Australian Rail, Tram and Bus Industry Union v Sydney Trains T/A Sydney Trains, NSW Trains T/A NSW Trainlink
[2024] FWC 1915
•1 AUGUST 2024
| [2024] FWC 1915 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
Australian Rail, Tram and Bus Industry Union
v
Sydney Trains T/A Sydney Trains, NSW Trains T/A NSW Trainlink
(B2024/914)
| DEPUTY PRESIDENT CROSS | SYDNEY, 1 AUGUST 2024 |
Proposed protected action ballot of employees of Sydney Trains and NSW Trains – contested PABO – common enterprise – related employers – genuinely trying to reach agreement
The Australian Rail, Tram and Bus Industry Union (the RTBU) is a bargaining representative in relation to a proposed enterprise agreement that will cover certain employees of Sydney Trains and NSW Trains (the Rail Agencies). On 19 July 2024, the RTBU made an application (the Application) under s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot order (PABO) in relation to certain employees of the Rail Agencies who are members of the RTBU, and who would be subject to the proposed enterprise agreement.
The matter was listed before me for conference and directions on Monday 22 July 2024. A compressed timetable for the filing of materials was agreed by consent, and the matter was listed for Hearing on Friday 26 July 2024. At the conclusion of that Hearing, I reserved my decision.
Legislative Scheme
The requirements that relate to a protected action ballot are set out in Part 3-3, Division 8 of the Act. A PABO will only be made on application by a bargaining representative of an employee who will be covered by a proposed enterprise agreement (the Proposed Agreement). It is common ground that the RTBU is a bargaining representative for the Proposed Agreement of at least some of the employees who will be covered by the Proposed Agreement. It is also not in dispute that the nominal expiry date of 1 May 2024 of the current agreement, the Sydney Trains and NSW Trainlink Enterprise Agreement 2022 (AE519142) (the 2022 Agreement), has passed.
A PABO may only be made in limited circumstances, and the Commission must make an order, if it is satisfied that:
(a) there has been an application made under section 437; and
(b) the applicant (in this case the RTBU) has been and is genuinely trying to reach an agreement with the employer of the employees who are to be balloted. [1]
The Application
There is no dispute that the RTBU has made a valid application under s.437 of the Act, and the RTBU maintains that it has been and is genuinely trying to reach an agreement with the Rail Agencies. The Legal Officer of the RTBU, Mr Peter Matthews submitted a Statutory Declaration supporting the Application in which he deposed that the RTBU is genuinely trying to reach an agreement with the Rail Agencies.
Mr Matthews has identified issues of scope and agreement type that have arisen between the parties as a result of the transfer by the Transport Secretary, on 1 July 2024, of accountability for the operation of the electric InterCity fleet and management of associated station staff from NSW Trains to Sydney Trains (the Accountability Change).
The change means that NSW Trains will now only operate diesel trains passenger services, and only operate:
(a) Services that operate using pre-booked services that do not use the “tap-on” Opal card; and
(b) regional passenger services (e.g., from Sydney to Canberra).
In the lead up to bargaining, the RTBU and the Combined Rail Unions (the CRU)
requested the Rail Agencies bargain for a (Single Interest Employer Agreement (SIEA). The Rail Agencies have rejected that request on the basis they have agreed to bargaining together for a single employer agreement that would cover the same group of employees as the Applicant’s proposed enterprise agreement. The 2022 Agreement was made on that basis.
The RTBU’s position is that Sydney Trains and NSW Trains are no longer single-interest employers in the sense that they are not capable of making a “single-enterprise agreement” as available under s 172(2) of the Act. As a result of their legal incapability to make a single enterprise agreement, proceeding on the basis proposed by the Respondents would result in an agreement that is incapable of approval, and would in practice have to be split into two enterprise agreements to meet the requirements of the Act.
The RTBU contend that, following the Accountability Change, the respective operations of the Rail Agencies are no longer engaged in a Common Enterprise within the meaning in the
Act. Unlike at the time the current enterprise agreement was made, as the Rail Agencies:
a. no longer operate comparable rail services, with NSW Trains no longer operating electric passenger trains at all;
b operate in a substantially different manner, with NSW Trains now operating exclusively pre-booked passenger train services via diesel locomotives whilst Sydney Trains continues to operate ‘turn-up-and-go’ passenger train services on the electrified network via electric locomotives;
c. no longer provide substantially identical, coordinated and overlapping rail services on the same network;
d. no longer share a single ticket pricing structure, with trips taken by one operator no longer producing a discount on trips taken by another operator;
e. no longer use the same ticketing system, Sydney Trains continues to uses Opal Card exclusively, whilst NSW Trains does not operate any services accessible by Opal Card and issues its own tickets that do not interact with Opal;
f. no longer share resources including rolling stock and staff, with NSW Trains only operational staff being Train Drivers operating XPT locomotives, with no overlap in qualifications with Sydney Trains; and
g. no longer run hybrid services, where previously one portion of a trip could be conducted by Sydney Trains Staff and another portion completed by NSW Trains Staff.
The Position of the Rail Agencies
The Rail Agencies submit that if they are not related employers, as the RBTU contends, a PABO cannot be made. They are currently covered by the 2022 Agreement. The 2022 Agreement is a single enterprise agreement. In 2022, the Commission found the Rail Agencies were single interest employers (see: [2023] FWCA 423 at [2] and [2021] FWC 4391 at [10]-[20]).
The Rail Agencies submit that the RTBU has lodged the Application because the Rail Agencies have declined their “threshold” claim to consent for a single interest employer authorisation.
The Rail Agencies submit that there are three reasons why the Application must fail:
(1) If, as the RTBU contends, the Rail Agencies are not capable of making a single enterprise agreement, the agreement they are negotiating must necessarily be a cooperative workplace agreement.[2] Applications for protected action ballot orders cannot be made in relation to cooperative workplace agreements (s 437(2)(b));
(2) If the Rail Agencies are in fact related employers, (as the Commission has already found they were in 2022), it will mean that the RTBU’s concern that the Rail Agencies cannot enter the 2024 Agreement is unfounded, and the RTBU’s ‘threshold claim’ will not present the barrier the RTBU contends it does; and
(3) If the Rail Agencies are related employers, a single interest employer authorisation is not available, because related employers cannot enter into a multi-enterprise agreement (s 172(3)).
The Rail Agencies also submitted that the Commission could not be satisfied the RTBU is genuinely trying to reach agreement because the reason the RTBU has brought the claim is due to a belief that the Rail Agencies are not related employers (notwithstanding they held the opposite position in 2022 and the Commission has twice found them to be related employers), the FWC could not be satisfied they are genuinely trying to reach agreement within the meaning of s.443(1)(b) of the Act.
Finally, the Rail Agencies object to the form of industrial action contemplated in question 1 in the draft order. That question was:
In support of reaching an enterprise agreement with your employer, do you authorise the taking of protected industrial action against your employer separately, concurrently and/or consecutively, in the form of:
1. Interrupting work periodically, indefinitely, or for specified periods for one or more of the following purposes and/or performing work in a manner different from that in which it is customarily performed by doing one or more of the following things:
a. deactivating opal readers and gates;
b. ensuring that opal readers and gates remain deactivated;
c. opening ticket gates at train stations;
d. ensuring that ticket gates at train stations remain open.
[yes/no]
The Rail Agencies submit that the form of action described in Question 1 is not industrial action, within the meaning of s.19(1)(a) and/or (b) of the Act.
The Questions for Determination
Following discussions between the parties, the issues for determination by the Commission have condensed to the following:
Q.1 Are Sydney Trains and NSW Trains ‘related employers’ for the purposes of s 172(5A)(a) of the Act on the basis that they are engaged in a ‘common enterprise’?;
Q.2 If Sydney Trains and NSW Trains are ‘related employers’, does this mean the RTBU has not been, and is not, genuinely trying to reach agreement for the purposes of s 443(1)(b) of the Act?;
Q.3 If the RTBU is correct that the Rail Agencies are not ‘related employers’, can the Commission make a protected action ballot order (PABO)?; and
Q.4 Should question 1 of the proposed PABO be included in the PABO?
Question 1 - Related Employers
Notwithstanding the changes that have occurred following the Accountability Change, as relied upon by the RTBU and specified in paragraph [10] above, I do not consider those changes have been of such magnitude to change the complexion of the Rail Agencies relationship of ‘related employers’ for the purposes of s 172(5A)(a) of the Act on the basis that they are engaged in a ‘common enterprise’.
While change has undoubtedly occurred, the balance of the evidence before the Commission establishes that the Rail Agencies are engaged in a common enterprise, and the changes relied upon by the RTBU do not displace the findings made by the Commission in 2022. In particular I note the following (many of which are outlined in a Statement of Agreed Facts relied upon by the parties):
(a) The Rail Agencies are both corporations constituted by the Transport Administration Act 1988 (the TA Act). Under the TA Act, the Rail Agencies share common objectives and functions, have the same management structures and corporate plan requirements, and are both subject to the same overall direction and control.
(b) The Rail Agencies are both “public transport agencies” as defined by s.3 of the TA Act. Section 2B of the TA Act sets out the common objectives of public transport agencies.
(c) The principal objective of Sydney Trains and NSW Trains are identical, and their functions as set out in s.36B of the TA Act are similar.
(d) Sydney Trains is the Network Control Manager for the metropolitan and intercity rail networks, responsible for day-to-day management and overall control, including NSW Trains’ timetabled services.
(e) Both Rail Agencies have the same corporate plan requirements. The Transport Secretary appoints a Chief Executive for both agencies, who manage their respective agencies according to directions from Transport for NSW (TfNSW). Both agencies must supply information to the Minister and keep the Minister informed of their activities.
(f) TfNSW has overarching authority and governance responsibilities for both Rail Agencies, with the Transport Secretary managing TfNSW’s affairs. TfNSW can issue directions to the Rail Agencies and has functions including transport planning and policy, transport public funding, transport infrastructure, capital works programs and budgets, contracting for the delivery of transport services, transport services coordination, incident management, transport information, provision and deployment of staff and services, ticketing for transport services, precinct land planning, procurement, and transport innovation.
(g) The Rail Agencies share overlapping corporate functions, including a common Code of Conduct, the same appeal mechanism to TfNSW for disciplinary outcomes, shared staff for specific operations, recognition of continuity of service for employee transfers, and transfer arrangements allowing employees to move between Agencies.
(h) The Rail Agencies share digital infrastructure such as the email domain “@transport.nsw.gov.au,” a similar public logo, and a page on the TfNSW website. They also share other intellectual property, including uniform design, logo design, and train liveries.
(i) There was no change to the ownership of assets of the Rail Agencies, which remain with the Transport Asset Holding Entity of New South Wales, while Sydney Trains continues to maintain NSW Trains’ rolling stock and infrastructure.
(j) NSW Trains provides customer service and cleaning services to Sydney Trains at Central Station.
(k) Sydney Trains and NSW Trains personnel continue to work in shared locations and continue to support each other’s operations, demonstrating the integrated nature of their functions.
Sydney Trains and NSW Trains continue to be ‘related employers’ for the purposes of s 172(5A)(a) of the Act on the basis that they are engaged in a ‘common enterprise’.
Question 2 - Genuinely Trying to Reach Agreement
The gravamen of the Rail Agencies argument is that the RTBU is seeking to organise industrial action solely because the Rail Agencies have allegedly declined a request for “one enterprise agreement between the Rail Agencies”. The Rail Agencies submitted that the RTBU faces a conundrum, as follows:
(a) If the RTBU is correct, and the Rail Agencies are not related employers, the Application must be dismissed because PABOs cannot be ordered in relation to cooperative workplace agreements, and
(b) If the RTBU is incorrect, and the Rail Agencies are related employers, it means the Rail Agencies cannot lawfully agree to the claim that is the sole trigger for this Application, and the sole claim which has been articulated in any meaningful way to date. No bargaining representative could be found to be genuinely trying to reach agreement in such a case.
I do not accept that the PABO has been sought for the “sole” reason of determining the character of a multi-enterprise agreement to be entered into by the parties. It is clear that the parties have met on 19 and 20 June, 2 and 3 July, and 17 and 18 July 2024, and discussed matters outlined in logs of claims.
I am satisfied that the PABO has been sought for the purpose of advancing claims in relation to the proposed agreement, and that the RTBU has been genuinely trying to reach agreement for the purposes of s 443(1)(b) of the Act.
Question 3 - If the Rail Agencies are not Related Employers
Upon the conclusion that Sydney Trains and NSW Trains continue to be ‘related employers’ for the purposes of s 172(5A)(a) of the Act on the basis that they are engaged in a ‘common enterprise’, this question does not arise.
Question 4 - Should Question 1 be included in the PABO
(a)Legislative Framework
Section 19(1) of the Act defines what is meant, conceptually, by “industrial action”:
(1) Industrial action means action of any of the following kinds:
(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;
(c) a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work;
(d) the lockout of employees from their employment by the employer of the employees.
Section 408 of the Act defines “protected industrial action”:
Industrial action is protected industrial action for a proposed enterprise agreement if it is one of the following:
(a) employee claim action for the agreement (see section 409);
(b) employee response action for the agreement (see section 410);
(c) employer response action for the agreement (see section 411).
“Employee claim action” is defined in s 409 as follows:
Employee claim action
(1) Employee claim action for a proposed enterprise agreement is industrial action that:
(a) is organised or engaged in for the purpose of supporting or advancing claims in relation to the agreement that are only about, or are reasonably believed to only be about, permitted matters; and
(b) is organised or engaged in, against an employer that will be covered by the agreement, by:
(i) a bargaining representative of an employee who will be covered by the agreement; or
(ii) an employee who is included in a group or groups of employees specified in a protected action ballot order for the industrial action; and
(c) meets the common requirements set out in Subdivision B; and
(d) meets the additional requirements set out in this section.
...
Section 414 of the Act provides for the notice requirements that must be met in order that industrial action might qualify as (amongst other things) employee claim action:
Notice requirements—employee claim action
(1) Before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.
(2) The period of notice must be at least:
(a) 3 working days; or
(b) if a protected action ballot order for the employee claim action specifies a longer period of notice for the purposes of this paragraph—that period of notice.
Notice of employee claim action not to be given until ballot results declared
(3) A notice under subsection (1) must not be given until after the results of the protected action ballot for the employee claim action have been declared.
...
Notice requirements—content
(6) A notice given under this section must specify the nature of the action and the day on which it will start.
Section 415 of the Act provides for a measure of legal immunity that attaches to protected industrial action:
(1) No action lies under any law (whether written or unwritten) in force in a State or Territory in relation to any industrial action that is protected industrial action unless the industrial action has involved or is likely to involve:
(a) personal injury; or
(b) wilful or reckless destruction of, or damage to, property; or
(c) the unlawful taking, keeping or use of property.
(2) However, subsection (1) does not prevent an action for defamation being brought in relation to anything that occurred in the course of industrial action.
Section 437(1) of the Act provides for PABO applications, and states:
(1) A bargaining representative of an employee who will be covered by a proposed enterprise agreement, or 2 or more such bargaining representatives (acting jointly), may apply to the FWC for an order (a protected action ballot order ) requiring a protected action ballot to be conducted to determine whether employees wish to engage in particular protected industrial action for the agreement.
Section 443 at (1) and (2) outlines when the Commission must make a PABO. It provides:
When the FWC must make a protected action ballot order
(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:
(a) an application has been made under section 437; and
(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.
(2) The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).
(b)Rail Agencies Submissions
The Rail Agencies object to the form of industrial action contemplated in question 1 (the Impugned Action) as the form of action described is not industrial action, within the meaning of s.19 of the Act.
Pursuant to s.437 of the Act, a bargaining representative of an employee who will be covered by a proposed enterprise agreement may apply to the Commission for an order requiring a protected action ballot to be conducted to determine whether employees wish to engage in “particular protected industrial action for the agreement”. Therefore, the forms of industrial action sought to be balloted must be capable of being characterised as (protected) industrial action.
The starting position is that, in order to be protected industrial action, the purported industrial action must fall within the meaning of one of the paragraphs in s.19(1) of the FW Act. Unless the Impugned Action falls within one of the paragraphs in s. 19(1), it cannot amount
to protected industrial action and must not be included in a PABO.
The Impugned Action would have to fall within the definitions of s. 19(1)(a) and s. 19(1)(b) of the Act. Those provisions provide:
(1) Industrial action means action of any of the following kinds:
(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;
…
In relation to s. 19(1)(a), it is necessary to determine the manner in which work is customarily performed or the customary practices in relation to the work performed by the employee as an essential integer to determine whether the Impugned Action amounts to industrial action.
The Rail Agencies submitted the evidence established that none of the work customarily performed by the relevant employees of the Rail Agencies involves:
(i) opening ticket gates at train stations and ensuring that ticket gates at train stations
remain open; or(ii) deactivating the Opal readers and gates and ensuring that Opal readers and gates
remained deactivated.
While there are limited and exceptional circumstances where employees are called upon, such as in the case of emergencies or passengers being stuck in gates, to take a step that has the indirect effect of opening a gate, those are ad hoc occurrences in limited circumstances for limited purposes. The Impugned Action goes above and beyond such limited circumstances and limited purposes.
The Rail Agencies submitted that the Impugned Action is not industrial action within the meaning of s. 19(1)(a) because it:
(a) involves an attempt by employees to take action above and beyond, and outside the range of, their normal or customary work;
(b) involves an attempt by employees to appropriate a power they do not have – to deactivate the Opal gates and to ensure that the Opal gates remain deactivated – and the usurping of such a power does not constitute the performance of work in a manner different from that which it is customarily performed; and
(c) involves a breach of the contracts of employment of the employees but does not
constitute the performance of work in a manner different from that which it is customarily performed.
As to s. 19(1)(b) of the Act, the words used in the paragraph and the authorities require that, as a necessary step, there must a ban, limitation or restriction on the performance of work by an employee. For many of the same reasons as outlined regarding s. 19(1)(a) and with the following additional reasons, the Impugned Action does not fall within the meaning of s. 19(1)(b) because:
(a) it does not involve a 'ban' as the employees are not imposing a prohibition on the performance of their customary duties but rather are taking positive action by leaving open gates, ensuring gates remain open, deactivating gates or ensuring that the Opal gates remain deactivated;
(b) it does not involve a limitation or restriction on the performance of work by interfering or interrupting in any way the performance of work in that:
(i) employees do not leave open gates and ensure gates remain open, or deactivate gates and ensure that the Opal gates remain deactivated, except for in limited circumstances; and
(ii) the opening or deactivation of gates will not limit or restrict at all the
performance of work of employees.
(c) RTBU Submission
The RTBU noted that factually, there are 41 gated stations on Sydney Trains’ network. In order to enter or exit gated stations, a customer must pass through the gates. The gates have Opal readers. In order for a customer to enter or exit the station, they must tap on an Opal reader using an Opal card or a credit card. If the Opal or credit card is successfully debited, the gate should open automatically, allowing the customer to walk through and enter or exit the station. The gate will then close behind them.
Some stations have gate array controllers (GAC’s) installed. GAC’s permit station staff to configure the operation of gates. Customer Service Attendants (CSAs) are principally responsible for operating and controlling GACs and they will configure the gates to control the flow of customers entering or exiting the station.
CSAs may be based on platforms or in the areas of gated stations near station gates. Station staff (including CSAs) may be required as part of their duties to open gates temporarily for customers. A CSA, in such circumstances, will press an electronic button to manually open (and then close) the gate. The gates can be opened from a GAC or, in stations that do not have GACs, the control hub where touchscreen computers are located that cause the gates to be opened or closed. Alternatively, gates can be opened by a CSA using a key that is inserted into the Opal machine to turn it off.
Station staff (including CSAs) may be required as part of their duties to deactivate Opal readers, including in emergency situations. Readers are turned off by station staff pressing a red emergency button which results in gates opening and powering off, and Opal readers also turning off. When it is safe and appropriate for the gates to operate again, a station staff member, including a CSA, will manually close the gates by pressing the egress button and then reset the red emergency button which restores power and functionality to the gate line.
The RTBU submitted that when station staff members, including CSAs, are engaged in performing the duties described above, they are deviated from their normal duties, and when gates are left open or Opal machines are deactivated, a CSA’s duties are curtailed.
The RTBU submitted that section 19(1)(a) has two distinct limbs, being:
(1) the performance of work in a manner different to that in which it is customarily performed; and
(2) the adoption of a practice in relation to work which has a particular result.
In order for ‘action’ to fall under the first limb of s 19(1)(a) three matters must be
established:
a. there must be the performance of work by an employee;
b. the manner in which that work is performed must be different to that in which it is customarily performed; and
c. the action (i.e. the performance of work in a manner different) must result in a limitation or restriction or delay in the performance of work.
The first limb of s.19(1)(a) requires attention to be directed to work which is usually or habitually performed by an employee. After the usual or habitual way of working is identified, the action must be assessed to determine whether it involves the performance of work in a way or mode that is dissimilar or not alike in quality or nature to what is usually or habitually done.
Periodic interruptions in the performance of work, or interruptions in the performance of work or stoppages in the performance of work for specified or delineated periods may constitute the performance of work in a manner different to that in which it is customarily performed if employees do not customarily interrupt their performance of work or stop work for specified or delineated periods. Such interruptions may (and often invariably will) also result in a limitation or restriction or delay in the performance of work by the employee.
Action falling within s 19(1)(b) is that which involves a ban, limitation or restriction on the performance of work by an employee. The distinction, in practical terms, between s 19(1)(a) and 19(1)(b) is that in respect to the latter, the restriction or limitation on the performance of work which results from the action need not involve the performance of work by an employee in a manner different. It could, for instance, involve the cessation or work by an employee for a particular period or an interruption in the employee’s performance of work.
The RTBU submits that work of CSAs customarily involves opening gates or causing them to remain open in certain circumstances, and that opening the gates and ensuring they remained open in other circumstances, or for other reasons, constitutes the performance of a work in a manner different to that in which it was customarily performed. The result of opening gates or causing them to remain open is to limit or restrict the subsequent performance of work by CSAs.
Further, the action proposed involves CSAs being engaged in opening gates or ensuring they remain open in circumstances where they interrupt or stop performing other work. Interrupting or stopping work for a delineated or defined period to perform a particular task or function, where the task or function marks out the time during which work is interrupted, constitutes industrial action because it gives rise to a limitation or restriction on the performance of work by the employee.
The question also captures action that involves a limitation on the performance of work by CSAs for the purposes of s.19(1)(b), because interrupting or stopping work to cause Opal Gates to be opened and to remain open is a limitation on the performance of work. When CSAs are involved in causing gates to be opened and remain open, they are not performing their usual work. Moreover, the opening of gates means ordinary duties are not able to be performed as they became superfluous.
Consideration regarding Question 4
Section 443 makes it clear that the Commission must make a PABO if the two requirements outlined in sub-section (1), being that an application has been made under section 437, and the Commission is satisfied that each applicant has been, and is, genuinely trying to reach an agreement, are satisfied.[3]
In Ambulance Victoria v United Voice,[4] Tracey J observed:
Fair Work Australia and its successor have, understandably, been reluctant, when dealing with applications made under s 437 of the Act, to find that proposed action can never constitute industrial action within the meaning of s 19. The terms in which the proposed action is described for the purposes of the ballot may lack legal precision and, more significantly for present purposes, may or may not constitute industrial action depending on the manner in which the action is performed. It will often be difficult for the Fair Work Commission to anticipate, at the time it makes an order under s 437, the context and manner in which union members might choose to take the proposed action. Once a ballot has been conducted and the action is imminent or has occurred greater clarity will often be present.
In the context of an application for interlocutory relief, Tracey J nonetheless went on to consider whether the proposed industrial action was of a kind protected by s.415 of the Act.
In determining the inclusion of Question 1 in the PABO, it will be necessary to determine whether the proposed action outlined in Question 1 can ever constitute industrial action within the meaning of s.19 of the Act.
The Rail Agencies relied on judgment of Snaden J in Metro Trains Melbourne Pty Ltd v Australian Rail, Tram and Bus Union Industry[5] (Metro Trains), which involved an application for interlocutory relief in the form of an injunction restraining the union from organising proposed industrial action, in circumstances where the following action was notified (and defined as the Open Barriers Action):
1. Employees will perform their work differently by keeping open the passenger ticket barriers at train stations, commencing at 00:01 on Monday 12 August 2019 and finishing at 23:59 on Monday 12 August 2019. The employees intending to engage in the protected action would be all employees who are employed in any station grade who are members of the RTBU and whose employment will be subject to the proposed agreement.
…
13. Employees will perform their work differently by keeping open the passenger ticket barriers at train stations, commencing at 00:01 on Monday 19 August 2019 and finishing at 23:59 on Monday 19 August 2019. The employees intending to engage in the protected action would be all employees who are employed in any station grade who are members of the RTBU and whose employment will be subject to the proposed agreement.
The evidence in Metro Trains was of brief compass and disclosed that Station Employees (or at least some of them) configure the barrier systems in place at the 30 train stations at which they were installed. Employees were given instructions as to how barriers were to be configured at given times, to which they then gave effect by manipulating various control systems. Snaden J, in finding that he had no hesitation in concluding that it was at least seriously arguable that the Open Barriers Action would not have amounted to industrial action and, therefore, would not have qualified as protected industrial action[6] (s.408 of the Act), held:[7]
What falls for consideration is whether the Open Barriers Action might qualify as a ban, limitation or restriction on the performance of work, or as a mode of working that restricts, limits or delays its performance (or, more accurately, whether it might seriously be argued that it does not so qualify). In truth, the Open Barriers Action appears to amount to little, if anything, more than an attempt by the relevant employees to appropriate a power that they do not have: namely, the power to determine how it is that barriers should be configured at any given time. I do not accept, at least not on a prima facie case basis, that the usurping of that power might qualify as a relevant ban, limitation or restriction on the performance of work, or as a method of working by which work performance is restricted, limited or delayed. In each case, the work in question must be the work that the employee who proposes to engage in the action is employed to perform: Davids Distribution Pty Ltd v National Union of Workers [1999] FCA 1108; (1999) 91 FCR 463, 486 [52] (Wilcox and Cooper JJ, with whom, on this point, Burchett J agreed); Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2015] FCAFC 25; (2015) 230 FCR 298, 324-325 [136]-[142] (Logan, Bromberg and Katzmann J). Other functions or responsibilities—including those that are sought to be appropriated for the purposes of advancing an industrial campaign—are not within the contemplation of the definition.
If the RTBU’s contention is correct, it would follow that employees at any workplace could, in appropriate circumstances, clothe with the immunity of protected industrial action conduct in the engagement of which their employment does not require or authorise them to act (including conduct that is unlawful or even criminal). In this case, it is the making of decisions about how Myki barrier systems should be configured; in another, it might involve the publication of potentially sensitive data (see Ambulance Victoria v United Voice (2014) 245 IR 375 (Tracey J)), the performance of work in industrial campaign-related clothing (see United Firefighters Union of Australia v Easy [2013] FCA 763 (Ross J)) or obstructive picketing (see Davids Distribution Pty Ltd v National Union of Workers [1999] FCA 1108; (1999) 91 FCR 463 (Wilcox, Cooper and Burchett JJ)).
Despite the network similarities between the Melbourne and Sydney train networks, there was more detailed evidence led in this matter. In particular:
(a) The CSA on duty will configure the Opal Gate Line in a way that best suits the movement of passengers through the station at a particular time.
(b) The automatic opening and closing of Opal Gates has fairly regular issues and gates have to be manually opened by the CSA’s. CSA’s can manually operate the gates in a number of ways.
(c) The GAC is used to configure the gate line to suit the movement of passengers for the AM and PM peaks. If there is a relatively non-urgent instance of a passenger being stuck in an Opal gate, the GAC is suitable to be used to open the particular gate in the line where the passenger is stuck.
(d) One of a CSA’s duties is to monitor whether passengers are having any difficulties getting through the gates and, if they get stuck, the CSA will perform the role of opening the gate to allow them to get through. Once the situation is dealt with, the gate is manually closed at the hub by the CSA, and it will then resume normal automatic operation.
(e) In more urgent situations, the emergency egress button can be pressed by a CSA to release the gates and enable a passenger or passengers to get through. Pressing the emergency egress button opens all the gates in a line of Opal machines at the same time. The button also isolates the power from the machines. The gates then must be manually closed by the CSA after pressing the egress button. This is done by resetting the red button, which restores the power to the gate line restoring their functionality.
Conclusion
Given the numerous examples of CSA’s in the performance of their normal duties manually opening and closing gates, and deactivating Opal machines, I do not consider the proposed action outlined in Question 1 can never constitute industrial action within the meaning of s 19 of the Act. I further note that when specific action is notified pursuant to s.414(6) of the Act, a more informed assessment of such action may be made.
The PABO sought will issue with variations as agreed including the inclusion of a requirement for 7 days’ notice of action.
DEPUTY PRESIDENT
Appearances:
Mr P Boncardo of Counsel, on behalf of the Australian Rail, Tram and Bus Industry Union.
Mr P Matthews, on behalf of the Australian Rail, Tram and Bus Industry Union.
Mr C O’Grady of Counsel (KC), on behalf of Sydney Trains T& NSW Trainlink.
Ms V Bulut of Counsel, on behalf of Sydney Trains T& NSW Trainlink.
Hearing details:
Sydney.
26 July 2024.
In-person.
[1] S.443(1) of the Act
[2] As defined in s.12 of the Act.
[3] See also JJ Richards & Sons Pty Ltd v Fair Work Australia (2012) 218 IR 454, at [33].
[4] (2014) 245 IR 375, at [18].
[5] [2019] FCA 1265.
[6] Metro Trains at [66].
[7] Metro Trains at [64] and [65]
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