FEDERAL COURT OF AUSTRALIA

Sydney Trains v Australian Rail, Tram and Bus Industry Union [2024] FCA 1411

ORDERS

UPON THE APPLICANT, BY ITS COUNSEL, UNDERTAKING:

A.    to submit to such order (if any) as the Court may consider to be just for the payment of compensation (to be assessed by the Court or as it may direct), to any person (whether or not that person is a party), affected by the operation of the order or undertaking or any continuation (with or without variation) of the order or undertaking; and

B.    to pay the compensation referred to in (a) to the person affected by the operation of the order or undertaking,

THE COURT ORDERS THAT:

1.    Until the hearing and determination of this proceeding or further order of the Court, each of the Respondents (together, the Unions), whether by their officers, employees, delegates, agents or howsoever otherwise, be restrained from:

(a)    treating the Notices as valid notices for the purpose of s 414 of the FW Act; and/or

(b)    organising, encouraging, advising, counselling, procuring or inducing any employee of the Applicants to engage in any of the forms of industrial action identified in the Notices,

(the Interim Restraining Order).

2.    Each of the Unions must forthwith:

(a)    take all reasonable steps to bring the existence of the Interim Restraining Order to the attention of their officers and employees in New South Wales and their delegates who are employed by the Applicants;

(b)    notify their officers and employees in New South Wales and their delegates who are employed by the Applicants that the industrial action in the Notices is restrained, and is not authorised or encouraged by the Respondents;

(c)    issue and distribute (including but not limited to posting, and maintain for the time that the Interim Restraining Order remains in force, on the webpages https://rtbuexpress.com.au/,https://www.etunsw.asn.au/,https://www.professionalsaustralia.org.au/, https://www.asu.org.au/, https://www.amwu.org.au/nsw, https://fightingforourfuture.com.au/) a communication to their members that includes a copy of this Order and states that action of the kind referred to in the Notices is not to occur and is not authorised by the Respondents.

3.    In this Order:

(a)    Notices means the Notices contained in Annexure FA-27 of the Affidavit of Fatima Abbas affirmed 8 December 2024.

(b)    Industrial Action means:

(i)    a failure or refusal by an employee to attend for work, or to perform any work when at work;

(ii)    a ban, restriction or limitation on the performance of work by an employee or on the acceptance of or offering for work by an employee;

(iii)    the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, in either case the result of which is a restriction or limitation on, or a delay in, the normal work performed,

but does not include:

A.    action by an employee that is authorised or agreed to by the employer;

B.    action by an employee if:

4.    The requirement under Rule 41.07 of the Federal Court Rules 2011 (Cth) (Rules) for personal service of this Order on each of the Unions is dispensed with and, instead, service of this Order upon the Unions is permitted by forwarding a copy of it by email or facsimile transmission addressed to the Secretary of the Branch of each of the Unions.

5.    The time for service of the Originating Application and supporting affidavits of Fatima Abbas on the Unions as required by Rule 8.06 of the Rules be abridged to 4pm on Sunday, 8 December 2024.

6.    To the extent necessary, service of the Originating Application and supporting affidavit of Fatima Abbas affirmed 8 December 2024 on the Unions as required by Rule 10.01 of the Rules be dispensed with, and instead, service of those documents upon the Unions is permitted by forwarding a copy of it by email or facsimile transmission addressed to the Secretary of the Branch of each of the Unions.

7.    Liberty to apply.

8.    There be no order as to costs.

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

REASONS FOR JUDGMENT

PERRAM J:

1    Last night at 9 pm I made interlocutory orders the practical effect of which was to restrain the respondents (who are five unions) from continuing industrial action relating to the Sydney rail network and which affects non-metropolitan services too. These are my reasons for making those orders.

2    The first applicant is Sydney Trains which is the network control manager for the Sydney metropolitan rail network and intercity trains network. The second applicant is NSW Trains which operates regional rail and coach services throughout regional New South Wales and into neighbouring states. I will refer to both applicants as the Rail Agencies.

3    Historically, the Rail Agencies have bargained with a group of unions known collectively as the Combined Rail Unions. The Combined Rail Unions comprise all unions which represent the employees of the Rail Agencies, of which there would appear to be seven. However, not all seven unions are involved in this litigation. The five who have been joined as respondents are:

(a)    the Australian Rail, Tram and Bus Industry Union (‘RTBU’). The RTBU has 7,928 members within the Rail Agencies. The Rail Agencies have 13,314 employees so the RTBU represents around 60% of the employees of the Rail Agencies and is, therefore, the most significant of the five unions for present purposes;

(b)    the Communications, Electrical, Postal and Plumbing Union (‘ETU’) which has 941 members within the Rail Agencies;

(c)    the Australian Manufacturing Workers Union (‘AMWU’) which has 432 members within the Rail Agencies;

(d)    the Australian Professional Engineer, Scientists and Managers Association (‘APESMA’) which has 351 members within the Rail Agencies; and

(e)    the Australian Municipal, Administrative, Clerical and Services Union (‘ASU’) which 455 members within the Rail Agencies.

4    The relationship between the members of the Combined Rail Unions and the Rail Agencies is governed by an industrial agreement known as the Sydney Trains and NSW TrainLink Enterprise Agreement 2022. It reached its nominal expiry date on 1 May 2024.

5    The Fair Work Act 2009 (Cth) (‘the Act’) contemplates that parties in the position of those in this litigation may bargain with each other with a view to reaching some form of industrial agreement. Once the bargaining process begins, both sides may take industrial action against the other for which, generally speaking, they may not be sued: s 415. Such industrial action is known as ‘protected industrial action’.

6    In the present case, the orthodox legal steps which have led to the current situation are as follows:

(a)    the service by the Combined Rail Unions of a log of claims on 15 April 2024;

(b)    the commencement of the bargaining process on 31 May 2024. The bargaining process commenced upon the service by the Rail Agencies of a Notice of Employee Representation Rights (‘NERR’) which is at the heart of the present dispute. I will return to its terms in more detail shortly;

(c)    the application at various times by the members of the Combined Rail Unions for protected action ballot orders under s 437 of the Act. Industrial action (such as strikes and bans) will not be protected industrial action unless it is authorised by a ‘protected action ballot’: s 409(2). Such a ballot can only be held pursuant to a protection action ballot order made by the Fair Work Commission (‘the FWC’) under s 443. The various applications for protected action ballot orders made to the FWC were, therefore, an integral step along the path towards the Combined Rail Unions taking protected industrial action against the Rail Agencies. The FWC authorised ballots between 1 August 2024 and 4 September 2024;

(d)    the holding of the ballots contemplated by the orders made by the FWC;

(e)    the issuing of notices by each union of an intention to engage in industrial action; and

(f)    the taking of that industrial action.

7    In the ordinary course, there could be no doubt that the process described in (a)-(f) resulted in protected industrial action. However, an additional event has also occurred which, the Rail Agencies submit, alters the legal landscape.

8    To understand that step, it is necessary to understand the distinction between a single-enterprise agreement and a multi-enterprise agreement. Confusingly, but sadly typically of Commonwealth legislation, a single-enterprise agreement may involve more than one employer. Where more than one employer is involved, however, the employers must be ‘related’: s 172(2). Where more than one employer is involved, therefore, a single-enterprise agreement actually means an enterprise agreement with multiple employers who are related. On the other hand, a multi-enterprise agreement is defined in s 172(3) such that it involves multiple employers who are not ‘related’ (or who fall within the category of related employers in s 172(5A)(c), that is to say, franchisees or related bodies corporate of the same franchisor: s 172(3A)).

9    The current agreement is a single-enterprise agreement which means that it was done on the basis that Sydney Trains and NSW Trains are ‘related’. This is consistent with s 172(5A)(b) which, inter alia, declares employers to be related if they are related bodies corporate. Sydney Trains and NSW Trains are both statutory authorities subject to direction and overall control by the NSW Government under the Transport Administration Act 1988 (NSW).

10    The critical provision for the present dispute is s 172(5) which provides:

Requirement for employer specified in single interest employer authorisation

(5)    Despite any other provision of this Part, if an employer is specified in a single interest employer authorisation that is in operation:

(a)     the only kind of enterprise agreement the employer may make with their employees who are specified in the authorisation is a single interest employer agreement; and

(b)    the employer must not initiate bargaining, agree to bargain, or be required to bargain with those employees for any other kind of enterprise agreement.

11    There has been in place since last Friday, 6 December 2024, a ‘single interest employer authorisation’ for the Rail Agencies. That being so, the effect of s 172(5) is to prevent from that date the Rail Agencies from entering into any kind of enterprise agreement apart from a ‘single interest employer agreement’. A ‘single interest employer agreement’ results when a multi-enterprise agreement is entered into at a time when a ‘single interest employer authorisation’ was in operation: s 12.

12    Thus, the current effect of s 172(5) is to prevent the Rail Agencies from entering into a single-enterprise agreement. I interpolate here that no submission was made that a single interest employer authorisation could not be made by the FWC because the Rail Agencies are related: cf. s 172(3).

13    Returning then to the orthodox chronology of events set out above, the first legally significant event was the commencement of the bargaining process on the service by the Rail Agencies of notices under s 173(1). Section 173(1) and (2) provides:

Notice of employee representational rights

Employers for single-enterprise agreements to notify each employee of representational rights

(1)    An employer that will be covered by a proposed single-enterprise agreement (other than a greenfields agreement) must take all reasonable steps to give notice of the right to be represented by a bargaining representative to each employee who:

(a)     will be covered by the agreement; and

(b)     is employed at the notification time for the agreement.

Note:     For the content of the notice, see section 174.

Notification time

(2)     The notification time for a proposed enterprise agreement is the time when:

(a)     the employer agrees to bargain, or initiates bargaining, for the agreement; or

(aa)     the employer receives a request to bargain under subsection (2A) in relation to the agreement; or

(b)     a majority support determination in relation to the agreement comes into operation; or

(c)     a scope order in relation to the agreement comes into operation; or

(d)     a supported bargaining authorisation in relation to the agreement that specifies the employer comes into operation; or

(e)     a single interest employer authorisation in relation to the agreement that specifies the employer comes into operation.

Note:     An employer that is required to give a notice under subsection (1) cannot request employees to approve the agreement under section 181 until 21 days after the last notice is given (see subsection 181(2)).

(emphasis added)

14    In this case, however, the NERR was issued by the Rail Agencies on 31 May 2024 at a time when there was no single interest employer authorisation in place (and recalling that that authorisation did not occur until last Friday, 6 December 2024). Unsurprisingly, the notice was given in relation to a proposed single-enterprise agreement:

Sydney Trains gives notice that it is bargaining in relation to a single-enterprise agreement (Sydney Trains and NSW TrainLink Enterprise Agreement 2024) which is proposed to cover employees that are employed by Sydney Trains and are currently covered by the Sydney Trains and NSW TrainLink Enterprise Agreement 2022.

15    The problem which emerges can now be more clearly seen. It is evident, on any view, that prior to 6 December 2024 the bargaining period contemplated by the notice of 31 May 2024 was well and truly underway. In terms of s 172(3) the notification time had been engaged. However, when on 6 December 2024 the FWC made the single interest employer authorisation this appears to have caused the notification time to be reset to 6 December 2024 under s 173(2)(e). (I should add for completeness that at the hearing there was no exploration of whether a notice had to be given in relation to a multi-enterprise agreement (noting that s 173(1) does not appear to apply in that situation).)

16    At the same time, the notices given on 31 May 2024 were given in relation to a proposed single-enterprise agreement which, since 6 December 2024, it seems the Rail Agencies may not lawfully enter into.

17    The Rail Agencies accept that the industrial action which the respondents have been engaging in for some time now was protected industrial action up until 6 December 2024. But they now submit that since 6 December 2024 the making of the single interest employer authorisation means that it is no longer protected industrial action.

18    In this case it is not in dispute that for the industrial action to be protected industrial action it must be ‘employee claim action’ under s 409(1). That provision defines ‘employee claim action’ as having various features but relevantly describes it as being ‘for a proposed enterprise agreement’. Section 409(2) then provides that the action must be authorised by a protected action ballot. For there to be a protected action ballot there must first be a protected action ballot order (ss 437, 443) and this, too, is defined in terms of a ‘proposed enterprise agreement’. As a matter of fact, the protected ballot orders in this case all refer to a single-enterprise agreement. The ballots then all took place and, again, it is clear that each related to the proposed single- enterprise agreement.

19    No protected industrial action could be taken unless notice of it was first given: s 414. As with the provisions just mentioned, however, this provision too takes as its point of departure that the action is in relation to a proposed enterprise agreement.

Prima facie case

20    The Rail Agencies’ point is that the ‘proposed enterprise agreement’ referred to in all of these provisions must be the proposed single-enterprise agreement referred to in s 173(1) which, it will be recalled, is the provision which authorised the Rail Agencies to issue the notice it did on 31 May 2024. The effect of the single interest employer authorisation is that there can no longer be such a proposed single-enterprise agreement. The Rail Agencies submit that this means that all of the steps which have been taken since (i.e. the protected action ballot order applications, the protected action ballot orders, the ballots and the notification of proposed industrial action) are all premised on a proposed single-enterprise agreement which, since 6 December 2024, cannot lawfully be entered into.

21    Given that the change from a proposed single-enterprise agreement to a proposed multi-enterprise agreement may be viewed as a formal change, there is much to be said for the view that the discombobulation of the bargaining process entailed by the Rail Agencies’ submission is practically unattractive. However, the submission appears to align with the statutory language and it receives particular support from the resetting of the notification time by s 173(2)(e).

22    The respondents, on the other hand, rely upon s 459 which provides:

Circumstances in which industrial action is authorised by protected action ballot

(1)     Industrial action by employees is authorised by a protected action ballot if:

(a)     the action was the subject of the ballot; and

(b)     at least 50% of the employees on the roll of voters for the ballot voted in the ballot; and

(c)     more than 50% of the valid votes were votes approving the action; and

(d)     the action commences:

(i)     during the 30-day period starting on the date of the declaration of the results of the ballot; or

(ii)      if the FWC has extended that period under subsection (3)—during the extended period.

Note:     Under Division 2, industrial action by employees for a proposed enterprise agreement (other than employee response action) is not protected industrial action unless it has been authorised in advance by a protected action ballot.

(2) If:

(a)     the nature of the proposed industrial action specified in the question or questions put to the employees in the protected action ballot included periods of industrial action of a particular duration; and

(b)     the question or questions did not specify that consecutive periods of that industrial action may be organised or engaged in;

then only the first period in a series of consecutive periods of that industrial action is the subject of the ballot for the purposes of paragraph (1)(a).

(3)     The FWC may extend the 30-day period referred to in subparagraph (1)(d)(i) by up to 30 days if:

(a)     an applicant for the protected action ballot order applies to the FWC for the period to be extended; and

(b)     the period has not previously been extended.

23    The significance of this is that to be protected industrial action the action must be authorised by a protected action ballot: s 409(2). Nothing in s 459 turns on the presence of a proposed enterprise agreement. On the face of the provision, it appears plausible that industrial action can be authorised by a protected action ballot without a proposed enterprise agreement. However, this is because the provision does not expressly link the protected action ballot to the necessary antecedent protected action ballot order made by the FWC under s 443. It is inevitable that a protected action ballot can only be conducted where there has been such an order and the provisions governing the grant of such an order link the whole process back to a proposed enterprise agreement. I therefore do not think that this point is a strong one.

24    For the purposes of an application for an interlocutory injunction, the question is whether there is a serious question to be tried. In my view, there is such a question in relation to the statutory construction argument put forward by the Rail Agencies. Because the strength of the Rail Agencies’ case is relevant to the question of balance of convenience, I would rate the strength of its case as lying in the mid-range.

25    At the hearing the Rail Agencies put their case on the basis that the respondents are seeking to ‘coerce’ them into entering into an enterprise agreement in contravention of certain provisions of Part 3-1 of the Act. Whilst, no doubt, coerce has certain connotations, there can be no doubt that the point of the present industrial action is to persuade the Rail Agencies to enter into a proposed enterprise agreement. Indeed, the evident reason for the existence of the immunity in s 415 is to recognise the inherent susceptibility of industrial action to fall foul of the provisions of Part 3-1, including by virtue of their coercive effect. Whilst I accept that not all industrial action will inevitably be coercive in this sense, on any view, the present industrial action (which I will explain in more detail shortly) is designed to degrade the operation of the Sydney rail system in the period just before Christmas. Wherever the line between coercive and non-coercive industrial action may lie, this action lies on the coercive side. In my view, the Rail Agencies have a strongly arguable case on the coercion question. The Rail Agencies therefore have a middle strength arguable case on the central question of statutory construction and a strongly arguable case on the question of coercion. Since they must succeed on both, it follows that the Rail Agencies have demonstrated a middle strength arguable case.

The balance of convenience

26    Under this heading are three kinds of prejudice:

(a)    the prejudice to the Rail Agencies of the continuing degradation of the rail network;

(b)    the prejudice to the public; and

(c)    the prejudice to the respondents of being in a superior bargaining position with the Rail Agencies in the lead up to Christmas which will be lost, or at least degraded, if an interlocutory injunction is granted.

27    Like yin and yang, the prejudices in (b) and (c) are interrelated and largely speak for themselves. It is precisely the inconvenience to the public which constitutes the strength of the respondents’ bargaining position. It is important to emphasise that if the industrial action which is being taken is protected industrial action, then the inconvenience which attends its taking is also entirely legitimate. The loss of that bargaining strength as a result of any interlocutory injunction is a significant prejudice and is entitled to very considerable weight in assessing whether any interlocutory injunction should be granted.

28    On the other hand, the prejudice to the public is itself related to the prejudice to the Rail Agencies resulting from the industrial activity. It is therefore necessary to assay the impact of the industrial action.

29    The industrial action is complex and has been ongoing for some time now. For present purposes, it has the following features:

(a)    maintenance bans;

(b)    bans in relation to signal blocking and locking;

(c)    electrical bans;

(d)    24 hour service bans; and

(e)    reduced kilometres bans.

Maintenance bans

30    There are a large number of maintenance bans in place. Maintenance may be preventative or corrective maintenance, the latter arising from assets which have failed. The bans are causing both categories of maintenance not to occur. Maintenance is administered through the Enterprise Asset Management system. One of the bans is on entering information into that system. The effect of that ban is that critical information, maintenance and incident response cannot be programmed. No maintenance work can occur if the input bans remain in place.

Bans in relation to signal blocking and locking

31    Maintenance work must be done on what is called the rail corridor, access to which is restricted. In a typical week, over 600 defects are identified or repaired during track access windows. A number of different methods of accessing the corridor exist which reflect the need to ensure that employees are not exposed to the risk of being hit by trains. One of these consists of absolute signal blocking. By setting signals to stop trains, absolute signal blocking ensures that trains do not enter the maintenance area. Approximately 25% of track access each week is via absolute signal blocking. The absolute signal blocking ban has been in place since 9 November 2024 as a result of which 120 planned inspections have not been undertaken. As a result, there are several risks including track defects.

32    The locking bans relate to the locks which prevent access to assets. The ban means that these locks are not being accessed which is causing assets to fall out of compliance.

33    As a result of these two bans priority defects have increased by 300 to 3,876 and the preventative inspection backlog has gone from 72 to 173.

34    The evidence suggests that if these bans continue it is possible that within two to three weeks sufficient assets will be out of compliance that a significant number of rail routes will need to be closed. If tracks remain out of service for more than 72 hours there will then need to be recommissioning work. Generally, where a single line is out of service for less than 72 hours it takes three days to get it back into service. If a large portion of the network is out for more than 72 hours it may take six weeks to restore service.

35    It seems to me that this is a growing risk which has not yet reached its ultimate expression. However, the significance of this risk must be weighed against not only the inconvenience of having parts of the rail system out for extended periods of time but also the significance of the services that will be disrupted. These include freight services. Freight services include 10 trains carrying coal to power stations each day, trains carrying containers of for example electronics and steel between Brisbane, Sydney and Port Botany, trains carrying food including grain and trains carrying cement and aggregates. These services reach into the heart of the economy in the largest city in the country.

36    Given the time frames which might be necessary to remediate these problems should they occur and the very large downside which attends them (and in particular the situation with power generation and coal as well as the movement of food), I regard this as a zone of risk not lightly to be entered.

Electrical bans

37    Before electrical work can be done the power must be turned off. These bans prevent the power being turned off and hence prevent maintenance work being done on electrical assets.

24 hour services ban

38    This unusual ban requires the Rail Authorities to operate services 24 hours every day. The effect of the ban is to prevent maintenance work being done since there are trains coming down the tracks. 27 planned inspections have not occurred and 162 planned scopes have not been undertaken. $14.6 million worth of heavy maintenance has not been performed and this is expected to increase by $4 million to $6 million each weekend. As inspections fail to occur, safety reasons will require the shutting down of equipment.

Reduced kilometres ban

39    By this ban, significant restrictions have been imposed on the number of kilometres a train crew may travel in a day. It is this ban which was to come into effect at midnight last night. The immediate impact of the bans will be the cancellation of some services, a reduction in service frequency, additional or altered stops and altered termination.

40    It is apparent that these bans will not result in the shutting down of the network but they will cause considerable inconvenience.

Overall prejudice

41    The reduced kilometre ban is the immediate cause of the present application since it was due to come into effect at midnight last night. However, I consider that it is the other bans which are more concerning. The bans are causing the gradual degradation of the integrity of the network. The problem is cumulative. Within two to three weeks, the situation may be reached where the network fails and coal will not be able to be delivered to power stations in the middle of summer. Food delivery may be imperilled.

Conclusion on the balance of convenience

42    On the one hand, one must give full weight to the substantial industrial advantage the respondents presently enjoy in the negotiations. On the other hand, one must be clear eyed about the fire which is being played with here. One must also take into account the strength of the arguable case that I have concluded exists. Taking each of those matters into account, I conclude that the balance of convenience favours the grant of interlocutory relief which the Rail Agencies seek.

43    Something should also be said about timing. The present application only became possible on 6 December 2024. The Applicants applied to the Court on Sunday afternoon and the case was heard on Sunday evening. If the Applicants had waited longer until the maintenance issues worsened still further then they may well have been criticised for delay. I regard the timing of the application as therefore neutral.

44    At the hearing, the respondents proffered an undertaking not to engage in some of the action if a final hearing could be arranged by 16, 17, 18 or 20 December 2024. As of Sunday night when the order were made, I could not be sure that such an urgent hearing could be arranged although it is likely that it can. Since I could not be sure of that, it was not appropriate to accept the undertaking.

Conclusions

45    It was for these reasons that I made the orders sought by the applicants on Sunday night.

Associate:

Dated:    9 December 2024