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Fair Work Act 2009
s.437 - Application for a protected action ballot order
Application by Australian Rail, Tram and Bus Industry Union
(B2021/455)
DEPUTY PRESIDENT BULL SYDNEY, 8 AUGUST 2021
Application for Protected Action Ballot Order for employees of Sydney Trains and NSW
Trains - Whether respondents are single interest employers - Whether union is genuinely
trying to reach agreement - Application to extend notice period.
[1] The Australian Rail, Tram and Bus Industry Union NSW Branch (RTBU) has filed an
application pursuant to s.437 of the Fair Work Act 2009 (the Act) for a Protected Action
Ballot Order (PABO) in relation to employees employed by Sydney Trains and NSW Trains
(the respondents), in classifications covered by the:
Sydney Trains Enterprise Agreement 2018,1 and
NSW Trains Enterprise Agreement 20182
(the Agreements)
[2] The respondent employers are each covered by one of the above two enterprise
agreements, whereas the RTBU is covered by both Agreements having given notice under
s.183 of the Act that it wished to be covered by the Agreements. The RTBU is also named
together with a number of other employee organisations (the unions) as being covered by the
Agreements under clause 5 - Coverage of the Agreement. The Agreements contain for the
most part, identical terms and conditions.
1 AE428119
2 AE428I20
DECISION
E AUSTRALIA FairWork Commission
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[3] The application set out the proposed questions to be asked of employees to be balloted
and specifies as the proposed ballot agent, the Managing Director of Democratic Outcomes
Pty Ltd trading as CiVS.
[4] A Form F34B Declaration in support of an application for a protected action ballot
order completed by Peter Matthews - RTBU Legal Officer, accompanied the application and
set out in some detail the steps taken by the RTBU said to demonstrate its attempts to
genuinely try and reach an agreement with the respondents.
[5] The respondents oppose the PABO being issued by the Commission. The opposition is
based on a contention that the RTBU has not satisfied s.443(1)(b) which requires the RTBU
to have been and is genuinely trying to reach an agreement with the respondents.
[6] Both respondents have requested that the Commission extend the default notice period
under s.414(2)(a) of the Act that a bargaining representative must provide 3 working days’
notice to the employer before taking protected industrial action to periods of either five or
seven working days pursuant to s.443(5), depending on the proposed form of industrial action.
[7] Subsequent to the PABO application, and upon notice of the respondents’ opposition
to its application, the RTBU filed an application for an order for the production of documents
directed to the respondents, which was initially opposed by the respondents but was
eventually resolved with a Commission order (22 July 2021) issuing by consent, requiring
Sydney Trains to produce certain documents.
Representation
[8] Upon the finality of the production of documents application, the matter was heard on
23 and 30 July 2021. All parties were granted permission under s.596(2)(a) to be legally
represented, with the Commission being satisfied that such representation would enable the
matter to be dealt with more efficiently, taking into account the complexity of the matter.
Restriction on when an application is made
[9] Section 438 prohibits a PABO application being made earlier than 30 days before the
nominal expiry date of an enterprise agreement. As the Agreements have a nominal expiry
date of 1 May 2021 and the application was made on 21 June 2021, this requirement is met.
Single interest employers
[10] It is noted that the PABO application lists two employers as the respondents to the
application.
[11] Section 172(2) of the Act provides that an employer, or 2 or more employers that are
single interest employers, may make an enterprise agreement (a single-enterprise agreement).
In particular, s.172(5) states that two or more employers are single interest employers if:
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(a) The employers are engaged in a joint venture or common enterprise; or
(b) The employers are related bodies corporate; or
(c) The employers are specified in a single interest employer authorisation that is in
operation in relation to the proposed enterprise agreement concerned.
(My underline)
[12] Section 437(1) of the Act provides that a bargaining representative of an employee
who will be covered by a proposed enterprise agreement may apply to the Commission for an
order requiring a protected action ballot to be conducted (within a specified period) to
determine whether employees wish to engage in particular protected industrial action for the
proposed agreement.
[13] In this matter there is no issue that the RTBU is a bargaining representative entitled to
make the PABO application. In the RTBU’s application, two employers, Sydney Trains and
NSW Trains, are named as the respondents, which the RTBU contends are as per s.172(2)(a)
(set out above), engaged in a common enterprise and therefore can be covered by a single
enterprise agreement.
[14] Section 437(2) prohibits a PABO application being made if the proposed enterprise
agreement is either a greenfields agreement or relevantly in this application, a multi enterprise
agreement.
[15] The RTBU submits that the Commission can be satisfied that the employers are
engaged in a common enterprise, thus allowing for a PABO to be made. While Sydney Trains
initially opposed the application on grounds including that the RTBU was pursuing a multi-
enterprise agreement,3 that position is no longer maintained and it is submitted that the
Commission need not determine whether the respondents are engaged in a ‘common
enterprise’ as s.437 only concerns who may apply for a PABO.
[16] NSW Trains elected not to make any submission on this issue.
[17] While s.460 of the Act provides a form of immunity for persons who act in good faith
on protected action ballot results, it would seem contrary to the object of Division 8 Protected
action ballots ‘to establish a fair, simple and democratic process to allow a bargaining
representative to determine whether employees wish to engage in particular protected
industrial action for a proposed enterprise agreement’ for the Commission to contemplate the
ordering of a PABO where it does not first determine whether the proposed agreement is a
3 Email of 23 June 2021 from Sydney Trains lawyers
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single enterprise agreement and not a greenfields or a multi enterprise agreement in which
case a PABO cannot be made as per s.437(2A).
[18] The RTBU points to a range of factors that indicate that the respondents are engaged
in a common enterprise, some of which include4:
Sydney Trains and NSW Trains have substantially identical objectives under the
Transport Administration Act 1988 (NSW).
Sydney Trains owns and operates the metropolitan railway network on which NSW
Trains intercity services run.
Sydney Trains maintains NSW Trains’ rolling stock and NSW Trains’ intercity rail
network.
Train services run with a combination of Sydney Trains and NSW Trains crew from
time to time.
Sydney Trains and NSW Trains share a pricing structure including various pricing
caps and discounts for transferring between one another’s services.
[19] For guidance on the meaning of a common enterprise, Mason J (as he then was) in
Australian Softwood Forests Pty Ltd v Attorney-General (NSW); Ex rel Corporate Affairs
Commission5, helpfully defined a common enterprise at page 133, with regard to the
Companies Act 1961 (NSW) where he stated:
“An enterprise may be described as common if it consists of two or more closely
connected operations on the footing that one part is to be carried out by A and the
other by B, each deriving a separate profit from what he does, even though there is no
pooling or sharing of receipts of profits. It will be enough that the two operations
constituting the enterprise contribute to the overall purpose that unites them. There is
then an enterprise common to both participants and, accordingly, a common
enterprise.”
[20] On the basis of the submissions of the RTBU above and the meaning ascribed to
‘common enterprise’ by Mason J, the Commission is satisfied that the respondents are single
interest employers pursuant to s.172(5)(a) of the Act, in that they are employers engaged in a
common enterprise and are capable of being covered by a single enterprise agreement. As
such there is no restriction on a PABO issuing covering the respondents.
Genuinely trying to reach agreement
4 Some of these factors are attested to in the statement of G. Peters of NSW Trains of 30 June 2021
5 (1981) 148 CLR 121
https://staging.hcourt.gov.au/assets/publications/judgments/1981/040--AUSTRALIAN_SOFTWOOD_FORESTS_PTY._LTD._v._ATTORNEY-GENERAL_(N.S.W.);_EX_REL._CORPORATE_AFFAIRS--(1981)_148_CLR_121.html
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[21] Where a bargaining representative has satisfied the requirements to make an
application for a PABO under s.437 of the Act, the Commission may only make a PABO
where it is satisfied that the applicant has been, and is, genuinely trying to reach an agreement
with the respondents. This requirement is stipulated at s.443 of the Act.
[22] The specific terms of s.443 are extracted below:
“443 When FWC must make a protected action ballot order
(1) FWC must make a protected action ballot order in relation to a
proposed enterprise agreement if:
(a) an application has been made under section 437; and
(b) FWC is satisfied that each applicant has been, and is,
genuinely trying to reach an agreement with the employer of the
employees who are to be balloted.
(2) FWC must not make a protected action ballot order in relation to a
proposed enterprise agreement except in the circumstances referred to
in subsection (1).”
(My underline)
[23] In submitting that the Commission can be satisfied that it has been and is genuinely
trying to reach an agreement with the respondents, the RTBU relied on the evidence of Mr
Peter Matthews, Legal Officer, who completed the Form F34B declaration in support of the
PABO application. Mr Matthews’ declaration attached a number of documents from all
parties reflecting the interaction between the RTBU and the respondents with regard to the
replacement of the Agreements. Mr Matthews was not required for cross-examination.
Evidence from the RTBU’s Director of Organising was also relied upon.
Evidence of Toby Warnes
[24] Mr Toby Warnes, the RTBU’s Director of Organising, gave evidence directed
towards the RTBU’s efforts of genuinely trying to reach agreement with the respondents. Mr
Warnes was cross-examined on his evidence which included a statement and reply statement.6
[25] Mr Warnes stated that since at least September 2020, discussions about bargaining for
a new agreement have taken place between the RTBU and Sydney Trains. These discussions
6 Exhibits A2 and A3
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took place mostly on an informal basis between Mr Alex Claassens, RTBU Secretary and Mr
John McAuliffe - Director of Workplace Relations – Sydney Trains).7
[26] Mr Warnes’ evidence was that on 17 February 2021, the respondents advised the
RTBU in a meeting that they wished to vary the Agreements by extending them for 6 months
with a 0.3% pay increase.
[27] Mr Warnes stated that each week since 22 February 2021, the Combined Rail Unions
(CRU) (all unions covered by the Agreements) meet to discuss the progress of bargaining,
and how each of the unions could achieve the best agreement possible for their members.
[28] On 22 February 2021, the CRU met with the respondents regarding their proposal to
vary the Agreements for 6 months with a 0.3% wage increase. At the meeting, both the
respondents’ Chief Executives were in attendance – Suzanne Holden, Sydney Trains (acting at
the time), and Peter Allaway, NSW Trains. It was put to the respondents by each union that
they should abandon the plan to vary the Agreements and commence bargaining for a
replacement enterprise agreement.
[29] On 26 February 2021, the respondents co-signed a letter to the CRU advising that they
intended to go ahead with their Agreement variation proposal prior to the nominal expiry of
the Agreements and before any formal bargaining.
[30] Mr Warnes states that between 22 March 2021 and 29 March 2021, the variation vote
was conducted. On 30 March 2021, the variation vote results were declared which showed
that employees overwhelming rejected the proposal. On 30 March 2021, following the
unsuccessful vote, Mr Thomas Costa of Unions NSW on behalf of the CRU wrote to the
respondents requesting that they commence bargaining together now that their Agreement
variation proposal had been rejected.8
[31] Mr Warnes evidence was that on 6 April 2021, Ms Jasmin Streimer Director of
Transformation for NSW Trains and currently Acting Director Service Experience and
Planning replied advising that NSW Trains had “already committed to preparing for and
commencing discussions for a new enterprise agreement in the coming period”.
[32] On the same day, Mr John McAuliffe of Sydney Trains replied advising NSW
Trains’ “priority in moving forward is to ensure that we engage with our employees and their
representatives”.
[33] On 4 May 2021, the respondents sent an email to Mr Warnes that attached an agenda
for a meeting organised for later on 4 May 2021 with the respondents. The agenda noted
their scope claim to bargain separately for separate agreements for the first time at agenda
item (3).
7 A2 Statement of T. Warnes of 12 July 2021 at [14]
8 Ibid at [26]
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[34] Mr Warnes attended the 4 May 2021 meeting between the CRU and respondents where
the CRU voiced concern and opposition to the respondents’ proposal to bargain separately and
rejected the respondents’ scope claim.
[35] On 7 May 2021, the CRU met for a half day of planning where they discussed the
draft claims as they then were, and discussed which claims were vital to members, and which
claims may be able to be negotiated around.
[36] Also on 7 May 2021, Mr Costa sent a further email to the respondents pressing them
to commence bargaining.
[37] Mr Warnes states that on 8 May 2021 he formed the view that the respondents did not
wish to bargain for a new agreement. As a result of forming this view, an email newsletter
was sent to RTBU members which was headed “Its time to force Sydney Trains and NSW
Trains to the Bargaining Table”.
[38] On 11 May 2021, Sydney Trains wrote to the CRU still not agreeing to bargain
together with NSW Trains, but proposing to have an initial bargaining meeting on 16 June
2021.
[39] NSW Trains also wrote on the same day stating that it wished to bargain
independently and not agreeing to bargain with NSW Trains and proposing to have an initial
bargaining meeting on 24 June 2021 in Newcastle.
[40] On 17 May 2021, the RTBU filed an application in the Commission for a majority
support determination.
[41] Mr Warnes states that on 20 May 2021, NSW Trains advised that it agreed to bargain
and on 25 May 2021, Sydney Trains also agreed to bargain.9
[42] On 26 May 2021, the RTBU endorsed a single claim, that the respondents bargain for
a single enterprise agreement covering both entities as they were single interest employers
which Mr Warnes states was vital to the commencement of formal bargaining. On 26 May
2021, the respondents were emailed a request to meet on 3 June 2021.
[43] On 1 June 2021, the respondents separately declined to attend the proposed bargaining
meeting with the CRU. On 3 June 2021, Mr Warnes states that the RTBU and the CRU
endorsed its full log of claims for the bargaining round.
9 Ibid, TW-12 and TW-13
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[44] On 9 June 2021, prior to the meeting earlier proposed by Sydney Trains to be held on
16 June 2021, the CRU sent an email to the respondents reiterating its claim on the scope of
the agreement and inviting them both to a joint meeting to discuss this issue.
[45] On 9 June 2021, NSW Trains responded declining to attend the meeting.
[46] On 11 June 2021, Sydney Trains responded and also declined to attend the proposed
meeting.
[47] On 16 June 2021, the CRU and Sydney Trains met for a bargaining meeting.
[48] On 21 June 2021, Sydney Trains responded to the scope claim put at the 16 June
meeting, which stated that: “Having considered the extra information of the claim provided at
the meeting of 16 June 2021, the position of Sydney Trains is that Sydney Trains bargaining
will continue separately from NSW Trains.”
[49] Following what Mr Warnes states had been repeated refusals of the CRU scope claim
the RTBU filed its PABO application on 22 June 2021.
[50] On 24 June 2021, the CRU attended a bargaining meeting with NSW Trains. In the
meeting the CRU again put forward its scope claim and Mr Warnes states that at this meeting
he advised NSW Trains that he would put the claim in writing following the meeting. The
RTBU left the meeting when the non-union bargaining representatives commenced discussion
about their objectives for the agreement.
[51] On 24 June 2021, Mr Warnes sent NSW Trains email confirmation of the RTBU’s
scope claim.
[52] On 25 June 2021, NSW Trains responded to the email and the scope claim and noted
that there was a “refusal to enter into bargaining regionally”. Mr Warnes’ evidence was that
there has never been such a refusal, but the CRU has said on multiple occasions that moving
the location of bargaining around the NSW countryside does not add anything to bargaining
as the bargaining representatives remain the same, and it poses an unnecessary COVID risk to
regional communities and the feedback from regional members was that they prefer that
the COVID risk from bargaining meetings be minimised.
[53] On 28 June 2021, due to the escalating adverse health situation in Sydney, Sydney
Trains proposed to cancel their bargaining meeting, which was scheduled for 30 June 2021,
which the CRU agreed to.
[54] On 2 July 2021, the CRU wrote to NSW Trains seeking a meeting with NSW Trains
and Sydney Trains in order to allow the presentation of the unions’ log of claims. This was
proposed on the basis that the log of claims was based on the bargaining unit comprising of
Sydney Trains and NSW Trains representatives bargaining together. It would allow the
bargaining process to continue despite the scope issue being an unresolved bargaining claim.
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[55] On 7 July, NSW Trains responded refusing to attend the proposed meeting.
[56] On 8 July 2021, another bargaining meeting took place with NSW Trains and the
CRU. During the meeting, the scope of the proposed agreement was raised again, the CRU
asked NSW Trains whether there was room to negotiate on the scope issue, and in an attempt
to try and reach a resolution to the scope issues put the following compromise:
‘NSW Trains and Sydney Trains were to bargain at the same time, in the
same room, as occurred in 2018 and 2014, but both entities would keep
separate enterprise agreements.’
[57] Mr Warnes states that NSW Trains responded saying that they would consider the
proposal and respond on 15 July 2021. NSW Trains were also told at the meeting that if it was
in a position to put their log of claims, they should do so.
[58] Mr Warnes states that in line with the email of 2 July 2021, the proposal to have
bargaining progress beyond the scope claim dispute, (despite it not being resolved) was put
again. The proposal was to have all CRU delegates from both rail entities present their log of
claims to the respondents in an agreed location in Sydney. NSW Trains advised that it would
consider this request and respond by 9 July 2021.
[59] On 9 July 2021, the CRU emailed the respondents requesting that they meet together
to hear the CRU’s claims. The correspondence sent by Mr Costa was in the following terms:
“I write to you regarding the ongoing NSW and Sydney Trains enterprise agreement
negotiations. As you are aware the parties are not in agreement regarding the scope of
the proposed enterprise agreement to cover your employees and the members of the
Combined Rail Unions (CRU). The CRU has prepared a log of claims that covers our
members across both NSW and Sydney Trains and we are seeking an opportunity to
present this log to both entities at the same time. I have previously put this request to
each of you individually and is irrespective of whether the parties reach an agreement
as to scope or not.
Formally, we ask that you consider our proposal for a joint Sydney Trains and NSW
Trains bargaining meeting to be held in person in the first week following the
lockdown. This is currently scheduled for the week starting 18 July. The purpose of
this meeting is for the CRU to provide a full outline of our log of claims. As our log is
premised on a proposed agreement to cover both Sydney Trains and NSW Trains it is
necessary that representatives from both entitles be in attendance. To facilitate this
meeting in a COVID safe manner Unions NSW is also prepared to provide a venue
including the requisite safety measures.”10
10 A2 statement of T. Warnes of 12 July 2021 at [60] and TW-26
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[60] On the same day Sydney Trains sought the cancellation of the bargaining meeting
scheduled for 14 July 2021, due to the ongoing COVID health situation, to which the CRU
responded, requesting that the meeting proceed by video conference, which it did.
[61] On 12 July 2021, Mr Warnes sent the respondents the CRU’s log of claims and asked
for a response by 14 July 2021.
[62] Under cross-examination, Mr Warnes did not accept that the RTBU’s log of claims
was filed in defence of Sydney Trains’ objection to the PABO on the basis that no log of
claims had been served on Sydney Trains. Mr Warnes stated that the log of claims had been
endorsed by delegates on 3 June 2021.
[63] During the 14 July 2021 bargaining meeting with Sydney Trains, Mr Warnes stated in
cross-examination that the CRU had asked that there be a single bargaining meeting with both
respondents present. At that meeting, Mr Warnes’ evidence was that Mr McDonald from
Sydney Trains told him that Sydney Trains did not understand everything in the log of claims
and was not able to respond in the two days requested.
[64] While not part of Mr Warnes’ evidence, Sydney Trains responded by email on 15 July
2021, stating it was not in a position to provide a response for a number of reasons, which
were set out in the response.11
[65] On 16 July 2021, Mr Costa sent an email to the respondents referring to previous
requests for a joint meeting with the respondents inviting the respondents to attend via an MS
Teams meeting on 22 July 2021.
[66] A further bargaining meeting was held with NSW Trains on 22 July 2021.12 Mr
Warnes states that the RTBU’s log of claims was discussed at the 22 July 2021 meeting with
NSW Trains.13
[67] Mr Warnes’ evidence was that the RTBU had prepared and served a log of claims
covering the respondents and attended pre-bargaining meetings with the respondents, both
together and separately; and participated in bargaining meetings separately with Sydney
Trains and NSW Trains.14
[68] The RTBU submits that at all times its purpose has been to reach an agreement with
the respondents as set out in the evidence of Mr Matthews and Mr Warnes. It has served a log
of claims which sets out the general ambit for which agreement is sought.
11 A3 statement of T. Warnes of 23 July 2021 at [4g] and TW-29
12 Ibid at [7] and [9]
13 Ibid at [16]
14 A2 statement of T. Warnes of 12 July 2021 at [13]
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[69] It is put that the respondents refused to jointly attend a bargaining meeting to discuss
the RTBU and other unions’ claim for a single enterprise agreement to cover both
employers on 3 and 16 June 2021. At a separate meeting with Sydney Trains on 16 June, the
single agreement claim was articulated by the RTBU and rejected.
[70] On 2 July, the RTBU and other unions proposed a meeting to present their log of
claims to both respondents. The respondents had refused to attend and be presented with the
RTBU and other unions’ log of claims on two separate occasions.
[71] A further separate bargaining meeting occurred on 22 July 2021 with NSW Trains
where the scope claim was again rejected.
[72] It was also put that the respondents set unreasonable dates for initial bargaining
meetings, insisting on dates more than five and six weeks away from the date of proposal,
despite numerous pre-bargaining meetings having already occurred on shorter notice.15
NSW Trains
[73] NSW Trains opposes the application on the basis that the RTBU has not been and is
not ‘genuinely trying to reach agreement’ as no matters have been discussed other than the
single issue of scope in respect of a new agreement. In this regard, NSW Trains notes that
even the issue of scope was not maintained by the RTBU when a concession was made at a
meeting on 8 July 2021, when the CRU proposed that the respondents could bargain together
in the same room as they did in 2014 and 2018, but retain separate enterprise agreements.
[74] Jasmin Streimer the Director of Transformation for NSW Trains and currently the
Acting Director Service Experience and Planning gave evidence on behalf of NSW
Trains.
[75] Ms Streimer states that on 16 April 2021, she received an email from Thomas
Costa, Assistant Secretary for Unions NSW on behalf of the CRU (which was also
addressed to Sydney Trains) that set out the CRU’s request to convene a pre-bargaining
meeting with the respondents on 30 April 2021.
[76] On 4 May 2021, Ms Streimer attended a meeting with representatives of Transport
for NSW (TfNSW), Sydney Trains, Unions NSW, and the CRU. During the meeting the
CRU put forward that the unions wished to bargain with the respondents jointly. Ms
Streimer indicated that NSW Trains’ preference was to bargain independently of Sydney
Trains, which she confirmed in an email to Mr Costa on 11 May 2021.
15 Written submissions of 12 July 2021 at [24]
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[77] On 19 May 2021, Ms Streimer attended a pre-bargaining meeting (which took
place in person and via Teams) with Mr Costa and other representatives of the CRU.
[78] On 20 May 2021, Ms Streimer states that she sent an email to the RTBU and
others confirming agreement on behalf of NSW Trains to commence bargaining for a
new enterprise agreement.
[79] On 26 May 2021, Mr Costa wrote to the respondents on behalf of the CRU, noting
the CRU’s claim that “Sydney Trains and NSW Trains will bargain for a single
enterprise agreement as single interest employers.”16 Ms Streimer responded to Mr
Costa’s email on 1 June 2021,17 noting that NSW Trains intended to commence
negotiations for a new and separate enterprise agreement covering NSW Trains, which
was different from the last negotiations where they met together with Sydney Trains.
[80] On 28 May 2021, NSW Trains issued a NERR18 to its workforce by email and
SMS.
[81] On 7 June 2021, a meeting was scheduled for 24 June 2021.
[82] On 8 June 2021, Mr Warnes confirmed his attendance for the meeting.
[83] On 9 June 2021, Ms Streimer states that she received correspondence from the
CRU, seeking confirmation from NSW Trains and Sydney Trains by close of business on
the same day that they would jointly meet with the CRU to discuss the issue of scope on
10 June 2021. Ms Streimer subsequently responded by email declining to attend the
proposed meeting on 10 June 2021 on the basis that NSW Trains maintained its position
in wanting to bargain for a single enterprise agreement. Ms Streimer’s email went on to
state that she looked forward to the first bargaining meeting scheduled for 24 June 2021.
[84] Ms Streimer states that on 24 June 2021, commencing at 11:00am she attended the
first bargaining meeting between NSW Trains and the unions which included the RTBU.
Also attending were eight independent bargaining representatives. Ms Streimer states that
Mr Warnes indicated that the RTBU was only prepared to discuss the issue of NSW
Trains bargaining jointly with Sydney Trains, as single interest employers, for a single
enterprise agreement.
[85] Ms Streimer’s evidence was that Mr Warnes indicated that the RTBU was seeking
a single enterprise agreement to cover the respondents as a threshold claim and that the
respondents must attend bargaining meetings together and bargain as single interest
employers. Mr Warnes also indicated that the RTBU would not meet with the
independent bargaining representatives as this was a waste of the RTBU’s time.
16 R5 Statement of J. Streimer of 30 June 2021 at [22]
17 R5 Statement of J. Streimer of 30 June 2021 states 1 May which does not reflect PM-12
18 Notice of employee representational rights
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[86] After the RTBU and other unions left the meeting at approximately 12:10pm, the
meeting continued with the non-union bargaining representatives.
[87] There were two further bargaining meetings with between NSW Trains and the
RTBU and other unions on 8 and 22 July 2021.
Sydney Trains
[88] Sydney Trains in submitting that the RTBU has not been and is not genuinely trying to
reach agreement, raises a number of issues. These issues include that the RTBU had failed to
outline the detail of their claims prior to making the PABO application. In respect of the 16
June 2021 meeting with Sydney Trains held before the PABO was filed, the RTBU’s claims
were not articulated and it is submitted the RTBU has refused to do so ever since, including at
a further meeting held on 14 July 2021, where the sole issue discussed was the proposed
scope of the agreement.
[89] It is submitted by Sydney Trains that as the log of claims had not been served prior to
the application, the Commission should infer that its subsequent filing was a defensive
strategy once Sydney Trains raised the issue of no log of claims having been served.
[90] Sydney Trains submits that the RTBU has not been and is not genuinely trying to
reach an agreement as it is rushing to initiate protected industrial action rather than seeking to
make the proposed enterprise agreement.
[91] Mr Gregory McDonald Principal Manager, Workplace Relations Sydney Trains
gave evidence on behalf of Sydney Trains and provided two witness statements and was
cross-examined on his evidence.
[92] Based on Mr McDonald’s experience, he understood that the highest areas of
RTBU members predominantly fall in:
Train Crewing (which includes Train Drivers, Guards, shift Managers and other
mainly operational roles),
Customer and Operations (in relation to Customer Service Attendants and Area
Controllers/Signallers and Network Incident Managers),
Engineering and Maintenance in Fleet Maintenance,
Infrastructure Maintenance and Major Works.19
19 R1 statement of G. McDonald of 30 June 2021 at [8]
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[93] Mr McDonald’s evidence was that on 30 March 2021, the CRU sent an email to
Sydney Trains and NSW Trains requesting commencement of negotiation for new enterprise
agreements following the failed employee ballot to consider a variation to the Agreements.20
[94] On 6 April 2021, Sydney Trains responded and suggested that the CRU request be
discussed at the Sydney Trains COVID-19 Peak Forum scheduled for 15 April 2021, where
time would be set aside on the agenda for discussion to occur.
[95] On 8 April 2021, the CRU wrote to Sydney Trains declining this request and asked for
a standalone meeting.
[96] On 4 May 2021, a standalone pre-bargaining meeting was held between Sydney
Trains and NSW Trains and union representatives, as sought by the CRU.21
[97] On 11 May 2021, Sydney Trains sent an email to the CRU stating that its intention
was to negotiate its enterprise agreement separately from NSW Trains and provided its
reasons for adopting this position. In this correspondence, Sydney Trains stated that it was
proposing to issue the NERR to employees on 25 May 2021 and commence bargaining on 16
June 2021, with fortnightly meetings taking place on each Wednesday thereafter.
[98] On 12 May 2021, a follow up meeting between Sydney Trains and the CRU was
scheduled, however the CRU indicated that it would not attend as it was still considering
Sydney Trains' email of 11 May2021.
[99] On 25 May 2021, Sydney Trains issued the NERR to its employees.
[100] On 26 May 2021, the CRU wrote to the respondents advising of its intention to put
forward a claim that "Sydney Trains and NSW Trains will bargain for a single enterprise
agreement as single interest employers". The email noted that the CRU proposes for the
matter of scope be resolved before further bargaining can continue. The CRU requested that a
combined meeting be held on 3 June 2021 to discuss the scope issue and asked for a response
to its claim by 1 June 2021.
[101] On 1 June 2021, Sydney Trains sent an email to the CRU again stating that it intended
to negotiate for its own enterprise agreement separately from NSW Trains and noting that it
saw no benefit in meeting on 3 June 2021 to discuss the issue further.
[102] On 9 June 2021, the CRU sent a further email to the respondents stating, among other
things, "We would like to invite both Sydney and NSW Trains to again meet to discuss to the
issue of scope, together, on 10 June 2021”.
20 Ibid at GM-2
21 Ibid at [15]
[2021] FWC 4391
15
[103] On 11 June 2021, Sydney Trains sent an email to the CRU stating that it wished to
bargain separately and attached a proposed agenda for a Sydney Trains bargaining meeting
for 16 June 2021 and invited the CRU to provide any comments.
[104] On 16 June 2021, the first bargaining meeting was held between Sydney Trains and
the CRU. At the meeting Sydney Trains advised that it would add the CRU scope issue to the
agenda. During the meeting, the CRU including the RTBU were asked to provide further
details supporting the claim that the respondents bargain together. Mr McDonald stated that
during this meeting the CRU did not address the terms and conditions to be included in the
proposed enterprise agreement.
[105] On 21 June 2021, Sydney Trains emailed responding in detail to the CRU's scope
claim. The response noted that having considered the extra information regarding the scope
claim provided at the meeting of 16 June 2021, its position remained that bargaining would
continue separately from NSW Trains.
[106] On 14 July 2021, Mr McDonald participated in a second bargaining meeting with
the CRU including representatives from the RTBU, where he states Mr Warnes declined
to go through their log of claims stating that the RTBU had invited the respondents to a
combined meeting. During this meeting, Mr McDonald states he advised the CRU that he
had not replied to the log as ‘there are things in the log that we do not understand’22 to
which Mr Warnes replied, ‘you can set that out in your response’. Mr Warnes also
advised that the log could not be gone through without first going through the scope
claim.23
[107] In summary, the respondents submit that the RTBU has failed to engage in genuine
attempts to negotiate an enterprise agreement as it has refused to move past the single issue of
the scope of the agreement they wish to negotiate.
The case law
[108] All parties relied on various authorities to support their respective positions including
reliance on the same authorities. Thus, a brief summation of the case law on ‘genuinely trying
to reach agreement’ is set out as follows.
[109] In the Federal Court decision of Wesfarmers Premier Coal Ltd v Automotive, Food,
Metals, Engineering, Printing and Kindred Industries Union (No 2),24 French J (as he then
was) made the following comments about the meaning of the term “genuinely trying to reach
agreement” in respect of negotiations:
22 R2 reply statement of G. McDonald of 15 July 2021 at [15]
23 Ibid at [17]
24 [2004] FCA 1737
https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2004/2004fca1737
[2021] FWC 4391
16
“[85] Although it was baldly submitted on behalf of Premier Coal that there had been
no genuine attempt to reach agreement prior to the July strike action, it is clear that the
discussions which had ensued in relation to the proposal for a certified agreement
under the Workplace Relations Act subsumed, and were in a sense a continuation of,
the extensive negotiations over many months that had already occurred in relation to
the Enterprise Agreement proposal. The use of the draft Enterprise Agreement as the
basis for the development of a certified agreement reinforces that proposition. Given
the extent of the negotiations about the Enterprise Agreement and the involvement of
basically the same personnel as were involved in the discussion of the certified
agreement, I am satisfied that in those circumstances, on the balance of probabilities,
the relevant officers of the AMWU (Cth) had, before the strike, genuinely tried to
reach agreement with Premier Coal.”
[110] A Full Bench in Total Marine Services Pty Ltd v Maritime Union of Australia25
refrained from adopting a formulaic approach when applying the statutory test under
s.443(1)(b) stating:
“[31] In our view the concept of genuinely trying to reach an agreement involves a
finding of fact applied by reference to the circumstances of the particular
negotiations.26 It is not useful to formulate any alternative test or criteria for applying
the statutory test because it is the words of s. 443 which must be applied. In the course
of examining all of the circumstances it may be relevant to consider related matters
but ultimately the test in s. 443 must be applied.
[32] We agree that it is not appropriate or possible to establish rigid rules for the
required point of negotiations that must be reached. All the relevant circumstances
must be assessed to establish whether the applicant has met the test or not. This will
frequently involve considering the extent of progress in negotiations and the steps
taken in order to try and reach an agreement. ...”
[111] In the Federal Full Court decision of J.J. Richards & Sons Pty Ltd v Fair Work
Australia27 (JJ Richards) Flick J stated:
“[58] It is ultimately concluded that s 443(1)(b) is to be construed such that Fair
Work Australia cannot reach a state of satisfaction that an “applicant ... is ...
genuinely trying to reach an agreement with the employer” unless:
25 [2009] FWAFB 368
26 Australian Industry Group v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union Print T1982;
Re Media, Entertainment and Arts Alliance PR928033
27 [2012] FCAFC 53
https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/full/2012/2012fcafc0053
http://www.fwa.gov.au/alldocuments/PR928033.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2009fwafb368.htm
[2021] FWC 4391
17
an applicant has approached the employer and informed the employer of
the general ambit of that for which agreement is sought; and
the employer has foreshadowed – even in the most general of terms – its
attitude as to the proposed agreement.
More may be required. Much may well depend upon the factual scenario in which
the terms of s 443(1)(b) are to be applied. But such a minimum statement of that
which is required is sufficient to dispose of the present Application.”
(My underline)
[112] The Full Bench in Esso Australia Pty Ltd v Automotive, Food, Metals, Engineering,
Printing and Kindred Industries Union known as the Australian Manufacturing Workers'
Union (AMWU); Communications, Electrical, Electronic, Energy, Information, Postal,
Plumbing and Allied Services Union of Australia (CEPU); The Australian Workers' Union
(AWU)28 after traversing a number of decisions including those above regarding the concept
of genuinely trying to reach an agreement made the following observations:
[57] Whether an applicant 'has been, and is, genuinely trying to reach an agreement' is
a question of fact to be decided having regard to all of the facts and circumstances of
the particular case. Such a construction of s.443(1)(b) is consistent with the judgment
of the Full Court in JJ Richards and with a number of Full Bench decisions of the
Commission (see Total Marine; Pelican Point Power Limited v ASU;29 JJ Richards
No.1;30 Alcoa;31 JJ Richards No.2;32 and Farstad 33).
[58] In our view the adoption of a decision rule or principle of the type proposed in
Australia Post No.1 and Airport Fuel Services would be an inappropriate fetter on the
exercise of what the legislature clearly intended would be a discretionary decision. As
Bowen LJ observed in Gardner v Jay,34:
"When a tribunal is invested by Act of Parliament or by Rules with a
discretion, without any indication in the Act or Rules of the grounds upon
which the discretion is to be exercised, it is a mistake to lay down any rules
with a view to indicating the particular grooves in which the discretion
28 [2015] FWCFB 210
29 [2010] FWAFB 9441 at [93]
30 [2010] FWAFB 9963 at [67] per Lawler VP and Bissett C
31 [2010] FWAFB 4889 at [24]
32 [2011] FWAFB 3377 at [40]-[41]
33 [2011] FWAFB 1686 at [6]-[11]
34 29 Ch. D. 50 at 58
http://www.fwc.gov.au/decisionssigned/html/2011fwafb1686.htm
http://www.fwc.gov.au/decisionssigned/html/2011fwafb3377.htm
http://www.fwc.gov.au/decisionssigned/html/2010fwafb4889.htm
http://www.fwc.gov.au/decisionssigned/html/2010fwafb9963.htm
http://www.fwc.gov.au/decisionssigned/html/2010fwafb9441.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2015fwcfb210.htm
[2021] FWC 4391
18
should run, for if the Act or the Rules do not fetter the discretion of the
Judge why should the court so do."35
[113] What is clear from the above authorities is that each application turns on its own facts
and circumstances. As stated by Flick J in J.J. Richards (a case where bargaining had not
commenced as the employer had not agreed to bargain),36 “Much may well depend upon the
factual scenario in which the terms of s 443(1)(b) are to be applied.”
[114] For the purposes of s.443(1)(b) of the Act, the Commission is only required to be
satisfied that the RTBU has been and is, genuinely trying to reach an agreement with the
respondents and while the conduct of the respondents in this process is relevant, a
determination is only required to be made regarding the conduct of the applicant for the
PABO, in this case the RTBU.
[115] The conduct of the RTBU must therefore be examined and assessed for the purpose of
determining as a matter of fact whether it has been, and is, genuinely trying to reach an
agreement. This demands an examination of all of the steps and actions taken by the RTBU in
genuinely trying to reach an agreement with each of the respondents, separately and
independently of whether it simply wants an agreement.
Consideration
[116] An application for a PABO is not indicative of whether employees will take industrial
action, it is simply that prior to the taking of protected industrial action that the relevant
employees must obtain a protected action ballot order. Whether the industrial action is taken
or not is to be determined by the employees who will have the opportunity, where an order
issues, to vote on whether they take protected industrial action. If that vote is successful, the
RTBU and its members can then determine if and when industrial action is to be taken.
[117] The obvious threshold issue that has led to the current impasse between the parties is
the RTBU’s demand that there be a joint enterprise agreement with the respondents, which
requires the respondents to meet together with the RTBU and other unions for bargaining
meetings.
[118] The RTBU has led evidence primarily through its Director of Organising Mr Warnes
who was unmoved in his evidence and cross-examination that the RTBU was genuinely
seeking to negotiate a new enterprise agreement. On the other hand, the respondents have led
evidence that any bargaining to date has not progressed past the RTBU’s demand for the
respondents to bargain together for a single enterprise agreement.
35 Applied in Evans v Bartlam [1937] AC 473 at 488 per Lord Wright and cited with approval in Kostokanellis v Allen [1974]
VR 596 and Dix v Crimes Compensation Tribunal [1993] 1 VR 297. Also see JJ Richards and Sons Pty Ltd v FWA
[2012] FCAFC 53 (20 April 2012) at [30] per Jessup J (with whim Tracey J agreed) and at [63] per Flick J (with whom
Tracey J agreed).
36 The insertion of s.437(2A) no longer allows for a PABO to issue unless bargaining has commenced
[2021] FWC 4391
19
[119] While the RTBU has been resolute in its demand for a single enterprise agreement
with the respondents, each of the respondents have been equally steadfast in their demand to
bargain separately. The evidence put before the Commission by all parties is that they each
have legitimate and persuasive arguments in justifying their stance on whether there should be
single or separate agreements and whether bargaining should be conducted jointly or
separately.
[120] The hurdle with the RTBU’s scope claim is that they submit it is difficult to move past
this issue until it is resolved, unlike other claims that may not impede discussion continuing.
As the RTBU wants the respondents to meet together, continuing to meet separately flies in
the face of this position, hence its PABO application.
[121] The respondents have pointed to the service of the RTBU’s log of claims not being
served on them until well after the filing of the PABO application and contend (which is
disputed by the RTBU) that it was simply done in response to being made aware that the
failure to provide a log of claims was being relied upon by the respondents in opposing the
application.
[122] I do not consider that the late filing of the RTBU’s log of claims reflects unfavourably
on the genuineness of the RTBU to try and reach an agreement. It is not the situation that the
log of claims was only prepared for the purposes of its PABO application or only after the
application was made. The log of claims was prepared in early June 2021, and was on the
RTBU’s website.37 The RTBU submits that it was never served on the respondents as the
respondents refused to meet jointly with the RTBU and its delegates from both respondents.
This was necessary as the RTBU’s position was that all its delegates needed to be present in
order to put what was a common and unified position to the respondents.38
[123] I further do not find that the RTBU’s self-imposed restriction in limiting its bargaining
discussions to the sole issue of scope as being demonstrative of not genuinely trying to reach
an agreement. This was an important threshold issue for the RTBU, and there is nothing in the
Act that prevents protected industrial action being taken over a disputed issue of scope in
isolation of any other claim.39
[124] In the decision of Stuartholme School and Others v The Corporation of the Trustees of
the Roman Catholic Archdiocese of Brisbane T/A Brisbane Catholic Education Office and
Others40 the Full Bench made the following observation at [25]:
37 Although the Commission does not accept that a log of claims on the RTBU’s website is to be acted on by the respondents
38 RTBU submissions of 29 July 2021 at [30]
39 See MUA v Maersk Crewing Australia Pty Ltd [2016] FWCFB 1894 at [30]
40 [2010] FWA 1714 at [25]
https://www.fwc.gov.au/documents/decisionssigned/html/2010fwafb1714.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2016fwcfb1894.htm
[2021] FWC 4391
20
“There is no reason why questions of scope cannot be included in bargaining in the
context of a single interest employer authorisation and the mere fact that a bargaining
representative puts scope in issue does not mean the bargaining representative is not
genuinely trying to reach an agreement.”
(My underline)
[125] Having considered all that was put before the Commission I am unable to conclude
that the RTBU in its negotiations with the respondents, including having held pre-bargaining
meetings separately with the respondents, and having participated in bargaining meetings
despite the agenda in these meetings not moving beyond the RTBU’s scope claim for the
proposed agreement, lacked the requisite genuineness as submitted by the respondents, in
trying to reach an agreement.
[126] Having regard to the evidence put before the Commission, I am satisfied that the
requirements in s.443(1) of the Act have been met that the RTBU has been, and is, genuinely
trying to reach an agreement with the respondents.
Extended Period of Notice
[127] Section 414(2) of the Act requires that written notice of any action to be taken must be
provided at least 3 working days prior to the action occurring.
"414 Notice requirements for industrial action
Notice requirements—employee claim action
(1) ...
(2) The period of notice must be at least:
(a) 3 working days; or
(b) if a protected action ballot order for the employee claim action specifies a
longer period of notice for the purposes of this paragraph—that period of
notice.”
(my underline)
[128] The respondents have sought an extension to the notice period a bargaining
representative must provide before taking protected industrial action. The proposed ballot
order lists 12 questions to be asked of members with some of the questions being more
prescriptive than others. The additional time sought by the respondents is generally from 5 to
7 working days, however an extension of the notice period is not sought in relation to all
questions.
[2021] FWC 4391
21
[129] Where the Commission is satisfied that there are exceptional circumstances justifying
the minimum period of notice being longer than three working days, the protected action
ballot order may specify a longer period of up to 7 working days, see s.443(5):
“443(5) If the FWC is satisfied, in relation to the proposed industrial action that is the
subject of the protected action ballot, that there are exceptional circumstances
justifying the period of written notice referred to in paragraph 414(2)(a) being longer
than 3 working days, the protected action ballot order may specify a longer period of
up to 7 working days.”
(My underline)
[130] The respondents have requested a notice period extension of up to 7 working days on
the basis that there are exceptional circumstances which justify the extension of time sought.
It is therefore necessary for the Commission to examine whether or not the circumstances
demonstrate something exceptional and if so whether they justify an extension of time and if
so, the extended period sought.
Sydney Trains
[131] Sydney Trains submitted that the Commission can be satisfied on the evidence of its
witnesses, that exceptional circumstances exist to justify an extension of the notice periods
sought. The extended period should be in accordance with the various extensions as set out in
the response to the PABO application, which was up to 7 working days’ notice in some cases
and no extension in others.
[132] It was put that a combination of the breadth of the industrial action impact, including
the impact on third parties, the complexity of Sydney Trains’ operations and the need to take
ameliorative steps, establishes exceptional circumstances justifying the extension.
[133] In support of an extension of the notice period for the various proposed forms of
protected industrial action, Sydney Trains relied on the evidence of Mr Adam Berry who is
employed by Transport for NSW in the position of Executive Director, Customer Journey
Planning, and Mr Heath Mulholland, who is employed by the Government of NSW in the
Transport Service and assigned to Sydney Trains in the role of Head of Planning.
[134] Mr Berry provided two witness statements and was subject to cross-examination. Mr
Berry stated that his primary duties included the coordination of multi-modal operational
planning for all planned disruptions to transport networks and services in Greater Sydney. Mr
Berry was accountable for ensuring appropriate preparation and risk management is in place
for all planned disruptions in Greater Sydney. Mr Berry stated that while Sydney’s rail system
was not part of his accountabilities, when rail services are unavailable, planning for rail
customers to have alternative public transport was his responsibility.
[2021] FWC 4391
22
[135] Mr Berry’s evidence was that trains are the largest carrier of passengers in Greater
Sydney. Based on the Sydney Daily Summary of 16 June 2021, Sydney Trains conveyed
854,607 passengers, buses carried 600,099, light rail carried 74,958, and ferries carried
19,263.
[136] Mr Berry’s evidence went into detail as to the potential effects of industrial action
being taken by Sydney Trains employees. He stated that as the transport system is complex
and interconnected, Sydney Trains employees taking industrial action has the potential of
impacting millions of people across Sydney.
[137] As a means of illustration, on Wednesday 16 June 2021, there were 1.45 million trips
across trains, light rail, Sydney Metro and buses, all of which would be impacted by the
cancellation of train services, because the other public transport modes would become
significantly busier if trains were cancelled.
[138] Any unavailability of train services in the Greater Sydney public transport network
would require a customer impact mitigation strategy that relies primarily on advising
customers to avoid non-essential travel in Greater Sydney, and secondarily, on providing a
skeleton service for a significantly reduced number of customers, at a significantly reduced
level of reliability and travel time. Mr Berry stated that in his experience, it would take at least
five working days to plan and implement such a mitigation strategy.41
[139] Mr Berry stated that while five working days' notice is required in order to implement
the essential plans and mitigation strategies for managing any industrial action which causes a
stoppage of train passenger services on the Sydney Trains network, seven working days'
notice would allow for more clearway signs to be replaced.42
[140] In the event of a 24-hour stoppage which effectively stops all Sydney Trains passenger
services from running, all clearways across Greater Sydney would need to be changed and it
would be impossible for TfNSW to physically replace all clearway signs even within the
maximum allowable notice of seven working days.43
[141] Mr Berry’s evidence was that a single eight-carriage train can move approximately
1,200 customers under normal circumstances. Due to COVID social distancing restrictions a
planned maximum train capacity is approximately 266. COVID social distancing restrictions
will result in at least 22 buses being required to replace one full COVID-capacity train.
[142] In an attempt to mitigate the impact of industrial action by Sydney Trains’ employees
that results in the cancellation of train services, Mr Berry stated that TfNSW would need to
arrange to utilise all of the available bus fleet to replace train services.
41 R3 statement of A. Berry of 30 June 2021 at [10]
42 Ibid at [8]
43 Ibid at [21]
[2021] FWC 4391
23
[143] To fully replace train services with buses, even for a notified one-hour stoppage of
train services (lasting six hours in total), would require more than 5,000 buses.44
[144] To fully replace all cancelled train services for a 24-hour stoppage across the whole of
the Sydney Trains network it would also take approximately 5,000 buses and thousands of
bus drivers would be needed, which are not currently available. At this point in time Mr Berry
stated there are only approximately 180 available buses in Greater Sydney. Even if there were
more available buses, the congestion that the addition of thousands of buses would create on
the road network would in Mr Berry’s evidence cause additional problems including reduced
ability to get in or out of bus depots, and every interchange and main road would be
congested.45
[145] It was Mr Berry’s evidence that it is not possible to replace all train services with bus
services; as the road network is not sufficient or designed to accommodate such a
circumstance. Where proposed industrial action occurs at the same time as a special event or
planned infrastructure maintenance or project, the impact will be even more significant.
[146] Mr Berry stated that the COVID reduced number of passengers has not significantly
reduced the number of services, and there has been no planned reduction in services
regardless of the level of COVID restrictions. A key reason being the need to provide bus and
train services for all the industries, including essential workers that have continued to operate
from their usual business locations and required staff to attend in person as well as students
travelling to schools.46
[147] Mr Berry concluded his evidence by stating that having worked closely with Sydney
Trains to make and implement plans to manage employees taking industrial action that will
cause a stoppage of train services, Sydney Trains needs at least 7 working days’ notice.47
[148] Mr Mulholland stated that his duties involved short-term and long-term operational
planning of train services on the Sydney Trains network, (the network) including assisting
with the implementation of the plans on the day of operations.
[149] Mr Mulholland explained what occurred on a typical weekday (Tues, Weds, or Thurs
and outside school holidays) at Sydney Trains with regard to passenger services:
approximately 854,000 passengers on the Sydney Trains passenger services (being
approximately half of all public transport passengers across Sydney);
44 Ibid at [13]
45 Ibid at [13]
46 Ibid at [31]
47 Ibid at [28]
[2021] FWC 4391
24
between the hours of 6am and 10am (morning peak), there are approximately
269,000 of persons travelling by train on the Sydney Trains passenger services; and
between the hours of 3pm and 7pm (afternoon peak) there are approximately
300,000 passengers travelling by train on the Sydney Trains passenger services.
[150] Mr Mulholland’s evidence was that should there be industrial action in the form of
train stoppages on passenger services, it will not just be those travelling to the Sydney CBD
who will be impacted but include those in the greater metropolitan area. Mr Mulholland’s
evidence was that on a typical weekday:
215,000 passengers exit Sydney CBD stations;
31,000 passengers exit at Parramatta;
20,000 passengers exit at North Sydney; and
21,000 passengers exit at Chatswood.48
[151] Mr Mulholland stated that the RTBU's application creates an almost infinite number of
options for the taking of different types of industrial action, of different periods of time and by
different types of Sydney Trains employees, either simultaneously, separately or on a rolling
basis.
[152] The complexity of Sydney Trains’ operations and the potential for different action
being taken by different employees at the same time or on a rolling basis could in Mr
Mulholland’s opinion result in the effective shutdown of the network, resulting in a stoppage
of train services, even if only relatively few employees take industrial action. In making this
statement Mr Mulholland provided a number of examples to demonstrate his contention. One
example being that if Network Control employees in the Rail Operations Centre, which
monitors and controls the running and passage of all trains on the network, took industrial
action, the entire network would, in all likelihood, be shut down, because if employees do not
control the passage of trains, the network cannot be used at all.
[153] Mr Mulholland stated that even for a one-hour cessation in services there are various
reasons why trains cannot sit on the Sydney Trains network and must be returned to the
stables. These reasons include:
leaving a train on the track creates a blockage on that track as other trains cannot
pass;
48 R9statement of H. Mulholland of 30 June 2021 at [11]
[2021] FWC 4391
25
it is difficult to get crew back to their home depot or returned to a train left on the
track;
leaving the trains on the track opens up opportunities for vandalism or other
security breaches;
if the train is left on the track, if when the crew return, they find that the train
cannot work because for example, the brakes do not work, the train cannot
move (which again causes a blockage on the track); and
there is a potential risk of an uncontrolled roll-away train as much of the
network is not on flat grades.
[154] To address the impact of industrial action by employees in the form of stoppages of
one-hour, four-hours or 24 hours, Mr Mulholland’s evidence was that Sydney Trains would
need to plan and implement its response, which would depend on the length of the stoppage,
timing of the stoppage, and the employees involved in the stoppage that was notified. In Mr
Mulholland’s experience it is not until being notified can a particular mitigation strategy be
planned and implemented, and the planning for any stoppage of one-hour, four-hours or 24
hours, and then taking steps to implement that plan, is likely to take at least 7 working days.49
[155] Mr Mulholland stated that industrial action that has an impact on train movements on
the network can impact the operations of other rolling stock operators who are scheduled to
operate in periods that are affected by the industrial action. This includes approximately 80
freight trains that travel over the network each day which:
convey coal to power stations and ports;
move containers between Sydney, Brisbane and Port Botany which carry
perishable foods, electronics, steel and other construction materials;
carry grain from Regional NSW to Newcastle and Port Kembla for export and to
Bomaderry for the production of flour and bio-fuels such as ethanol;
convey cement and aggregates from the Southern Highlands to batching
plants on the rail network; and
operate as garbage services, transporting waste from transfer stations at Auburn
to Goulburn.
[156] Mr Mulholland stated that there are also eight interstate freight trains travelling
through the network on a typical day and 12 local trip freight trains operating within Sydney
which are mostly container trains. Mr Mulholland’s evidence was that the COVID pandemic
had highlighted the critical role that local freight logistics play in servicing the needs of the
community and stated that for example, when international supply chains were impacted by
the pandemic in March and April 2020, there was a significant demand for local and interstate
49 Ibid at [23-29], [30-31]
[2021] FWC 4391
26
freight movement of household goods. The importance for local supply chains, which rely
heavily on freight trains using the Sydney Trains network, was in Mr Mulholland view,
significant.50
[157] Mr Mulholland stated that a number of Sydney Trains’ key business areas including
network control utilise regularly rostered overtime. If there was an overtime ban in any
particular area, the impact on safety, operations and customer service would need to be
carefully assessed and an effective plan developed and implemented, which would take at
least seven working days to undertake.
[158] Mr Mulholland’s evidence traversed the impact of potential bans on Sydney Trains by
RTBU employees on some of specific duties as set out in the PABO in justifying the extended
notification period to seven working days51 and expanded on this evidence in in his reply
statement.52
[159] Mr Mulholland stated that Sydney Trains requires seven working days' notice to
respond to the protected industrial action proposed in the PABO, irrespective of whether it is
a stoppage or ban, in order to allow it time to:
access the impact of the industrial action notified
design, build and validate timetable changes including rostering
mobilise the operational side by publishing the timetable changes to over 30
downstream systems
plan the alternative transport arrangements
communicate to passengers and stakeholders and third party suppliers
implement a varied rail timetable and TfNSW implementing the alternative
transport
[160] Mr Mulholland was not cross-examined on his evidence.
NSW Trains
[161] NSW Trains submitted that exceptional circumstances exist for the extension of the
notice period sought for the various forms of industrial action listed in the RTBU’s draft
PABO. The circumstances included the impact on parties other than the employer, that NSW
Trains provides a public transport service, and that the impact on its network would be
immense.
[162] In support of the extension of the notice period, Mr George Peters the Director
Network Services at NSW Trains gave evidence on behalf of NSW Trains. Mr Peters’
evidence addressed the operations of NSW Trains and the impact on its operations in the
50 Ibid at [43]
51 Ibid at [49-50], [53]
52 R10 reply statement of H. Mulholland of 15 July 2021 at [16]
[2021] FWC 4391
27
event industrial action by employees is taken. Mr Peters provided two witness statements and
was cross examined on his evidence.53
[163] Mr Peters explained that NSW Trains is a New South Wales government agency for
TfNSW and operates as NSW TrainLink, and provides diesel and electric passenger services
within the intercity network bordered by the Southern Highlands, South Coast/Illawarra, the
Blue Mountains and the Hunter.
[164] NSW Trains also operates extensive regional rail and coach services throughout
regional NSW and into Victoria, South Australia and the ACT bordered by Melbourne,
Adelaide and Brisbane.
[165] Mr Peters noted that Sydney Trains maintains NSW Trains’ rolling stock and the
NSW TrainLink intercity rail network.
[166] Mr Peters’ evidence was that each week, NSW Trains operates over 3,000 intercity
train services and over 700 regional train and coach services. NSW Trains covers over 5,000
kms of network servicing 479 destinations, and has on average 43 million customer journeys
annually.
[167] Since the COVID-19 pandemic, Mr Peters states that NSW Trains has experienced an
overall decline in passenger numbers, however, there has been a rise in the number of
passengers travelling locally.
[168] Mr Peters described the demographic of NSW Trains customers as diverse with many
using its services as their only method of transport. Mr Peters described the customer base as
including:
individuals who work in metropolitan Sydney, but cannot afford to live in
metropolitan regions who rely on the network as their mode of transport to reach their
place of work or to obtain essential services in metropolitan regions;
school children and students in tertiary education;
elderly people;
intellectually and physically disabled people;
individuals working in essential healthcare services, such as health professionals;
factory, port and mine workers; and
tourists, including tourists travelling to other modes of pre-booked transport.
[169] Amongst its employees, Mr Peters’ evidence was that NSW Trains employs:
573 train drivers;
53 R6 statement of G. Peters of 30 June 2021; R7 reply statement of G. Peters of 14 July 2021
[2021] FWC 4391
28
406 guards;
216 on-board attendants for regional services;
509 customer service attendants on stations outside of the greater Sydney metropolitan
area and
365 clerical and administrative staff.54
[170] Mr Peters stated that any stoppage of work of train drivers or guards would
significantly affect the network with the impact of the stoppage depending on when it occurs.
[171] When there is a one hour stoppage, this is in effect a four to five hour stoppage, and a
four hour stoppage, is in effect an all-day stoppage. The reasons for this are:
prior to the stoppage (whether it be a one hour, four hour or 24 hour stoppage), trains
must be removed from the tracks and moved to stabling yards. Depending on when a
stoppage occurs, trains and crew will be scattered all over the network. Arrangements
may need to be made to return crew to their home depot to stable the trains, depending
on when the stoppage occurs. NSW Trains must take steps prior to the stoppage
occurring which will impact upon operations and services; and
after a stoppage, trains need to be repositioned to the correct part of the network to
recommence services. Crew need to take trains from stabling locations and drive them
to the relevant location in the network to recommence the services which have been
altered due to the disruption.
[172] Mr Peters stated that trains cannot sit on the network during a stoppage because:
leaving a train on the line creates a blockage on that line which would mean that other
trains cannot pass;
the network owner prohibits trains being left on main lines as other operators such as
freight operators continue to use the network;
it is difficult to get crew back to their home depot and then returned to a train left on
the track; and
leaving the trains on the network opens up opportunities for vandalism and other
security breaches.55
[173] Mr Peters also stated that NSW Trains operates with a portion of overtime factored
into its schedules and rosters. A ban on overtime by on-train staff such as drivers, guards or
attendants, would mean that some employees would be unable to finish their rostered shift.
54 R6 statement of G. Peters of 30 June 2021 at [18]
55 Ibid at [26]
[2021] FWC 4391
29
[174] In some cases, an overtime ban may operate the same as a stoppage, because an
employee would stop work before the end of a shift, in the middle of a service, and services
could not be continued. In this case, the same issues as with stoppages would arise.56
[175] Mr Peters stated that any industrial action which results in a delay to network
operations has a significant impact on customers relying on NSW Trains for transport because
each delay, even minor, has significant flow on effects for the entire timetable.
[176] In this regard, Mr Peters’ evidence was that the consequences of delays that cannot be
managed in time will be that:
many customers will be unable to travel at all because they will not have an alternative
mode of transport and insufficient time to arrange for such;
school children and teachers would be prevented from attending school, or school
excursions. For some schools, this might mean that the school would be closed for the
day;
workers may be prevented from attending work, impacting productivity in businesses
where manual labour is required;
intellectually and physically disabled customers might not be able to get to work or
school;
elderly or ill people might be unable to attend medical appointments or seek medical
care;
there would be a significant increase in traffic, particularly from intercity service areas
such as South Coast/Illawarra, Central Coast, Blue Mountains and Newcastle to
Sydney, which would cause delays in travel during peak hours; and
tourists would experience difficultly making pre-booked connections with other forms
of transport, such as planes, and may have to forfeit the costs of any accommodation
that is missed.57
[177] Mr Peters’ evidence was that there would also be implications for NSW Trains in
managing delays and cancellations caused by stoppages and bans from a COVID risk
perspective. These include that:
NSW Trains does not have access to enough coaches or buses to replace all of its train
services, irrespective of how much notice it receives for any protected industrial action
therefore there is a risk of overcrowding on the available buses or coaches;
there is a risk that NSW Trains will not, for some services, be able to access or locate
coaches for services. This is because NSW Trains competes with schools for coaches
56 Ibid at [29-30]
57 Ibid at [60]
[2021] FWC 4391
30
during school drop off and pick up hours. Therefore, where a stoppage occurs in those
peak hours, NSW Trains may need to cancel services due to an inability to access
coaches as a work around;
the congestion that would be caused by customers waiting outside stations for bus and
coach services, would pose a significant COVID risk.58
[178] Given the effects that even a short delay can have on the network, Mr Peters stated
that NSW Trains will be required to extensively plan for the significant delays and
cancellations that will be caused by stoppages and bans. Mr Peters’ evidence was that it
would not be possible to completely eliminate the disruptions to operations, and therefore the
impacts on customers and employees, with an extended notice period. An extended notice
period will allow NSW Trains to plan for, and communicate, the necessary arrangements to
the general public and its regular passengers.59
[179] Mr Peters stated that if there is only a three day notice period in place for any
industrial action this will cause delays on the network and will have severe consequences for
the provision of public transport services across the NSW Trains network.
[180] With a 7 day notice period, NSW Trains will be able to plan and accommodate any
industrial action to lessen the impacts on customers and employees, and reduce the COVID-
19 risks that will inevitably flow from the stoppages and bans more effectively.
[181] In Mr Peters’ evidence, NSW Trains will need to ensure the following tasks are
completed upon notification of a stoppage, ban or change to the performance of work:
the daily working timetable will need to be changed;
a new schedule will need to be built based on the new daily working timetable;
once the schedule has been built, the period roster will need to be changed for
employees;
employees will need to be notified of changes to their roster in line with notification
requirements;
arrangements will need to be made for rolling stock to be stabled and secured;
customers will need to be notified of changes to services;
arrangements will need to be made to engage buses and coaches to cover cancelled
services;
arrangements will need to be made for employees who will potentially be stranded in a
location away from their home depot to be returned to their home depot, or have
appropriate accommodation;
a COVID-19 safety plan will need to be put in place;
58 Ibid at [61]
59 Ibid at [71]
[2021] FWC 4391
31
arrangements will need to be made to ensure there are qualified staff to cover roles
that will be impacted by bans or changes to the performance of work as notified.
[182] Mr Peters’ evidence was that due to NSW Trains employees being located across a
large geographic area including ‘on train’ employees travelling vast distances during shifts,
industrial action would cause safety and security risks.60
[183] Mr Peters stated that in order to account for the network disruptions due to any
stoppage, ban or change to the performance of work, the following steps will need to be
taken:
For the InterCity network, Sydney Trains manages the timetables for that network and
the Rail Infrastructure Manager will need to review the daily working timetable. Part
of the review will also be to ensure that all trains are removed from the network and
are stabled before the stoppage commences. It will take at least one to two days to
adjust the daily working timetable depending on complexity;
The scheduling team at NSW Trains will need to build a schedule to ensure there are
sufficient crew at all operational locations. This will take at least 72 hours;
The rostering team at NSW Trains will then need to alter period rosters to indicate the
altered hours of work for employees. This will take at least one day to alter the period
roster; and
Drivers will need to be given 48 hours’ notice of any roster changes.
[184] Mr Peters states that these steps are all manual processes and need to be completed in
a sequence by teams who have expertise in a particular area of operations. That is, they cannot
be completed at the same time, and would require a minimum of 7 days to action. As altering
the daily working timetable and the schedule takes around 5 days in itself. NSW Trains would
then need an additional period to work with the bus and coach providers to prioritise which
services can be covered which cannot be done in less than 7 days.
[185] Mr Peters’ evidence was that if industrial action is notified against both NSW Trains
and Sydney Trains at the same time, this will have a compounding effect on train services
across both networks resulting in:
difficulties finding locations to park trains, particularly in the event of a stoppage,
because both NSW Trains and Sydney Trains will need to compete for the same
locations to park trains; and
60 Ibid at [63-64]
[2021] FWC 4391
32
additional difficulties with finding buses or coaches to replace train services in the
inner city region due to both providers competing for a limited number of buses and
coaches.
[186] These factors would require additional contingency planning and will result in a more
significant impact on customers which will need to be communicated to them. The planning
will add additional time to the minimum of 7 days’ notice that NSW Trains will require ahead
of a notice of industrial action.61
[187] Mr Peters’ evidence was that all staff at NSW Trains must be appropriately trained in
the performance of their duties. The process is lengthy and cannot be done in 7 working days.
For example, after successfully completing the recruitment phases training for train drivers or
guards can take between four to twelve months.62
[188] With regard to the steps that NSW Trains would need to take in response to the
notification of industrial action to mitigate the impacts on third parties, Mr Peters states that
they will not have the effect of completely alleviating the impacts of industrial action, and are
simply the bare minimum steps that need to be taken to ensure that some level of service is
provided to customers, and that the public is aware of the ways in which the services NSW
Trains provide will change.63
RTBU
[189] The RTBU argued that no extension should be granted on the basis that it had not been
demonstrated that exceptional circumstances exist to justify an increase to the default 3
working day notice period provided in the Act. Further, the extension of time as sought by the
respondents would result in a significant diminution on the effectiveness of the RTBU’s right
to take protected industrial action and an extension of time should not be granted for the
respondents to avoid any impact of the protected industrial action.
[190] The RTBU submitted that the fact that the respondents provide a public rail service is
not sufficient to ground exceptional circumstances. Further, that the respondents’ operations
will be impacted from any protected industrial action resulting in the need to take mitigative
steps does not result in establishing exceptional circumstances.64
[191] The RTBU submitted that even if exceptional circumstances exist there is no
justification for an extension to the notice period as the respondents have the capacity to take
significant and effective mitigative measures. The RTBU relies on the fact that while Sydney
Trains has provided copies of its contingency plans for train disruptions, they are heavily
redacted and NSW Trains has not provided copies of any contingency plans.
61 Ibid at [91]
62 R7 reply statement of G. Peters of 14 July 2021 at [6]
63 Ibid at [5]
64 Written submissions of 12 July 2021 at [43-44]
[2021] FWC 4391
33
[192] In opposing the extension of the notice period as sought by the respondents, the RTBU
relied on the evidence of Mr Stephen Priestly who is employed by Sydney Trains as a
Network Incident Manager.
[193] Mr Priestley’s evidence was that Sydney Trains employs Forward Planners to
undertake specialised work in developing plans that can be implemented on short notice. The
plans respond to hypothetical situations that have a perceived likelihood of occurring, such as
terrorist attacks or weather events.
[194] In addition, Mr Priestley stated that Sydney Trains employs Train Planners who put
out plans in response to a particular situation. Train Planners plan for scheduled events or
unscheduled events that have some forewarning. These plans are typically implemented
through issuing a Special Train Notice (STN).
[195] A Special Train Notice is an advertised process for alteration to the standard working
timetable and for work on tracks for a specified portion of time and must have 7 days' notice.
If less than 7 days’ notice it must be accompanied by a safe notice.
[196] Special Train Notices lists all the parameters of the work to be conducted and all the
track possessions and other associated notices for train working around the area effected by
the notice. Mr Priestley stated that Network Incident Managers work in conjunction with
Train Planners in advance of an expected incident to develop a plan.
[197] Mr Priestley’s evidence was that he was aware of the existence of contingency plans
that are in place in the event that Sydney Trains is subject to a network disruption.65
[198] Mr Priestley stated that he was aware that Sydney Trains has comprehensive and up to
date plans in place ready to be implemented in the event of certain incidents. These incidents
include:
Railway corridor fatalities;
Infrastructure failure;
Derailments;
Partial and complete blockage of a line;
Environmental incidents such as heavy rain and fog,
Emergency trackwork;
Various natural disasters; and
Terrorist attacks.
65 A1 statement of S. Priestley of 12 July 2021 at [14]
[2021] FWC 4391
34
[199] In the event that employees take industrial action it was Mr Priestley’s belief that
Sydney Trains has several different contingency plans ready to implement, although he not
seen these plans in practice.66
[200] Mr Priestley stated that it makes no difference as to the specific cause of a network
disruption, as Network Incident Managers work together, with the speed and appropriateness
of their response being the most critical aspect. Mr Priestley stated that the Network Incident
Managers responses were very adaptable and can be implemented on short notice.67 Notice
periods and the speed of implementation is a factor that is considered in contingency plans
and are a critical aspect of the response.
[201] As an example, Mr Priestley stated that in the event of a 24-hour work stoppage, if
notice is received on a Wednesday night, plans can be implemented, and trains stabled by
midnight with train services rebalanced and ready to go by peak hour on Friday morning. In
the interim, bus services can be arranged to replace rail services effected by the stoppage.68
[202] Mr Priestley’s evidence also disputed a number of contentions that were made in the
evidence of Mr Peters.
[203] In replying to the evidence of Mr Priestly, Mr Berry disagreed with the assumptions
made by Mr Priestly. Mr Berry stated that Mr Priestley’s evidence appeared to be based on
the manner in which Sydney Trains responds to an unplanned incident on a single line such as
a suicide, points failure, or points outage. The time frame required to provide emergency,
alternative transport in response to an incident is entirely different to the time frame required
to attempt to replace passenger services on the entire Sydney Trains network in response to
industrial action.69
[204] Mr Berry stated that the time frame contemplated by Mr Priestley was incorrect as it
did not take into account the differences between a disruption to passenger services caused by
an accident as opposed to a shutdown of train services caused by industrial action.70
[205] Mr Mulholland also disputed much of the evidence of Mr Priestley and gave his
reasons for doing so.71
The case law
[206] The parties have referred the Commission to a number of authorities that relate to the
Commission exercising its discretion under s.443(5) of the Act.
66 Ibid at [18]
67 Ibid at [24]
68 Ibid at [25]
69 R4 reply statement of A. Berry of 15 July 2021 at [6]
70 Ibid at [9]
71 R10 reply statement of H. Mulholland of 15 July 2021
[2021] FWC 4391
35
[207] In dealing with the equivalent provision under the Workplace Relations Act 1996 in
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied
Services Union of Australia v Australian Postal Corporation72, (Aust Post) Lawler VP
referred to the decision of Rares J in Ho v Professional Services Review Committee No 295,73
and opined the following:
"[10] In this passage his Honour was concerned with the ordinary meaning of the
expression "exceptional circumstances" and the approach identified is, in my view,
equally applicable to the use of that expression in s.465(3). In summary, the expression
"exceptional circumstances" requires consideration of all the circumstances. To be
exceptional, circumstances must be out of the ordinary course, or unusual, or special,
or uncommon but need not be unique, or unprecedented, or very rare. Circumstances
will not be exceptional if they are regularly, or routinely, or normally encountered.
Exceptional circumstances can include a single exceptional matter, a combination of
exceptional factors or a combination of ordinary factors which, although individually
of no particular significance, when taken together are seen as exceptional. It is not
correct to construe "exceptional circumstances" as being only some unexpected
occurrence, although frequently it will be. Nor is it correct to construe the plural
"circumstances" as if it were only a singular occurrence, even though it can be a one
off situation. The ordinary and natural meaning of "exceptional circumstances"
includes a combination of factors which, when viewed together, may reasonably be
seen as producing a situation which is out of the ordinary course, unusual, special or
uncommon.
[11] However, it is important to note that when considering whether to make an order
pursuant to s.463(5) the Commission is not simply concerned with determining
whether there are exceptional circumstances. There must be exceptional circumstances
"justifying" the specification of a longer notice period. The notion of justification is
critical and calls for a consideration of the purpose of the notice required by s.441."
[24] Further on the Vice President stated:
"[21] Essentially, what is required in determining whether exceptional circumstances
justify an extension of the required notices period is a weighing of the interests of the
employer and third parties in the employer having a greater opportunity to take
appropriate defensive action as against the diminution in the effectiveness of the
employees' bargaining power that results from such an extension. The fact that the
legislature has seen fit to condition the ordering of an extension of the required notice
period on the presence of exceptional circumstances justifying it, as distinct from
72 [2007] AIRC 848
73 [2007] FCA 388 (27 March 2007)
https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2007/2007fca0388
http://www.fwc.gov.au/decisionssigned/html/2007airc848.htm
[2021] FWC 4391
36
merely conferring a simple discretion to extend the required notice period, indicates
that ordinarily there should be no extension.
[22] The first example provided in Davids Distribution provides an illustration of
where exceptional circumstances may justify an extension of the required notice
period. A sophisticated piece of plant, such as a smelter, may take many days to shut
down without damage. The employer is exposed to wholly disproportionate damage if
it is prevented by too limited a notice period from undertaking an orderly shutdown of
the plant. A further example may be afforded by a strike by teachers where the school
needs to be able to notify parents of the strike so as to give them an opportunity to
make alternative arrangements for the care of their children on the days of the strike.
Typically, three working days will be insufficient for this purpose…"
[208] In this matter the parties referred to a Full Bench decision of the Commission in
National Tertiary Education Industry Union v Charles Darwin University74. In that decision
the Full Bench held that the words “exceptional circumstances” in s.463(5) of the Workplace
Relations Act 1996 as were considered by Lawler VP in Aust Post above, were in all material
respects the same as the phrase “exceptional circumstances justifying” now contained in
s.443(5) of the Act.75
[209] The Full Bench concluded that the making of an order to extend the period of notice
for the taking of protected industrial action involved a three step process:
“[20] The exercise of a discretion under s.443(5) results in an interference with the right
of a bargaining representative to otherwise give three working days’ written notice of
industrial action that is to be organised and engaged in by employees in support of a
proposed agreement. That this right should not lightly be curtailed by the imposition of
a longer period of notice is evident in the grant of power itself. There must be
“exceptional circumstances” in relation to the proposed industrial action the subject of
the order justifying a longer period.
…
[23] The determination of whether the circumstances in a particular case are
‘exceptional’ involves an evaluative judgement. A proper approach to the exercise of
the Commission’s discretion under s.443(5) requires first that a member identify or
make findings about the particular facts or circumstances in relation to the proposed
industrial action which are said inform the evaluative judgement that such factors or
circumstances are exceptional circumstances. The phrase “exceptional circumstances”
carries its ordinary meaning.
74 [2018] FWCFB 4011
75 Ibid at [22]
https://www.fwc.gov.au/documents/decisionssigned/html/pdf/2018fwcfb4011.pdf
[2021] FWC 4391
37
[24] Secondly, there must be a consideration whether the identified exceptional
circumstances are circumstances “justifying” a longer notice period. This also involves
an evaluative judgement made on the basis of probative material. The use of the verb
“justifying” in s.443(5) signifies that the identified exceptional circumstances must
show or prove that it is reasonable or necessary or the circumstances warrant or
provide good reason to require a longer period of written notice.
[25] Thirdly, if the member is satisfied there are exceptional circumstances justifying a
longer period of notice, there must be a consideration of whether to exercise the
discretion and, if so, the additional period of notice that should be given in the
circumstances (noting the maximum period).”
[210] The Federal Court Full Court in CFMMEU v DP World Sydney Ltd,76 characterised
the decision-making task required under s 443(5) in the following terms:
“[14] As a general matter it is apparent that the formation of the discretionary judgment
called for by s 443(5) is conditioned on the FWC forming a discretionary evaluative
judgment about whether, having regard to all of the circumstances, there exists some
characteristic of the foreshadowed proposed industrial action, in the whole of the
context in which it is to occur, that justifies allowing a longer period of written notice.
If the FWC so decided, then it must consider what, if any, additional days’ notice up
to 7 should be required…”
[211] An extension to the notice period under s.443(5) while not a regular exercise of the
Commission’s discretion is not uncommon, including an extension to 7 working days.77
[212] In respect of the New South Wales rail industry in particular, the Commission has
previously extended the notice period by up to 7 working days, dependent on the proposed
type of protected industrial action sought to be taken in the PABO application.
[213] In 2010, in a matter involving the Rail Corporation New South Wales, the
Commission extended the default 3 day notice period to 7 working days stating:
“Specifically, Fair Work Australia is satisfied that the requirements of section 437 and
443 of the act have been met. Further, the order will contain provisions as
contemplated by section 443(5) of the act extending the notice requirements for any
proposed action from three working days to seven working days, Fair Work Australia
76 [2019] FCAFC 99
77 [2020] FWC 3583, [2020] FWC 6904
https://www.fwc.gov.au/documents/decisionssigned/html/pdf/2020fwc6904.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/pdf/2020fwc3583.pdf
https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/full/2019/2019fcafc0099
[2021] FWC 4391
38
having been satisfied that exceptional circumstances exist to provide for the extension
of the minimum notice requirements.”78
[214] In 2017 in RTBU and Others v Sydney Trains and NSW Trains79 the Commission
issued a PABO which included an extension of the notification period from 3 to 7 working
days. In arriving at his decision Cambridge C stated at [10]:
“Having regard for the evidence provided, and the respective, competing submissions
of the Parties, the Commission has been persuaded that exceptional circumstances
exist in satisfaction of the requirements of subsection 443 (5) of the Act. In particular,
in this instance, the Commission has been cognisant of the potential disruption that
may be caused to the general public who regularly rely upon the availability of the
extensive public transport services operated by the employers.”
Conclusion
[215] In the above matter all unions covered by the proposed agreement were seeking a
PABO. In issuing the PABO and extension of the notification period the Commissioner was
not satisfied that all of the proposed forms of protected industrial action required an extension
to 7 working days.
[216] Although an extension up to 7 working days was granted in the above two rail industry
matters for certain forms of industrial action, the competing arguments of the parties does not
appear to have been as comprehensive as have been put in this matter.
[217] Having regard to the evidence of the respondents as set out above, the Commission in
this matter is satisfied that in respect of both the respondents, exceptional circumstances exist.
[218] The exceptional circumstances comprise of the respondents being engaged in the
provision of an essential public transport service being rail travel, where the effects of a
failure to provide the service have far reaching effects on third parties together with the
limited capacity of the respondents to mitigate the adverse effects within a 3 working day
notice period. While not being unique or unprecedented they are special and are out of the
ordinary course.80
[219] The Commission is further satisfied that on the evidence of the respondents’
witnesses, namely Mr McDonald, Mr Berry and Mr Peters that the identified exceptional
circumstances justify a longer notice period. The evidence of Mr Priestly for the RTBU was
not sufficiently persuasive to negate that of the respondents. In particular it did not address the
78 B2010/3120 22 June 2010 Unreported. This decision was given in transcript at PN156 and involved the "Automotive,
Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers'
Union (AMWU) Rail Corporation New South Wales
79 [2017] FWC 6158
80 See National Tertiary Education Industry Union v Charles Darwin University [2018] FWCFB 4011 at [10]
https://www.fwc.gov.au/documents/decisionssigned/html/pdf/2018fwcfb4011.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwc6158.htm
[2021] FWC 4391
39
time frame needed to address an industrial campaign of potentially prolonged and cumulative
protected industrial action taken simultaneously against the respondents, as opposed to an
unplanned disruption on a single line that is routinely encountered and dealt with by the
respondents.
[220] The evidence demonstrated that in response to certain forms of proposed industrial
action 3 working days would not be sufficient to take appropriate defensive action to mitigate
the operational impacts of the industrial action. The factors warranting an extension of the
notice period for the respondents, accepting that trains are the largest carrier of passengers in
Greater Sydney, include but are not limited to the need to:
arrange and coordinate buses to transport passengers to act as train replacements;
arrange and coordinate additional metro, light rail and ferries to transport passengers;
communicate to the respondents’ customer base and the public, alternative
arrangements to transport passengers;
design and validate timetable changes including rostering by publishing the timetable
changes;
communicate and make arrangement with rolling stock operators who are scheduled to
operate in periods that are affected by the industrial action;
make arrangements for rolling stock to be stabled and secured; and
put in place a COVID safety plan.
[221] The Commission accepts that in line with the scheme of the Act, the purpose of
protected industrial action and the Act’s default 3 day notice period is to enable the RTBU to
obtain the greatest effect from its proposed protected industrial action to exert maximum
bargaining pressure and at the same time allow the respondents to take appropriate defensive
action. As such an extension of the notice period can only apply where exceptional
circumstances exist that justify a longer period being ordered.
[222] The RTBU submitted that based on the respondents’ failure to produce either in an
unredacted form or at all their contingency plans, are a matter the Commission should take
into account in inferring that mitigative measures could be taken by the respondents which
would be significant and effective to negate the effects of protected industrial action.
[223] The evidence before the Commission in this matter does not rise to the level asserted
by the RTBU. Mr Peters from NSW Trains stated that its contingency plan was a high level
vanilla document and similarly, Sydney Trains submitted that while contingency planning
existed, it was at a high level as the type and form of any industrial action taken is unknown.
[224] The Commission does not accept that the extension of time sought by the respondents
including up to the maximum period allowed for certain forms of protected industrial action
will nullify the impact of the industrial action by allowing the respondents to ensure that the
impact of the industrial action is minimal. It is assumed by the Commission that due to the
nature of the public transport service provided by the respondents and in particular its
[2021] FWC 4391
40
customer base, that employer response action as per s.411 of the Act is not an available option
to the respondents.
[225] The evidence of the respondents is that an extension of the notification period as
sought will assist the respondents in taking appropriate defensive action, but not eliminate the
impact. The impact of industrial action that results in a train stoppage can generally only be
alleviated with the provision of an alternate form of transport.
[226] Mr Peters’ evidence was that NSW Trains does not have access to enough coaches or
buses to replace all of its train services, irrespective of how much notice is provided. Any
defensive action taken by NSW Trains would not completely alleviate the impacts of
industrial action and would amount to the bare minimum that needs to be taken to ensure that
some level of service is provided to customers.
[227] Mr Berry’s evidence on behalf of Sydney Trains was that it is not possible to replace
all train services with bus services as the available bus capacity could not even partially match
the full capacity of the train network.
[228] Mr Mulholland stated that planning for any stoppage of one-hour or four-hours, and
taking steps to implement that plan, is likely to take at least seven working days. The
Commission is satisfied that an extension to the notice period of up to 7 working days will not
nullify the proposed industrial action and that it will still place significant bargaining pressure
on the respondents.
[229] In respect of the evidence for NSW Trains with regard to an extension of the notice
period given by Mr Peters, the RTBU states that Mr Peters accepted in cross-examination that
his opinions were premised on needing 7 calendar days as opposed to 7 working days. This
was disputed by NSW Trains in their closing submissions. Mr Peters’ witness statement of 30
June 2021 refers on a number of occasions to 7 days being required to put alternative
arrangements in place. There is no reference to whether the 7 days are calendar or working
days.81 In Mr Peters’ reply witness statement of 14 July 2021 the only reference to 7 days is
stated as 7 ‘working’ days.82
[230] Irrespective of what Mr Peters meant in referring to 7 days (noting that not all NSW
employees work over 7 days of the week) his evidence was that it was a minimum period and
that an extended notice period would not completely eliminate the disruptions to its
operations and impacts on customers.83 In any event, the notice period extensions sought by
NSW Trains is expressed as an increase in working days.84
81 R6 statement of G. Peters of 30 June 2021
82 R7 reply statement of G. Peters of 14 July 2021 at [6]
83 R6 statement of G. Peters of 30 June 2021at [71], [91]
84 Written submissions of 30 June 2021 at [2b]
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[231] The RTBU further submitted that the evidence of Mr Berry for Sydney Trains
contradicted that of Mr Mulholland. As noted above, Mr Mulholland was not cross-examined
on his witness statements and his evidence is therefore unchallenged.
[232] Having accepted that exceptional circumstances exist and that those exceptional
circumstances justify an extension to the default noticed period, the Commission is satisfied
that it should exercise the discretion that is provided at s.443(5) of the Act to extend the notice
period in the terms sought by the respondents, subject to some variations in the extensions
sought by NSW Trains.
[233] The additional notice periods sought by the respondents are generally the same in
respect to the various proposed forms of industrial action, however there are some differences.
Sydney Trains requests either an extension to 5 or 7 working days, whereas NSW Trains has
requested an extension to 7 working days for all forms of industrial action where an extension
is sought. The Commission notes that the operations of NSW Trains differ from that of
Sydney Trains, not the least being that it operates an extensive regional rail service.
[234] NSW Trains has sought an extension to 7 working days to the notice period in respect
of PABO question 7(b) concerning an indefinite or periodic ban on Transport Officers issuing
fines. No evidence was given to support this extension, and it is not granted (it is noted that no
extension was sought by Sydney Trains in this circumstance).
[235] The Commission is further not satisfied on the evidence that an extension to 7 working
days is necessary to appropriately mitigate the impacts of industrial action in relation to an
indefinite or periodic ban on external washing and/or graffiti removal of rolling stock and the
cleaning up of hazardous waste, set out at questions 7(e) and 7(f) and as such, no extension
will be ordered. No extension was sought by Sydney Trains on these proposed forms of
industrial action.
[236] In respect of question 11, NSW Trains seeks an extension to 7 working days to all
aspects of this question i.e. 11(a) to 11(d).
[237] Question 11(a) relates to the wearing and displaying of union and industrial campaign
material, and an extended notice period to 7 working days is sought on the basis of the
creation of potential safety risks. The argument put by NSW Trains is not in the
Commission’s view in any way substantial enough to justify any extension to the notice
period. An extension to this form of industrial action was not sought by Sydney Trains.
[238] Question 11(c) relates to train drivers blowing their whistle at every station before
departing. Apart from referring to issues concerning ‘noise pollution’ nothing further was
submitted (no extension was sought by Sydney Trains). This extension is not granted.
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[239] Question 11(d) concerns the provision of information about bargaining to the public
and the media. Nothing was put by NSW Trains to support this request and it is not granted
(no extension was sought by Sydney Trains).
[240] It is also noted that neither respondent sought an extension of the notice period in
regard to questions 12.
Alternative ballot agent
[241] Section 444(1) of the Act provides that the Commission may decide that a person
other than the Australian Electoral Commission is to be the protected action ballot agent in
certain circumstances as set out below:
(a) the person is specified in the application for the protected action ballot order as the
person the applicant wishes to be the protected action ballot agent and
(b) the FWC is satisfied that:
(i) the person is a fit and proper person to conduct the ballot; and
(ii) any other requirements prescribed by the regulations are met.
[242] With regard to there being any prescribed regulations, regulation 3.11 of the Fair
Work Regulations 2009 stipulates a number of requirements that the person must be capable
of:
ensuring the secrecy and security of votes cast in the ballot
ensuring that the ballot will be fair and democratic; and
conducting the ballot expeditiously.
[243] Regulation 3.11(5) requires the person to have agreed to be a protected action ballot
agent and regulation 3.11(6) provides that the person must be bound to comply with the
Privacy Act 1988 in respect of the handling of information relating to the protected action
ballot.
[244] In the RTBU’s application, Mr Michael Michael, the Managing Director of
Democratic Outcomes Pty Ltd trading as CiVS is named as the person sought by the RTBU to
be appointed as the protected action ballot agent ballot agent
[245] Mr Michael has provided a witness statement setting out that he would carry out the
functions of the protected ballot agent for CiVS, and that he has relevant experience in
conducting protected action ballots. The request to appoint Democratic Outcomes Pty Ltd
trading as CiVS is not opposed by the respondents.
[246] Mr Michael’s statement attests to the following:
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Mr Michael and CiVS are capable of ensuring the secrecy and security of the votes
and of conducting the ballot expeditiously.
CiVS has agreed to be the protected action ballot agent and
Mr Michael and CiVS are bound to comply with the Privacy Act 1998 with respect
to the handling of the information relating to the protected action ballot.85
[247] On the basis of Mr Michael’s unchallenged statement and noting that he has
previously been appointed as a ballot agent by the Commission,86 the Commission is satisfied
that CiVS is a fit and proper person to conduct the ballot and is appointed as the protected
action ballot agent.
Order to be made
[248] Having regard to the evidence before the Commission, I am satisfied that the
requirements in s.443(1) of the Act have been met and that, accordingly, the PABO as sought
by the RTBU must be made.
[249] The Commission is further satisfied on the application of the respondents that it is
appropriate to extend the notice period to the extent and on the terms discussed above.
[250] Order [PR732012] based on the draft provided by the RTBU is issued in conjunction
with this decision.
DEPUTY PRESIDENT
Appearances:
Mr P Boncardo of Counsel and Mr P Matthews Legal Officer on behalf of the RTBU
Mr A Gotting of Counsel and Mr T Woods Solicitor on behalf of Sydney Trains
85 A4 statement of Mr Michael of 12 July 2021
86 [2020] FWC 3583
OF THE FAIR WORK THE Oil MMISSION THE
https://www.fwc.gov.au/documents/decisionssigned/html/pdf/2020fwc3583.pdf
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Ms V Bulut of Counsel and Mr C Gardner Solicitor on behalf of NSW Trains
Hearing details:
Microsoft Teams Hearing
2021
23, 30 July
Printed by authority of the Commonwealth Government Printer
PR732003
