Applications by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

Case •

[2025] FWCFB 117

•

13 JUNE 2025
[2025] FWCFB 117

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.229—Bargaining order
s.240A—Application for voting request order

Applications by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

(B2025/901, B2025/910)

Application by Sydney Trains and NSW Trains

(B2025/912)

JUSTICE HATCHER, PRESIDENT
VICE PRESIDENT GIBIAN
COMMISSIONER MATHESON

SYDNEY, 13 JUNE 2025

Applications by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia for bargaining orders under s 229 of the Fair Work Act 2009 (Cth) – Application by Sydney Trains under s 240A of the Act for a voting request order – Bargaining with respect to enterprise agreement to replace the Sydney Trains and NSW Trainlink Enterprise Agreement 2022 – Bargaining ongoing since May 2024 – Whether Sydney Trains/NSW Trains or Australian Rail, Tram and Bus Industry Union not meeting good faith bargaining requirements – Refusal by CEPU to agree to request being made for employees to approve proposed agreement – Whether refusal unreasonable in the circumstances – Whether making the request would not be consistent with or undermine good faith bargaining – Application for bargaining orders dismissed – Voting request order made.

Background

  1. Before the Commission are three applications. The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the ETU) has made two applications under s 229(1) of the Fair Work Act 2009 (Cth) (the Act) seeking bargaining orders against Sydney Trains and NSW Trains and the Australian Rail, Tram and Bus Industry Union (the RTBU). Sydney Trains and NSW Trains have applied under s 240A(1) of the Act for a voting request order permitting them to make a request under s 181(1) of the Act that employees approve a proposed multi-enterprise agreement by voting for it.

  1. Sydney Trains and NSW Trains are covered by a single enterprise agreement known as the Sydney Trains and NSW TrainLink Enterprise Agreement 2022 (the 2022 Agreement). Employees covered by the 2022 Agreement last received a pay increase on 1 May 2023 and the 2022 Agreement passed its nominal expiry date on 1 May 2024. Sydney Trains and NSW Trains have been engaged in bargaining for an enterprise agreement to replace the 2022 Agreement since 31 May 2024. Other bargaining representatives involved in the bargaining process include the RTBU, the ETU, the Australian Workers’ Union (the AWU), the Construction, Forestry and Maritime Employees Union (the CFMEU), the Association of Professional Engineers, Scientists and Managers, Australia (the APESMA), the Australian Municipal, Administrative, Clerical and Services Union (the ASU) and the Australian Manufacturing Workers’ Union (the AMWU). There are also a number of individual bargaining representatives.

  1. Sydney Trains and NSW Trains have historically bargained and continue to bargain with a group of unions known as the Combined Rail Unions (the CRU), which is convened by Unions NSW, as well as individual bargaining representatives. In this round of bargaining, the CRU initially comprised all seven unions who represent relevant employees of Sydney Trains and NSW Trains. On 20 February 2025, the ETU informed Sydney Trains and NSW Trains that it no longer formed part of the CRU. From that time on, the ETU has participated in bargaining as a separate bargaining representative.

  1. The procedural history of bargaining for the proposed agreement is dense and complex. A large number of bargaining meetings and conferences, both with and without the assistance of the Commission, have taken place. An earlier Full Bench helpfully provided the following description of the bargaining:[1]

[23] 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. Until December 2024, the bargaining had been conducted on the basis of a proposed single-enterprise agreement within the meaning of the Act. On 6 December 2024, the Fair Work Commission granted a single interest employer authorisation covering Sydney Trains and NSW Trains.[2] From that date, the parties have been bargaining for a single interest employer agreement, which is a form of multi-enterprise agreement.

  1. The bargaining has been contentious and eventful. Members of the various unions have participated in periods of protected industrial action after protected action ballot orders were granted by the Commission, as is their right. Sydney Trains and NSW Trains, the Minister for Industrial Relations in the New South Wales Government and a number of other interested persons have made applications to suspend or terminate protected industrial action under ss 423, 424, 425 and 426 of the Act. A number of applications have been made for the Commission to deal with bargaining disputes and to make bargaining orders.

  1. Ultimately, on 19 February 2025, the Commission made an order under s 425 of the Act suspending protected industrial action for the proposed enterprise agreement until 5:00 pm on 1 July 2025.[3] Since that time, the Commission, constituted by Commissioner Matheson, has conducted 17 conferences with the bargaining representatives in an endeavour to facilitate agreement being reached as to the terms and conditions of a new enterprise agreement. This process has been substantially successful in that, by the end of May 2025, the parties have reached an in-principle agreement as to the outcome with respect to wages (including in relation to backpay), and most of the conditions for the agreement.

  1. Over 29 and 30 May 2025, Sydney Trains and NSW Trains reached in-principle agreement on a proposed agreement with the CRU. The proposed agreement involves:

(a)4% x 4% x 4% wage increases over the next three years;

(b)backpay to 1 May 2024; and

(c)a package of conditions representing over 100 of the items claimed in the log of claims.

  1. On 30 May 2025, during conferences conducted by Commissioner Matheson, it emerged that a particular matter was a stumbling block to a finalisation of an outcome. That matter concerns a claim advanced by the ETU for a clause which would require, during the term of the new agreement, consideration to be given to whether certain categories of maintenance and engineering employees should be moved to Section 5 of the agreement. The apparent intention of the ETU is to ensure that all maintenance and engineering employees receive “like with like” wages and conditions. At this conference, the ETU proposed a compromise position which would have allowed that consideration to occur during the term of the replacement agreement which included provision for arbitration in the event agreement was not reached. Sydney Trains and NSW Trains proposed an alternative provision by which the issue could be addressed which simply required a consultation process to occur.

  1. The bargaining dispute was referred to a Full Bench on 30 May 2025. The Full Bench issued a recommendation in an attempt to break the deadlock.[4] The recommendation was in the following terms:

[6] The recommendation we make is that the bargaining representatives should agree to the following term being placed in the new agreement to resolve the outstanding issue:

Clause X: Consolidated Conditions for Section 5 and other appropriate Maintenance and Engineering Employees in Sections 2 And 3

1.The parties shall immediately commence discussions for the purposes of identifying any classifications of employees who currently fall within the coverage of Section 2 or Section 3 who should, in a future agreement to replace this Agreement, be covered by Section 5 of the new agreement and the terms and conditions to apply to Section 5 employees.

2.In the event that the parties are unable to reach agreement within a period of six months after this Agreement commences operation on which classifications of employees should be covered by Section 5 in the replacement agreement, any party may refer the dispute to the Fair Work Commission for conciliation and, if necessary, arbitration.

3.If a dispute is referred to the Commission and is unable to be resolved by conciliation, the Commission will arbitrate the question of which classifications of employees are appropriate to be covered by Section 5 in the replacement agreement.

4.The parties’ discussion pursuant to subclause 1 shall be conducted in good faith on the basis that the classifications of employees either agreed or (if necessary) determined by the Commission under subclause 3 will be covered by Section 5 of the replacement agreement.

[7] We further recommend that all the unions agree in writing to Sydney Trains and NSW Trains requesting their employees to vote upon a new enterprise agreement containing the above clause and all the other terms and conditions which have already been agreed in-principle.

  1. On 2 June 2025, Sydney Trains and NSW Trains and the CRU informed the Commission that they accepted the recommendation. At 4:37 pm that day, the ETU sent an email to the Commission requesting an extension of 24 hours in relation to notification regarding the recommendation. This was stated to be because Sydney Trains and NSW Trains and the ETU were continuing discussions in an effort to reach agreement. The extension was granted.

  1. On 3 June 2025, discussions continued with the ETU. The ETU indicated that it would accept the clause contained in the recommendation if some amendments were made to it. At 4:28 pm on 3 June 2025, the ETU wrote to the Commission and provided its proposed amendments to the clause proposed in the recommendation. The most recent version of the clause proposed by the ETU is as follows:

1.The parties shall immediately commence discussions for the purposes of identifying any classifications of employees who currently fall within the coverage of Section 2 or Section 3 who should will, in a future the immediate replacement agreement to replace this Agreement, be covered by Section 5 of the new agreement and the terms and conditions to apply to Section 5 employees.

2.In the event that the parties are unable to reach agreement within a period of six months after this Agreement commences operation on which classifications of employees should will be covered by Section 5 in the replacement agreement, any party may refer the dispute to the Fair Work Commission for conciliation and, if necessary, arbitration.

3.If a dispute is referred to the Commission and is unable to be resolved by conciliation, the Commission will arbitrate the question of which classifications of employees are appropriate to be covered by Section 5 in the replacement agreement.

4.The parties’ discussion pursuant to subclause 1 shall be conducted in good faith on the basis that the classifications of employees either agreed or (if necessary) determined by the Commission under subclause 3 will be covered by Section 5 of the replacement agreement.

  1. The ETU has never communicated that, even if its amended wording of this clause was accepted by the other bargaining representatives, it would accept paragraph [7] of the Full Bench’s recommendation, namely, that it would agree to Sydney Trains and NSW Trains requesting employees approve the proposed agreement by voting for it.

  1. On 4 June 2025 at 10:43 am, the RTBU sent an email to the Commission on behalf of the CRU stating that the amendments proposed by the ETU to the clause were not acceptable and that the CRU had requested that Sydney Trains and NSW Trains proceed to secure written agreement to put the proposed agreement to employees for a vote.

  1. Also at the meetings on 2 and 3 June 2025 involving ETU representatives, the NSW Minister for Transport and representatives of Sydney Trains and NSW Trains, the ETU raised a further concern in relation to the proposed agreement. In short, the concern arises from the proposed agreement to increases in the “Upper Limit of Competency Progression” for positions in the Track and Structures stream and for non-trade signal mechanics. This will have flow on consequences for the level of Work Group Leader and TL positions. The ETU indicated that it believes this will disrupt the relativities between trade and non-trade positions. Its primary position is that any rise in the classification of non-trade employees should be reflected with a commensurate rise for trade-based employees. This has been referred to as the “Trades Uplift Claim”.

  1. On 5 June 2025, the ETU filed an application for bargaining orders in relation to alleged breaches of the good faith bargaining requirements by Sydney Trains and NSW Trains. The substance of the alleged breach of the good faith bargaining requirements is an allegation that necessary information has not been provided to the ETU in relation to the Trades Uplift Claim. On 6 June 2025, the ETU filed a further application for bargaining orders against the RTBU. In short, the application alleges that the RTBU is dictating the bargaining position of Sydney Trains and NSW Trains, withheld information about its communications with Sydney Trains and NSW Trains, unreasonably refused to endorse the proposed agreement if it contained the amendments proposed by the ETU and used certain Federal Court proceedings as a means to influence the bargaining in a manner that was capricious, unfair and undermined the ETU’s ability to collectively bargain.

  1. It is appropriate to first address the two applications made by the ETU for bargaining orders against Sydney Trains and NSW Trains and the RTBU respectively. We will then turn to address the application by Sydney Trains and NSW Trains for a voting request order.

Bargaining order applications

  1. Part 2-4 of the Act is entitled “Enterprise Agreements”. The objects of Part 2-4 include, in s 171(b)(i), “to enable the FWC to facilitate good faith bargaining and the making of enterprise agreements, including through … making bargaining orders”. Section 229(1) provides that a bargaining representative for a proposed enterprise agreement may apply to the Commission for an order, known as a “bargaining order”, under s 230 in relation to the agreement. Section 229(2) provides that an application for a bargaining order must not be made in relation to a proposed multi‑enterprise agreement unless a supported bargaining authorisation or single interest employer authorisation is in operation in relation to the agreement. There is no issue that this requirement is met in the present matter.

  1. Section 230(1) of the Act provides that the Commission may make a bargaining order in relation to a proposed enterprise agreement if an application is made, the requirements of the section are met, and the Commission is satisfied that it is reasonable in all the circumstances to make the order. There is no dispute that both applications have been made in accordance with s 230(1)(a). As to the requirements of s 230(2), Sydney Trains and NSW Trains are specified in a single interest employer authorisation that is in operation in relation to the agreement for the purposes of s 230(2)(e).

  1. Both Sydney Trains and NSW Trains and the RTBU contend that the ETU did not comply with s 229(4) in that it did not give written notice setting out its concerns to the relevant bargaining representatives or give the relevant bargaining representatives a reasonable time within which to respond for the purposes of s 229(4)(b) and (c). Sydney Trains and NSW Trains and the RTBU submit that this presents a jurisdictional impediment to bargaining orders being made because the Commission cannot be satisfied that the ETU complied with the requirements in s 229(4) for the purposes of s 230(3)(b).

  1. In relation to Sydney Trains and NSW Trains, any notice of the concerns of the ETU that those parties were not meeting the good faith bargaining requirements were, at most, contained in two emails sent by Mr Savill to Mr Murray on 4 and 5 June 2025. Although in brief terms, those email messages conveyed a concern about the failure of Sydney Trains and NSW Trains to provide information in relation to costings. The email messages gave no notice that the ETU believed that Sydney Trains and NSW Trains have not met the good faith bargaining requirements by excluding it from meetings conducted with the CRU between 26 and 29 May 2025. In relation to the RTBU, a more formal notice of the concerns of the ETU was provided by letter dated 5 June 2025 addressed to the Director of Legal for the NSW Branch of the RTBU, Peter Matthews. The letter demanded a response from the RTBU by 5pm on 6 June 2025. The RTBU contends that the correspondence does not identify any specific failures by it to comply with the good faith bargaining requirements and did not provide reasonable time in which to respond to the apparent concerns of the ETU.

  1. Those submissions have considerable force. It is plain that the ETU did not give notice to Sydney Trains and NSW Trains of the full range of its concerns that those parties had not met the good faith bargaining requirements in that it did not communicate its concern that it had been excluded from the meetings held between 26 and 29 May 2025. The notice to the RTBU was more fulsome. However, the notice was still unclear and the period of time allowed for the RTBU to respond did not, in a practical sense, permit clarification of the concerns or any steps to be taken to address or remedy the concerns of the ETU. In those circumstances, we conclude that the ETU did not comply with the requirements in s 229(4).

  1. Section 230(3)(b) permits the Commission to make bargaining orders even in circumstances of non-compliance with s 229(4) if the Commission is satisfied it is appropriate to consider the application in all the circumstances under s 229(5). We accept the submission of the RTBU that s 229(4) is an important part of the statutory scheme and should not be treated as a mere technicality. We are nonetheless satisfied for the purposes of s 229(5) it is appropriate to consider the application of the ETU in the circumstances. The opportunity for the ETU to raise and communicate its concerns was abbreviated and coincided with intense negotiations being conducted to endeavour to resolve the bargaining. In particular, the ETU was operating under the time pressure imposed by the recommendation made by the Commission on 30 May 2025 and by the intention of Sydney Trains and NSW Trains, communicated on 5 June 2025, to request agreement for the proposed agreement to be put to a vote.

  1. The remaining requirements to be met are that the Commission must be satisfied that “one or more of the relevant bargaining representatives for the agreement have not met, or are not meeting, the good faith bargaining requirements” for the purposes of s 230(3)(a)(i) and that it is reasonable in all the circumstances to make the order for the purposes of s 230(1)(c). The “good faith bargaining requirements” are set out in s 228 and are as follows:

228Bargaining representatives must meet the good faith bargaining requirements

(1)The following are the good faith bargaining requirements that a bargaining representative for a proposed enterprise agreement must meet:

(a)attending, and participating in, meetings at reasonable times;

(b)disclosing relevant information (other than confidential or commercially sensitive information) in a timely manner;

(c)responding to proposals made by other bargaining representatives for the agreement in a timely manner;

(d)giving genuine consideration to the proposals of other bargaining representatives for the agreement, and giving reasons for the bargaining representative’s responses to those proposals;

(e)refraining from capricious or unfair conduct that undermines freedom of association or collective bargaining;

(f)recognising and bargaining with the other bargaining representatives for the agreement.

Note: See also section 255A (limitations relating to greenfields agreements).

(2)The good faith bargaining requirements do not require:

(a)a bargaining representative to make concessions during bargaining for the agreement; or

(b)a bargaining representative to reach agreement on the terms that are to be included in the agreement.

  1. In separate applications, the ETU seeks bargaining orders against Sydney Trains and NSW Trains and the RTBU. We will address the two applications in turn.

Application for bargaining orders with respect to Sydney Trains and NSW Trains

  1. The ETU alleges that Sydney Trains and NSW Trains are not meeting the good faith bargaining requirements in two respects: (1) that the ETU sought information about costings from the employers and that information has not been provided; and (2) the ETU had been excluded from negotiations at a key time in the process. We understand the first complaint to be an allegation that Sydney Trains and NSW Trains have not met, and are not meeting, the good faith bargaining requirements by failing to disclose relevant information for the purposes of s 228(1)(b). The second complaint is not referred to in the application itself. However, we understand it to constitute an allegation that Sydney Trains and NSW Trains have engaged in capricious or unfair conduct the undermines collective bargaining or failed to recognise and bargain with bargaining representatives for the purposes of ss 228(1)(d) and (e).

  1. The allegation that Sydney Trains and NSW Trains have failed to provide information sought by the ETU relates to the Trades Uplift Claim. Jesse Savill is an organiser for the ETU and provided a witness statement in the proceedings. Mr Savill says that, during the meeting with the Minister for Transport on 3 June 2025, the ETU requested costings of the Trades Uplift Claim to better understand the change position of Sydney Trains and how it compared to having the uplift applied to all trades classifications in Schedule 5C. He says that Josh Murray of Transport for NSW advised that he would need to seek advice. Mr Savill sent an email to Mr Murray on 4 June 2025 which reads:

Hi Josh,
Following yesterday’s discussions, you referenced costings related to the uplift of Trades based roles. These have not yet been provided.
Please provide by COB 05th June 2025, as I have concerns that the rail agencies have not shared all relevant information, which is impacting good faith bargaining.

  1. Mr Murray replied at 8:32 am on 5 June 2025 in the following terms:

Hi Jesse
Thanks for your email and apologies for the delay in responding.
When we spoke about this issue on Tuesday, I was not discussing individual costings – but referring to the Government’s acceptance of the overall funding package that has been allocated to fund this offer – and the difficulties in reaching that final funding after 12 months of bargaining and conciliation.
That package put forward in the Commission on Friday 30 May including a range of benefits and improved conditions for all employees, and while we understand your concerns – we sincerely hope the ETU can support this offer and agree to put it to a vote so employees can have their say.
The Rail Agencies will write to you further today with the specifics of our proposal.

  1. At 2:02 pm on 5 June 2025, Mr Savill responded to Mr Murray’s email and requested that Mr Murray provide the “full package” costings. His email reads:

Dear Josh,
I have just received an email from Shomice enclosing a proposed enterprise agreement. Is this what you meant by “proposal” in your email earlier today? It was unclear if you meant a proposal to resolve the ETU’s claims or a proposed agreement.
Given you now state that there was a “full package” costings, can you please provide that to me, alongside my previously requested costings for the ETU proposal, by 5:00pm today? As you’’d appreciate, we need this information to understand our bargaining position and where our members stand.
The lack of information to date has really affected the ETUs ability to bargain and we don’t believe the bargaining has occurred in good faith.

  1. Mr Murray replied at 3:52 pm in the following terms:

Jesse,
As I outlined below, the overall funding package of the Proposed Agreement sent to you has been allocated by Government through usual processes. I’m advised you’ve written to Treasurer on this matter also.
To clarify - the extra claims that you made are not included in that overall funding package. We will not provide the details of the total funding package and we do not think that would be necessary for you to consider the position of the ETU and its members.
I would direct you to the rail agencies for any specific questions on the EA content or wording.

  1. Mr Savill says that he discussed the matter with the Minister for Transport on 5 June 2025 and the Minister informed him that he could not progress any discussions about trades uplifts because the Treasury was not available. The ETU wrote to the Treasurer on 5 June 2025. The letter raised the issue of the Trades Uplift Claim and requested that the Treasurer agree to join the next round of discussions with the Transport Minister. The letter did not contain a further request for the provision of information.

  1. There is no doubt that a failure to provide relevant information that could assist a party in formulating proposals or claims in bargaining, or assessing the validity of the position taken by other bargaining representatives, might constitute a failure to comply with the good faith bargaining requirements.[5] Whether a bargaining representative is breaching of the good faith bargaining requirements in relation to the provision of information will depend on whether the information sought is “relevant information” A separate question may arise as to whether it is reasonable in all the circumstances to make an order in relation to the information sought.

  1. There is some lack of clarity in relation to the nature of the complaint made by the ETU. To the extent that it complains about the failure to provide costing of the Trade Uplift Claim, the complaint proceeds on a misunderstanding. The evidence indicates, particularly through the communications from Mr Murray, that no costings of the Trades Uplift Claim had been undertaken because that claim had not been advanced up to that point. Ms Abbas gave evidence that no such costing had been prepared. Ms Abbas accepted that costings could be prepared in relation to the Trades Uplift Claim by examining the workforce and payroll systems of Sydney Trains and NSW Trains.

  1. We do not accept that the failure of Sydney Trains and NSW Trains to undertake that exercise in response to the email messages from Mr Savill on 4 and 5 June 2025 involves a failure to “disclosed relevant information … in a timely manner”. Once the nature of the request made by Mr Savill was clarified in his email at 2.02PM on 5 June, Sydney Trains and NSW Trains were provided with less than three hours to undertake to provide costings of a new claim only notified at the earliest on 2 June 2025 which those parties had not agreed to and did not intend to agree to. We do not believe that the refusal of Sydney Trains and NSW Trains to do so can be said to involve a breach of the good faith bargaining requirements by failing to “disclosed relevant information … in a timely manner” for the purposes of s 228(1)(b).

  1. To the extent the complaint is that Sydney Trains and NSW Trains failed to provide the costings of the overall package, we do not believe that this was “relevant information” for the purposes of s 228(1)(b) in the circumstances. Fatima Abbas, Executive Director of People and Culture for Sydney Trains, stated in her witness statement:

The details of the total funding package have not been provided to the ETU because it is not relevant to the Trades Uplift Claim. The total funding package does not include any allowance for the Trades Uplift Claim as it was not sought by the ETU prior to the in-principle agreement being reached and as such does not form any part of the Proposed Agreement. Further, the details of the total funding package are cabinet-in-confidence.

  1. It unnecessary to address the claim that information in relation to the funding package is cabinet-in-confidence. That may raise issues of public interest immunity and whether the is confidential or commercially sensitive for the purposes of s 228(1)(b). It is sufficient to observe that terms of the proposed agreement are agreed, including by the ETU, other than the terms of the claim to address the Section 5 issue and the Trades Uplift Claim. As there are no costings of the Trades Uplift Claim included in the total funding package, the details of the total funding package could not assist the ETU in advancing or formulating the Trades Uplift Claim. In those circumstances, the details of the total funding package are not relevant information required to be disclosed. Sydney Trains and NSW Trains have not, and are not, failing to meet the good faith bargaining requirements in this respect.

  1. The second complaint is that the ETU was excluded from negotiations. Again, there is no doubt that excluding a bargaining representative from participating in meetings, or otherwise participating in the bargaining, can give rise to a failure to comply with the good faith bargaining requirements. That might be either because it involves a failure to attend or participate in meetings at reasonable times, capricious or unfair conduct that undermines freedom of association or collective bargaining or a failure to recognise and bargain with a bargaining representative.[6] However, we do not consider that an employer will necessarily have contravened the good faith bargaining requirements simply because the employer has engaged in separate meetings with different bargaining representatives. That will depend on an assessment of the whole of the circumstances.[7]

  1. All that occurred in this case is that some meetings were conducted by representatives of Sydney Trains and NSW Trains with representatives of the CRU without the presence of the ETU. That occurred after the ETU had decided to cease participation in the CRU grouping. It cannot be said as a result that Sydney Trains and NSW Trains failed to recognise or bargain with the ETU or engaged in capricious or unfair conduct that undermines freedom of association or collective bargaining.

  1. Mr Savill’s own evidence is that the chief of staff of the Minister for Transport, Paul Murphy, informed him on 29 May 2025 that these meetings were occurring. Mr Savill says he requested full details of the offer, which was then provided to the ETU on the morning on 30 May 2025. Sydney Trains and NSW Trains, the CRU and the ETU participated in a full day of conciliation involving Commissioner Matheson on 30 May 2025. Subsequently, ETU representatives met with representatives of Sydney Trains and NSW Trains on 2, 3, 4 and 5 June in discussions which included the Minister for Transport and the Transport Secretary. We are not satisfied that any breach of the good faith bargaining requirements occurred. The meetings conducted between 2 and 5 June 2025 involved representatives of the ETU to the exclusion of representatives of the other unions participating in the CRU grouping.

  1. Given that we are not satisfied that Sydney Trains and NSW Trains have not met, or are not meeting, the good faith bargaining requirements” for the purposes of s 230(3)(a)(i), there no basis for bargaining orders to be made. In any event, we are not satisfied it is reasonable in all the circumstances to make the orders sought by the ETU for the purposes of s 230(1)(c).

Application for bargaining orders with respect to the RTBU

  1. The application made by the ETU for bargaining orders against the RTBU refer to a number of grounds upon which it is alleged the RTBU have not met, or are not meeting, the good faith bargaining requirements. The written submissions filed by the ETU are confined to two complaints: (1) that the RTBU engaged in capricious or unfair conduct that undermines freedom of association or collective bargaining for the purposes of s 228(1)(d) by excluding the ETU from negotiations at key times; and (2) that the RTBU failed to give genuine consideration to the proposals of other bargaining representatives for the agreement, and give reasons for its responses to those proposals, for the purposes of s 228(1)(d) in its response to the amendments proposed by the ETU to the clause recommended by the Commission. The ETU’s application for bargaining orders against the RTBU assumes that the good faith bargaining requirements in s 228 of the Act apply as between different employee bargaining representatives. We harbour some doubt as to whether that is correct. However, given that we have concluded that the RTBU has not failed to comply with the good faith bargaining requirements, it is unnecessary to decide that question in this matter.

  1. As to the alleged exclusion of the ETU from meetings involving the CRU and representatives of Sydney Trains and NSW Trains, for the reasons given above, we do not believe that those events gave rise to any breach of the good faith bargaining requirements. Furthermore, there is no evidence that the RTBU sought out or instigated separate meetings between the CRU and Sydney Trains and NSW Trains. Mr Matthews gave evidence that at no time did the RTBU or any member of the CRU exclude or seek to exclude other union bargaining representatives and that he understood that the ETU was invited to the final drafting meetings. Mr Matthews accepted that he did not know for certain that the ETU had been invited to the meetings. He was not, however, challenged on the genuineness of his understanding or the intentions of the RTBU There is no basis upon which the Full bench could conclude that the RTBU engaged in any capricious or unfair conduct that undermines freedom of association or collective bargaining.

  1. As to the allegation that the RTBU failed to give genuine consideration to proposals by the ETU, and give reasons for its responses to those proposals, we are not satisfied that any breach of the good faith bargaining requirements occurred. The RTBU communicated to the Commission on 2 June 2025 that it accepted the recommendation of the Commission in relation to the resolution of the clause to address the Section 5 issue. On 5 June 2025, the RTBU communicated by email to the Commission that it did not agree to the amendments subsequently proposed by the ETU to the term recommended by the Commission. It is correct that the RTBU did not, in that correspondence, elaborate upon its reasons for that position. However, that does not mean it had not given genuine consideration to the proposal.

  1. Mr Matthews made a witness statement for the purposes of the proceedings and explained in detail the reasons of the RTBU for opposing the amendments sought by the ETU. The RTBU responded to the concerns letter sent by the ETU by correspondence dated 10 June 2025 which set out the position of the RTBU as follows:

We understand you are referring to the version of the Section 5 clause proposed in your correspondence to the Commission dated 3 June 2025. As previously advised, the RTBU does not support the inclusion of the amended clause in the proposed agreement and would not endorse any agreement containing it. We disagree with your characterisation of the amendments as minor. The proposal would significantly diminish the agency of all bargaining representatives and is, in our view, inherently undemocratic and only productive of disputation.

We also reject the assertion that the clause in no way affects the RTBU or its bargaining claims. The RTBU represents members across all classifications covered by the enterprise agreement, and it is not possible for a Section 5 to be created in a way that does not include RTBU members. More fundamentally, our membership is firmly opposed to any dilution of their collective industrial strength through the fragmentation of this agreement into multiple instruments. The ETU’s proposal is correctly understood as introducing a significant risk of bifurcation in future bargaining rounds, which we cannot support. Demarcation disputes only undermine collective union strength.

Our understanding is that the ETU’s proposed amendments are not agreed in principle with the Rail Agencies. In any case, we are concerned that any agreement containing such a clause would not succeed at ballot. This is not an issue that should delay employees’ access to the benefits they have bargained for any longer.

  1. An assessment of whether the RTBU complied with s 228(1)(d) does not require consideration of whether the Full Bench agrees with the reasons given by the RTBU for its position or even if they are reasonable or rational reasons. The subsection simply asks if genuine consideration was given to the proposals and the reasons communicated. The reasons of the RTBU were plainly communicated. We do not accept that those reasons support an inference that the RTBU did not give genuine consideration to the amendments to the recommendation of the Full Bench pressed by the ETU.

  1. We are not satisfied that the RTBU have not met, or are not meeting, the good faith bargaining requirements for the purposes of s 230(3)(a)(i) and, as a result, no bargaining orders could be made. In any event, we are not satisfied it is reasonable in all the circumstances to make the orders sought by the ETU for the purposes of s 230(1)(c). The orders seeking provision of an account of meetings and communications in which the RTBU has engaged with Sydney Trains and NSW Trains are not appropriate and would not advance the bargaining. There is no reason to order the RTBU to provide the ETU with the basis upon which it opposes the wording proposed by the ETU for the clause dealing with the Section 5 issue. The RTBU has done so already.

Application for a voting request order

  1. Sydney Trains and NSW Trains has application under s 240A(1) of the Act for what is known as a voting request order. The effect of such an order, if granted, is to permit Sydney Trains and NSW Trains to make a request under s 181(1) that relevant employees approve the proposed agreement by voting for it. The need to seek the order arises as a result of limitations that are imposed upon an employer requesting employees approve a multi-enterprise agreement. Relevantly, s 180A provides as follows:

180AAgreement of bargaining representatives that are employee organisations—proposed multi‑enterprise agreements

(1)This section applies to a proposed enterprise agreement that is a multi‑enterprise agreement.

(2)An employer must not request under subsection 181(1) that employees approve the enterprise agreement by voting for it unless:

(a)each bargaining representative for the enterprise agreement that is an employee organisation has provided the employer with written agreement to the making of the request; or

(b)a voting request order permits the employer to make the request.

Note: Voting request orders can be made where failure to provide written agreement to the making of a request is unreasonable in the circumstances (see section 240B).

  1. The condition in s 180A(2)(a) is not satisfied in this case because the ETU, unlike the other bargaining representatives that are employee organisations, has not provided Sydney Trains and NSW Trains with written agreement that a request may be made to employees to approve the proposed agreement. As such, Sydney Trains and NSW Trains can only request employees to approve the proposed agreement if a voting request order is made.

  1. Section 240A(1) allows an application for a voting request order to be made if each bargaining representative for the enterprise agreement that is an employee organisation has been asked to provide the employer with written agreement to the making of the request and one or more of the employee organisations has failed to provide the written agreement. Again, there is no issue that the ETU has been asked to provide its agreement for the making of the request and has failed to do so. The circumstances in which the Commission can make a voting request order are dealt with in s 240B which provides:

240BFWC must make voting request order

The FWC must, on application under subsection 240A(1), (2) or (4), make a voting request order permitting an employer to make a request if the FWC is satisfied that:

(a)for each employee organisation that has failed to provide written agreement to the making of the request, the failure was unreasonable in the circumstances; and

(b)if the request relates to approval of a proposed enterprise agreement—the making of the request by the employer would not be inconsistent with or undermine good faith bargaining for the enterprise agreement.

  1. As will be apparent, s 240B imposes an obligation on the Commission (“must … make a voting request order”) if it is satisfied in relation to both of the matters in subsections (a) and (b). That is, the Commission must be satisfied that the failure of an employee organisation to provide written agreement to the employees being requested to approve the proposed agreement was “unreasonable in the circumstances” and that making the request “would not be inconsistent with or undermine good faith bargaining for the enterprise agreement”.

  1. Sections 240A and 240B are relatively new provisions introduced by the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth). The Commission has, until now, not had occasion to deal with an application for a voting request order under s 240A or to consider the requirements imposed by s 240B. The explanatory memorandum to the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) also provides little assistance. It does no more than paraphrase the language of the provisions themselves.[8]

  1. In relation to s 240B(a), it is sufficient to say that the assessment of whether the failure of a bargaining representative to agree to the making of a request was unreasonable in the circumstances calls for a broad value judgment involving a balancing of interests the affected parties and informed by the statutory context, including the objects of the Act and of Part 2-4.[9] The subsection requires an objective assessment of the reasonableness of the stance taken by the employee organisation having regard to the whole of the circumstances relating to the bargaining. It directs attention not to whether the Commission believes it is reasonable for a vote to be conducted, but whether the particular failure of an employee organisation to provide written agreement to a request being made to employees to approve the enterprise agreement was unreasonable.

  1. Consideration of whether making a request for employees to approve an agreement would be inconsistent with or undermine good faith bargaining for the enterprise agreement invites consideration of the good faith bargaining requirements in s 228. Whilst the good faith bargaining requirements in s 228 are likely to inform the assessment, s 240B(b) requires a prospective, future focused consideration of whether the act by the employer of requesting employees approve the enterprise agreement by voting for it would itself be inconsistent with or undermine good faith bargaining. A past failure to comply with the good faith bargaining requirements would not necessarily require a positive answer to that question.

  1. In her witness statement, Ms Abbas explained the reasons of Sydney Trains and NSW Trains reasons for seeking to request employees to approve the proposed agreement as follows:

The Rail Agencies would like to put the Proposed Agreement to a vote of employees and consider that it would be unreasonable for this not to occur for reasons including:

(a)The bargaining process has been lengthy and complex and all matters, including the disputed clause, have been the subject of discussion and negotiation;

(b)A package of wages and conditions is included in the Proposed Agreement and there is no scope to change that package without impacting the wages and conditions on offer;

(c)The bargaining representatives for the majority of the employees to be covered by the Proposed Agreement consent to the vote and support the package;

(d)Given the length of time that bargaining has been occurring, the employees should be given the opportunity to express their opinion;

(e)The employees covered by the Proposed Agreement have not received a pay rise since 1 May 2023;

(f)The section 425 Order granted by the Fair Work Commission expires on 1 July 2025 and as such there is some urgency to commencing a vote given the potential for protected industrial action to commence a small cohort of employees; and

(g)The Fair Work Commission has recommended that the parties consent to a vote.

  1. Assessment of whether the refusal of the ETU to agree to Sydney Trains and NSW Trains was unreasonable requires consideration of all of the circumstances of the case. We are satisfied that the ETU’s failure to agree to Sydney Trains and NSW Trains requesting employees to approve the proposed agreement was unreasonable. A number of considerations have informed that conclusion. First, the circumstances in which the ETU has failed to agree to employees being requested to approve the proposed agreement include that the bargaining process has been lengthy, complex and heavily contested. In part as a result of the efforts of the Commission, in principle agreement has been reached in relation to virtually all of the matters which were at issue between the parties. The remaining matters which are not agreed with the ETU are limited to the wording of the Section 5 clause and the Trades Uplift Claim. It is also relevant that the period during which protected industrial action has been will expire on 1 July 2025. Although the period during which the bargaining has been ongoing will not necessarily mean that it is unreasonable for an employee organisation not to agree to employees being requested to approve an agreement, those circumstances are relevant to our assessment.

  1. Second, the reasons given by the ETU for refusing to agree to employees being requested to approve the agreement included its insistence that alterations be made to the clause dealing with the Section 5 issue subject of the recommendation by the Commission. We have set out the amendments to the clause sought by the ETU in paragraph [12] above. In our opinion, the amendments sought by the ETU do not change the effect of the provision and are trivial. The insertion of reference to the “immediate replacement” agreement in subclause 1 does no more than reflect the existing language referred to the agreement to replace the 2022 Agreement. The proposal to change the word “should” to “will” in subclauses 1 and 2 does not change the effect of the clause, particularly in circumstances in which subclause 4 provides that discussions will occur on the basis that the roles “agreed or (if necessary) determined by the Commission under subclause 3 will be covered by Section 5 of the replacement agreement”. It is unreasonable for the ETU to refuse to agree to the proposed agreement being put to the vote as a result of an insistence of immaterial changes to one draft clause.

  1. Third, the ETU refused to agree to employees being requested to approve the proposed agreement because it wishes to pursue negotiations in relation to the Trades Uplift Claim. The ETU accepts that it first raised the Trades Uplift Claim on 2 June 2025, that is, more than 12 months after the bargaining commenced. The fact that the ETU refused to agree to employees being requested to vote on the proposed agreement because it wishes to pursue a new claim not advanced in so many months of bargaining suggests that the refusal is unreasonable. The ETU endeavours to explain its late adoption of the Trades Uplift Claim by saying that it only became apparent that there was an issue in relation to maintaining relativities for trade classifications after it saw the in-principle agreement reached with the CRU on 30 May 2025. We are not persuaded that this provides an adequate explanation for the late addition of this claim. The RTBU had pursued a claim for an uplift of one increment for the ULCP and Work Group Leader and TL positions in the Track and Structures stream since at least 30 September 2024. The ETU did raise, at that time, that there may be an issue with relativities in relation to the claims advanced by the RTBU. However, the evidence establishes that the ETU only raised that concern within the CRU group. The ETU never made a claim in the bargaining to uplift any trades classifications in the event that the RTBU’s claim with respect to the Track and Structures stream was accepted. Ms Abbas gave evidence that the first occasion on which Sydney Trains and NSW became aware of that claim was on 2 June 2025. In our opinion, it was unreasonable for the ETU to refuse to agree to employees being requested to approve the proposed agreement in order to allow it to explore a claim it had just raised. Having considered the whole of the circumstances, we are satisfied that the ETU’s refusal to agree to employees being requested to approve the proposed agreement is unreasonable.

  1. Fourth, the effect of the ETU’s position would be to deprive the employees of Sydney Trains and NSW Trains of an early opportunity to vote upon a highly beneficial outcome to the bargaining. A comprehensive package of wages and conditions have been agreed between Sydney Trains and NSW Trains and the unions representative the majority of employees who will be covered by the agreement if it is approved. The package includes substantial pay increases backdated to 1 May 2024 for employees who have not received a pay rise since 1 May 2023 as well as a range of other improvements in conditions of employment. The ETU is content with and supports the wages outcome and each of the conditions contained in the agreement proposed to be put to a vote. Its only reservation is that it wishes to pursue what we regard to trivial changes to the clause subject of the recommendation by the Full Bench and the new Trades Uplift Claim. The failure of the ETU to agree to employees being requested to vote on the proposed agreement also denies those employees an opportunity to vote on an agreement that will, if it is approved, bring an end to long-running and heavily contested bargaining which has caused disruption to the people of New South Wales and to the economy. Given the matters sought to be pursued by the ETU, we regard its failure to agree to the request to put the proposed agreement to employees to be unreasonable.

  1. We are also satisfied that Sydney Trains and NSW Trains making a request for employees to approve the proposed agreement would not be inconsistent with or undermine good faith bargaining for the enterprise agreement. The only submission advanced by the ETU as to why making such a request would be inconsistent with or undermine good faith bargaining is that the ETU was excluded from bargaining and not provided with relevant information. We have addressed, and rejected, those arguments in dealing with the applications for bargaining orders. Those matters therefore do not justify a conclusion that making a request for employees to approve the proposed agreement would be inconsistent with or undermine good faith bargaining.

Conclusion and disposition

  1. For these reasons, the applications for bargaining orders made by the ETU are dismissed. A voting request order will be made as sought by Sydney Trains and NSW Trains and will issue separately to this decision.

PRESIDENT

Appearances:

L Saunders, of counsel, instructed by P Matthews, for the Combined Rail Unions.
A DeBoos, Kingston Reid for Sydney Trains and NSW Trains.
H Clift, of counsel, instructed by A Aghazarian for the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.

Hearing details:

2025.

Sydney:
13 June.


[1] Application by Sydney Trains and NSW Trains [2025] FWCFB 46 at [23].

[2] Australian Rail, Tram and Bus Industry Union v Sydney Trains & NSW Trains[2024] FWC 3419.

[3] Application by Sydney Trains and NSW Trains [2025] FWCFB 46 at [70]–[73].

[4] Application by Sydney Trains, NSW Trains PR787816).

[5] See, for example, Association of Professional Engineers, Scientists and Managers v Peabody Energy Australia Coal Pty Ltd[2015] FWCFB 1451; (2015) 248 IR 360 at [29]–[30]; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v NSW Electricity Networks Operations Pty Ltd (as trustee for NSW Electricity Networks Operations Trust[2024] FWC 2200 at [22].

[6] Australian Municipal, Administrative, Clerical and Services Union v Queensland Tertiary Admissions Centre Ltd[2009] FWA 53; (2009) 185 IR 371 at [12].

[7] Glenn Ferguson v Path Transit Pty Ltd[2020] FWCFB 6615 at [27], Glenn Ferguson v Path Transit Pty Ltd[2021] FWCFB 1663 at [10]–[11].

[8] Supplementary Explanatory Memorandum to the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) at [43]–[49].

[9] See the approach adopted in other contexts: Toms v Harbour City Ferries Pty Limited [2015] FCAFC 35; (2015) 229 FCR 537 at [36] (Buchanan J); Secretary of the Ministry of Health v New South Wales Nurses and Midwives’ Association [2022] NSWSC 1178; (2022) 320 IR 249 at [12] (Walton J); Application by the Mining and Energy Union re Bengalla Mining Company Pty Ltd [2025] FWCFB 53 at [81].

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