1
Fair Work Act 2009
s.424—Industrial action
Sydney Trains; NSW Trains
(B2018/50)
The Hon. Dominic Perrottet, Minister for Industrial Relations (New South
Wales)
(B2018/51)
SENIOR DEPUTY PRESIDENT HAMBERGER SYDNEY, 9 FEBRUARY 2018
Suspension of protected industrial action by employees of Sydney Trains and NSW Trains –
industrial action is threatening to endanger the welfare of part of the population – industrial
action is threatening to cause significant damage to an important part of the Australian
economy – reasons for decision.
Background
[1] On 15 January 2018, the Australian Rail, Tram & Bus Industry Union (NSW Branch)
(the RTBU) notified Sydney Trains and NSW Trains (the Employers) pursuant to s.414 of the
Fair Work Act 2009 (the FW Act) that its members would be engaging in indefinite bans on
overtime from 12:01 am on Thursday, 25 January 2018. The same day, the Association of
Professional Engineers, Scientists and Managers Australia (APESMA) notified Sydney Trains
that its members would also be engaging in indefinite bans on overtime from 12:01 am on
Thursday, 25 January 2018.
[2] On 16 January 2018, the RTBU notified the Employers that its members would
undertake a stoppage of work for a 24-hour period commencing at 12:01 am Monday, 29
January 2018.
[3] On 17 January 2018, APESMA notified NSW Trains that its members would be
engaging in indefinite bans on overtime from 12:01 am on Tuesday, 30 January 2018.
[4] On 24 January 2018, the Employers filed an application with the Fair Work
Commission (the Commission) for an order for suspension or termination of protected action
pursuant to ss.424 and 425 of the FW Act against the RTBU and APESMA (the Unions). On
the same day, the Minister for Industrial Relations in New South Wales, the Hon. Dominic
Perrottet (the Minister), filed an application with the Commission for an order for suspension
or termination of protected industrial action pursuant to s.424 of the FW Act against the
Unions. The applications cited the indefinite bans on overtime notified by both Unions, as
well as the 24-hour stoppage notified by the RTBU.
[2018] FWC 632
REASONS FOR DECISION
E AUSTRALIA FairWork Commission
[2018] FWC 632
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[5] The applications were heard on 24 and 25 January 2018. At the conclusion of the
hearing on 25 January 2018, I issued a brief decision1 indicating that I had decided to make an
order2 suspending the industrial action for a period of six weeks from 6:00 pm that day,
ending at 6:00 pm on 8 March 2018, in accordance with s.424 of the FW Act. In the decision,
I said that I would publish more detailed reasons at a later date. These are those reasons.
Because my decision was based solely on s.424 of the FW Act (rather than s.425), I focus on
the evidence and submissions relevant to that section.
The evidence
[6] Steven Charles Issa (Executive Director, Sydney Coordination Office, Transport for
NSW (TfNSW)) said that he was involved in coordinating the transport mitigation strategy
for the industrial action notified by the Unions. In his written statement,3 he said that rail
accounts for 56% of all public transport trips.4 He said:
‘From Thursday 25 January 2018, trains will be running on a weekend timetable, which
is a reduction in services of approximately 40% to 50%. On Monday, 29 January 2018,
trains will not run at all.’5
[7] Mr Issa indicated that TfNSW would attempt to mitigate the effects of the industrial
action by putting on additional buses, but that ‘available bus capacity cannot match the full
capacity of the train network.’6
[8] Mr Issa said:
‘The lack of trains operating will increase the traffic on the roads considerably. Based
on Opal data, I am aware that if everyone who normally catches a train between 8am
and 9am on a weekday drives instead, approximately an additional 160,000 cars would
be on the road….
On the date of the 24 hour stoppage, it is expected that commuters, particularly in
regional and suburban areas, will attempt to drive to the Sydney Central Business
District (CBD) which may result in (amongst other things) traffic jams on most major
roads and major congestion around the CBD.’7
[9] Mr Issa added:
‘Congested roads may also impede essential services workers from attending work. To
the extent that essential services staff such as police officers, nurses, doctors,
ambulance officers, and fire fighters use trains to get to work, reduced services can be
expected to impact their ability to arrive at work on time.’8
[10] Gavin Kable (Executive Director, People & Communications, Sydney Trains) gave
evidence concerning the progress in bargaining between the Employers and the relevant
unions for a new enterprise agreement for Sydney Trains. In cross-examination, he indicated
that bargaining was continuing and that some matters had been agreed.9
[11] Michael Croning (Director, Service Planning, TfNSW) gave evidence about the
potential impact of the proposed industrial action on rail operations. In relation to the
proposed 24-hour stoppage, he said:
[2018] FWC 632
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If drivers and guards participated in the stoppage, then passenger services could
not run;
If employees in the Rail Management Centre participated in the stoppage, then
the entire network would have to be shut down;
If employees responsible for maintenance, infrastructure or track operations
participated in the stoppage, sections of the track could become unusable, which
would most likely lead to a shutdown of the network in the interests of safety;
If employees in the infrastructure control centre participated in the stoppage,
consideration would need to be given as to whether Sydney Trains could
continue to operate the network safely, and if not, could result in the closure of
the network;
If employees in electrical system maintenance participated in the stoppage, even
a relatively minor fault could result in the entire network being shut down; and
If communications employees participated in the stoppage, this could result in
train and maintenance operations being shut down.10
[12] Mr Croning gave evidence that the effect of the proposed stoppage would be that over
one million customer journeys would not take place.11 The approximately 420,000 persons
who usually travel by train on the Sydney Trains network in the morning peak period would
be unable to make their journey.12 The approximately 440,000 persons who usually travel
during the afternoon peak would be similarly affected.13
[13] Mr Croning said that large numbers of persons who use Sydney Trains to travel to
major suburban centres ‘including highly-visited precincts for the education, residential,
retail and medical and health sectors’ would similarly be unable to make their journey.14
[14] Mr Croning’s evidence was that after work-based travel, the next largest usage of the
network is education-related travel and travel by school children. The day of the proposed
stoppage was the first day back for most independent schools.15
[15] Mr Croning also said that the proposed stoppage would prevent the network from
being accessed by freight operators, thereby affecting the movement of coal, containers
(including ones carrying perishable food), grain, cement and aggregates and waste (from
transfer stations at Auburn to Goulburn).16 Travel to and from Sydney Airport would also be
disrupted.17
[16] According to Mr Croning, because of the need to return trains back to stabling yards
etc., the proposed 24-hour stoppage would affect services for an additional two hours prior to
the stoppage and three hours afterwards.18
[17] Mr Croning also gave evidence about the impact of the proposed indefinite ban on
overtime by the RTBU and APESMA. His evidence could be summarised thus:
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The ban would have a severe impact on Sydney Trains’ service delivery and that
impact would likely become more severe as the ban continued;19
Overtime is factored into the schedules and rosters for train crew;20
In order to provide a reliable and consistent level of service in the face of the ban,
Sydney Trains would need to operate a Saturday timetable instead of a weekday
timetable from the commencement of the ban on 25 January 2018.21 This would
involve running approximately 50% fewer services;22
If the indefinite ban continued during the week commencing Monday, 29 January
2018, running the Saturday timetable would not be sufficient and the impact on
commuters would be serious, involving significant delays, serious overcrowding
on platforms and attempts made to board already overcrowded trains, which
might increase the risk of injury or panic;23 and
The inability to use overtime to backfill for employees who take sick leave would
create the potential for parts of the network having to be shut down (for example,
if a signaller could not work their shift due to illness). Reduced staffing levels at
stations could mean that entry to stations would need to be closed for safety
reasons.24
[18] Dale Merrick (Director, Network Services, NSW Trains) gave evidence25 of the effect
of the proposed industrial action on the services provided by NSW Trains.
[19] Mr Merrick said that while NSW Trains would probably be able to replace all affected
regional services with coaches on and around 29 January 2018, it would not be able to do so
for intercity train services.26 The effects of the proposed stoppage would likely include:
Tourists and travellers being prevented from making pre-booked connections
with flights, cruise ships and accommodation;
School children and teachers not being able to attend schools (which, in some
cases, might lead to schools having to close);
Workers not being able to attend work;
Elderly and ill people not being able to attend medical appointments or obtain
necessary medication; and
A significant increase in road traffic, particularly from intercity service areas
such as Wollongong, the Central Coast, the Blue Mountains and Newcastle to
Sydney.27
[20] Mr Merrick also gave evidence that the proposed indefinite ban would have a severe
impact on NSW Trains’ service delivery across the intercity and regional services, and that
impact would become more severe as the ban continued.28
[21] Mr Merrick said that NSW Trains would need to operate a Saturday timetable from the
commencement of the overtime ban (involving approximately 50% less services than the
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weekday timetable). Running the Saturday timetable during the week would lead to
overcrowding and an increased safety risk.29
[22] Michael Warlters (Acting Executive Director, Economic Forecasting and Revenue
Analysis, NSW Treasury) gave evidence about modelling of the immediate economic impact
of the proposed industrial action, which he had overseen.30
[23] The immediate economic impact was calculated by determining the loss of gross state
product per hour worked, multiplied by the number of hours lost due to travel constraints.
Secondary effects such as loss of leisure time and inconvenience were not included.31
[24] According to NSW Treasury’s modelling, the proposed 24-hour stoppage would have
resulted in an economic loss of $51.7 million. An additional loss of $39.1 million was
estimated to arise from the overtime ban, making a total loss of $90.8 million.32
[25] Dr Warlters outlined the assumptions underlying the modelling for the proposed
stoppage. It was assumed that train commuters would modify their behaviour by allowing for
longer commute times, working from home or taking annual leave.33 Dr Warlters outlined the
conservative nature of some of the assumptions, for example, that any effect on public sector
workers would not have an impact on gross state product (as they would have access to being
able to work from home or other flexible arrangements). It was assumed that 55% of private
sector workers who normally travel by train to and from work would be able to work a full
day (either at home or at work), and a further 10% would access annual leave. This left 10%
of workers who normally travel by train who it was assumed would lose one hour of
productive time, and 25% who it was assumed would not attend work and would not take
annual leave.34
[26] The assumptions underlying the modelling for the overtime ban included that:
it would have no impact on the output of the public sector;
55% of private sector workers who normally travel to work by train would work
normal hours and 45% of private sector workers who use the train to get to work
would lose one hour of productive work; and
there would be no loss of output on the public holiday and weekend of 26 to 28
January 2018.35
[27] The modelling also only estimated the cost of the overtime until 31 January 2018
(despite its indefinite nature).36
[28] The estimated cost of the proposed industrial action did not include the costs of
increased road congestion on workers who do not normally travel to work by train. The
estimates of productivity loss were based using a State average rather than a Sydney
average.37
[29] Dr Warlters agreed during cross-examination that the forecast Gross State Product for
2017-18 is around $600 billion.38
[2018] FWC 632
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[30] Graeme Loy (Acting Deputy Secretary, NSW Ministry of Health) gave evidence about
the likely impact of the proposed industrial action on the health system.39 Based on feedback
he had received from Local Health District CEOs as a result of the proposed stoppage, there
would be service interruptions including impacts to elective surgery, outpatient services and
community health services at a number of major hospitals.40 He also warned that there might
be delays in hospital emergency departments and a negative effect on surgery waiting times.41
The Sydney Dental Hospital would be forced to cancel most of its appointments.42 He also
said it was possible that increased congestion would adversely affect ambulance response
times.43
[31] Mr Loy said that the proposed overtime ban could also result in delays in hospital
emergency departments and surgery waiting times.44 If the overtime ban were to continue to
30 January 2018 and beyond, there would be a cumulative and compounding effect of
increased cancellations for surgery and outpatient appointments, impacts on community
services availability and greater delays for patients accessing care through emergency
departments.45
[32] Robyn Bale (Relieving Executive Director, Educational Services Division,
Department of Education) gave evidence concerning the impact of the proposed industrial
action on student attendance at school.46 According to her, around 50,000 trips are taken each
day by school students using a Student Opal Card in the Metropolitan and Outer Metropolitan
regions.47
[33] Ms Bale said that while public school students were not required to attend on the day
of the stoppage, they would be affected by the overtime ban. The reduced frequency of
services could lead to some students being late for school.48 Students might have to spend
longer at train stations without supervision, increasing the risk to some students, particularly
younger students and those with a disability.49
[34] Michael Baldi (Executive Director, Strategic Human Resources, Department of
Justice) gave evidence concerning the impact of the proposed industrial action on the justice
system.50 His evidence included the potential for scheduled court matters and hearings not to
proceed on 29 January 2018, imposing costs on both the State and the litigants.51
[35] Susan Pettifer (Director, Workplace & Information Services, Council of the City of
Sydney) gave evidence concerning the impact of the proposed industrial action on the services
provided by the City of Sydney.52 She referred to a 2016 staff survey which indicated that
49% of respondents travelled to work by train.53 Amongst other things, she said that the
proposed industrial action could mean that there would be a reduced ability to pick up
household waste due to staff being unable to get to work. Increased road congestion could
lead to cancelled or reduced clean-up services, street cleaning, and street litter bin
collection.54
[2018] FWC 632
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The legislation
[36] Section 424 of the FW Act states:
‘424 FWC must suspend or terminate protected industrial action—endangering
life etc.
Suspension or termination of protected industrial action
(1) The FWC must make an order suspending or terminating protected industrial
action for a proposed enterprise agreement that:
(a) is being engaged in; or
(b) is threatened, impending or probable;
if the FWC is satisfied that the protected industrial action has threatened, is
threatening, or would threaten:
(c) to endanger the life, the personal safety or health, or the welfare, of the
population or of part of it; or
(d) to cause significant damage to the Australian economy or an important part
of it.
(2) The FWC may make the order:
(a) on its own initiative; or
(b) on application by any of the following:
(i) a bargaining representative for the agreement;
(ii) the Minister;
(iia) if the industrial action is being engaged in, or is threatened,
impending or probable, in a State that is a referring State as defined in
section 30B or 30L—the Minister of the State who has responsibility for
workplace relations matters in the State;
(iib) if the industrial action is being engaged in, or is threatened,
impending or probable, in a Territory—the Minister of the Territory who
has responsibility for workplace relations matters in the Territory;
(iii) a person prescribed by the regulations.
Application must be determined within 5 days
(3) If an application for an order under this section is made, the FWC must, as far as
practicable, determine the application within 5 days after it is made.
[2018] FWC 632
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Interim orders
(4) If the FWC is unable to determine the application within that period, the FWC
must, within that period, make an interim order suspending the protected industrial
action to which the application relates until the application is determined.
(5) An interim order continues in operation until the application is determined.’
Consideration
[37] At the time of the hearing, it was not in contest between the relevant parties that there
was a threat of protected industrial action by the Unions. So much was apparent from the
notices served by the Unions on the Employers. Indeed, the indefinite ban on overtime by
employees who were RTBU members had already commenced on the second day of the
hearing.
[38] Nor was there any challenge to the standing of the applicants to bring the applications.
The critical issue was whether the Commission could be satisfied that the protected action
threatened to endanger the life, the personal safety or health, or the welfare, of the population
or of part of it, or to cause significant damage to the Australian economy or an important part
of it. Once the Commission is so satisfied, it must make an order suspending or terminating
the relevant protected industrial action.
[39] Mr Howell, on behalf of the Unions, emphasised the need for there to be ‘an
appropriate evidential basis’55 before the Commission can be satisfied that the relevant
criteria for making an order are satisfied. He also emphasised that the applications were
directed towards ‘very specific applications for industrial action; two unions with very
different coverage, two employers, separate legal entities.’56 He submitted that the evidence
was too vague to make the required findings: ‘[e]verything is framed around may do this, may
do that.’57
[40] With regard to the economic impact of the threatened industrial action, Mr Howell
submitted that the cost impact on the NSW economy produced by the Treasury modelling was
‘minuscule’ in the context of a State economy of $600 billion.58
[41] I have had regard to the following observation by Buchanan J in Australian and
International Pilots Association v Fair Work Australia:59
‘Section 424 empowers FWA to make an order terminating or suspending “protected
industrial action” as identified in s 408. Necessarily, that imports a limitation which
confines attention to the particular protected industrial action in question. That is
because protected industrial action must satisfy s 409, s 410 or s 411, and also the
common requirements in s 413. Those requirements include notice of the nature of the
action and when the action will commence (s 414(6)). It follows, in my view, that
separate consideration must be given to each of the protected industrial actions which
is to be terminated or suspended – i.e. each which has been notified. That may not
mean that each must be considered in isolation but that is a question for another day.60’
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[42] Most of the evidence presented during the hearing distinguished between the likely
effect of the proposed 24-hour stoppage and the effect of the proposed overtime bans. It also
generally distinguished between the effect of the proposed industrial action on Sydney Trains
and on NSW Trains. It generally did not distinguish between the effect of the overtime ban
notified by the RTBU and that separately notified by APESMA. In my view, however, in the
circumstances of this case, I think that little turns on this. Both unions had notified the same
kind of industrial action (indefinite bans on overtime), which would largely take place
simultaneously (though I note that APESMA’s bans at NSW Trains were scheduled to
commence a few days later than those notified by the RTBU). The industrial campaign was
clearly coordinated by both unions. Given the close relationship in the work performed by
members of both unions (something of which I am aware from my experience as a member of
the Commission), it is reasonable to consider the evidence relating to the proposed overtime
bans as generally referring to the combined impact of the overtime bans imposed by both
unions.
[43] While some of the evidence was inevitably somewhat speculative, much of it was
quite specific. The evidence clearly established that the proposed 24-hour stoppage would
almost certainly have meant no train services on Monday 29 January 2018. Moreover, the
overtime ban would have greatly reduced the level of train services available from 25 January
2018, for an indefinite period.
[44] The evidence also established that the 24-hour stoppage and the overtime bans – taken
together – or indeed separately – threatened to endanger the welfare of a part of the
population, including the large number of people in Sydney and surrounding areas who rely
on the services provided by Sydney Trains and NSW Trains to get to work, attend school or
otherwise go about their business, as well as all those who would have suffered from the
increased congestion on the roads that would have been an inevitable consequence of the
industrial action.
[45] The evidence was also sufficient to establish that the industrial action would have
threatened to cause significant damage to the economy of Sydney – the largest and most
economically important city in Australia.
[46] This finding was supported by the NSW Treasury modelling that estimated that the
cost to the NSW economy would have been in the order of $90 million. I note that this figure
assumed no impact at all on the output of public sector workers, nor on the output of private
sector workers who do not usually travel to work by train, even though many of them would
have been affected by increased congestion on the roads. It also assumed that the output of the
majority of private sector workers who do normally travel by train would have been
unaffected. Moreover, the modelling only estimated the cost of the threatened overtime bans
until 31 January 2018, even though they were of an indefinite nature. It is quite likely, in my
opinion, that the cost to the economy, if the industrial action had gone ahead, would have
been significantly more than $90 million modelled by Treasury. Such a loss of output would
represent – in absolute terms – significant economic damage.
[47] In the light of these findings, I was required by s.424 of the FW Act to make an order
suspending or terminating the protected industrial action.
[48] No party sought that the protected action be terminated. It was also clear that
enterprise bargaining negotiations were continuing. In these circumstances I determined that it
[2018] FWC 632
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was appropriate to suspend the industrial action for a period of six weeks from 6:00 pm on 25
January 2018 to 6:00 pm on 8 March 2018. This order was made in the expectation that the
parties would use this period to conclude their negotiations.
SENIOR DEPUTY PRESIDENT
Appearances:
M Seck, counsel, with T Woods, solicitor, for Sydney Trains and NSW Trains.
M Easton, counsel, for the Hon. Dominic Perrottet, Minister for Industrial Relations (New
South Wales).
A Howell, counsel, with M Doherty, solicitor, for the Australian Rail, Tram and Bus Industry
Union and The Association of Professional Engineers, Scientists and Managers, Australia.
Hearing details:
Sydney.
2018.
January 24, 25.
Printed by authority of the Commonwealth Government Printer
PR599953
1 [2018] FWC 519.
2 PR599816.
3 Exhibit 2.
4 Ibid [3].
5 Ibid [6].
6 Ibid [6].
7 Ibid [12].
8 Ibid [14].
9 PN137.
10 Exhibit 1 [16].
11 Ibid [18].
12 Ibid [21].
13 Ibid [22].
14 Ibid [23].
GON MMISSION WORK IR WORKS THE SEAL( THE
[2018] FWC 632
11
15 Ibid [24]-[25].
16 Ibid [28]-[29].
17 Ibid [30].
18 Ibid [40]-[41].
19 Ibid [43].
20 Ibid [44].
21 Ibid [45].
22 Ibid [47].
23 Ibid [51].
24 Ibid [52]-[59].
25 Exhibit 5.
26 Ibid [23]-[25].
27 Ibid [27].
28 Ibid [33].
29 Ibid [38].
30 Exhibit 7
31 Ibid [11]-[12].
32 Ibid [12].
33 Ibid [14].
34 Ibid [16].
35 Ibid [17].
36 See, e.g. exhibit 7 attachment D, 15.
37 Exhibit 7 [19].
38 PN303.
39 Exhibit 8.
40 Ibid [10]-[12].
41 Ibid [14].
42 Ibid [15].
43 Ibid [16].
44 Ibid [20].
45 Ibid [22].
46 Exhibit 9.
47 Ibid [9]-[11].
48 Ibid [15].
49 Ibid [17].
50 Exhibit 10.
51 Ibid [14].
52 Exhibit 11.
53 Ibid [10].
54 Ibid [14].
55 PN661.
56 PN634.
57 PN663.
58 PN670.
59 [2012] FCAFC 65.
60 Ibid [128].
