Fair Work Commission suspends protected industrial action by rail workers: lessons for employers
In January 2018, rail workers employed by Sydney Trains and NSW Trains threatened a 24-hour stoppage and overtime bans. The industrial action would have brought all NSW trains to a standstill for 24 hours and caused further, major disruptions due to the overtime bans. The NSW government estimated the industrial action would cost NSW AU$90 million and would prevent more than 1 million customer journeys.
A group from Lander & Rogers’ Sydney Workplace Relations & Safety team — Tony Woods, Sally Moten, Emma Lutwyche, Emily Burgess, Coral Yopp, and Isabel Hewitt — represented Sydney Trains and NSW Trains in an application before the Fair Work Commission to have the industrial action suspended.
In a noteworthy decision for all employers, the Commission ordered that all industrial action be suspended for six weeks, finding the stoppage threatened to cause significant damage to the economy and endanger the welfare of the community and the people who rely on the network to get to work and school.
On 15 January 2018, the Australian Rail, Tram & Bus Industry Union (NSW Branch) (RTBU) notified Sydney Trains and NSW Trains pursuant to section 414 of the Fair Work Act 2009 (FW Act) that its members would be engaging in indefinite bans on overtime from midnight on Thursday 25 January 2018. The same day, the Association of Professional Engineers, Scientists and Managers Australia (APESMA) notified Sydney Trains that its members would also be engaging in indefinite bans on overtime from midnight on Thursday 25 January 2018.
On 16 January 2018, the RTBU notified Sydney Trains and NSW Trains that its members would undertake a stoppage of work for a 24-hour period commencing at midnight on Monday 29 January 2018.
The following day on 17 January 2018, APESMA notified NSW Trains that its members would be engaging in indefinite bans on overtime from midnight on Tuesday 30 January 2018.
On 24 January 2018, Sydney Trains and NSW Trains filed an application with the Fair Work Commission (Commission) for an order suspending or terminating the protected action under either section 424 or 425 of the FW Act. On the same day, the Minister for Industrial Relations in New South Wales, the Hon. Dominic Perrottet (Minister), filed an application with the Commission for an order suspending or terminating the protected industrial action pursuant to section 424 of the FW Act.
For full case, refer to Sydney Trains; NSW Trains; The Hon. Dominic Perrottet, Minister for Industrial Relations (New South Wales)  FWC 632.
In support of the applications, Sydney Trains, NSW Trains, and the Minister filed evidence demonstrating the impact of the threatened industrial action, including as follows:
- The overtime ban would reduce the number of rail services by 40%-50%.
- No trains could run during the 24-hour stoppage.
- The stoppage would mean that over one million customer journeys could not take place, impacting the 420,000 commuters who usually travel by train in the morning peak period and 440,000 commuters in the afternoon peak.
- Buses could not mitigate the effects of the industrial action due to capacity constraints.
- If everyone who typically travels by train attempted to drive, this would have detrimental impact on roads which, in turn, could impede essential service workers such as police officers, nurses, doctors, ambulance officers, and fire fighters who would usually travel to work by train.
- The second largest use of the rail services (after work-related travel) is education-related travel. The stoppage would impact travel by school children, with independent schools returning to school on the day of the proposed stoppage.
- The stoppage would impact the movement of freight including coal, perishable food, grain, cement, and waste.
- Travel to and from Sydney airport would be disrupted.
- NSW Treasury gave evidence which showed the modelling of the immediate economic impact of the proposed industrial action, which revealed the proposed 24-hour stoppage would have resulted in an economic loss of AU$51.7 million. An additional loss of AU$39.1 million was estimated to arise from the overtime ban, making a total loss of AU$90.8 million.
- NSW Ministry of Health gave evidence of the impact of the industrial action on the health system, including service interruptions to elective surgery, outpatient services, and community health services at numerous major hospitals. There could also be delays at emergency departments.
Under section 424 of the FW Act, the Commission must make an order suspending or terminating protected industrial action for a proposed enterprise agreement that:
(a) is being engaged in; or
(b) is threatened, impending or probable;
if the Commission is satisfied that the protected industrial action has threatened, is threatening, or would threaten:
(a) to endanger the life, the personal safety or health, or the welfare, of the population or of part of it; or
(b) to cause significant damage to the Australian economy or an important part of it.
The Commission concluded that the evidence established that the 24-hour stoppage and the overtime bans, taken together or separately, threatened to endanger the welfare of a part of the population, including the large number of people in Sydney and surrounding areas who rely on the services provided by Sydney Trains and NSW Trains to get to work, attend school or otherwise go about their business, as well as all those who would have suffered from the increased congestion on the roads that would have been an inevitable consequence of the industrial action.
The evidence was also sufficient to establish that the industrial action would have threatened to cause significant damage to the economy of Sydney, accepted to be the largest and most economically important city in Australia.
- The decision is noteworthy because it is one of only a handful of decisions in which the Commission has made orders under section 424 suspending protected industrial action.
- The decision highlights that an employer can obtain orders under section 424 by establishing that the protected industrial action threatens the welfare of part of the population (rather than the entire population).
- It also demonstrates the evidentiary standard that must be met by an employer to obtain such an order. Sydney Trains, NSW Trains, and the Minister filed extensive evidence establishing the likely impact of the industrial action.
- After the industrial action was suspended, the negotiations for the Sydney Trains and NSW Trains enterprise agreements continued. Both have now been voted up by employees, providing certainty for employees, Sydney Trains and NSW Trains, and the travelling public in NSW.
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