Federal Court of Australia

Communications Electrical Electronic Energy Information Postal Plumbing and Allied Services Union of Australia v Sydney Trains [2025] FCAFC 39

ORDERS

THE COURT ORDERS THAT:

1.    The originating application be dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

Introduction

1    On 25 March 2025 we dismissed the applicant’s originating application and said that we would provide reasons for taking this course shortly. These are our reasons for doing so.

2    The applicant applied to quash cooling off orders made by the Full Bench of the Fair Work Commission on 19 February 2025 pursuant to s 425 of the Fair Work Act 2009 (Cth) (the ‘Act’). The Full Bench delivered full reasons for making those orders on 26 February 2025 although it provided a short set of reasons when it made the orders: Re Application by Sydney Trains and NSW Trains [2025] FWCFB 46 (‘FWC’).

3    We will refer to the applicant as the ‘CEPU’ and the first and second respondents as the ‘rail agencies’. The CEPU represents the interests of electricians employed by the rail agencies. The Fair Work Commission (the ‘Commission’) is named as the third respondent but filed a submitting appearance and took no part in the application.

4    The CEPU is one of seven unions involved in a protracted industrial dispute with the rail agencies about the terms of a new enterprise bargaining agreement. The effect of the cooling off orders has been to suspend all protected industrial action taken by (or proposed to be taken by) the unions on and from 19 February 2025 until 1 July 2025 in relation to that agreement. The Full Bench took this course under s 425 because it thought that the negotiations between the unions and the rail agencies had come very close to achieving a settlement of the entire dispute on Thursday 13 February 2025. All the central terms had been agreed save the wage increase to occur in the third year.

5    This consensus had been derailed by a last-minute demand by six of the unions for a $4,500 sign-on bonus, which they sought to trade-off for a higher wage increase in the third year of the agreement: see FWC [35]. There is a dispute between the unions and the rail agencies about the nature of this sign-on bonus. The unions say it appeared in the previous enterprise bargaining agreement between the parties. But the rail agencies say that the history of that payment shows that it was a catchup payment for an earlier period and was not intended to be repeated. They see the demand for the $4,500 sign-on bonus as a last-minute demand which had not previously been advanced in the many months of complicated negotiations which had taken place.

6    Regardless of where the truth on this issue lies, the fact is that the demand caused the negotiations to collapse and that collapse, in turn, re-enlivened a pre-existing dispute between the rail agencies and another one of the unions, the RTBU.

7    The RTBU represents, relevantly, the industrial interests of train drivers. In the wake of the collapse of the negotiations on Thursday 13 February 2025, it announced that it would re-impose a partial work ban in the nature of a go-slow. The go-slow had been announced by the RTBU sometime before but had been held in abeyance during the negotiations which had nearly led to a consensus on Thursday 13 February 2025. The effect of the go-slow was that on rail lines where the posted speed limit for a train was more than 80km/h, the drivers would drive the trains 23km/h slower than that posted speed limit.

8    The rail agencies responded by announcing that for any day upon which the drivers engaged in the go-slow the rail agencies would not accept this as a performance of the drivers’ duties and accordingly would not be paying them wages for that day. This was not a lock out of the drivers who remained fully at liberty to attend work and perform their ordinary duties. Further, they were not prevented from attending work and engaging in the go slow – they just would not be paid. Nevertheless, the RTBU stated to the public and its members that the rail agencies had locked out its drivers. This statement was wrong.

9    On the day after the negotiations broke down, some 652 train crew members and guards did not attend work and by 1 pm 57% of services had been cancelled and customer numbers were down 70%. It seems that the go-slow itself had little effect but, where 57% of the services had been cancelled so that most trains were not even running and the network was in chaos, this is unsurprising.

10    Later that afternoon, the rail agencies applied to the Commission for cooling off orders suspending all protected industrial action under s 425 of the Act. The hearing of that application was then scheduled for the following Wednesday 19 February 2025. Crews of drivers and guards continued not to attend work over the weekend (some 376 drivers and guards on the Saturday and 273 drivers and guards on the Sunday). The position improved significantly on the Monday but there remained drivers and guards who did not attend work during that week.

11    It was in that context that the Full Bench embarked upon a hearing of the rail agencies’ application under s 425 on Wednesday 19 February 2025. It announced its decision that day. The Full Bench concluded that the parties had been very close to resolving the whole dispute but that the events flowing from the demand for the $4,500 sign-on bonus had spiralled out of control. It reasoned that all protected industrial action should be suspended so that the parties could get back to negotiating the remaining issues of the $4,500 sign-on bonus and the wage increase for the third year. Although the unions submitted that the continuance of the protected industrial action was more likely to lead to those negotiations being successful, the Full Bench concluded that the opposite was the case and that continued protected industrial action was only likely to make things worse.

12    In forming that view, it took into account the government’s announced position that the State budget would not permit the sign-on bonus to be paid. From this it concluded that if the protected industrial action continued it would do so for a substantial period of time but with very little chance of a settlement of the dispute being achieved. It noted the inconvenience to the travelling public this would entail.

13    The CEPU submits that in reaching its decision the Full Bench made three legal errors which went to its jurisdiction to the make the cooling off orders. On that basis it seeks the issue of writs of certiorari from this Court to quash the orders made by the Full Bench.

The First Jurisdictional Error: Misconstruction of s 425(1)(a)?

14    The first jurisdictional error advanced by the CEPU is that the Full Bench misconstrued s 425(1)(a). Section 425 provides:

FWC must suspend protected industrial action--cooling off

(1)    The FWC must make an order suspending protected industrial action for a proposed enterprise agreement that is being engaged in if the FWC is satisfied that the suspension is appropriate taking into account the following matters:

(a)    whether the suspension would be beneficial to the bargaining representatives for the agreement because it would assist in resolving the matters at issue;

(b)    the duration of the protected industrial action;

(c)    whether the suspension would be contrary to the public interest or inconsistent with the objects of this Act;

(d)    any other matters that the FWC considers relevant.

(2)    The FWC may make the order only on application by:

(a)    a bargaining representative for the agreement; or

(b)    a person prescribed by the regulations.

15    The CEPU submits that s 425(1)(a) required the Full Bench to consider whether the suspension of the protected industrial action would be beneficial to the bargaining representatives in assisting them to resolve the matters at issue. This could not be done without considering the protected industrial action in which each union was engaging but also the issues which remained between each union and the rail authorities. In the CEPU’s written submissions this approach to s 425(1)(a) was said to have required the Full Bench to consider the CEPU’s own specific position and the specific issues which remained between it and the rail agencies. Notwithstanding these slightly different articulations of how s 425(1)(a) is said to operate, we take the CEPU’s construction to require of the Full Bench that it should have assessed two matters: first, the protected industrial action which each union was engaging; and, secondly, the issues which remained between it and the rail authorities.

16    This submission perhaps existed in three forms. First, it was a corollary of the words ‘bargaining representatives’ in 425(1)(a), perhaps as a consequence that in Commonwealth statutes the plural includes the singular (Acts Interpretation Act 1901 (Cth) s 23(b)), or perhaps by interpreting the phrase ‘the bargaining representatives’ as ‘each of the bargaining representatives’. Secondly, on the basis that consideration of each individual piece of protected industrial action is necessary to determine whether the Commission is satisfied that suspension of the whole of the protected industrial action that is being engaged in is appropriate. Thirdly, on the assumption that s 425(1)(a) did in fact authorise a global approach, the individual position of each bargaining representative was nevertheless to be seen as a mandatory relevant consideration of the kind discussed in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; 60 ALJR 560 at 39-40 per Mason J (Gibbs CJ agreeing at 30 and Dawson agreeing at 71).

17    In any event, regardless of how the duty of individual consideration arose, the CEPU submits that the Full Bench failed to comply with it because it had only considered the position of the seven unions involved in the dispute as an undifferentiated whole.

18    We do not accept that the Full Bench failed to consider the specific issues which remained between the CEPU and the rail agencies or that it failed to consider the protected industrial action in which the CEPU was engaged.

19    As to the former, it is apparent that the Full Bench explicitly took into account that the bargaining representatives had nearly reached an in-principle agreement on Thursday 13 February 2025 and that these bargaining representatives included the CEPU: at FWC [33]-[34]. On the Full Bench’s factual findings, as at that day, the remaining issues between the seven unions (including the CEPU) and the rail agencies were small and were confined to the wage increase in the third year and the allied issue concerning the sign-on bonus. That factual finding presents an insuperable obstacle to accepting that the Full Bench failed to consider what issues remained between the CEPU and the rail agencies.

20    Nor do we accept that the Full Bench failed to consider the protected industrial action in which the CEPU was engaged. As it happens, in the evidence there was some controversy about this. In her statement, Ms Abbas (an executive of Sydney Trains who gave evidence on behalf of the rail agencies) identified in a large spreadsheet 214 such events of protected industrial action by the CEPU. Of these 190 were said to be active and 24 yet to be taken. Ms Koot (who gave evidence on behalf of the CEPU), said, in stark contrast, that there had only been one day on which protected industrial action had been taken, 12 February 2015, and this had consisted of 8 one-hour stoppages.

21    The Full Bench appears to have accepted the evidence of Ms Abbas on this question. At FWC [26] it found as a fact that the CEPU had undertaken protected industrial action continuously since October 2024 apart from some short intervals during December 2024 and January 2025. In this Court the CEPU mounts no challenge to this finding.

22    It is true that the Full Bench did not specifically identify the particular instances of protected industrial action in which the CEPU was engaged in the detail Ms Abbas had. But the level of detail at which the Full Bench assessed the CEPU’s protected industrial action must be informed by ‘the forensic context in which the reasoning was expressed’: DWN027 v Republic of Nauru [2018] HCA 20; 92 ALJR 548 at 553 [21] per Kiefel CJ, Gageler and Nettle JJ. There are obiter dicta which support the application of that principle to s 424: see Australian and International Pilots Association v Fair Work Australia [2012] FCAFC 65; 202 FCR 200 (‘AIPC v FWA’) at 240 [172] per Perram J. There is no reason to think that that reasoning has any less application to suspension orders made under s 425.

23    Five of the seven unions, including the CEPU, appeared before the Full Bench as respondents to the rail agencies’ s 425 application. They were represented by the same counsel and made joint submissions. Neither in their written nor oral submissions did the unions distinguish for the purposes of s 425(1)(a) the position of the CEPU from that of the other six unions. Indeed, it is apparent that the unions submitted to the Full Bench that the individual position of the unions and the rail agencies were irrelevant and that what really mattered was whether the suspension would be beneficial to the bargaining representatives viewed as a group. Thus, in their written submissions, the unions, including the CEPU, submitted at [12] in relation to s 425(1)(a) that:

…The question is not whether the suspension would be beneficial to a bargaining representative (by increasing its industrial leverage or otherwise); it is whether suspension would be beneficial for the bargaining representatives as a group because it would assist in reaching agreement….

24    The same submission was advanced orally by counsel during his address to the Full Bench.

25    When this important contextual matter is brought to account, it becomes apparent why the Full Bench was content to summarise the CEPU’s protected industrial action in the general terms that it did. Nothing that was said to it by the unions suggested any reason why the protected industrial action needed to be identified with any more precision. And, indeed, what was said on the CEPU’s behalf was that the particular positions of the bargaining representatives were not to be considered under s 425(1)(a). The Full Bench can, in that circumstance, scarcely be criticised for tailoring its assessment of the protected industrial action in which the CEPU was engaged in the general terms that it did.

26    It follows that we conclude that the Full Bench expressly considered both the state that the negotiations between CEPU and the rail agencies had reached and the protected industrial action in which the CEPU was engaged.

27    The consequence of that conclusion is that the question of whether s 425(1)(a) required the Full Bench to consider these matters is irrelevant since the fact is that it did. The CEPU’s first challenge to the Full Bench’s orders therefore fails.

28    That conclusion on the facts renders moot three legal issues which were the subject of some debate before this Court. These are, first, whether s 425(1)(a) does in fact operate as the CEPU submits; secondly, whether there can have been a jurisdictional error where the CEPU never advanced its construction to the Full Bench; and, thirdly, whether relief should in any event be refused on discretionary grounds where the CEPU seeks to advance in this Court the opposite construction to the one it advanced to the Full Bench.

29    It is useful to touch on these briefly.

Proper Construction of s 425(1)(a)

30    The question of whether the construction advanced by the CEPU is correct is a difficult one. One of the difficulties is that its operation cannot be viewed in isolation from ss 413(1) and (7). They provide:

Common requirements that apply for industrial action to be protected industrial action

Common requirements

(1)    This section sets out the common requirements for industrial action to be protected industrial action for a proposed enterprise agreement.

…

No suspension or termination order is in operation etc.

(7)     None of the following must be in operation:

(a)    an order under Division 6 of this Part suspending or terminating industrial action in relation to the agreement;

(b)    a Ministerial declaration under subsection 431(1) terminating industrial action in relation to the agreement;

(c)    an intractable bargaining declaration in relation to the agreement.

31    Relevantly for purposes of s 413(7)(a), both s 424 and s 425 are located in Division 6 of Part 3-3 of the Act. In this Court, both the CEPU and the rail agencies agreed that once an order was made suspending the protected industrial action of one of the bargaining representatives the effect of s 413(7) was that the protected industrial action of all of the bargaining representatives ceased to be protected industrial action.

32    The legal consequence of this was that the immunities afforded to those engaging in protected industrial action ceased to be available to the bargaining representatives, their employees or their members. Those immunities included, by virtue of s 415, an immunity from suit under any written or unwritten law. For the employees this meant that the Full Bench’s suspension order rendered them potentially liable for breach of their employment contracts if the formerly protected industrial action would otherwise have constituted a breach of contract. For bargaining representatives which were organising employees to take strike action, it exposed them to a potential liability in tort for inducing a breach of contract of the kind illustrated by Ansett Transport Industries (Operations) Pty Ltd v Australian Federation of Air Pilots [1991] 1 VR 637; 95 ALR 211 per Brooking J. More proximately, it exposed the unions to the possibility of an application by the rail agencies for orders by the Commission under s 418 that industrial action (not being protected industrial action) stop. If such an order (or interim order) was made, then a contravention of that order would render each union liable to the judicial imposition of a civil penalty or an injunction: s 421.

33    For present purposes, however, the important point is that the CEPU and the rail agencies agreed that the effect of a suspension order, even if only made in relation to one element of protected industrial action in a wider industrial dispute, was to render all protected industrial action no longer protected.

34    For example, had the Full Bench suspended only the protected industrial action of the RTBU, it was both parties’ view that the protected industrial action of all the other unions would have ceased automatically to have been protected even if the Full Bench’s order was only expressed to extend to the RTBU’s protected industrial action. The Full Court held in AIPC v FWA that s 413(7) did indeed operate in this fashion: at [98] per Lander J, [130] per Buchanan J and [182] per Perram J. However, as the reasons of Buchanan J at [130] show, that operation of s 413(7) was common ground between the parties. As such, the principle stated by the Full Court was not the subject of any argument.

35    The proper construction of s 424 cannot be disaggregated from the proper construction of s 413(7). It likely requires significant focus on the varying uses in ss 413, 424 and 425 of the expressions ‘industrial action’, ‘the industrial action’, ‘protected industrial action’ and ‘the protected industrial action’ (emphasis added). It would also require a full explication of whether orders under ss 424 and 425 have effect on their own or whether their effect derives only from s 413(7). In such an analysis, it is not self-evident that the parties’ agreement about the operation s 413(7) is necessarily correct. In particular, it is an odd outcome that the Commission lacks the power under s 424 or s 425 to suspend or terminate an isolated element of protected industrial action which forms part of a wider multiparty dispute.

36    But there may perhaps be answers to this. For example, this Court held in APIC v FWA that s 424 required the Commission to consider the particular protected industrial action that it was terminating and there may be some force in the submission of Mr Knowles SC, on behalf of the CEPU, that it is difficult to identify a good reason why s 425 should be approached differently. On the other hand, there may be problems with reasoning from the approach taken to differently worded provisions to the construction of s 425 since statutory interpretation focuses on the words actually used. Thus, there may be textual reasons to distinguish the operation of s 425 from that of s 424 (see APIC v FWA) and from that of the former s 496 of the Workplace Relations Act 1996 (Cth): see Transport Workers’ Union of New South Wales v Australian Industrial Relations Commission [2008] FCAFC 26; 166 FCR 108 at [39] per Gray and North JJ.

37    The Court is not bound in construing legislation by the positions of the parties. Nevertheless, we do not think it wise to embark upon the proper construction of s 425(1)(a) and, with it, s 413(7) without the assistance of a party contradicting the agreed position advanced by the parties before this Court. Further, if we were to conclude that s 413(7) did not operate in the manner the parties agree that it does, there is a risk that both parties would be denied procedural fairness since neither will have been heard on that construction.

Whether there can be a jurisdictional error where the CEPU’s construction of s 425(1)(a) was not raised before the Full Bench

38    The general answer to this question appears to be no: Boele v Rinbac Pty Ltd [2014] NSWCA 451; 88 NSWLR 381 at 386 [14] per Basten JA and 404 [100] per Sackville AJA. On the other hand, there are jurisdictional limitations which are so central that the failure of a party to raise the limitation before a decision-maker will not prevent a jurisdictional error from arising: Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531 at 575 [76] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ. Without expressing a concluded view, we would have thought it unlikely that s 425(1)(a) constituted a jurisdictional limitation of the kind in Kirk.

Discretionary refusal of relief

39    Even if the CEPU had demonstrated the existence of a jurisdictional error, we would have refused it relief in the exercise of the Court’s discretion. The NSW Court of Appeal has observed that certiorari may be denied where the party seeking it failed to raise the matter before the initial decision maker: see, e.g., Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (No 2) [2018] NSWCA 124 at [176] per McColl JA and [189] per Macfarlan JA. Here the CEPU not only failed to raise the construction it now advances in this Court with the Full Bench, but in fact advanced a submission to the Full Bench which is the opposite of that construction. It is difficult to see that this is behaviour which should be rewarded.

Second Jurisdictional Error: Legal Irrationality and Unreasonableness?

40    The second alleged jurisdictional error advanced by the CEPU was that the Full Bench’s decision to make the cooling-off orders disclosed legal irrationality or unreasonableness. This identifies the challenge to the process of reasoning rather than the result itself. As such, the CEPU’s rationality/reasonableness challenge rests on orthodox principles: Muggeridge v Minister for Immigration and Border Protection [2017] FCAFC 200; 255 FCR 81 at 89 [35] per Charlesworth J (Flick and Perry JJ agreeing at 83 [1] and [2]).

41    The CEPU’s submission turns on the use to which the Full Bench put evidence concerning the funding constraints of the NSW Government. When taking into account the duration of the protected industrial action under s 425(1)(b), the Full Bench accepted that the action had been occurring over a five-month period and that the pressure it had exerted on the rail authorities had succeeded in narrowing the gap between the parties: at FWC [58].

42    However, it also thought that agreement on the remaining issues to be resolved – the quantum of the wage increase in the third year and the associated issue of the $4,500 sign-on bonus – was unlikely to be advanced by further protected industrial action ‘having regard to evidence concerning NSW Government funding constraints upon Sydney Trains and NSW Trains’: at FWC [58]. The Full Bench observed that the recriminations which had occurred once the RTBU dispute had flared up again on 13 February 2025 suggested that further protected industrial action might result in the parties moving further apart: at FWC [58]. It concluded therefore that ‘the duration of the protected industrial action, considered in the entire factual context, weighs in favour of the grant of a suspension’: at FWC [58].

43    The CEPU submitted that the Full Bench could not rationally or reasonably arrive at the view that cooling-off orders were appropriate simply because one side had said that it was no longer willing to negotiate. This may well be correct, however, it is not what the Full Bench did. Section 425(1)(b) required it to assess the ‘duration of the protected industrial action’. This statutory inquiry necessitated a process of assessment which was both probabilistic and impressionistic. It was probabilistic because the future course of the protected industrial action could scarcely be known with any precision. It was impressionistic because the estimate called for by the subsection involved a synthesis of conflicting and not necessarily commensurable materials; for example, the NSW Government’s stated position that it did not have sufficient budgetary resources to afford the sign-on bonus, the unions’ riposte that this was mere assertion, the history of the earlier episodes of protected industrial action and what might be called the general behaviour of the parties.

44    The CEPU’s submission proceeds on an assumption that it is correct in its characterisation of the government’s position as merely an assertion that it no longer wished to negotiate. But it was in fact the correctness of that assumption which the Full Bench was called upon to decide. No doubt, it took into account the government’s stated position but it is difficult to see how it could discharge its obligations under s 425(1)(b) without doing so. It was within the range of rational outcomes for the Full Bench to have accepted the unions’ view that the government’s position was a mere assertion, but it was equally open to it to come to the view that the government was very unlikely to make further concessions. It was this very question which was consigned to the Full Bench by s 425(1)(b). Consistent with the nature of the inquiry we have explained that s 425(1)(b) calls for, the Full Bench’s conclusion was expressed probabilistically (‘very unlikely to contribute to the finalisation of the dispute’): at FWC [58]. We detect no legal irrationality or unreasonableness in the Full Bench’s approach to s 425(1)(b).

Third Jurisdictional Error: No Evidence

45    The third jurisdictional error advanced by the CEPU was that there was no evidence to support two findings made by the Full Bench (a challenge to a third finding was abandoned during the hearing before this Court). The first challenge is to findings at FWC [55] and [58]. At these paragraphs the Full Bench observed that the parties had engaged in mutual public recriminations. The CEPU submits that there was no evidence that it had done so. This is certainly so but FWC [55] and [58] must be read alongside [36]-[43] which make clear that the recriminations mentioned at [55] and [58] were between the RTBU and the rail agencies so that the relevant references to ‘parties’ in those paragraphs must be understood accordingly.

46    The second challenge is to [36]. There the Full Bench said that following the collapse of negotiations on 13 February 2025 there had been an immediate reversion to the previously notified go-slow action. The CEPU submits that there was no evidence that it had reverted to the previously notified go-slow. This tenuous submission withstands little scrutiny. The surrounding context to [36] including the very next sentence (‘At this time, the RTBU repeatedly characterised the s 471(4)(c) notices as ‘lockout notices’ in its communications to members and the public’) shows that the Full Bench’s discussion of the go-slow concerned only the union conducting it, the RTBU.

Conclusion

47    All three challenges to the Full Bench’s orders fail. It was for these reasons that we dismissed the CEPU’s originating application on 25 March 2025.

Associate:

Dated:    27 March 2025