Sydney Trains and Nsw Trains v Australian Rail, Tram and Bus Industry Union

[2024] FWC 3547

[2024] FWC 3547

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.424 - Application to suspend or terminate protected industrial action - endangering life etc.

Sydney Trains And Nsw Trains
v

Australian Rail, Tram and Bus Industry Union

(B2024/1673)

DEPUTY PRESIDENT CROSS SYDNEY, 22 DECEMBER 2024

Application to suspend or terminate protected industrial action (endangering life etc) - s.424 threatened, impending or probable – endanger the life, the personal safety, or the welfare, of the population or of part of it – Application to suspend protected industrial action, significant harm to a third party – applications for an order of production.

[1]       This Decision deals with requests for the production of documents relating to the following Applications:

(a)An application by Sydney Trains and NSW Trains (the Rail Agencies) pursuant to s.424 of the Fair Work Act 2009 (the Act) dated 19 December 2024, seeking the termination and/or suspension of protected industrial action until 7 January 2024;

(b)An application by the Minister for Industrial Relations, and Minister for Work Health and Safety pursuant to s.424 of the Act dated 19 December 2024, seeking the termination and/or suspension of protected industrial action until 7 January 2024;

(c)An application by the Minister for Industrial Relations, and Minister for Work Health and Safety pursuant to s.426 of the Act dated 19 December 2024, seeking the suspension of protected industrial action until 7 January 2024; and

(d)An application by Laundy Hotels Pty Ltd T/A Woolloomooloo Hotel  pursuant to s.426 of the Act dated 20 December 2024, seeking the suspension of protected industrial action until 7 January 2024; and

(e)An application by Veolia Environmental Services (Australia) Pty Limited T/A Veolia pursuant to s.426 of the Act dated 20 December 2024, seeking the suspension of protected industrial action until 7 January 2024.

(Cumulatively referred to as the Applications)

Background

[2]       Sydney Trains is the network control manager for the Sydney metropolitan rail network and intercity trains network. NSW Trains operates regional rail and coach services throughout regional New South Wales and into neighbouring states.

[3]       Historically, the Rail Agencies have bargained with a group of unions known collectively as the Combined Rail Unions (the CRU), which comprise all seven unions which represent the employees of the Rail Agencies. The principal five of those unions are the Australian Rail Tram and Bus Union(the RTBU), the Communications, Electrical, Postal and Plumbing Union (the ETU), the Australian Manufacturing Workers Union (the AMWU), the Australian Professional Engineer, Scientists and Managers Association (the APESMA), the Australian Municipal, Administrative, Clerical and Services Union (the ASU).

[4]       The current industrial instrument in place is the Sydney Trains and NSW TrainLink Enterprise Agreement 2022 (the 2022 Agreement). It reached its nominal expiry date on 1 May 2024. On 15 April 2024, the CRU served a log of claims for a replacement agreement, and bargaining commenced on 31 May 2024.

[5]       At various times members of the CRU have applied for protected action ballot orders under s 437 of the Act. Ballots were held and various actions approved. Thereafter, Notices were issued of an intention to engage in industrial action. No protected industrial action could be taken unless notices of it were first given.[1]

[6]       Between 30 August and 9 December 2024, the CRU collectively notified 296 forms of industrial action. At 10:19pm on Monday, 16 December 2024, the RTBU provided notice that its members would engage in the forms of protected industrial action.

[7]       At 10:20pm on Monday, 16 December 2024, the RTBU provided the second notice of action, some of which contained various forms of industrial action which relate to what is known as 50 cent fare limitations. The 50 cent fare limitation is a ban and limitation on certain forms of work that are critical to the operational effectiveness of the rail services that are contingent in all fares no exceeding 50 cents.

[8]       Upon the Applications being made, a timetable for the filing of materials by the parties was set, with such timetable seeking to provide natural justice while also complying with the statutory timetable for matters to be determined, as far as practicable, within 5 days.[2] That timetable provided:

(a)The Rail Agencies and the Minister file their materials by 5.00pm on Friday 20 December 2024;

(b)The CRU file their materials by 5.00pm on Sunday 22 December 2024; and

(c)The Rail Agencies and the Minister file their materials in reply by 2.00pm on Monday 23 December 2024

Applications for Orders for Production of Documents

[9]       Between 4.09pm on Saturday 21 December and 7.53am Sunday 2024, five Form F52 Applications for an order for production of documents (the F52’s) were filed by the CRU. The F52’s fall in the following groupings:

(a)Three F52’s, in identical terms, directed to the CEO of Sydney Trains, the Premier of New South Wales, and the Transport Minister, seeking:

An order in the nature of an interrogatory requiring Matthew Longland, CEO of Sydney Trains, by way of statutory declaration, to confirm the answer to the following questions:

1. Noting that a number of actions notified by the RTBU will not be taken in any period in which Sydney Trains fares do not exceed 50c:

a.   Has a decision been made as to whether or not to implement 50c fares?

b.   If a decision has been made to not implement 50c fares, why has this position been taken?

c.   If it has been decided to implement 50c fares, when will this commence, and if this is not before 31 December 2024, why is it not commencing earlier?

(b)A F52 directed to the Rail Agencies seeking:

The CRU requests the following documents in the possession, custody or control of Sydney Trains or NSW Trains, or any person acting on behalf of Sydney Trains or NSW Trains:

1.all documents recording the decision-making process, the decision itself and any alternative timetabling proposed referred to at [67] of Matt Rogers’ statement;

An order in the nature of an interrogatory requiring the following individuals, by way of statutory declaration, to confirm the answer to the following questions:

Matt Rogers

2.In relation to the decision described at [67] of your statement;

a. Who made the decision?
b. Who was involved in the decision-making process?
c. What role, if any, did the Transport Minister or her staff have in the decision?
d. What role, if any, did any Minister, including the premier, or their staff have in the decision?

3.How long did the reduced speed timetable referred to at [92] of Mr Rogers’ statement take to build?

Robert Blanch

4.Where your statement refers to ‘the proposed industrial action’, what did you at the time of preparing your statement understand:

a. the nature of this industrial action to be; and
b. its likely effect on the operation of rail network?

Liam Ryan

5.Where your statement refers to ‘the rail outage’, what did you at the time of preparing your statement understand:

a. the nature of this industrial action to be; and
b. its likely effect on the operation of rail network?

Grant Knoetze

6.Where your statement refers to ‘the proposed industrial action’, what did you at the time of preparing your statement understand:

a. the nature of this industrial action to be; and
b. its likely effect on the operation of rail network?

(c)A F52 directed to the Assistant Commissioner of Police seeking:

An order in the nature of an interrogatory requiring Assistant Commissioner Stephen Hegarty, Commander of the Police Transport and Public Safety Command, by way of statutory declaration, to confirm the answer to the following questions:

1.Where your statement refers to ‘industrial action’, what did you at the time of preparing your statement understand:

a.the nature of this industrial action to be; and

b.its likely effect on the operation of rail network

(d)A F52 directed to Craig Wesker, Francis Roberts and Justin Tynan of P.J. Ryan’s Hotels Pty Ltd, Hemmes Trading Pty Limited and Laundy Hotels Pty Ltd seeking:

An order in the nature of an interrogatory requiring the following individuals, by way of statutory declaration, to confirm the answer to the following questions:

1.Where your statement refers to ‘the proposed industrial action’, what did you at the time of preparing your statement understand:

a.   the nature of this industrial action to be; and

b.   its likely effect on the operation of rail network?

Consideration

[10]     While the CRU correctly observe that in AMWU v Sublime Infrastructure Pty Ltd & Ors,[3] Vice President Gibian found the Commission had capacity to order the provision by statutory declaration of information sought, that matter involved an appeal of the approval of an enterprise agreement, a matter being ordinarily based on statutory declarations at first instance.

[11]     In this urgent matter, I do not consider the answers to the questions sought are necessary to allow the CRU to understand and test the evidence filed by the identified witnesses.

(a)The 50c Fare Requests

[12]     An example of a s.414 notice relating to the 50c fare requests is as follows:[4]

Notice of Protected Industrial Action

Pursuant to Section 414 of the Fair Work Act 2009 and in conjunction with the Orders made in B2024/1624 (the Orders), we provide Sydney Trains and NSW Trains (the Employers) with notice of protected industrial action to be undertaken by RTBU members as follows:

NOTE:	For the purposes of this notice, a point in time is a “period during which fares exceed $0.50 per trip on Sydney Trains and NSW Trains services” if in the preceding 60 minutes commuters travelling on relevant rail services have been charged a fare greater than $0.50 for a single trip.
Nature of action:		A limitation on the manner in which work is performed in the form of a ban on Train Crew accepting alternate work in place of cancelled diagrams/schedules (or “running off the clip”) for any period during which fares exceed $0.50 per trip on Sydney Trains and NSW Trains services.
Day on which action commences:		0100hrs on 28 December 2024 continuing indefinitely.
Nature of action:		A limitation on the manner in which work is  performed in the form of a ban on issuing or accepting transpositions for any period during which fares exceed $0.50 per trip on Sydney Trains and NSW Trains services.
Day on which action commences:		0100hrs on 28 December 2024 continuing indefinitely.

[13]     The above notice clearly outlines to the Rail Agencies the action that may be taken. It is beyond question that ordinarily fares exceed $0.50 per trip on Sydney Trains and NSW Trains services, and accordingly the notice advises of the totality of bans outlined to the Rail Entities.

[14]     Regarding why the document, records and other information is sought, the CRU outline in the Form F52 the following:

1. A number of significant actions notified by the RTBU, which are relied on by the Applicants, will only occur in periods where fares charged by Sydney Trains exceed 50c. The evidence is silent as to whether this will be implemented and it is a matter wholly outside of the Respondent’s knowledge.

2. Information as to whether 50c fares will be implemented is critical to the Commission’s task in evaluating what action is impending or probable, and if they are not the reasons why not are significant to considerations arising under the discretion conferred by s.426.

3. The CRU would be unfairly prejudiced in its ability to properly defend the proceedings in the absence of an order requiring answers to the questions.

[15]     Solicitors for the Rail Entities have advised that a statutory declaration of Mr Longland will be provided in an effort to conduct the proceedings in an efficient manner.

[16]     The CRU otherwise urge that statutory declarations should also be provided by the Premier and the Transport Minister, as they assert an “inherent variable flow of information between the Government and the Rail Agencies, and different level of authority”.

[17]     I see no reason why, having been advised the Mr Longland will provide a statutory declaration, there should be further compulsion upon others to produce such a document. Mr Longland is the CEO of Sydney Trains and uniquely capable of producing the information requested.

(b)The F52 directed to the Rail Agencies

[18]     Paragraph [67] of the Statement of Matt Rogers provides:

At the moment, we’ve decided not to change the New Year’s Eve timetable to accommodate the reduced kilometres. That decision was made because of the enormous impact kilometre reductions would have on our ability to move people during such a critical event. More than 400,000 trips are used specifically for New Year’s Eve, and with over a million people in the city, we couldn’t safely deliver an alternate level of service.

[19]     The above conclusion would appear to be based on the observations at [61] to [66] of Mr Rogers’ statement. Nonetheless, the Form 52 should issue on request 1.

[20]     Regarding the request at paragraph 2 of the Form F52, I consider the production in relation to request 2 should answer the interrogatories. Otherwise, the customary course of cross-examination should elicit responses.

[21]     Regarding the request at paragraph 3 of the Form F52, paragraph 92 of the Statement of Matt Rogers says the following:

During previous industrial actions in 2021, similar actions regarding speed restrictions were introduced. At the time, we implemented speed restriction timetables for the entire network, which involved slowing everything down and running fewer services. Even then, we had to cut at least half of all services to make the timetables work. A new standard working timetable was introduced in October this year, so we can’t just reuse the 2021 timetable—it would need to be rebuilt from scratch and is more complex, from a timetable change perspective, due to the speed restriction not covering the whole of the network.

[22]     I query the relevance of request 3 of the form F52. Nonetheless, if relevant, the customary course of cross-examination should elicit responses.

[23]     Regarding requests at paragraphs 4, 5 and 6 of the Form F52, I consider the customary course of cross-examination should elicit responses.

(c)The F52 directed to the Assistant Commissioner of Police

[24]     Regarding request at paragraph 1 of the Form F52, I consider the customary course of cross-examination should elicit responses.

(d)The F52 directed to the Hotel Entities

[25]     Regarding request at paragraph 1 of the Form F52, I consider the customary course of cross-examination should elicit responses.

DEPUTY PRESIDENT

[1] S.414 of the Act.

[2] S.424(3) of the Act.

[3] [2024] FWC 2135.

[4] Digital Court Book p. 173.

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