DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

Application by Australian Rail, Tram and Bus Industry Union
(B2021/455)

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 2018 2

(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.

[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:

(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 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 include 4:

•  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 Commission 5, 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

[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 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).

[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.

[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.

[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

[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.

[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.

[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 NERR 18 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.

[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

[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 May 2021.

[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”.

[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:

“[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:

•  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 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.

[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 Others 40 the Full Bench made the following observation at [25]:

“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.

[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.

[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.

[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);

•  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;

•  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 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 days 51 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 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;

•  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.

[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 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;

•  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

•  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.

[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.

[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.

[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 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.

[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 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 Trains 79 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 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 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

[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.

[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:

•  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

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>

 1   AE428119

 2   AE428I20

 3   Email of 23 June 2021 from Sydney Trains lawyers

 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

 6   Exhibits A2 and A3

 7   A2 Statement of T. Warnes of 12 July 2021 at [14]

 8   Ibid at [26]

 9   Ibid, TW-12 and TW-13

 10   A2 statement of T. Warnes of 12 July 2021 at [60] and TW-26

 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]

 15   Written submissions of 12 July 2021 at [24]

 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

 19   R1 statement of G. McDonald of 30 June 2021 at [8]

 20   Ibid at GM-2

 21   Ibid at [15]

 22   R2 reply statement of G. McDonald of 15 July 2021 at [15]

 23   Ibid at [17]

 24   [2004] FCA 1737

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

 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

 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

 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]

 41   R3 statement of A. Berry of 30 June 2021 at [10]

 42   Ibid at [8]

 43   Ibid at [21]

 44   Ibid at [13]

 45   Ibid at [13]

 46   Ibid at [31]

 47   Ibid at [28]

 48   R9statement of H. Mulholland of 30 June 2021 at [11]

 49   Ibid at [23-29], [30-31]

 50   Ibid at [43]

 51   Ibid at [49-50], [53]

 52   R10 reply statement of H. Mulholland of 15 July 2021 at [16]

 53   R6 statement of G. Peters of 30 June 2021; R7 reply statement of G. Peters of 14 July 2021

 54   R6 statement of G. Peters of 30 June 2021 at [18]

 55   Ibid at [26]

 56   Ibid at [29-30]

 57   Ibid at [60]

 58   Ibid at [61]

 59   Ibid at [71]

 60   Ibid at [63-64]

 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]

 65   A1 statement of S. Priestley of 12 July 2021 at [14]

 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

⁷² [2007] AIRC 848

73 [2007] FCA 388 (27 March 2007)

74 [2018] FWCFB 4011

 75   Ibid at [22]

 76   [2019] FCAFC 99

 77   [2020] FWC 3583, [2020] FWC 6904

 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]

 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]

 85   A4 statement of Mr Michael of 12 July 2021

 86   [2020] FWC 3583