Application by Sydney Trains and NSW Trains

[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…