industrial action being engaged in is appropriate. We are therefore required by s 425(1) to make a suspension order.

Period of the suspension

  1. We reject the submission of Sydney Trains and NSW Trains that the suspension should apply until 6 September 2025, being the earliest date they can apply for an intractable bargaining declaration to terminate all protected industrial action and proceed to arbitration.[34] The purpose of a suspension under s 425 is to achieve a cooling off period in order to enhance the prospects of an enterprise agreement being reached, not to operate as a de facto termination of bargaining. In any event, we do not consider bargaining to be intractable.

  1. However, we consider that a relatively lengthy period of suspension is warranted. The evidence demonstrates that there have been previous instances of the voluntary suspension of protected industrial action for short periods, but this has not led to an agreement being reached, and protected industrial action has simply resumed at the end of each period. A longer period of suspension is, we consider, required to permit the parties to ‘cool off’, lock in the matters that have been agreed in principle, resolve the disputed issue, draft a final agreement and have it put to a vote free from the pressures imposed upon them as a consequence of taking protected industrial action. Again, we note that the voluntary suspension of protected industrial action proposed in the 18 February 2025 ‘open offer’ made by the unions other than the CEPU is broadly consistent with this course of action.

  1. Having regard to these matters, we determine it is appropriate to suspend protected industrial action until 1 July 2025.

Next steps

  1. The Commission will convene a further conference of the bargaining representatives on Friday, 28 February 2025 in the extant s 240 proceedings.[35] This conference will be for the purpose, in the first instance, of confirming the matters agreed in principle on or by 13 February 2025 and reducing those to writing. The next step will then be to endeavour to resolve the outstanding issue concerning the claim for a sign-on bonus. We wish to emphasise that the suspension should not be seen as an opportunity to unwind the progress that had been made up to 13 February 2025, to renege on matters already agreed in principle or to advance new claims. Rather, the task is to complete the agreement which the parties had almost reached on 13 February 2025.

  1. As to the outstanding issue of the claim for a sign-on bonus, the parties may wish to consider whether one way to resolve this would be for the Commission to arbitrate the issue by consent under s 240(4) of the FW Act. By this we mean a full merits arbitration, not the type of arbitration proposed in the unions’ ‘open offer’ of 18 February 2025.

PRESIDENT

Appearances:

S Meehan SC, instructed by Kingston Reid, for Sydney Trains and NSW Trains.

O Fagir, counsel, with L Hamilton, counsel, for the Australian Rail, Tram and Bus Industry Union, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, the Australian Manufacturing Workers’ Union, the Association of Professional Engineers, Scientists and Managers, Australia and the Australian Municipal, Administrative, Clerical and Services Union.

J Emmett SC with E Young, counsel, instructed by the Crown Solicitor’s Office of New South Wales, for the Hon. Sophie Cotsis, New South Wales Minister for Industrial Relations.

Hearing details:

2025.

Sydney:

19 February.


[1]  AE519142.

[2]  PR784539.

[3]  [2025] FWCFB 38.

[4]  Re Dingjan; Ex parte Wagner [1995] HCA 16, 183 CLR 323, 362 (Gaudron J, Mason CJ and Deane J agreeing).

[5]  R v Hunt; Ex parte Sean Investments Pty Ltd [1979] HCA 32, 180 CLR 322, 329 (Mason J, Gibbs J agreeing); National Retail Association v Fair Work Commission [2014] FCAFC 118, 225 FCR 154 [56].

[6]  Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40, 162 CLR 24, 39–40 (Mason J).

[7]  [2024] FWC 3419; PR782180.

[8]  PR777756.

[9] PR782300.

[10] Sydney Trains v Australian Rail, Tram and Bus Industry Union [2024] FCA 1411.

[11] Sydney Trains v Australian Rail, Tram and Bus Industry Union (Separate Question) [2024] FCA 1479.

[12] Exhibit 7 (witness statement of Toby Warnes, 18 February 2025) 346.

[13] Exhibit 1 (witness statement of Fatima Abbas, 14 February 2025) 58–9.

[14] Exhibit 3 (witness statement of Fatima Abbas, 17 February 2025) 114–5.

[15] Transcript, 19 February 2025 PN412.

[16] Ibid PN483.

[17] Ibid PN481.

[18] Exhibit 12 (Bundle of emails concerning Commission proceedings) 1.

[19] Exhibit 7 (witness statement of Toby Warnes, 18 February 2025) [61].

[20] Exhibit 1 (witness statement of Fatima Abbas, 14 February 2025) 66.

[21] Ibid 60.

[22] Ibid.

[23] Ibid 62.

[24] Ibid [94].

[25] Transcript, 14 February 2025 PNs 131–132.

[26] [2025] FWC 462.

[27] Transcript, 19 February 2025 PNs 793–794.

[28] O'Sullivan v Farrer [1989] HCA 61, 168 CLR 210, 216 (Mason CJ, Brennan, Dawson and Gaudron JJ agreeing).

[29] Fair Work Act 2009 (Cth) s 171(a).

[30] Exhibit 9 (witness statement of Alex Reed-Joyce, 18 February 2025) [5].

[31] Exhibit 10 (witness statement of Elgak Fagir, 18 February 2025) [3]–[4], [7]–[8].

[32] Exhibit 8 (witness statement of Giovanna Bonelli, 18 February 2025) [14]–[15].

[33] Exhibit 10 (witness statement of Elgak Fagir, 18 February 2025) [9].

[34] 6 September 2025 is nine months after the single interest employer authorisation referred to in [25] was issued: Fair Work Act 2009 (Cth) s 235(6)(a).

[35] Matter B2024/1643.

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