Application by Sydney Trains and NSW Trains - [2025] FWCA 660

[2025] FWCFB 38

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 productivity trade-offs. However,…

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] FWCA 660
Decision Date: 19 FEBRUARY 2025

CaseChat Overview and Summary

Sydney Trains and NSW Trains applied to the Fair Work Commission (FWC) for an order to suspend protected industrial action related to bargaining for a proposed enterprise agreement. The application was made under section 243E of the Fair Work Act 2009. The Commission found that the proposed agreement had the potential to substantially improve the productivity, efficiency and profitability of Sydney Trains and NSW Trains and that the proposed agreement would have a positive impact on the broader Australian economy. The Commission found that the proposed agreement was in the national interest and that it was appropriate to suspend the protected industrial action until 1 July 2025.

The primary legal issue before the FWC was whether the proposed enterprise agreement had the potential to substantially improve the productivity, efficiency and profitability of the respondents and whether the proposed agreement was in the national interest. The FWC also considered whether it was appropriate to suspend the protected industrial action. The FWC found that the proposed agreement had the potential to substantially improve the productivity, efficiency and profitability of Sydney Trains and NSW Trains and that the proposed agreement was in the national interest. The FWC also found that it was appropriate to suspend the protected industrial action until 1 July 2025.

The FWC considered the economic and productivity benefits of the proposed agreement, including increased productivity, efficiency and profitability for Sydney Trains and NSW Trains. The FWC also considered the potential impact of the proposed agreement on the broader Australian economy, including the potential for job creation and economic growth. The FWC found that the proposed agreement had the potential to substantially improve the productivity, efficiency and profitability of Sydney Trains and NSW Trains and that the proposed agreement was in the national interest. The FWC also found that it was appropriate to suspend the protected industrial action until 1 July 2025 to allow for further negotiations and to ensure that the proposed agreement could be implemented without disruption to public transport services.

The FWC made an order suspending the protected industrial action until 1 July 2025. The order also required the parties to continue negotiations in good faith with a view to reaching agreement on the proposed enterprise agreement. The order was made under section 243E of the Fair Work Act 2009.

Orders