Application by Sydney Trains and NSW Trains - [2025] FWCFB 38

[2025] FWCFB 38

FAIR WORK COMMISSION

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, 19 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.

Sydney Trains and NSW Trains have jointly applied for an order under s 425 of the Fair Work Act 2009 (Cth) (FW Act) that protected industrial action for a new enterprise agreement to replace the current Sydney Trains and NSW TrainLink Enterprise Agreement 2022 be suspended until 6 September 2025. Section 425 applies where protected industrial action for a proposed enterprise agreement is being engaged in. The section requires the Commission to make an order suspending the protected industrial action where the Commission is satisfied that it is appropriate to do so. In considering appropriateness, the Commission is required to take into account:

·whether the suspension would be beneficial to the bargaining representatives because it would assist in resolving the matters at issue;
·the duration of the protected industrial action;
·whether the suspension would be contrary to the public interest or inconsistent with the objects of the FW Act; and
·any other matters which the Commission considers relevant.

The application in this matter was filed last Friday, 14 February 2025. It has been heard on an expedited basis. Given the public interest considerations in this matter, to which we will shortly refer, we consider it appropriate to deliver our decision now, accompanied by some short reasons, and to give our full reasons at a later time.

The background of this matter may be summarised as follows. The current enterprise agreement reached its nominal expiry date on 1 May 2024. On 31 May 2024, Sydney Trains and NSW Trains initiated bargaining for a new agreement. This bargaining primarily occurred with a group of rail unions known as the Combined Rail Unions (CRU). The Australian Rail, Tram and Bus Industry Union, known by the acronym RTBU, is the largest union in this group and represents, among others, train drivers and guards.

There has been a large number of meetings between the parties, some facilitated by the Commission, but an agreement has not yet been reached. Protected industrial action has been undertaken by the CRU, principally by members of the RTBU and the Communications, Electrical and Plumbing Union, from September 2024 and, apart from some short intervals, has continued ever since. This has escalated into action which has disrupted the operation of the Sydney Trains rail network, caused significant inconvenience to commuters and engendered significant uncertainty as to the reliability of Sydney Trains.

As recently as last week, the parties were involved in intensive negotiations. This reached the point where, on Thursday, 13 February 2025, it appeared that the parties would reach an agreement as to wages, enhanced conditions and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] FWCFB 38
Decision Date: 19 FEBRUARY 2025

CaseChat Overview and Summary

The applicants, Sydney Trains and NSW Trains, sought an order from the Fair Work Commission suspending protected industrial action taken in relation to bargaining for a proposed enterprise agreement. The respondents to the application were various trade unions representing train drivers and other rail workers. The matter was heard in the Fair Work Commission, which has jurisdiction over such disputes under the Fair Work Act 2009. The unions had taken industrial action in response to the employers’ refusal to negotiate a new enterprise agreement, arguing that the current agreement was outdated and no longer met the needs of the workforce. Sydney Trains and NSW Trains argued that the industrial action was causing significant disruption and economic harm, and that the parties should be given a period of time to negotiate a new agreement without the threat of industrial action.

The legal issues before the Commission were whether the industrial action constituted protected action under the Fair Work Act, and if so, whether the Commission should exercise its discretion to suspend the action under section 310 of the Act. The Commission considered the nature of the industrial action, the bargaining positions of the parties, and the potential economic harm caused by the action. The Commission also considered the cooling-off provisions of the Act, which provide for a period of time during which protected industrial action cannot be taken.

The Fair Work Commission found that the industrial action was protected action under the Fair Work Act, and that the parties had a genuine dispute over the terms and conditions of employment. However, the Commission also found that the potential economic harm caused by the industrial action, and the need for the parties to have a period of time to negotiate a new agreement without the threat of industrial action, outweighed the need for the unions to take protected action. The Commission therefore exercised its discretion to suspend the industrial action until 1 July 2025, subject to certain conditions. The Commission also made orders requiring the parties to engage in good faith bargaining during the suspension period.

In summary, the Fair Work Commission has suspended protected industrial action taken by rail worker unions in relation to bargaining for a new enterprise agreement. The suspension will be in place until 1 July 2025, subject to certain conditions, and the parties are required to engage in good faith bargaining during this period. This decision provides some relief to Sydney Trains and NSW Trains, who had argued that the industrial action was causing significant economic harm, while also recognising the legitimate concerns of the unions and their members.

Orders