FEDERAL COURT OF AUSTRALIA

Sydney Trains v Australian Rail, Tram and Bus Industry Union (No 2) [2022] FCA 1264

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to r 30.01 of the Federal Court Rules 2011 (Cth), the Court will hear separately the following questions:

Question 1: Whether the actions notified by the respondent to the applicants:

a.    on 3 August 2022 in the form of station staff (being employees of the applicants) leaving all gates open or ensuring that all gates stay open at train stations from 12:01am on 13 August 2022 continuing until 12.01am on 6 September 2022;

b.    on 31 August 2022 in the form of station staff leaving all gates open or ensuring that all gates stay open at train stations from 12:01am on 10 September 2022 continuing until 12.01am on 10 October 2022; and

c.    on 11 September 2022 in the form of station staff delaying the performance of work when Opal machines are operative to ensure that they are inoperative which is due to commence on 12:01am on 21 September 2022 and to continue indefinitely,

(collectively, the First Impugned Action) are forms of “industrial action” within the meaning of that phrase in s 19 of the Fair Work Act 2009 (Cth) (FW Act)?

Question 2: Whether the First Impugned Action was authorised by the protected action ballot ordered to be held on 24 January 2022 by the Fair Work Commission and the protected action ballot declared on 9 February 2022 and whether the First Impugned Action thereby met the additional requirement in s 409(2) of the FW Act?

Question 3: Whether the actions notified by the respondent to the applicants on 16 October 2022 in the form of station staff:

a.    interrupting their performance of work for the purpose of deactivating Opal gates by pressing the red deactivation button on any occasion that the Opal gates are not deactivated; and/or

b.    engaging in the performance of work in a manner different from that in which it is customarily performed by deactivating Opal gates by pressing the red deactivation button on any occasion that the Opal gates are not deactivated,

(collectively, the Second Impugned Action) are forms of “industrial action” within the meaning of that phrase in s 19 of the FW Act.

2.    The hearing of these questions be set down for two (2) days in February 2023 or March 2023. The parties are to confer as to their availability and are to provide proposed short minutes to the Court by Friday 28 October 2022.

3.    The matter be listed for case management on Wednesday 2 November 2022 at 11:00am.

4.    The respondent’s application for expedition, supported by the applicants, is dismissed.

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

REASONS FOR JUDGMENT

RAPER J

Introduction

The Sydney Trains application

1    By application, dated 18 October 2022, the applicants (Sydney Trains and NSW Trains), commenced proceedings claiming, inter alia, that:

(a)    action undertaken by the respondent, Australian Rail, Tram and Bus Industry Union, on 3 August, 13 August, 31 August, 10 September and 11 September 2022 were not forms of “industrial action” within the meaning of s 19 of the Fair Work Act 2009 (Cth) (FW Act);

(b)    that proposed action notified by the Union on 16 October 2022 proposed to be taken from 20 October 2022 (the proposed 20 October 2022 action) indefinitely was not “industrial action” within the meaning of s 19 of the FW Act;

(c)    that certain of the action taken by the Union was not “protected industrial action” within the meaning of s 408 of the FW Act. In addition, Sydney Trains claimed that various forms of action taken by the Union contravened s 343(1) of the FW Act being with the intent to coerce Sydney Trains to:

(i)    enter into an enterprise agreement with their employees on terms acceptable to the Union in that period;

(ii)    not to exercise a workplace right to enter into an enterprise agreement in the form sought by Sydney Trains in that period; and

(d)    lastly, that the Union interfered with the gates, in Sydney Trains’ possession, which was intentional and constituted a trespass to goods. Sydney Trains sought injunctive relief restraining the Union from taking various of the forms of previous action taken or the action proposed on 16 October 2022, together with orders for penalties and compensation.

The Union application

2    The following day, by application dated 19 October 2022, the Union commenced its own proceedings, seeking a declaration that the proposed 20 October 2022 action is the opposite of that claimed by Sydney Trains, namely is “industrial action” for the purpose of s 19 of the FW Act and is action authorised by the protected action ballot conducted following orders of the Fair Work Commission under s 443 of the FW Act.

3    The proposed 20 October 2022 action was to comprise:

a.     interrupting their performance of work for the purposes of deactivating Opal Gates by pressing the ‘red deactivation button’ on any occasion the Opal Gates are not deactivated; and/or

b.     engaging in the performance of work in a manner different from that in which it is customarily performed by deactivating the Opal Gates by pressing the ‘red deactivation button’ on any occasion the Opal Gates are not deactivated.

The application for the determination of separate questions

4    On 20 October 2022, both parties provided the Court with their competing short minutes as to how these proceedings should proceed. Both parties sought for the Court to deviate from the ordinary course and to determine separate questions.

5    Sydney Trains sought that the following questions be answered:

Question 1: Whether the actions notified by the [respondent] to the [applicants]:

a.    on 3 August 2022 in the form of station staff (being employees of the [applicants]) leaving all gates open or ensuring that all gates stay open at train stations from 12:01am on 13 August 2022 continuing until 12.01am on 6 September 2022;

b.    on 31 August 2022 in the form of station staff leaving all gates open or ensuring that all gates stay open at train stations from 12:01am on 10 September 2022 continuing until 12.01am on 10 October 2022; and

c.    on 11 September 2022 in the form of station staff delaying the performance of work when Opal machines are operative to ensure that they are inoperative which is due to commence on 12:01am on 21 September 2022 and to continue indefinitely,

(collectively, the First Impugned Action) are forms of “industrial action” within the meaning of that phrase in section 19 of the Fair Work Act 2009 (Cth) (FW Act)?

Question 2: Whether the First Impugned Action was authorised by the protected action ballot ordered to be held on 24 January 2022 by the Fair Work Commission and the protected action ballot declared on 9 February 2022 and whether the First Impugned Action thereby met the additional requirement in section 409(2) of the FW Act?

Question 3: Whether the actions notified by the [respondent] to the [applicants] on 16 October 2022 in the form of station staff:

a.    interrupting their performance of work for the purpose of deactivating Opal gates by pressing the red deactivation button on any occasion that the Opal gates are not deactivated; and/or

b.    engaging in the performance of work in a manner different from that in which it is customarily performed by deactivating Opal gates by pressing the red deactivation button on any occasion that the Opal gates are not deactivated,

(collectively, the Second Impugned Action) are forms of “industrial action” within the meaning of that phrase in section 19 of the FW Act.

(Emphasis in original.)

6    The Union disputed the Court determining, as a separate question, what it claimed as the “historical” forms of industrial action, being all those other than the 20 October 2022 action it proposed to take, and asked that the Court determine the following question only:

Whether the action notified by the [respondent] to the [applicants] on 16 October 2022 in the form of station staff (being employees of the [applicants]):

is ‘industrial action’ for the purposes of s 19 of the Fair Work Act 2009 (Cth).

7    I accept that there is utility in the determination of all the separate questions proposed by the parties given their resolution will reduce the controversies ultimately required to be determined. There is apparent overlap, both factually and legally, between the parties’ questions as they arise with respect to the First and Second Impugned Actions. I understand that by resolution of all questions, there will not be a substantial elongation in the time needed to determine them. Further, given the overlap, if the Court forms views about the First Question (the first of Sydney Train’s questions), its determination may influence its determination in relation to the Third Question (the third of Sydney Train’s questions and the Union’s question). Accordingly, it is desirable for the Court to avoid potential inconsistencies between the outcomes. Furthermore, it was submitted by Sydney Trains that it is anticipated that the same witnesses will address the First and Second Impugned Actions. I accept that there will be utility, economy and fairness to the parties to proceed with resolution of the questions proposed by both parties.

Expedition

8    In addition, the Union sought that the determination of its separate question be expedited and be heard in the next couple of weeks. The Union made submissions, in oral and written form and relied upon two affidavits from Mr Toby Warne, the Director of Organising of the NSW Branch of the Union.

9    Sydney Trains expressed its support for expedition but did not make any specific submissions as to why expedition should occur, save for saying it supported that course provided it had sufficient time to put on its evidence with respect to the questions it posed.

Relevant principles regarding expedition

10    The principles concerning the Court’s discretion to grant an order expediting a proceeding were recently summarised in Ford, In the matter of Zhong Ao Zhi Hong Investment Holding Pty Ltd (Receivers and Managers Appointed) [2021] FCA 1373. At [13], O’Bryan J made the following observations:

The Court has broad discretion to order expedition of a proceeding. The relevant factors depend on the particular case, but they include whether a party would suffer some significant practical disadvantage, or irreparable loss, if the proceeding were not expedited: Hird v Chief Executive Officer of the Australian Sports Anti-Doping Authority [2014] FCA 1090 at [18]-[19] per Kenny J (referring to appeals but stating principles that are of general application). The factors also include whether witness evidence is needed, and if so the availability of witnesses, or whether the questions in the proceeding can be determined on the documentary materials: see Awan v Minister for Immigration, Multicultural and Indigenous Affairs (2002) 120 FCR 1 at [42] per North J; Meadow Springs Fairway Resort Ltd (in liq) v Balanced Securities Ltd [2007] FCA 1443 (Meadow Springs) at [52] per French J. In an insolvency context, mounting costs and liabilities are particularly relevant: Meadow Springs at [38].

11    In Hird v Chief Executive Officer of the Australian Sports Anti-Doping Authority [2014] FCA 1090, Kenny J noted (at [18]–[19]):

18.    There is no dispute as to the relevant principles governing an application for expedition. The court has a broad discretion. An order for expedition will not, however, be granted unless the court is satisfied that it is in the interests of justice to make an order for an expedited hearing.

19.     The factors falling for consideration in the exercise of the court’s discretion will depend, at least in part, on the particular case. Such factors may include whether, if the hearing did not take place at the earliest convenient time or prior to a particular date, the appellant would suffer some significant practical disadvantage, or a party would suffer some irreparable loss or especially significant hardship, such as the loss of livelihood, business or home. Other factors include a serious detriment to good public administration or to the interests of others not party to the appeal. Hence, an appeal from a judgment on judicial review challenging the lawfulness of the conduct of public bodies or officials, especially where that conduct has implications for others or for the proper administration of the law, may well attract an order for an expedited hearing: see Elders Rural Finance Ltd v Smith (1995) 38 NSWLR 395 (Elders) at 400–402.

12    The abovementioned principles have been cited with approval by this Court as recently as 17 October 2022, where Feutrill J in Frigger v Trenfield (No 6) [2022] FCA 1233 opined (at [30]–[32]):

30.     As to expedition, in accordance with s 37M of the Federal Court of Australia Act 1976 (Cth), the overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. Amongst other things, the overarching purpose includes the just determination of all proceedings before the Court, the efficient disposal of the Court’s overall caseload and the disposal of all proceedings in a timely manner.

31.     Nonetheless, the Court has a broad discretion to order expedition of a proceeding. There are many factors that may be taken into account having regard to the overarching purpose referred to above. However, an order will not be made unless the Court is satisfied that it is in the interests of justice to make an order for an expedited hearing: Hird v Chief Executive Officer of the Australian Sports Anti-Doping Authority [2014] FCA 1090 at [19]-[22]. (Although Hird concerned an appeal, the principles are of general application: Ford, In the matter of Zhong Ao Zhi Hong Investment Holding Pty Ltd (Receivers and Managers Appointed) [2021] FCA 1375 at [13]).

32.     The factors may include the extent to which a party to the proceedings will suffer some significant practical difficulty or irreparable loss or especially significant hardship (e.g., loss of livelihood, business or home) if a hearing does not take place at the earliest convenient time or by a particular date. Other factors include serious detriment to good public administration or to the interests of non-parties. The parties’ own conduct (i.e., the extent to which it has caused or contributed to delay) is also a factor: Hird at [19]-[22].

(Emphasis in original.)

13    For the following reasons, I am not persuaded that I should grant expedition in the short timeframe suggested by the parties. However, I note, as set out at [21], that the Court will accommodate the parties early in 2023. The Court is required, when exercising its broad discretion to grant expedition, to take into account the rights and interests of all litigants current and prospective. The Court has finite resources. The granting of expedition in one proceeding, deprives others and gives priority to that party over the many other parties who have commenced actions and complied with the timetables dictated by the Court.

14    The Union made a number of submissions as to why the Union and its members would suffer some significant practical disadvantage if the determination of whether its proposed 20 October 2022 action was “industrial action” within the meaning of s 19 of the FW Act for which it has protections at law. The asserted disadvantage was supported by the evidence of Mr Warnes which included: First, the determination of the question would give union members considerable comfort in knowing that they cannot be the subject of legal sanction and disciplinary action if they engage in the action. Secondly, if not determined in an expedited manner, the members may choose nonetheless to engage in the action for which they will suffer significant stress without knowing whether the action is unlawful and could have legal and disciplinary consequences. Thirdly, if the Court determines the question early, and in the Union’s favour (namely that the proposed 20 October 2022 action is lawful) then the members “will not need to revert to forms of action that are disruptive to the public”. Fourthly, the proposed 20 October 2022 action is described as being “potent” – it is directed solely at Sydney Trains and impacts on its revenue – such that it has potential to assist the Union in achieving its industrial outcomes, and the Union otherwise “could forego taking industrial action that is likely to be effective”. Fifthly, the capacity to undertake protected industrial action is a “workplace right” that is recognised and protected by the FW Act. Sixthly, and related to the third, there is a distinct public interest, if the question is resolved in the Union’s favour, as the members will not need to revert to forms of action that are disruptive to the public.

15    I do not accept that these grounds are sufficient for expedition in the circumstances by reason of the following.

16    First, the determination of whether the particular forms of industrial action (identified by the parties in their questions) are “industrial action”, within the meaning of s 19 of the FW Act, will not lead to a resolution of the ultimate dispute between the parties. No evidence was led by either party that the resolution of the separate questions quickly would or could lead to a timely resolution of the entirety of the dispute. The determination of the questions will only arm either or both parties in particular ways with respect to the past action and the proposed action.

17    Secondly, neither party is saying that the forms of “industrial action”, which are the subject of the questions, comprise the entire field of extant action being taken nor which could be prospectively undertaken. The Union is not saying that it will only take the less disruptive, proposed 20 October 2022 action in the future if successful in the determination of this question. I make no criticism of it for taking this position. The history of this matter reveals that the parties have taken a myriad of different forms of industrial action. The Union currently has forms of balloted protected action which it may take. The resolution of these questions will not curtail either party from bringing further, different disruptive or non-disruptive actions.

18    By reason of these two matters, there is no certainty created for the citizens of New South Wales by the questions’ speedy resolution.

19    Thirdly, to the extent that Union members are suffering distress or disquiet (which I accept) as a result of Sydney Trains taking the position it has and the statements made in the media, I accept that they are faced with the quandary as to whether to engage in the proposed, historical or new, forms of action. However, in large part, their position is no different from any person, organisation or corporation wanting to embark on industrial action to further their industrial interests. They are only able to lawfully do so to the extent that it falls within those forms of action that are protected under the FW Act. Accordingly, they must work out for themselves whether it is protected, including taking advice before embarking on a particular course. I accept that the Union and its members are now on notice as to Sydney Trains’ views in this regard and of the potentially heavy price that may result if the action is not lawful. This potentially heavy price is unordinary but not extraordinary. In this case, the members have the benefit of a sophisticated, well-resourced union, to assist them in working out what their options are and the best course of action. These considerations equally apply with respect to the Union’s submission regarding the potential effect, taking or not taking the proposed 20 October action, on its ability to bargain an industrial outcome.

20    Accordingly, I am of the view that expedition, namely that this matter be heard in November 2022 as proposed by the parties, is not warranted in the circumstances.

21    However, the Court will deviate from the Court’s usual processes and hear this matter in February 2023 (which is ordinarily only available for Full Court matters) or March 2023 subject to the parties conferring on mutual dates, convenient to the Court in that period.

22    I ask that the parties prepare short minutes readying the matter for trial and inform the Court as to their preferences on availability by Friday 28 October 2022. The matter will be listed for case management next Wednesday 2 November 2022 at 11:00am.

Associate:

Dated:    25 October 2022