Transdev Sydney Pty Ltd, Great River City Light Rail Pty Ltd - [2025] FWCFB 140

[2025] FWCFB 140

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.269 - Bargaining related workplace determination

Transdev Sydney Pty Ltd, Great River City Light Rail Pty Ltd

(B2024/983)

DEPUTY PRESIDENT ROBERTS DEPUTY PRESIDENT GRAYSON COMMISSIONER MCKINNON

SYDNEY, 8 JULY 2025

Application for an intractable bargaining workplace determination – agreed terms and matters still at issue after making of intractable bargaining declaration - rate of pay to which any increases should apply – quantum of wage increases – personal/carers leave

Transdev Sydney Pty Ltd (Transdev) and Great River City Light Rail Pty Ltd (Great River) (collectively, the Employers) have been engaged in bargaining for a proposed enterprise agreement to be known as the Transdev Sydney & Parramatta Light Rail Operations Enterprise Agreement 2023 (Proposed Agreement) with the Australian Rail Tram and Bus Industry Union (RTBU) and employee bargaining representatives since approximately May 2023. The negotiations have been protracted and ultimately have not resulted in the making of an agreement under Part 2-4 of the Fair Work Act 2009 (Cth)(Act).

On 24 December 2024 Deputy President Wright of the Fair Work Commission (FWC) made, by consent, an intractable bargaining declaration (IBD) pursuant to s.235 of the Act in relation to the bargaining for the Proposed Agreement.[1] The consequence of that declaration is that a Full Bench of the Commission is required by s.269 of the Act to make an intractable bargaining workplace determination as soon as possible after the making of the declaration or the end of any relevant post-declaration negotiating period.[2]

Section 270 of the Act deals with the terms that must be included in an intractable bargaining workplace determination. Amongst other things, those terms must include the terms prescribed by s 270(1), the agreed terms, as defined in s.274(3),[3] and where, as here, there is no post-declaration negotiating period, the terms that the FWC considers deal with the matters that were still at issue after making the declaration.[4]

One of the issues that arises for determination in this matter is what terms are the agreed terms and what are the matters that were still at issue after making the IBD. Specifically, the RTBU contends that there are two matters which were in issue at the relevant time. The first is whether the same rate of pay should apply to all drivers on different light rail lines for the duration of the intractable bargaining workplace determination (Determination), or more particularly, whether Drivers on the L1 and L4 lines should have the same base rate of pay as the other Drivers immediately before year 1 of the Determination. The second issue is the wage rates for the Network Officers classification as at 2023, also being the point in time immediately before year 1 of the Determination.

For their part, the Employers argue that these matters were not still at issue for the purposes of s.270(3). They said that in relation to Drivers’ rates, the only issue is by how much the Drivers’ rates (which differ under current arrangements according to the categories of Driver) should rise over the course of the Determination. The Employers submit that the pre-Determination rates for Network Officers was also an agreed term and that the Commission does not have jurisdiction to vary the terms of the parties’ agreement and must include that agreed term in the Determination because of the operation of s.270(2). We will refer to these matters as the Disputed Terms Issue.

Aside from the Disputed Terms Issue, the parties accept that there were two other matters still at issue for the purposes of s.270(3). These were the quantum of the wage increases for years 1, 2, 3 and 4 of the Determination and the quantum of the paid personal/carer’s leave provided for in the Determination. In relation to the former, the RTBU sought wage increases totalling 23% over 4 years comprising of increases of 7%, 6%, 5% and 5% operative from 1 November each year, commencing on 1 November 2023. The Employers argued that wages should increase by a total of no more than 11.8% over the 4-year period with no particular split as to what percentage increase should apply in any of the 4 years.

On the issue of personal/carer’s leave, the RTBU argued that there should be an increase in the entitlement from 10 to 15 days’ paid leave and a reduction in the period over which the entitlement would accrue after commencement. The Employers argued that no case had been made for an increase to the current entitlements which is limited by reference to the National Employment Standards (NES) to 10 days paid leave.

Background

The factual background to the present proceeding is largely uncontentious. The Employers are the operators and providers of public transport services, notably light rail, across four passenger routes in Sydney: the L1 Dulwich Hill Line, the L2 Randwick Line, the L3 Kingsford Line (together, Sydney Light Rail) each operated by Transdev, and the L4 Parramatta Line operated by Great River (Parramatta Light Rail). Great River was established specifically to be an employing entity for the Parramatta Line. It is a subsidiary of Transdev.[5]

The majority of the employees of Transdev who would be covered by the Determination are currently covered by two agreements. The first of these is the Transdev Sydney Pty Ltd (Inner West Light Rail) – Enterprise Agreement 2021 (2021 Agreement), which nominally expired on 31 October 2023, and which covers only light rail drivers on the L1 line. The second is the Transdev Sydney Light Rail Operations Enterprise Agreement 2019 (2019 Agreement), which also nominally expired on 31 October 2023.

The Employers employ operational employees including in the classifications of Light Rail Driver, Customer Service Officer, Authorised Officer, Light Rail Network Controller, Network Officer, Customer Information Officer and Trainer (Operational Employees). Operational Employees of Transdev are employed to work on Sydney Light Rail and Operational Employees of Great River are employed to work on Parramatta Light Rail. The majority of Operational Employees are employed in the classification of Light Rail Driver, being 57% of employees in the case of Transdev and 71% in the case of Great River.[6]

Transdev currently employs, amongst others, Network Officers and Customer Information Officers who will be covered by the Determination. Those classifications are not covered by either the 2021 or the 2019 Agreements and the terms of employment for those persons are currently governed by common law contracts.[7]

Great River first hired Operational Employees on or around 9 February 2024, and the terms of the employment of those employees who would be covered by the Determination are not currently covered by an enterprise agreement but are governed by common law contracts.[8] The Parramatta Light Rail commenced operations on 20 December 2024.

All of the employees who would have been covered by the Proposed Agreement are covered by the Passenger Vehicle Transportation Award 2020 (the Award).

The wage rates of Transdev’s Operational Employees are adjusted on 1 November each year. The last such adjustment, under both the 2021 and 2019 Agreements, took place on 1 November 2022. The parties have agreed that under the Determination, wage adjustments for Great River Operational Employees should take place on 1 November each year, just as for their Transdev employee counterparts.

History of negotiations

At the time of the initial bargaining meetings in 2023, the Parramatta Line had not yet commenced operations and was scheduled to do so in July 2024. According to Mr. Touzard, the Deputy Managing Director for Sydney Light Rail and Parramatta Light Rail, the Employers’ position in the negotiations was influenced by the possibility that protracted negotiations would result in the delay of the opening of the Parramatta Light Rail and consequential contractual penalties payable to Transport for NSW that would follow from any delayed commencement.[9]

Arising out of the negotiations, a series of wage offers were put by the Employers. On 16 November 2023, in addition to other non-wage-related terms, the Employers proposed the following wage increases which were rejected by the RTBU and the employee bargaining representatives:

(a) an aggregate increase of 4% in year one (meaning that the average proposed increase would be 4% across all categories of employees covered by the Proposed Agreement to ensure that the distance between grades was the same across all categories);
(b) fixed increase of 3.5% in year two;
(c) fixed increase of 3% in year three; and
(d) fixed increase of 3% in year four (being a combined total of 13.5% over four years).[10]

On 1 March 2024 a second offer was made that consisted of an aggregate wage increase of 16.8% over four years. That second offer was also rejected. On 22 March 2024 a third offer was made by the Employers. The offer was for a total wage and non-wage-related increase of 18.19% over 4 years, including backpay to 1 November 2023. That offer was rejected. A fourth offer was made by the Employers on 4 April 2024 which reverted to a separation of the wage and non-wage-related increases and provided for wage increases of:

(a) 5% in year one
(b) 3.5% in year two;
(c) 3% in year three; and
(d) 3% in year four (being a combined total of 14.5% increase to wages over four years).

The fourth offer was also rejected by the RTBU and the employee bargaining representatives.

The Proposed Agreement was also put to a vote of employees on three separate occasions, in June and October 2024 and most recently, between 12 and 13 December 2024, and rejected on each occasion.

Lump sum payments for Operational Employees

In December 2024, the parties reached an agreement that resulted in the Employers’ application for an IBD proceeding on a consent basis. The RTBU agreed to the consent application on the basis that, amongst other things, the Employers would pay an amount as backpay to Operational Employees as a lump sum payment. The terms of this agreement are referred to in correspondence from Transdev to the RTBU dated 18 December 2024.[11] The correspondence refers to “Transdev and Great River applying a 6% (8% for L1 operators) wage increase to wages and applicable allowances … from 1 November 2023.” Mr. Touzard’s evidence about this agreement was as follows:
That lump sum was calculated on the basis of the assumption that wages of the Transdev Operational Employees had risen by 6% (or 8%, in the case of the L1 Light Rail Drivers employed by Transdev) on 1 November 2023. It was agreed that this lump sum would be paid in two instalments:

(a) amounts notionally owing for the period between 1 November 2023 and 22 September 2024 would be paid by 31 December 2024; and
(b) the balance notionally owing up until 20 January 2025 would be paid by the end of January 2025 (together, the Lump Sum Payments).

…
The Employers paid the Lump Sum Payments to the Transdev Operational Employees in two instalments, on 31 December 2024 and 30 January 2025.
Regardless of the outcome of the IBWD, the Employers do not intend to seek to recover any part of the Lump Sum Payments made to the Transdev Operational Employees.

Mr. Touzard confirmed in cross-examination that the back payment amount was not subsequently paid to Great River employees on the basis that amounts payable to those employees under the terms of their common law contracts exceeded the amounts they would have received in a given roster period had they been paid the L1 rate increased by the agreed amount of 6%.[12] The correctness of this approach was disputed by the RTBU.

Statutory framework

Section 270(1) sets out a basic rule in relation to intractable bargaining workplace determinations. The section requires that such determinations must comply with s 270(4), include the core terms as set out in s 272, the mandatory terms as set out in s 273 and the agreed terms as provided for in s 274.

Section 271 provides that an intractable bargaining workplace determination must not include any terms other than those required by s 270(1). Section 272 also specifies that certain terms are not to be included in a determination.[13]

Section 270(2) requires that the determination must include “agreed terms”. The concept of an “agreed term” is defined in s 274(3) as follows:

Agreed term for an intractable bargaining workplace determination
(3) An agreed term for an intractable bargaining workplace determination is:
(a) a term that the bargaining representatives for the proposed enterprise agreement concerned had agreed, at the time the application for the intractable bargaining declaration concerned was made, should be included in the agreement; and
(b) any other term, in addition to a term mentioned in paragraph (a), that the bargaining representatives had agreed, at the time the declaration was made, should be included in the agreement; and
(c) if there is a post-declaration negotiating period for the declaration—any other term, in addition to a term mentioned in paragraph (a) or (b), that the bargaining representatives had agreed, at the end of the period, should be included in the agreement.

Note: The determination must include an agreed term (see subsection 270(2)

As is mentioned above, an intractable bargaining workplace determination must include terms the Commission considers deal with matters still in issue in either of the following circumstances; if there is a post-declaration negotiating period, after the end of that period or, otherwise, after the making of the intractable bargaining declaration.

Section 270(4) requires that an intractable bargaining workplace determination be expressed to cover the employer and employees that would have been covered by “the agreement” and any employee organisation that was a bargaining representative for those employees. The reference to “the agreement” here is a reference to the proposed agreement that is the subject of the intractable bargaining declaration.

A determination must also include a term specifying its nominal expiry date (s.272(2)), a disputes settlement term (s.273(2)-(3)), the model flexibility term (s.273(4), the model consultation term (s.273(5)) and a delegates’ rights term that is no less favourable than the equivalent term in any modern award that covers a delegate to whom the determination applies (s.273(6)-(7)).

There are two other statutory requirements that the terms of any determination must comply with. Those are the requirement in s.272(4) that the determination would, if it were an enterprise agreement, pass the better off overall test in s.193 and the requirement in s.270A(2) that if, immediately before the making of the determination, an enterprise agreement applies to any employee that will be covered by the determination (as is the case in relation to the Transdev employees), then any term that deals with matters still at issue must be not less favourable to each of those employees, and any employee organisation that was a bargaining representative of any of those employees, than a term of the enterprise agreement that deals with the matter. However, that requirement does not apply to a term that provides for a wage increase: s 270A(4).

The task of determining which terms are to be included in an intractable bargaining workplace determination

Section 275 contains the considerations which the Commission must take into account in deciding which terms to include in a workplace determination. The section provides as follows:
275 Factors the FWC must take into account in deciding terms of a workplace determination
The factors that the FWC must take into account in deciding which terms to include in a workplace determination include the following:
(a) the merits of the case;
(c) the interests of the employers and employees who will be covered by the determination;
(ca) the significance, to those employers and employees, of any arrangements or benefits in an enterprise agreement that, immediately before the determination is made, applies to any of the employers in respect of any of the employees;
(d) the public interest;
(e) how productivity might be improved in the enterprise or enterprises concerned;
(f) the extent to which the conduct of the bargaining representatives for the proposed enterprise agreement concerned was reasonable during bargaining for the agreement;
(g) the extent to which the bargaining representatives for the proposed enterprise agreement concerned have complied with the good faith bargaining requirements;
(h) incentives to continue to bargain at a later time.

In TWU v Cleanaway Operations Pty Ltd[14] the Full Bench described the Commission’s task in coming to a view as to the terms of a workplace determination as an “objective assessment of the statutory factors and an overall judgment as to an appropriate workplace determination to apply to the operations concerned until the parties replace the determination with a new enterprise agreement”.[15]

More recently, in NSW Electricity Networks Operations Pty Limited as Trustee for NSW Electricity Networks Operations Trust T/A Transgrid v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, Mining and Energy Union, Australian Municipal, Administrative, Clerical and Services Union, the Community and Public Sector Union, and Professionals Australia[16] (Transgrid), the Full Bench said in relation to the operation and application of s.275:
[58] … However, a requirement to “take into account” a set of considerations leaves open what weight or influence each of the particular matters is to have in the decision to be made. Further, none of the factors detailed in s 275 necessarily take on more particular significance than others. For instance, it would be erroneous to approach consideration of the s 275 factors on the premise that the merits of the case under s 275(a) or productivity under s 275(e) are or should necessarily be more consequential or significant than other factors.
[59] The matters specified in s 275 of the Act are not exhaustive of the considerations that the Commission can have regard to in deciding the terms to be included in a workplace determination. This is apparent from the word “include” in the chapeau of s 275, which allows the Commission the discretion to also have regard to any other relevant matter depending on the particular case. The determination of the Commission will be informed by ss 577 and 578 of the Act, including that the Commission must exercise its powers in a manner that achieves an outcome that is fair and just and that promotes harmonious and cooperative workplace relations. This consideration for the Commission is especially important in the context of an intractable bargaining workplace determination, where clearly bargaining relations between the parties have broken down.
[60] Some of the factors in s 275 of the Act are reasonably self-explanatory. However, we make (and endorse where previously established by authority) the following observations in relation to the s 275 factors:
(a) Reference to the “merits of the case” in s 275(a) requires consideration of whether the Commission considers it is appropriate to include the terms proposed in light of the evidence and contentions advanced by the parties. We emphasise, however, that the task in (sic) conducted in the context of determining the outcome of a bargaining processes and not setting minimum terms and conditions of employment for the purposes of a modern award.
(b) The requirement under s 275(c) to take into account the interests of the relevant employees and employers requires that those interests be identified and taken into account and the Commission must exercise a broad judgment to produce an outcome which is a fair compromise, balancing the legitimate expectations and interests of the employees and employers.
(c) Section 275(ca) is a new subclause and requires consideration to be given to the importance to the employer and employees to be covered by the workplace determination of the arrangements and benefits of an existing enterprise agreement the (sic) applies to the employer.
(d) The “public interest” in s 275(d) refers to matters that may impact the public as a whole and are distinct from the interests of employees and employers who will be covered by the workplace determination and will include, for instance, the achievement (or otherwise) of the objects of the Act, including employment levels, inflation and the maintenance of appropriate industrial standards.
(e) The concept of “productivity” in s 275(e) refers to the well-known economic concept of the quantity of outputs relative to the quantity of inputs. Productivity does not, as is often erroneously asserted in media and political discourse, concern the price of inputs such as a labour. Hence, an employer does not have a more productive workplace because its labour costs are lower. The same output at a lesser cost due to reduce (sic) wage or salary levels does not equate to productivity in the sense contemplated by s 275(e).
(f) The concept of the “reasonableness” of conduct under s 275(f) requires an evaluation of the party’s conduct during bargaining and whether the conduct was rational, logical or excessive. This falls to be assessed, however, against the rights conferred on bargaining parties during enterprise bargaining, including the right to engage in protected industrial action, and the fact that the parties are, to a reasonably wide degree, entitled to conduct the bargaining as they see fit.
(g) Consideration of incentives to bargain at a later time for the purposes of s 275(h), which is congruent with the encouragement of collective bargaining as an important means to achieve productivity and fairness as an object of the Act, requires an assessment of what substantive provisions are likely to encourage the parties to return to bargaining in the future. It may be relevant, for example, to consider whether the workplace determination leaves matters to be bargained about in the future.
[61] The Commission is ultimately tasked with assessing the respective positions of the parties as to the terms disputed between them and, by having regard to the mandatory considerations under s 275 of the Act and other relevant considerations, make an objective assessment and overall judgement as to the appropriate terms of a workplace determination that will cover the employees and apply to the parties. In Parks Victoria v Australian Workers’ Union [2013] FWCFB 950; (2013) 234 IR 242, the Full Bench summarised the task of the Commission as follows:
But the task we are presently engaged in is quite different to the making or variation of an award. As explained by the Full Bench in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Curragh Queensland Mining Ltd the task of the Commission in a matter such as this is to assess the respective positions of the parties in relation to the matters at issue and, by reference to the relevant statutory factors, arrive at a conclusion that would be regarded as appropriate in the context of bargaining, had the bargaining concluded successfully. Such an approach does not involve a form of subjective prognostication as to the outcome of the negotiations, but rather involves an objective assessment of the statutory factors and an overall judgement as to an appropriate determination to apply to the operations concerned until the parties replace the determination with a new enterprise agreement.
[62] In an arbitration in relation to the making of a workplace determination, neither party bears an onus of proof in respect of any change from the position pertaining in the most recent enterprise agreement or to establish the desirability of any particular condition or term sought to be included. Insofar as the Commission has a discretion in setting the terms of a workplace determination, the critical factors bearing upon the exercise of that discretion are the matters required to be taken into account by s 275 and the Commission must determine what it considers to be the appropriate outcome in light of the material which is placed before it.[17] (footnotes omitted)

Uncontroversial matters

The parties provided a draft Determination.[18] Aside from the Disputed Terms Issue, and the issues of quantum of wage increases and personal leave, it was accepted by the parties that the draft contains all of the terms that an intractable bargaining workplace determination must contain. That is, the draft contains all of the parties’ agreed terms, a coverage term,[19] a nominal expiry term,[20] and a term requiring bargaining to commence for a new agreement by no later than 30 April 2027. Further, the draft Determination includes the requisite dispute resolution, flexibility, consultation and delegates’ rights terms. It does not contain any of the kinds of terms that are prohibited by ss.272(3) and (5).[21] We are of the view that the draft Determination complies with the statutory requirements and, subject to the inclusion of our conclusions on the Disputed Terms Issue and the wage increases and personal leave terms, it provides the basis for the final determination arising out of this application. We turn then to consider the Disputed Terms Issue.

Different rates for Drivers on different light rail lines and rates for Network Officers

Mr Touzard’s evidence in chief as to the terms that had been agreed between the parties was as follows:
27. It is my understanding that on 3 December 2024, a copy of a draft Proposed Agreement (the Draft Agreement) was provided by Jon Jones, People & Culture Business Partner for Transdev, to the bargaining representatives for the RTBU, to be included in the upcoming vote. A copy of the Draft Agreement is annexed to this witness statement and marked YT-01.
28. On 18 December 2024, the parties reached a consent position on the Intractable Bargaining Declaration Application (IBD Application). It is my understanding that on the same day, Ashley Dean (Transdev's Head of Employee Relations) sent the RTBU a letter confirming the terms which were agreed between the parties under that consent position by reference to 'the proposed Light Rail Operations Enterprise Agreement 2023' (the 18 December Letter). I understand this to be a reference to the copy of the Draft Agreement provided to the RTBU on 3 December 2024. A copy of Mr Dean’s letter of 18 December is annexed to this witness statement and marked YT-02.

The letter of 18 December to the RTBU included the following:

I refer to our meeting on 16 December 2024 regarding the application for an intractable bargaining declaration by Transdev Sydney Pty Ltd (Transdev) and Great River City Light Rail Pty Ltd (Great River) (matter number B2024/983) in respect of the Light Rail Operations Enterprise Agreement 2023 (Agreement) (IBD Application).
…..
On 18 December 2024, the parties reached agreement on a consent position on the IBD Application. The terms of that consent position are as follows:

1. The RTBU agrees to consent to the IBD Application and the parties agree that all matters set out in the proposed Light Rail Operations Enterprise Agreement 2023 (Proposed Agreement) attached to this letter are agreed with the exception of the following matters which remain in dispute for the purposes of the IBD Application:
a. the quantum of the wage increases for Years 1, 2, 3 and 4 of the Agreement (noting that backpay for Year 1 increase is no longer in dispute); and
b. the quantum of paid personal/carer’s leave. (emphasis added)

The letter of 18 December 2024 was sent by email. A copy of the email attaching the letter was not originally provided but was made available by the Employers after the hearing at the request of the Full Bench. The email attached only the letter itself. It did not attach the proposed Light Rail Operations Enterprise Agreement 2023 which is referred to as an attachment. Consequently, the email itself does not provide a conclusive source document as to the matters that the parties had agreed immediately prior to the making of the IBD. Mr. Jones, the sender of the email, did not give evidence.

The draft agreement said by Mr. Touzard to have been provided to the RTBU on 3 December 2024 and prior to the December 2024 vote, and which he said he understood to be the document sent to the RTBU under cover of the letter of 18 December, provides for a schedule of base hourly rates that include three different rates for Light Rail Drivers (L1, L2/L3 and L4). The document also provides for a single rate, being for Lines 1 to 3 for Network Officers, but no rate for that classification on Line 4.

Mr. Grech, the RTBU’s Divisional President, disputed Mr. Touzard’s account of what had been agreed in December 2024. He said:

…. I do not agree that the reference to the Draft Agreement was the one provided to the RTBU on 3 December 2024. My understanding at the time was that the reference was to the version of the agreement that had been put to employees for a vote earlier in December 2024. That version, to my recollection, differed in certain respects from the draft circulated on 3 December.
…. I note that throughout bargaining, the RTBU consistently advanced a position grounded in the principle of 'same job, same pay'. Especially since the failed in principle agreement in July 2024, we opposed any arrangement under which employees would be paid more or less solely on the basis of which light rail line they operated on. As a result of our position, the rate for L4 drivers was aligned with the L1 rate for the purposes of negotiation at an early stage. Notwithstanding that, Transdev later proposed that L1 drivers receive an additional 2% increase at certain points during bargaining. The RTBU's current position remains that uniform rates should apply across the network in accordance with the same job, same pay principle and this should be achieved in this round of bargaining.[22]

Mr Grech was cross-examined about this evidence:

So in your witness statement where you say at paragraph 7 that there was a version of an agreement provided on about 3 December but you have a recollection in respect of one that was provided in respect of a vote in earlier December, that's a mistake, isn't it?---So I believe that paragraph was referring to the letter of agreement to come down to – to agree to the IBD and that there was an agreement attached to that document.
But for clarity, the version, or, to the best of your knowledge, the agreed terms in the workplace determination that both the RTBU and the employers have advanced to the Commission reflect the proposed agreement – essentially almost entirely save for the disputed matters – the proposed agreement that was provided before the vote in December 2024?---That would be my understanding.[23]

The application by the Employers for the IBD indicated that the parties had, at least at that point, not agreed on base rates applying to employees on the L1 Line. Under the heading “Outstanding matters” the application provided:

Transdev and the RTBU appear to have reached agreement on all matters relating to the Proposed EA, except for four matters. These are:
(a) the quantum of wage increases (including backpay);
(b) the current base rates for pay for L1 operators, on which any increases in the Proposed EA, will be made;
(c) the timing of re-grading of employees (which is linked to the quantum of wage increases); and
(d) the quantum of paid personal/carer’s leave.

The application goes on to say:

In its email dated 1 August 2024, the RTBU advised that there were two additional matters in issue to the matters identified by Transdev. These were:
(a) the drafting of Network Officers into the Proposed EA; and
(b) the current base rates for pay for L1 operators, on which any increases in the Proposed EA, will be made.

Transdev agrees that the current base rates for pay for L1 operators, on which any increases in the Proposed EA will be made, has not been resolved but confirms that the issue relating to Network Officers has been agreed and in Transdev’s view, this matter has been resolved.

In Deputy President Wright’s decision to issue the IBD (IBD decision), reference is made to a Statement of Agreed Facts (Statement) which was filed by the parties in support of the making of the IBD. This was also made available at the request of the Full Bench after the hearing. The Statement provided, relevantly:

…the parties are parties (sic) are unable to reach agreement on the following key terms of the Proposed Agreement:
a. the quantum of the wage increases for Years 1, 2, 3 and 4 of the Proposed Agreement; and
b. the quantum of paid personal/carer’s leave.

The Statement provided the factual basis for the Deputy President’s conclusion at paragraph [10] of the decision:

[10] On 31 May 2023, the Applicants issued a notice of employee representational rights (NERR) to employees to be covered by the Proposed Agreement. Bargaining has been occurring for more than 18 months, however the parties are unable to reach agreement on the following key terms of the Proposed Agreement:
a. the quantum of the wage increases for Years 1, 2, 3 and 4 of the Proposed Agreement;

and
b. the quantum of paid personal/carer’s leave.
Submissions and findings on Disputed Terms issue

The RTBU submitted that the central issue as to what was agreed and what remained in dispute after the IBD could be described as what the Year 1 rate for Drivers and Network Officers on the L1 and L4 lines should be. They submitted that their position in relation to Drivers had, at all relevant times, been that the year 1 rate for all Drivers should be the current rate provided for in the 2019 Agreement increased by 7%. They said that it had never been agreed that L1 and L4 Drivers should have any increases applied to the current rates in the 2021 Agreement rather than the higher rates that currently applied to Drivers on the L2 and L3 Lines under the 2019 Agreement.

The RTBU said it was clear from the terms of the correspondence of 18 December that the quantum of wage increases remained in dispute and that in advance of the Determination, the employers would apply a wage increase from 1 November 2023. The RTBU accepted that for the purposes of the calculation of the backpayment, different rates were to apply depending on the Line. They also accepted that the calculation was to be done on the ‘notional’ basis that the L4 Drivers were paid the L1 rates. However, the RTBU submitted that this was the extent of the agreement and that there was never any agreement on their part that there would be different starting points for the increases that were to apply to Drivers and an ongoing ‘tiered wage structure’ in any proposed agreement or determination. The back payment was described as a payment for consent to the declaration, not agreement as to the terms of the subsequent Determination.

As to Network Officers, the RTBU submitted that the Year 1 rate for that classification should be “the current notional hourly rate as calculated by the relevant work group, increased by 7%” as opposed to the “arbitrary” rate proposed by the Employers for L1, L2 and L3 Network Officers and the absence of any proposed rate at all for that classification on L4.

The Employers argued that the disputed matters were clearly described in the IBD decision as being, relevantly, “the quantum of wage increases for Years 1, 2, 3 and 4 of the Proposed Agreement”. They said the IBD decision did not make reference to any dispute as to the wage rates by reference to which the Commission was to determine the wage increases, or the existence or non-existence of any classification of employees. The Employers submitted that the letter of 18 December said that all matters set out in the attached agreement were agreed with the exception of, relevantly, “the quantum of wage increases for Years 1, 2, 3 and 4 of the Proposed Agreement”. They said that the draft agreement provided by Mr. Touzard was the agreement that had been voted on (and rejected) by the employees and that the matters set out in it included three separate rates of pay for drivers on the L1, L2 and L3 and L4 Lines. Mr. Touzard’s evidence was that it was also an agreed term that the Year 1 pay increase, that is the amount payable effective from 1 November 2023, for L1 Drivers would be 2% higher than the amount that would ultimately apply to all other classifications.[24] In relation to Network Officers, the Employers submitted that the agreed rates for Lines L1, L2 and L3 were as set out in the agreement referred to in the email of 18 December 2024 and the absence of rates for that classification on Line L4 could be readily explained by the fact that no employees were engaged in that classification on Line L4.[25]

The Employers said that the RTBU did not respond to the 18 December letter by disputing the separate rates for Drivers and nor did they dispute the rates to which the proposed increases had been applied in the case of Drivers or Network Officers. They argued that part of the agreement was a recognition and acceptance of differentiation in rates for Drivers on different lines in that L1 Drivers were to receive an 8% payment as opposed to 6% for the others.

The clearest embodiment of what constituted the agreed terms for the purposes of s.270(2) and s.274(3) is the Light Rail Operations Enterprise Agreement 2023 (2023 Agreement) which is referred to in the correspondence from Transdev to the RTBU on 18 December 2024. Although the 2023 Agreement was not attached to the email by which that letter was sent, a few observations can be made.

First, Mr Touzard gave evidence that he understood that the version of the 2023 Agreement that he provided was the agreement that was ‘sent’ with the 18 December email and which was provided to the RTBU on 3 December 2024 prior to the last vote of employees. When asked by the Full Bench whether he knew if the attachment to his statement was the same document that was ‘attached’ to the 18 December email, he accepted that he did not know.[26]

While Mr. Grech disputed that the version provided on 3 December and the version that was put to a vote on 12 December 2024 were the same, he did not provide details about any material differences. Mr. Grech also accepted in cross-examination that ‘save for the disputed matters’, the version that the RTBU had agreed to for the purpose of the IBD proceedings was the version that was provided before the agreement was voted down on 12 December 2024.

There was no suggestion that the Employers had done anything other than maintain a consistent position that different rates should apply to L1 Drivers at the commencement and that Network Officers on the L1, L2 and L3 Lines should be paid at a particular rate. Nor could it be doubted that the agreement that was provided to the RTBU and the employees prior to the final vote in December was the version that was then being advanced by the Employers.

In our view, and as best as can be ascertained from the evidence, the agreement that was provided to the RTBU prior to the vote in December was the version provided to the Commission in these proceedings by Mr. Touzard. We conclude that it is this document which contains the agreed terms for the purpose of s.270(2) of the Act. In reaching this conclusion we note that while these matters were not agreed at the time the application for an IBD was made, the Employers had sought confirmation of the agreed terms and the RTBU had acquiesced in the description of those terms in the letter of 18 December. Consequently, the agreement provided by Mr. Touzard (and the agreement as to the additional 2% increase for L1 Drivers), save for the matters mentioned below, contains the agreed terms at the time the declaration was made[27] and those terms are ‘locked in’ for the purpose of the Commission making its determination.[28]

What was expressly not agreed between the parties was, as described in the letter of 18 December, “the quantum of the wage increases for Years 1, 2, 3 and 4 of the Agreement (noting that backpay for Year 1 increase is no longer in dispute) and the quantum of paid personal/carer’s leave.” The RTBU submits that there was no agreement that there would be separate rates for L1, L2/L3 and L4 Drivers and no agreement as to the starting rates for L1 and L4 Drivers and Network Officers to which any arbitrated percentage increase would apply. In order for that submission to succeed it would be necessary to conclude that these issues were encompassed by the expression “quantum of the wage increases for Years 1, 2, 3 and 4 of the Agreement” in the 18 December correspondence and in the Statement of Agreed Facts. In our view that submission cannot succeed. Obviously, in a broad sense, where increases are applied to different pay points there will be a variation in the amount or ‘quantum’ of those increases. In context however, we think the reference to the “quantum” of the wage increases could only be sensibly understood as the percentage by which a particular amount would increase and not also a reference to different starting points from which such increases should be applied.

The evidence as to what occurred when the parties were determining the basis on which the proceedings in relation to the IBD would go forward supports the view that the quantum of the wage increases is confined to the percentage increases. The application for the IBD referred to above makes it clear that the parties themselves had distinguished between the quantum of the increases and the rates to which those increases were to be applied for the purpose of identifying matters still at issue. There had been, according to the letter of 18 December, an exchange of “offers on the parameters of a consent position on the IBD application.” Given the common law contract arrangements for those on the L4 Line, the parties would have been conscious of the need to set a base rate for those employees not simply for backpay purposes, but for any final resolution of the wages issue. The RTBU was not in the dark as to the Employers’ position on these matters. It had been previously provided with a copy of the draft agreement as proposed by the Employers that included commencement rates for all employees, including Drivers and Network Officers (other than on the Line L4). It was open to the RTBU at any time after receipt of the letter of 18 December to disagree not only with the amount of the percentage increases to the rates but also the rates to which those increases applied. It did not do so.

We are therefore of the view that the matters still at issue for the purpose of s.270(3) are confined to the appropriate percentage increase for each of the classifications and rates to be contained in the Determination, and the quantum of paid personal/carer’s leave. It is those matters to which we now turn.

Wage increases

The primary matter at issue between the parties in the Determination is the issue of the wage adjustments for each of the four years of the life of the Determination (Wages Term). The parties agree that for the purposes of the Employers’ backpay liability only, the Wages Term of the Determination should provide for a wage increase for all employees that is deemed to have taken effect on 1 November 2023 (year 1), a second wage increase to have taken effect on 1 November 2024 (year 2) and two further increases on 1 November 2025 and 1 November 2026 respectively.

The proposal for wage adjustments advanced by the Employers was that the wage rates of employees covered by the Determination should increase (or be taken to have increased) by a total of no more than 11.8% over the term of the 4 years commencing 1 November 2023. That figure is derived by adding the Commonwealth Government’s March 2025 Budget figures for actual and forecast Consumer Price Index (CPI) increases in FY2023-24 (3.8%), FY2024-25 (2.5%), FY2025-26 (3%) and FY2026-27 (2.5%). We note here that the agreed Sydney CPI figures for the same period amount to 12.05%. As previously noted, the Employers did not advocate for any particular split of the 11.8% increase in any particular year of the 4-year period. The Employers also confirmed that whatever split the Commission determined, they did not intend to claw back any of the lump sum payments which were made to employees when the consent arrangement for the IBD was entered into.

It was common ground that the last increase provided for by the 2019 and 2021 Agreements was payable on and from 1 November 2022 when the Transdev employees covered by those agreements received a 3% increase. Network Officers are not covered by either of those agreements. For Network Officers and for employees of Great River, the Award applies and is supplemented by common law contracts.

The RTBU’s position was that there should be a 23% increased backdated over the 4- year period as follows:

Date   Wage increase
1 November 2023                  7%
1 November 2024                  6%
1 November 2025                  5%
1 November 2026                  5%

The Employers submitted that in relation to the merits of the case as referred to in s.275(a), it was significant that the proposed Determination would not contain any terms that were likely to improve the productivity of the respective businesses and in that case, it was difficult to see that there was a case on the merits for an overall real wage increase. Second, reference was made to the evidence[29] that showed that employees under the 2019 Agreement employed in Grades 1 and 2 at the time the Agreement was voted on were ‘upgraded’ to a Grade 3 classification as a means to encourage approval of the Agreement and that this involved significant increases to base rates of pay.

As to the interests of employees referred to in s.275(c), the Employers said that CPI adjustments accommodated employee interests because it directly addresses actual and forecast CPI increases and allowed their wages to keep pace with cost-of-living increases. The interests of the Employers were said to be in securing a flexible and productive workforce and keeping labour cost pressures to a minimum. The Employers argued that the agreed terms of the Determination did not assist with either of those things and were simply the product of a campaign of protected industrial action in a setting where there was significant public pressure for the Employers (and the State Government) to deliver public transport services.

The Employers also urged that the public interest did not weigh in favour of any overall real wage increase over the relevant period. In this respect, it was argued that the decision to take protected industrial action and thereby reduce the availability of public transport services should not be ‘risk-free’ for employees, particularly where employers are making reasonable or even generous offers. It was submitted that employees should not be encouraged to assume that the Commission would award real wage increases ‘come what may’ with the consequence of providing an incentive to persist with protected industrial action. The Employers pointed to the public interest in avoiding lost productivity through commuter delays and damage to the natural environment occasioned by reduced public transport services. They argued that unlike the RTBU claim, acceding to the Employer’s wages proposal would not create incentives for employers to bargain unreasonably, including by withholding reasonable offers.

The Employers also argued that the consideration in s.275(e) as to how productivity might be improved was significant to the extent that productivity would be improved only if the employees had an incentive to agree to terms that allowed the Employers to deploy labour in a more efficient fashion. They said that this may require employees to make concessions but here no such concessions had been made, and the Determination would do nothing to improve productivity. Accordingly, it was put by the Employers that this factor weighed against any overall increase in real wages.

As to incentives to continue to bargain at a later time, the Employers submitted that preserving the real value of the existing wage rates would positively encourage bargaining that would improve real incomes at a later time and that their wages proposal would achieve that outcome.

The RTBU emphasised the significance of the need to maintain relative purchasing power for employees over time and stressed that the effect of CPI changes remained a critical though not determinative consideration in wage setting in workplace determinations and more broadly. It was put that the process should not be a rote mathematical exercise of applying a sufficient increase to compensate for inflationary changes over time. The union maintained that the employees here had seen a decline in their purchasing power over a considerable period and that the increases sought were necessary to restore the decline in real wages that had occurred over the recent period. The union said that Transdev employees had last received a wage increase on 1 November 2022 and that the real value of the employees’ wages had eroded by 8.3% since that period as follows[30]:

Quarter   Change to CPI[31]
October 2022 to December 2022                   1.9%
January 2022 to March 2023   1.4%
April 2023 to June 2023   0.8%
July 2023 to September 2023   1.2%
October 2023 to December 2023                    0.6%
January 2023 to March 2024   1.0%
April 2024 to June 2024   1.0%
July 2024 to September 2024   0.2%
October 2024 to December 2024                   0.2%
January 2025 to March 2025   TBC (released on 30 April 2025)

Reference was also made by the RTBU to higher interest rates in the period since November 2022, the cash rate having risen from 0.85% to 4.35% before reducing in the more recent period to 4.10%.

Further, the RTBU contended that the employees were worse off when compared to other industries over the period December 2014 to December 2024 as average annual growth in wages and salaries was lower for those in the transport industry compared to all industries and real wages had fallen marginally more in the transport industry in the recent period compared to the aggregate all-industries level. Reliance for these propositions was placed on evidence from Professor O’Brien from the Faculty of Business and Law at the University of Wollongong. It was also put that, compared to employees of Yarra Trams in Victoria, the employees’ relative wages were between 65% to 95% of the Yarra Trams employees depending on classification.

The RTBU also referred to the evidence of Professor O’Brien to the effect that there had been a significant increase in labour productivity growth in the transport sector in the period 2014 to 2024 compared to a decline for total market sector industries.

The RTBU submitted that the requirement to take into account the interests of employees included current and future employees, and that the interests of the Employers included the ability to meet the needs of its patrons, adapt to increasing demand, have a reliable pool of direct employees and attract more entrants to its current workforce. They said that improved wages were directly in employees’ interests and indirectly in the Employers’ interest in that it would promote workplace cohesion.

In relation to the public interest consideration in s.275(d) the RTBU submitted that the Commission could take into account, amongst other things, the achievement of the objects of the Act, employment levels, the maintenance and promotion of appropriate industrial standards and the desirability of wages levels which recognise the value of work and the need for employees to maintain and improve their standard of living over time. The RTBU said that the determination sought by them would not act as a disincentive to future bargaining but merely permitted the employees to recoup some of the real value of their wages and that the issue of gaps in wage relativities compared to their Victorian counterparts had not been completely addressed by the present claim and would remain a matter for future negotiations.

Neither party raised matters for consideration under s.275(f) or (g). The RTBU said there was little to be scrutinised in the matters at issue in terms of improvement of productivity under the heading of s.275(e).

In reply, the Employers submitted that the notion that the Commission had a ‘goal’ of wages growth over time as part of this wage fixation exercise was misconceived and that no support could be found for such a proposition in the Act. They submitted that the Commission did not have goals but rather exercised statutory functions, that no outcome is inevitable in the case of an intractable bargaining workplace determination and that the ultimate outcome depended upon a range of factors that the Commission must take into account. The employers said that the RTBU’s claim was divorced from microeconomic reality and that the logical endpoint of continual real wage increases was the unviability of the business and employee redundancies.

The Employers said that the RTBU’s wages claim involved increases that were above actual and projected CPI figures year on year in circumstances where there was no evidence to support the view that employees would become more productive or that the Employers would benefit from the terms of the Determination relative to existing arrangements. It was submitted that the RTBU’s claim that employees’ wages had been eroded by 8.3% was wrong because it ignored the 3% increase that Transdev employees were paid on 1 November 2022 and the fact that there had been no ‘erosion’ of wages for Great River employees because no such employees existed before February 2024.

It was also put that the submission that ‘Light Rail employees’ were ‘worse off compared to other industries’ was not supported by the evidence, given that Professor O’Brien’s statement did not compare either the employees, or even transport workers generally, to counterparts in other industries but rather consisted of disaggregated data relevant to the broad category of the “Transport, Postal and Warehousing” sector. Similarly, the Employers took issue with the evidence underpinning the submissions made about a relevant comparison between the employees and their counterparts at Yarra Trams. The Employers argued that at most, some wage rates in some Yarra Trams agreements were higher than some of those in some Transdev agreements. They said the evidence ignored the Great River employees and that there was no proper basis to conclude that wage levels in the Yarra Trams agreements were relevant to wages terms that should be included in the Determination.

The Employers also argued that the evidence of Professor O’Brien did not support a conclusion that the transport industry had enjoyed significant productivity gains because the analysis related to the Transport, Postal and Warehousing ANSZIC Division and was conducted at a ‘high level’ rather than in relation to the relevant employees. They contended that in any event, the proper focus of the analysis was a forward-looking assessment of potential productivity gains rather than past supposed gains.

The Employers said that the RTBU’s submission that their proposed wages term would provide benefits to the Employers such as the ability to adapt to increased demand or the promotion of workplace cohesion did not explain the causal link between these concepts and in any event was made without the necessary supporting evidence.

The last wage increase for Transdev employees provided for by the 2019 and 2021 Agreements became payable on 1 November 2022. In both agreements the increase provided for was 3% on and from that date. The parties accepted that changes in the CPI was a relevant consideration in the Commission’s determination of an appropriate wages term and provided an agreed table setting out percentage changes in the Sydney CPI in the period June 2019 to June 2024 which amounted to 20.5% and forecast increases for the period June 2025 to June 2028 which amounted to 10.75%.

As a general proposition, the RTBU urged that as a result of the significant rate of inflation experienced since the post-COVID19 period, employees had experienced a reduction in real wages and that was likely to endure if the increases proposed by the Employers were to be implemented. The submissions of the parties as to the suggested decline in real wages over time posited different scenarios which generated different results. The RTBU provided figures showing that the increases provided for in the 2021 Agreement would see those under that agreement 12.7% behind in real terms having regard to the New South Wales CPI figures for the period FYE 2022 to FYE 2025. That consequence follows at least in part because the 2021 Agreement does not provide for increases beyond 1 November 2022. The RTBU said that having regard to projected NSW CPI figures to the period FYE 2027, the employees under the 2021 Agreement would need to achieve wage increases totalling 18.2% to simply keep pace with inflation and maintain the value of their real wages.

The Employers submitted that their proposed wages term if implemented would not result in the erosion of the value of real wages over time. They provided figures showing that the wages of a hypothetical Grade 3 Driver under the 2017 and 2021 Agreements that commenced employment on 1 January 2019 and received increases consistent with those proposed by the Employers to FYE 2027 would, on the basis of known and forecast increases in the Sydney CPI, be 2.55% above the CPI figures at the end of that period. We observe that the projection would not hold equally for all classifications under those agreements since the Grade 3 classification received a more substantial increase than other classifications at the commencement of the 2021 Agreement.

The Employers provided evidence through Mr. Touzard of what was described as the productivity of Drivers on the L2 and L3 lines from 2020 to 2025. This was done by providing figures on total ‘productive time’ versus ‘unproductive time’ the latter of which included meal breaks, ‘sign-off’ events, ‘walking events’ and ‘standby time’. Standby time was time an employee was not on a meal break but was waiting for their work to recommence, most usually because there was no driver for the employee to relieve when they recommenced work after a break. Mr. Touzard described an increase in standby time as contributing to the amount of ‘unproductive time’ in the relevant period and attributed the increase to the negotiation of reduced shift times. Those reduced times necessitated an increase in the number of employees needed to cover the overall increase in the number of ‘Duties’ needed to provide the same number of services to customers. In short, Mr. Touzard maintained that more Drivers were required in 2025 than would have been required in 2020 and ‘the roster for L2 and L3 Drivers has grown less efficient over time.’

We have taken all of this evidence into consideration noting that updated calculations regarding unproductive time were objected to and only provided to the RTBU just prior to the hearing. In doing so we are mindful of the need to carefully delineate between productivity as conventionally understood as a measure of the rate at which economic inputs are converted into outputs, and employment costs, including the cost of labour, which may raise separate considerations.[32] We also note that the figures provided relate only to Drivers on the L2 and L3 Lines, which although significant in number, do not reflect the totality of the Employers’ operations. There was also only limited information provided as to the number of services provided and some evidence of Transdev providing increased services to meet the increase in customer patronage since 2022.[33] Mr. Touzard accepted in cross-examination that a more complete assessment of productivity levels would involve an assessment of the amount of services provided and the change in the service levels over time.[34]

In Transgrid the Full Bench referred to other matters that the Commission has had regard to in the assessment of wage claims in a workplace determination setting. These include the maintenance of real wages, wage outcomes for the same class of workers in the same industry and wage rates and increases in comparable instruments.[35] These matters were described as relevant but not determinative. In making our assessment we are also conscious of the need to accord appropriate weight to the significance of inflation. In Parks Victoria v. The Australian Workers’ Union and Ors the Full Bench adopted the views expressed in the earlier decision in Schweppes Australia Pty Ltd v. United Voice – Victoria Branch[36] to the following effect:

[118] We do not accept Schweppes’ proposition that the rate of inflation should be the sole or predominant consideration in determining wage increases in a workplace determination. In a context in which actual wages and wage increases, through bargaining, have regard to wage movements generally and/or in relevant industry sectors and regard is had to wage movements in assessing relative living standards in fixing minimum award wages, there is no basis for adopting a narrow focus on inflation in determining wage increases in a Workplace Determination. The level of inflation is, however, one relevant consideration. (footnote omitted)

The relevant time period over which the effects of movements in the rate of inflation are to be considered is a matter for the Commission.[37] In this instance we consider that it is appropriate to recognise the effects on real wages of the higher rates of inflation that persisted in the 2021-2022 and 2022-2023 financial years rather than simply adopting an increase that reflects CPI movements, actual and projected over the term of the determination. We do this noting as the Employers correctly observe, that the Agreements provided for a 3% increase on and from 1 November 2022 and that these impacts would not apply to Great River employees given they were not employed at the relevant time.

In relation to potential industry benchmarks and comparisons with other industrial instruments we have noted the objection to the evidence of Professor O’Brien and the evidence of Mr. Touzard as to the points of difference between the Yarra Trams agreements and those of Transdev.[38] The evidence of both witnesses on this issue has its limitations. We also observe that the Full Bench in Transgrid sounded a note of caution in relation to the adoption of evidence relating to wage rates in what might be said to be comparable instruments. As the Full Bench in that matter said, such comparisons may be relevant but can also be problematic given the differences that may pertain to the history of industrial regulation in particular enterprises and other idiosyncrasies that may arise because of geographical, historical or other enterprise-specific factors that produce a particular bargained outcome.[39] With those reservations in mind, we do think that the evidence from Professor O’Brien as to the Yarra Trams comparison, which was objected to as opinion evidence, is relevant to the task at hand and must be accorded some weight in the overall assessment. We note however that while Professor O’Brien’s comparison provides an analysis of movements in wage rates of what appear to us to be comparable classifications across the agreements over time, it does not purport to consider the operational-specific matters described by Mr. Touzard that might underpin differential rates across different agreements.

We have also taken into account Professor O’Brien’s overall macroeconomic assessment of the environment in which this determination is being made. The evidence of the period of high inflation in the aftermath of the pandemic before the return of the current lower levels, the fall and stabilisation of the unemployment rate and lower levels of recent economic growth brought on in part at least by the contraction in monetary policy and the relatively positive macroeconomic outlook, were not matters that were challenged by the Employers. We are of the view however that the sectoral economic analysis undertaken by Professor O’Brien is of limited assistance for the reasons advanced by the Employers.

Taking into account each of the matters listed in s.275 and the evidence and submissions of the parties, we have concluded that the Determination should include wage increases as follows:

(a) an increase of 6% on 1 November 2023;
(b) an increase of 3.5% on 1 November 2024;
(c) an increase of 3.5% on 1 November 2025; and
(d) an increase of 3% on 1 November 2026.

We are of the view that these increases appropriately balance the interests of the parties and the public interest. Further, we note that the Determination will have a nominal expiry date of 31 October 2027 and the parties will be required to commence bargaining by no later than April 2027. There will be an incentive for parties to bargain for a new agreement in the final year of the determination.

Personal/carer’s leave

Under the 2021 and 2019 Agreements, the NES entitlement to paid personal/carer’s leave (PPL) applies. Employees are entitled to 10 days of PPL each year. The same applies to Great River’s operational employees.[40] The RTBU argued that there should be an increase in the amount of this paid leave from 10 to 15 days.

The case put in support of the increase in PPL was that light rail operators were uniquely placed by comparison to other employees because of their obligation to comply with the Rail Safety National Law (NSW) 2012 (RSNL). The RTBU said that the RSNL obliged employees to take reasonable care for their own safety and the safety of others and, so far as they are reasonably able, to comply with reasonable instructions of the rail transport operator. It was submitted that rail operators also had a duty under the RSNL to implement a fatigue management programme and ensure that employees were fit to safely perform their duties and did not carry out work while impaired by fatigue. The RTBU said that the personal duties imposed on employees by the RSNL raised the prospect of employees committing offences and said it was no defence to such offence for an employee to claim they were following their employer’s directions.

The RTBU maintained that the prospect of committing an offence enhanced the likelihood of employees declaring themselves unfit for duty which in turn led to employees exhausting their sick leave entitlements and being required to take leave without pay to cover illnesses and fatigue. It was also put that the current arrangements created a financial disincentive for employees to manage their fatigue and encouraged a more ‘impetuous’ approach to fatigue management. Reliance was placed on the evidence of Mr. Furness, a Driver employed by Transdev. Mr. Furness deposed to the nature of the shifts worked, the need to self-identify as fit for work and his tendency to declare himself unfit for work because of the obligations imposed on him by the RSNL. Mr. Furness said he had exhausted his personal leave and had been required to take periods of unpaid leave to cover illnesses. He said he held concerns that some Drivers might be encouraged to ‘press on’ in circumstances where they may be increasing the risk of breaching their safety duties and increasing the risk of safety incidents.

Amongst the grounds of opposition to this claim, the Employers argued that it was significant that the Determination itself required the Employers to develop rosters in accordance with fatigue management obligations which was consistent with the employer’s obligation to implement a fatigue risk management programme. They said it would be a bizarre outcome if an employee was regarded as failing to take reasonable care in circumstances where they were simply working under a roster that had been developed in accordance with the Employer’s obligation. On that basis it was put that the employees’ supposed fear of breaching their duties in the RSNL were illusory. Further, the Employers argued that as a matter of law, PPL is not designed for ‘fatigue management’. They said that without more ‘fatigue’ is neither a personal illness nor a personal injury and an employee purporting to take personal leave because they were fatigued would be unable to satisfy the requirement to provide evidence of personal injury or personal illness as required by s.107(3)(a) of the Act.

We are not persuaded to grant the RTBU’s claim in relation to PPL. We have taken into account the factors referred to in s.275 and are not satisfied having regard to those factors, that the evidence supports such a claim. Much of Mr. Furness’s evidence was objected to as opinion and/or speculation but even taken it at its highest, we do not think the evidence is sufficient to come to the view that the additional PPL should be awarded. Mr. Furness said he ‘believed’ other Drivers had inadequate leave balances to cover sickness and fatigue and that he also ‘believed’ that being unable to access paid leave entitlements ‘may’ be enticing ‘some’ Drivers to press on in circumstances where they ‘may’ be breaching their RSNL safety duty. More fundamentally, the evidence of Mr. Furness and the RTBU was confined to Drivers but the claim for additional PPL was not. There was simply no evidentiary basis upon which an additional 5 days of PPL could be extended to all categories of employees that are the subject of the Determination.

Conclusion and disposition

For the above reasons we propose to make an intractable bargaining workplace determination in accordance with s.269 of the Act. The draft determination provided by the parties meets the requirements of Part 2-5 of the Act and should be used as the basis for the final form of the Determination incorporating the additional matters reflected in this decision. We propose to direct the parties to confer and provide the Commission with the final form of the Determination for publication within 7 days.

DEPUTY PRESIDENT

Appearances:

Mr Minucci, Counsel for the Applicants.
Mr Saunders, Counsel for the Bargaining Representatives.

Hearing details:

In-person at the Fair Work Commission, Sydney at 10:00am AEST on Thursday, 1 May 2025.

[1] [2024] FWC 3594.

[2] No such period was specified in the declaration.

[3] Section 270(2).

[4] Section 270(3)(b).

[5] PN 140-141.

[6] Exhibit A1, Statement of Touzard at [13].

[7] Ibid at [10].

[8] Ibid at [11].

[9] Ibid at [15]-[19].

[10] Ibid at [16].

[11] Exhibit A1 Annexure YT-02.

[12] Transcript PN 149-150, 155.

[13] See subsection (3) and (5).

[14] [2024] FWCFB 287.

[15] At [162].

[16] [2025] FWCFB 73.

[17] Ibid [58]-[62].

[18] A final version was provided after the hearing.

[19] At 1.3.

[20] At 1.2.

[21] See also s.271.

[22] Exhibit R4 at [7] and [8].

[23] Transcript PN478-479.

[24] Exhibit A1 at [42].

[25] Exhibit A3 at [19].

[26] PN161-162.

[27] Section 274(3)(b) and see Network Aviation Pty Ltd as Trustee for the Network Trust t/as Network Aviation Australia v. AFAP, AIPA and TWU[2024] FWCFB 308 at [140].

[28] United Firefighters Union of Australia v. Fire Rescue Victoria [2025] FCAFC 16 at [15].

[29] Touzard Statement Exhibit A1 at [46].

[30] Submissions at [23].

[31] Ibid. The figures quoted are national figures.

[32] Schweppes Australia Pty Ltd v. United Voice – Victoria Branch[2012] FWAFB 7858 at [38] and following.

[33] Touzard - Exhibit A2 at 13(b).

[34] PN 331-332.

[35] Op cit at [104].

[36] [2012] FWAFB 8599.

[37] Transgrid op cit at [125].

[38] Exhibit A2 op cit at 1.2.

[39] Op cit at [137] – [139].

[40] Employer Submissions, 7 April 2025 paragraph [57].

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