Fair Work Act 2009
s.424 - Application to suspend or terminate protected industrial action - endangering life etc.

The State of NSW, Sydney Trains and NSW Trains
v
Australian Rail, Tram and Bus Industry Union and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(B2022/641, B2022/642, B2022/643)

Application to suspend or terminate protected industrial action - endangering life etc – economic impact of industrial action – application for final orders – Application dismissed.

[1] On 4 July 2022, the Minister for Finance and Acting Minister for Employee Relations (the State of New South Wales), Sydney Trains, and NSW Trains (collectively, the Applicants), made applications pursuant to s.424 of the Fair Work Act 2009 (Cth) (the Act) (the Applications) for orders to terminate, or in the alternative suspend for 10 weeks, protected industrial action that was being taken, or was proposed to be taken, by the Australian Rail Tram and Bus Industry Union (the RTBU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU) (collectively the Unions).

[2] Subsection 424(3) requires the Fair Work Commission (the Commission) to, as far as practicable, determine the applications within five days after the day they have been made.

[3] A Directions Hearing was convened on the afternoon of 4 July 2022, at which it was determined that the final hearing of the Applications would commence at 10:00am on 7 July 2022. The Applicants also sought to be heard in relation to the issuing of interim orders for the identified protected industrial action to be terminated, or in the alternative suspended, until the determination of the substantive matter. The application for interim orders was heard on 5 July 2022, and dismissed. 1

Background

[4] On 1 May 2021, the Sydney Trains Enterprise Agreement 2018 and the NSW Trains Enterprise Agreement 2018 (the Agreements) nominally expired. The Agreements apply to the employing entities, Sydney Trains and NSW Trains, and members of the RTBU, the CEPU, the Australian Manufacturing Workers’ Union (AMWU), the Association of Professional Engineers, Scientists and Managers Australia (APESMA), The Australian Municipal, Administrative, Clerical and Services Union (the ASU), the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU), the Australian Workers’ Union (AWU),

[5] From around February 2021, the parties to the Agreements have been negotiating for proposed new enterprise agreements.

[6] On 8 August 2021, in support of its claims for the proposed enterprise agreements, the RTBU obtained orders from the Commission to conduct a protected action ballot, which was subsequently endorsed by its members. On 24 January 2022, the RTBU obtained further such orders from the Commission.

[7] On 20 September 2021, in support of its claims for the proposed enterprise agreements, the CEPU obtained orders from the Commission to conduct a protected action ballot, which was subsequently endorsed by its members.

[8] From in or around September 2021, the RTBU and CEPU have threatened, and engaged in, protected industrial action. The Applicants prepared, and annexed to numerous statements, a document titled “Annexure A: Summary of Live Industrial Action,” that recorded a summary of protected industrial actions notified by the CEPU between 13 October 2021 and 2 March 2022, and the RTBU between 9 June 2022 and 28 June 2022. That document is annexed as “HM-C” in the Witness Statement of Heath Mulholland filed with the Commission alongside the Applications. That document is contained as Annexure A to this decision, and outlines the detail of the relevant RTBU and CEPU actions, not all of which are challenged.

The Challenged Protected Action

[9] The Applicants alleged RTBU actions 5, 6, 9, and 15 and CEPU actions 7, 11, 13, 15, 17, 21, 22 and 23 and 27 are directed to preventing and/or impeding the construction of the new Sydney Metro lines (the Sydney Metro Bans). It is claimed that to date, such actions have resulted in costs associated with cancellations, claims by third party contractors, lost or unproductive work hours, plant, and ongoing commitments that cannot be recovered, and delay amounting to approximately $54 million, with projected additional costs range of between $250 million to $1.5 billion, if the actions continue.

[10] The Applicants alleged RTBU Actions 24 and 28, are directed to banning the use of A Sets, B Sets, Oscars and Millennium trains (the Rolling Stock Bans). The direct impact of those bans are said to be the reduction of the number of trains operating on the network by around 70 to 75%, with consequential economic losses of between $68 million to $120 million.

[11] The Applicants alleged RTBU Action 14, which is directed to bans on transpositions (the Transpositions Ban), and impeded Sydney Trains’ and NSW Trains’ capacity to adapt its services, particularly with a severe weather event occurring in New South Wales from 2 July 2022 to the date of the Hearing of the Application.

[12] The Applicants alleged RTBU Actions 4 and 9 are directed to impacting maintenance activities (the Maintenance Bans) by not performing protection officer duties (except look-out working), and not authorising additional work on track for adjacent line protection for Local Possession Authorities (LPA).

[13] The Applicants alleged RTBU Actions 1, 2, 3 and 22, are directed at cleaning rail assets (the Cleaning Bans), and that those actions are directed to bans on cleaning hazardous waste meaning there will be no cleaning of liquids, urine, vomit, drug paraphernalia or hazardous waste from trains, train platforms, lifts, escalators or other areas, thereby endangering the personal safety, health or welfare of commuters.

Concessions/Undertakings by the Unions

[14] Both before and after the filing of the Applications, the Unions made certain concessions regarding the scope of notified action and provided various undertakings. Those concessions/undertakings included:

(a) Since 19 October 2021, Sydney Trains and the RTBU have had various agreements to lift the Transpositions ban in case of emergencies. While Transpositions Bans have not been continuous during that period, when they have applied, those agreements resulted in the Transpositions Ban being lifted after a train crash at Kembla Grange on 19 October 2021, a flood emergency in early March 2022, and on 4 July 2022 due to a flood emergency.

(b) By two letters dated 5 July 2022, regarding the Rolling Stock Bans, the RTBU advised Sydney Trains and NSW Trains as follows:

(i) In respect apparently to RTBU Action 24:

“In the interests of resolving the issues raised in the Proceedings, the RTBU wishes to notify the Employers that alters previously notified protected industrial action impacting the Employers as follows.

With respect to the action notified by letter on 26 June 2022, the RTBU withdraws the ban related to the operation of B Set Trains which is due to commence on 6 July 2022, allowing such rolling stock to be utilised on the network.”

(ii) In respect apparently to RTBU Action 28:

“In the interests of resolving the issues raised in the Proceedings, the RTBU wishes to notify the Employers that alters previously notified protected industrial action impacting the Employers as follows.

With respect to the action notified by letter on 28 June 2022, the RTBU withdraws the ban related to the operation of Millennium and B Set Trains which is due to commence on 8 July 2022, allowing such rolling stock to be utilised on the network.”

(c) On 6 July 2022, the CEPU proposed the following agreement regarding the Sydney Metro Bans to the Applicants:

“Provided that each of the Applicants agree to withdraw their respective application as it relates to protected industrial action notified by the CEPU before 10am on Thursday 7 July 2022, the CEPU offers the following:

1. The CEPU will suspend observation of all forms of protected industrial action listed at Annexure A to this correspondence by any CEPU member employed by Sydney Trains while the member is engaged to work on the Sydney Metro project in the period from 11:00am Thursday 7 July 2022 to no sooner than 11:59pm Sunday 15 July 2022.

2. The CEPU will provide no less than five (5) working days' notice in writing to Sydney Trains of the resumption of protected industrial action listed at Annexure A by its members engaged by Sydney Trains to work on the Sydney Metro project.

3. Each of the Applicants will withdraw all claims and submissions in their application with respect to protected industrial action notified by the CEPU on behalf its members.

We note that the RTBU has already committed to suspending its Metro-related industrial action in the event that the CEPU withdraws its Metro action. Had the offer been accepted on Monday, work could have been underway on the Metro today.”

Apparently, no response was received to the above proposed agreement, and on 7 July 2022, the CEPU wrote to the Applicants advising:

“It is disappointing that we have not had a response to our offer dated 6 July 2022. However, in good faith to progress the negotiations for a new enterprise agreement the CEPU agrees to the following:

1. The CEPU will suspend observation of all forms of protected industrial action listed at Annexure A to this correspondence by any CEPU member employed by Sydney Trains while the member is engaged to work on the Sydney Metro project in the period from 11:00am Thursday 7 July 2022 to no sooner than 11:59pm Sunday [17] July 2022.

2. The CEPU will provide no less than five (5) working days' notice in writing to Sydney Trains of the resumption of protected industrial action listed at Annexure A by its members engaged by Sydney Trains to work on the Sydney Metro project.”

As a consequence of the CEPU lifting the Sydney Metro Bans, the RTBU also lifted the Sydney Metro Bans, as it advised the Applicants it would on 4, 5 and 6 July 2022.

(d) The Cleaning Bans were modified by the RTBU on 6 and 7 July 2022, with the effect that RTBU members will clean crew cab windows at any time, clean lifts and a disabled toilet (or other toilet if there is no disabled toilet) on each station at all times, clean hazardous waste in lifts and a disabled toilet at all times, clean any hazardous waste on each Sunday and Wednesday, and Station Staff or Cleaners will work away from their home station/depot.

(e) In the hearing on 8 July 2022, the following undertakings were given:

(i) By the RTBU:

“In the event that the RTBU decides to:

(a) remove a variation to a form of protected industrial action it has made, or in future makes; or;

(b) reimpose industrial action it has suspended indefinitely; or

(c) reimpose RTBU action 14, i.e. the Transpositions Ban,

it will give seven (7) days notice to the relevant entity in writing.”

(ii) By the CEPU:

“In the event that the CEPU decides to reinstate the industrial action it has suspended in the course of these proceedings, which is the entirety of the industrial action the Government complains about, the Metro bans, after the current suspension ends at 11:59pm on 17 July 2022, it will give no less than five (5) working days notice to Sydney Trains in the event that it decides to reimpose the ban, with such notice not to be given before 12:00am on 18 July 2022.”

The Evidence – Applicants

Hugh Lawson

[15] Mr Lawson is the Project Director of the Sydney Metro City and South West Project (Sydney Metro). He provided a witness statement in this matter dated 4 July 2022, 2 outlining his role in the Project as primarily strategic leadership of the Project, and he is responsible for the effective and compliant implementation of Australia’s largest public transport project. Mr Lawson articulated in this statement a summary of his views on the impacts of protected industrial action on the Sydney Metro.

[16] The Sydney Metro Project has a series of stages and various contracts, but in general, involves the creation of new tunnels and train lines in the City portion of the project, as well as significant work to upgrade and develop facilities for the South West portion of the project. To undertake this work, Mr Lawson describes that various “possessions” of portions of the Sydney Trains network are required to safely undertaking this work. The possessions are described as requiring use of the track and facilities for various portions of the network for the South West line in particular, and relevant to these Applications, the electrical isolation of high voltage electrical feeders and overhead train power lines. Mr Lawson deposed that these possessions are booked approximately 14 weeks in advance with Sydney Trains for weekend work, and 26 weeks in advance for longer work, and that if such work is postponed, those possessions ordinarily continue to occur despite planned work not being undertaken during the period.

[17] Mr Lawson outlined that various delays have occurred impacting the delivery of the Sydney Metro project, including, but not necessarily always, protected industrial action. In the event that planned work is unable to be undertaken, work methodologies are reviewed, and mitigation measures are implemented so as to allow some work to be undertaken, even if this work was not planned for that possession period.

[18] Mr Lawson described various impacts of the notified industrial actions of the CEPU numbered 11, 13, 15, 17, 21, 22, 23 and 27, and of the RTBU numbered 5, 6 and 15. Primarily, these relate to bans on the electrical isolation during planned possession periods, and other actions relating to a ban on working with non-direct Sydney Trains hired employees. Those impacts were generally outlined as being:

•  a limit to the progress of Sydney Metro due to the project running out of alternative work to do during possessions without electrical isolations,

•  a projected inability to test and commission trains in line with project timelines,

•  a restriction on the ability of Sydney Metro to undertake platform work, facilities work, and preparations works for further stages of the project,

•  a duplication of community impacts as a result of under-utilised possessions that have to be replanned, and

•  financial impacts of the project’s delay and ongoing possession costs.

[19] In cross examination, Mr Lawson identified that the primary concern for Sydney Metro was the inability for work to be undertaken during possessions without the benefit of electrical isolations. In re-examination, Mr Lawson identified that Sydney Metro had likely reached the limit of mitigation work they could undertake, and that all possessions generally had to be substituted for equivalent possessions in the future, such that work scheduled for weeks-long possessions could not generally be undertaken on weekends, for example.

[20] Mr Lawson outlined four anticipated financial scenarios which take account of protected industrial action continuing into the future. Some details from those scenarios and costs estimates are tabulated below.

[21] In developing the above scenarios, Mr Lawson said he relied upon previous industrial action costs and delay, as well as the current practice and timetable of possessions. In cross examination, Mr Lawson confirmed that these scenarios are cumulative, and all scenarios assume no work is undertaken from 1 July 2022.

[22] At the Hearing, on 7 July 2022, Mr Lawson was queried about his knowledge in respect of the CEPU’s offer to lift bans on their industrial action, particularly in respect of electrical isolations. Whilst Mr Lawson was aware of this offer, he was unaware of whether that offer had been responded to. He agreed that the work scheduled for the current possession period, being for the July school holidays, could currently be undertaken if the bans were lifted, and that this would decrease the cost and delay projections outlined in his four scenarios. Mr Lawson was asked whether he had been requested to re-estimate the financial impacts of the industrial action should those bans be lifted, and he identified that he had not, and further outlined that overriding government policy or the industrial dispute was not something that he had any control or knowledge of.

[23] In his reply statement filed 6 July 2022, 3 amongst other observations in respect of the calculating time and delay costs, Mr Lawson identified that industrial action, whilst ongoing, could not be clearly anticipated due to the distinct operation of Sydney Metro from Sydney Trains.

Heath Mulholland

[24] Mr Mulholland is the Head of Planning at Sydney Trains. In his witness statement filed with the Commission on 4 July 2022, 4 he outlined his role as the short and long term operation planning for Sydney Trains. Mr Mulholland outlined three categories of significant industrial action, being in essence what has been described in this decision as the Rolling Stock Bans, action 27 of the Sydney Metro Bans, and Transposition Bans.

[25] Mr Mulholland outlined in his statement that the Rolling Stock Bans made 70% of the train fleet unavailable, which requires the development of Special Timetables, and significant further work for Train Planners and Day of Operations staff. The impact of these bans included: service gaps, on the day service cancellations, 1.6 million lost minutes for commuters, a reduction of available sets due to cleaning bans, crowding on trains, a 32% decrease in patronage, airport congestion, and road congestion.

[26] Mr Mulholland outlined in his statement the impact of Transposition bans, as being difficulties in recovering from incidents, delayed commencement of network closures, and less capacity to transfer fleet for cleaning and maintenance.

[27] Mr Mulholland described various limitations in respect of Train Planners, identifying that industrial action required significant further work from these staff members, as they were required to create additional timetables for planned disruptions to service, and that Day of Operations staff would have an excess of work to undertake during the day to respond to incidents and other disruption. The work required to be undertaken in response to the industrial action was described as being impossible without Train Planners exceeding the 76 hour limit imposed by the bans.

[28] The cumulative impacts of the industrial action were described by Mr Mulholland as being a reduction in services, delay, poor customer experience, low patronage, limitations on capacity to plan and implement Special Timetables, and eventually too few trains available to meet the timetable. Further impacts on rolling stock operators and freight, such as with coal and grain, were also identified.

[29] Following the lifting of some Rolling Stock Bans and Transposition Bans for adverse weather events, Mr Mulholland identified that the available fleet was, as at the time he provided evidence on 7 July 2022, reduced by 49%, not 70%, and that there would be a greater capacity to respond to incidents and delay, however that those bans may be simply reintroduced following the conclusion of the severe weather event, causing the same impacts as he had outlined initially.

[30] In cross examination, Mr Mulholland identified that he could not ascertain the proportion of trains that were unavailable due to the cleaning or other bans, and that he was not asked to breakdown this data by the Applicants. Whilst in his reply statement filed on 6 July 2022, 5 Mr Mulholland outlined some beneficial impacts of the lifting of various bans, in cross examination he identified that he did not take this into account in assessing train availability. In re-examination, Mr Mulholland identified that 10% of fleet were ordinarily unavailable, and 20% of the fleet were unavailable on 5 July 2022 due to projects, maintenance and the industrial action.

George Peters

[31] Mr Peters is the Director of Network Services at Transport for NSW. Mr Peters filed a witness statement with the Commission on 4 July 2022, 6 outlining his role as primarily being responsible for operational functions of the NSW Trains service. Mr Peters, in his statement, described the impacts of the Cleaning Bans as limiting the cleaning of hazardous waste, including the decanting of toilet facilities on trains, particularly those that travel long distances.

[32] Mr Peters described in his statement the impacts of the cleaning bans on having functional toilet facilities on board NSW intercity services. Decanting of toilets can be undertaken at stabling yards or maintenance centres, or on a running line. Mr Peters described that if trains do not have functional toilets, they would often not meet minimum operating standards, which could have the impact of creating more stops, overcrowded trains due to carriages being out of service, and a reduction of services departing from maintenance facilities as they will not be able to depart without a functional toilet. In cross examination, and later clarified in re-examination, Mr Peters initially identified that Oscar and V sets trains cannot run without functional toilets, however eventually conceded that in some circumstances, depending upon departure location, these services may run without a functional toilet. Mr Peters was asked whether he was aware that services between Waterfall and Port Kembla always have toilets locked, and Mr Peters was unaware of this asserted process, and had not made enquiries in respect of the usual toilet process for this journey.

[33] Operationally, Mr Peters identified impacts of the industrial action on the Daily Working timetable, being mostly that the Day of Operations staff cannot meet the standard working timetable, which would have the impact of dislocating crew, cancelled services, stranded customers, and disproportionate impacts on vulnerable commuters who cannot otherwise attend their destinations by other means. Mr Peters also referred to the Transposition Bans which he identifies make it difficult to reduce delays and congestion, however noted that this ban was lifted from 3 July 2022 for the severe weather period. Further, Mr Peters summarised that the Rolling Stock Bans would impact NSW Trains by rendering the service unable to meet the standard working timetable.

[34] Mr Peters referred to the example of the South Coast services of NSW Trains, which ordinarily rely upon Oscar trains for a large portion of their services (being 81% on weekdays, and 100% on weekends). Similar, but less significant reliance was outlined for the Central Coast and Newcastle. Mr Peters identified that only 2 Tangara trains are available for use on this line, and further suggested an increase in anti-social behaviour towards NSW Trains staff if services are not delivered.

[35] In his reply statement of 6 July 2022, 7 he refers to the Respondents’ statements in respect of alternative delivery of the South Coast line, and responds with various operational limitations on the cross utilisation of Oscars and other sets between Sydney Trains and NSW Trains. Additionally, Mr Peters identified that the 2019 standard working timetable and the 2022 standard working timetable have the same services provided, and that any reduction in services was experienced in the period 2021-2022.

[36] In cross examination, Mr Peters conceded that a timetable could be reconstructed so as to allow Tangaras, which are not subject to the Rolling Stock Bans, to run on the South Coast line on the weekends.

Grant Burton and Paul Bugeja

[37] Mr Burton is the Deputy Executive Director of Asset Management at Sydney Trains. He filed a witness statement with the Commission on 4 July 2022, 8 outlining his qualifications and role responsibilities including, generally, the coordination and development of Sydney Trains assets. In an unusual course at the hearing, Mr Burton was not called to give evidence, but Mr Bugeja deposed to having read Mr Burton’s statement and adopted its contents, and also filed a witness statement in this matter on 6 July 2022.9 Mr Burton/Mr Bugeja confirmed, from the perspective of Sydney Trains, the operational limitations on track possessions that had been outlined in the witness statement of Mr Mulholland dated 4 July 2022.

[38] Mr Burton/Mr Bugeja detailed the maintenance planned from July and September 2022 that would be impacted by the industrial action, being specifically RTBU actions 1, 2, 3, 4, 5, 6, 9, 10, 14, 15, 16, 17, 22, 28 and 28. Those impacts were described generally as being:

•  a reduction of services and trains available due to Cleaning Bans preventing the use of train cars,

•  a reduction in services for intercity trains due to toilets that are not decanted,

•  train cars unavailable due to windows being left unclean,

•  an increased risk of slips, trips and falls due to liquid spills,

•  the closure of station toilets if not sufficiently clean,

•  a reduction in maintenance capacity due to a ban on most protection officer duties,

•  a reduction in maintenance capacity and third party projects due to the ban on electrical isolations,

•  a reduction in maintenance and car availability due to Transposition Bans,

•  impacts on Sydney Metro construction and upgrading,

•  a reduction in maintenance and effective use of assets due to bans on absolute signal blocking and additional work on track limitations impacting adjacent line protections,

•  the reduced coordination of stabling, planning and cleaning due to limitations on roll out/departure lists, and an apparent reduction in capacity of the network by about 75% (not including the use of K sets from storage).

[39] In response to a question at the Hearing, Mr Bugeja commented on the witness statement of Mr Burton and indicated that he had no information in regards to the number of spills and slips.

[40] Mr Burton identifies the direct financial impacts to Sydney Trains as being those associated with unproductive labour, sunk costs incurred for possessions and other work, prospective third party damages claims, and maintenance costs for work that will not be able to be undertaken.

[41] In reply to Ms Dobosz’s statement, Mr Bugeja deposed that planned work was unable to be completed despite the CEPU’s periodic lifting of prior switching bans as the authorities required for possessions are required to be planned and accepted 12 weeks prior to the possession, and so bans still prevented preparation work that would have allowed for planned work to proceed. Mr Bugeja further describes the limitations of alternative working methods proposed with the use of restrictors.

[42] In response to Mr Newton’s statement, Mr Bugeja outlined limitations in alternatives to the enterprise asset management systems currently in use by Sydney Trains.

[43] In cross examination, Mr Bugeja was asked questions in respect of the financial summaries contained within the statement of Mr Burton. He advised the Commission that he looked at financial records provided by the Executive Director of Finance and Commercial, and whilst not reviewing the process of calculation himself, did review underlying documents that informed the conclusions. In re-examination, Mr Burton indicated that he had no reason to suspect that the information created or provided by the Executive Director of Finance and Commercial was inaccurate, given their responsibility as the head of financial governance and reporting.

[44] In response to a question in respect of the variations to industrial actions that are currently being undertaken, Mr Bugeja advised that he was aware that those actions had been varied, and conceded that the figures that summarised the amount of train cars available on the network would be affected by those variations. Whilst not confirming a figure in respect of the available cars, Mr Bugeja advised the Commission that he discussed variations with the Fleet Maintenance Manager, and again despite not having a quantification of the now-available cars, agreed that the figure would be higher than those outlined in Mr Burton’s statement.

[45] Mr Bugeja was asked questions in respect of alternative work arrangements for the cleaning of trains, including suggestions that contractors could be engaged, or managers be required to clean. In answer to those questions, he advised that he was not aware of any prohibition on managers cleaning, although in re-examination identified that there would be some conflict between staff if this occurred, and that there had not been, to his knowledge, any contractors engaged to clean.

Joann Wilkie

[46] Ms Wilkie is the Deputy Secretary of Economic Strategy and Productivity within the NSW Treasury. Ms Wilkie filed a witness statement with the Commission on 4 July 2022, 10 which outlined the responsibilities of her role as leading the delivery of economic and revenue forecasting, providing advice to various stakeholders and collaborating with Governments and other Government bodies. Ms Wilkie noted that her statement was informed by the assistance of colleagues who provided her with information and modelling. In answer to a question in respect of amendments to the industrial action taken at the time of the Hearing, Ms Wilkie indicated that she was aware changes to the actions taken had occurred, but that she did not revise her modelling.

[47] Ms Wilkie described the NSW economy as comprising approximately one third of the total Australian economy, and that it could be measured by reference to Gross State Product (GSP). Ms Wilkie detailed the CEPU and RTBU industrial actions that had been identified to her by Transport for NSW as being impactful on the network in general terms, referring to the actions subject to those outlined in the Applications.

[48] The economic impact of the industrial action was projected by Ms Wilkie as being:

•  a direct impact on working hours due to increased travel time or workers being discouraged from travelling to work,

•  an indirect impact due to a reduction in spending on goods and services,

•  a loss of government fare revenue.

[49] In respect of the direct impact on working hours, Ms Wilkie outlined that her methodology was to determine the loss of nominal GSP per hour worked, multiplied by the number of work hours lost due to relevant travel constraints. Ms Wilkie identified additional factors which may affect the direct impact on working hours, and in her calculations did not consider those which she could not quantify.

[50] In cross examination, Ms Wilkie confirmed that the modelling was created on the basis that each adult worked 7.5 hours productively each day, and took two commuter trips per day.

[51] Ms Wilkie tabulated the ‘daily direct cost’ of industrial action during the period 27 June to 1 July 2022:

[52] Ms Wilkie included a list of assumptions used in the creation of this data, including in summary:

•  the modelling was confined to only the immediate economic impact,

•  the hourly value of lost work was estimated as the GSP per hour worked for 2022-21,

•  the total number of actual rail trips on impacted days was compared to the previous four week average to determine decline in travellers,

•  the impacted adult trips are assumed to be private sector commuter trips, and that they would make a return trip,

•  assumed no direct impact to economy from public sector workers unable to attend work,

•  assumed no cost was attributed to the taking of annual leave,

•  assumed that each worker lost 12 minutes of productive time,

•  the following assumed responses of private sector workers to the industrial action:

[53] The values derived from those assumptions indicated that approximately 62,000 to 73,000 of the usual 270,000 commuters would be impacted by industrial action, about 30% of people were expected to work from home on any given day, with a jump to 38-43% during rail disruptions, and the residual figure of 4-6% of the population not doing any work during the industrial action.

[54] Ms Wilkie was cross examined in respect of the breakdown of the above category of workers who decide not to travel to work. Ms Wilkie denied that there may be an increase of working adults taking annual leave during the school holiday period, and referred to patronage data in answer. Ms Wilkie also conceded that some adult workers in this category may have used alternative forms of transport for their journey to and from work, and in fact offered additional examples of these modes of transport, and acknowledged that this factor may reduce the 4-6% figure representing those who did not do any work. This evidence was heard with the witness referring to the spreadsheet produced to the Commission, 11 which contained the economic modelling for the initial statement of Ms Wilkie, which recorded a value of zero for the percentage of adults who used alternative forms of transport.

[55] In the context of questions in respect of the assumptions and information that were considered, but not taken into account in the economic assessment, Ms Wilkie advised the Commission that there were lots of ins and outs which were not taken into account without robust data to quantify their impact, but that they evened out in the overall assessment. In re-examination, Ms Wilkie advised that some of the factors that may increase the economic impact of the industrial action that were not taken into account, as being, for example, welfare losses, missed appointment fees, CBD café reductions in revenue, and impacts on the casual workforce.

[56] In response to a question in respect of the robustness of assumptions for economic modelling, Ms Wilkie advised the Commission that a sensitivity analysis was undertaken, which involves the undertaking of calculations on various assumptions, and assessing the degree of difference between the final number and other scenarios. She advised that, in the context of sensitivity analysis, Treasury made use of the more conservative assumptions.

[57] Ms Wilkie estimates that industrial action taken in the week commencing 27 June 2022 had an impact of between $10 million and $20 million per day, being cumulatively $68 million for the week, or 0.5% of weekly GSP. This data took into account patronage data from 29 June 2022, despite not having any industrial action occurring on that day. Ms Wilkie explained that this was likely to be due to a perception of continued action, or an adverse behavioural response to their poor commuting experience the day before.

[58] Ms Wilkie outlined two categories of working hours lost, being a whole day of work lost by workers unable to commute and unable to work from home, and the loss of productive hours due to disrupted commutes. Ms Wilkie described that she based the estimate of the lost productive hours due to disrupted commutes on a figure communicated in the public statement by Mr Longland, the Chief Executive of Sydney Trains on the radio station 2BG and published by the Australian newspaper, being that commuters would be waiting “up to five times longer for trains during peak periods when they would normally expect a train every three minutes.” Ms Wilkie sets out in her statements further considerations that may have impacted the assessment of the productive hours lost, but did not have clear data to input into Treasury’s modelling.

[59] Ms Wilkie summarised that the NSW Treasury estimates that the cumulative direct economic cost of industrial action the subject of these Applications, is between $40 million to $70 million, representing approximately 0.3 to 0.6 of the GSP.

[60] Further indirect impacts were considered by Ms Wilkie, which she projected as costing approximately $0.5 million to $1 million for hospitality businesses , and noted other factors that might increase the indirect impacts that are difficult to quantify. Ms Wilkie also noted that there would be a reduction in fares collected by the Government for train trips, but that this impact was unlikely to be significant in comparison to other direct financial impacts.

[61] Ms Wilkie recounted the advice Treasury received from Transport for NSW of other financial impacts of industrial action, including of the Sydney Metro Project which could add more than $54 million to the cost of delivering that project, and that the project would be delayed further. She estimates additional future costs of between $250 million and $1.5 billion in the event that protected industrial action continues, and additionally a loss of productive use of staff.

[62] The broader economic costs outlined by Ms Wilkie were summarised in her statement, and include for example:

•  an increase in interest expenses to the state due to the additional cost of the Sydney Metro Project,

•  cascading impacts of delay on delivery time and costs associated with the Sydney Metro Project,

•  delays on achieving benefits of the Sydney Metro Project, including for example the decrease in road congestion, quicker travel times, and increasing productivity for business,

•  exacerbation of impacts to the construction industry, and

•  both general and specific delayed benefits of public transport upgrades.

[63] In cross examination, Ms Wilkie was asked questions in respect of the economic impact of state debt, and advised the Commission that debt is a usual part of a Government’s budget, that interest debt has a stimulatory effect on the economy, and that the interest cost of the NSW Government is currently about $15 billion.

[64] Ms Wilkie filed a second statement in this matter on 6 July 2022, 12 to clarify matters which had arisen since the filing of her first statement. In this statement Ms Wilkie clarifies her methodology for modelling the economic impact of the protected industrial actions, and noted that she has not been provided with specific information that distinguished the contribution, and therefore impact, of each industrial action.

[65] Ms Wikie identified some limitations of the information that she was able to use in her initial statement, for example, the demarcation of adults who use the train to travel to work, and those who are not travelling for work purposes. She clarified that the reduction in GSP is not directly correlated with the loss in working hours, but instead measured the overall impact that the reduction of working hours creates for overall economic activity.

[66] Noting that some industrial actions had been withdrawn or varied since her last statement, Ms Wilkie noted that she did not have information provided which details the impact of each action, but relied on the cumulative impact of the action that is provided by Transport for NSW. This figure she indicated had reduced since her first statement, but was still within the range of negative disruption to normal planned services that she relied upon for the purposes of her initial statement.

[67] Ms Wilkie also outlined the Treasury’s methodology in reaching the additional interest expenses in her initial statement. In cross examination, Ms Wilkie advised the Commission that the difference in reduction in capacity was 10%, with the initial figure provided by Transport for NSW being 60%, and the revised figure of 50%. She noted that the modelling remained accurate if the reduction of capacity was 50%.

[68] Ms Wilkie further detailed other impacts of the industrial action, including the ongoing negative impact of consumer confidence, constraints on labour supply during periods of action, and broader contextual information in respect of global economic uncertainty. Ms Wilkie was shown a document in the course of cross examination which was a press release of Matt Kean MP detailing the strength of the NSW economy. 13 Ms Wilkie conceded the strong economic position as at April 2022, when the document was published, but outlined that broader global pressures meant that there was increased uncertainty, and NSW was experiencing a realisation of prospective impacts such as increased fuel prices.

[69] In response to the statement of Mr Warnes, Ms Wilkie identified some of the sources of information that underpin the assumptions made in her first statement, and compares these sources and the context of their data to that contained within Mr Warnes’ statement, with the conclusion that the competing sources of information and data would still yield a result were less than 20% of workers could work from home, and reiterates that the Treasury estimate of an additional 8% to 13% is sound. Ms Wilkie further addressed the apparent productivity gains outlined in the Warnes statement, and outlined reasons that a productivity increase wasn’t considered in the Treasury calculation given that it is difficult to quantify, varied, and may be subject to other considerations such as the unexpected need to work from home in comparison to an expected day of work from home.

[70] Ms Wilkie described the assumptions made by Treasury as conservative, and summarised some considerations which may impact the overall impact of the industrial action on the economy, but were difficult to quantify and have been excluded from assessment, such as social impacts.

The Evidence – Respondent

Paul Dornan

[71] Mr Dornan is a train driver employed by NSW Trains. He filed a witness statement with the Commission on 5 July 2022, 14 which outlined his work history and his role within his organisation. Mr Dornan noted in his statement that NSW Trains and Sydney Trains can and does share rolling stock, and included a table of the rolling stock availability. Mr Dornan detailed his view in respect of the available fleet should there be amendments to the availability of 4GT trains, M sets and B sets, stating that 70% of the total fleet would be available. His view was that 100% of the fleet is never required, and approximately 60% is required.

[72] Mr Dornan filed a further statement with the Commission on 7 July 2022, 15 including recollections of enquiries made by RTBU members in respect of M set and B set trains sitting in depots. Annexed to his further statement, Mr Dornan included photographs he states are from Leppington, Campbelltown and Auburn Stabling Yards, and depicting sets that sit apparently unused. Mr Dornan further detailed his view in respect of alternative train fleet arrangements that could be made, including the use of T sets and diesel-powered trains.

Stephen Priestley

[73] Mr Priestley is employed as a Network Incident Manager at Sydney Trains. He has filed a witness statement with the Commission on 6 July 2022, 16 which outlines his experience and work responsibilities as a Network Incident Manager, which includes dealing with operational rail incidents that happen on the Network. Mr Priestly gives evidence that on 6 July 2022, until 7:00pm, 5 M sets and 13 B sets were utilised.

Glen Potter

[74] Glenn Potter provided two witness statements dated 5 and 6 July 2022. 17 Mr Potter is employed by Sydney Trains as a High Voltage Substation Electrician, an Asset Maintainer, and Work Group Leader on the Metro Project. Mr Potter is also a delegate for ETU and the CEPU.

[75] Mr Potter noted that he and another Sydney Trains employee are generally the only Sydney Trains engineering and maintenance division employees on site, and that nearly all of the work on the Metro Project sites is performed by contractors.

[76] Mr Potter gave evidence that throughout the period of industrial action, CEPU officers have been available to discuss with Sydney Trains the impact of the protected industrial action on their operations. Mr Potter provided the following four examples of instances in which the CEPU has provided safety commitments or modifications in relation to bans:

•  On 20 October 2021, the CEPU rescinded its notice of an indefinite ban on answering phone calls outside of roster hours, an action which was already the subject of a safety commitment,

•  On 3 November 2021, the CEPU provided an undertaking in relation to the ban on the use of vehicles (excluding plant and equipment) on Sydney Trains’ operations,

•  On or about 15 December 2021, Mr Currran, General Manager Maintenance, wrote to the CEPU with concerns about disruption of impedance and other testing on 1500V bonding on rail spark gaps, following which the CEPU organise with its members to ensure the necessary works progressed, and

•  On 31 March 2022, the CEPU wrote to Sydney Trains providing commitments regarding the performance of flood premeditation work.

[77] Mr Potter further noted that concerns raised with the CEPU on 4 March 2022 were about safety, and that Sydney Trains did not raise concerns akin to those described in the Applications.

Chris Newton

[78] Mr Newton is an Electrical Systems Supervisor employed by Sydney Trains. Mr Newton has filed a witness statement with the Commission on 6 July 2022, 18 outlining his work experience and qualifications, and identifies that his primary responsibility is to work within the control room know as ICON, monitoring and controlling the Sydney Trains Electrical Network. Mr Newton has experience working with, and coordinating teams that are responsible for switching of high voltage and 1500v DC networks. In his statement, Mr Newton describes the process of switching, including the governing rules and procedures, as well as the use and frequency of typical switching. Mr Newton’s evidence is that the switching can occur instantaneously in the event of an emergency and without a plan.

[79] Mr Newton described the protected industrial action of the CEPU in his statement, and indicates that the bans are temporarily lifted in an emergency situation. He further detailed the process for obtain a switching authority, and noted that these authorities can be issued within 15 minutes, each taking about 15 to 30 minutes to prepare. Planned maintenance which requires switching generally is planned 12 weeks in advance, and the authority issuance process is fast.

[80] Mr Newton also described the impact of the bans on authorising non-Sydney Trains employees working high voltage instructions or 1500-volt authorities, which impacts Sydney Trains’ ability to have planned maintenance, which he noted is typically undertaken by external contractors when there is a labour shortage. Additionally, he detailed the limitations on checking and approving those same authorities with less than two weeks notice except in the event of an emergency, and the limitations on hand amendments to the authorities, which may cause delay to the operation of planned switching.

[81] In his statement, Mr Newton detailed the process for switching off the Sydney Metro for the July possession period, and in addition to recounting the history of this authority, noted that the isolation and switching can be instigated within 24-hour notice.

Adrian Catt

[82] Mr Catt is a Senior Organiser employed by APESMA. Mr Catt filed a witness statement with the Commission on 6 July 2022, 19 outlining his work history and association with, and representation of, APESMA. Mr Catt indicates in his statement that APESMA does not support the present Applications. Mr Catt advised the Commission that the ASU does not support a workplace determination and that the union remains willing to continue bargaining.

Amanda Perkins

[83] Ms Perkins is an Organiser employed by the ASU NSW & ACT (Services) Branch. Ms Perkins has filed a witness statement with the Commission on 6 July 2022, 20 outlining her work history and association with, and representation of, the ASU. Ms Perkins indicated in her statement that the ASU does not support the present Applications, and advises the Commission that the ASU does not support a workplace determination.

Keith Lang

[84] Mr Lang is a Heavy Plant Technician employed by Sydney Trains. Mr Lang has filed a witness statement with the Commission dated 6 July 2022, 21 outlining his work history and association with, and representative of, the AMWU. Mr Lang indicates in his statement that the AMWU do not support the present Applications, and do not support a workplace determination.

Lucas Dobosz

[85] Mr Dobosz provided a witness statement dated 5 July 2022. 22 Mr Dobosz is employed by Sydney Trains as a Team Leader – Signals in the Engineering and Maintenance Branch located in the Sydney CBD network base. Mr Dobosz outlined in his statement his role in incident response work, maintenance and defect removal within compliance timeframes on the signalling system in the Sydney CBD area. Mr Dobosz explained in his statement that the Signalling System ensures the safe passage of trains on the network, by detecting when there is a train on a section of track and operate signals for trains to ensure they remain at a safe distance from each other and run to timetable. Mr Dobosz is a delegate of the CEPU.

[86] Mr Dobosz stated that at no stage in the bargaining meetings has Sydney Trains raised any adverse financial impacts of the protected industrial action of CEPU members on Sydney Trains or the wider economy.

[87] Mr Dobosz gave evidence that since the protected industrial action began, many “deviations” had been listed on the Sydney Trains Asset Management application “SAP”, in which work orders planned well in advance were cancelled by engineering to reduce workloads. Mr Dobosz stated that none of the deviations affecting the work of his team have been on work that would have been affected by any bans. Mr Dobosz stated that the use of deviations to reduce the workload of the signals maintenance area started during the pandemic, and has continued through the protected industrial action period. Mr Dobosz stated that there is no clear connection between the deviations that have occurred during the protected industrial action period and any protected industrial action in the CBD signals maintenance area.

[88] Mr Dobosz stated that there are 170 jobs subject to deviations for the CBD area between 15 and 19 August 2022, and that he does not consider that this work could be affected by the protected industrial action of the CEPU. Mr Dobosz stated that, had those deviations not been issued, the CBD signalling team would have the capacity to complete the work.

[89] With regards to the safety of work, Mr Dobosz noted in his statement that all work is categorised as safety critical, safety significant, or safety other. Mr Dobosz stated he is not aware of any safety critical works that had not been able to proceed in his area due to protected industrial action. Mr Dobosz states that wherever he has held a concern that work cannot be completed before the last date of compliance, Mr Dobosz had discussions with an engineer regarding what needs to be done, and, in most cases has ensured that CEPU members perform the required work. Mr Dobosz noted that equipment being booked out of order for maintenance does not result in a safety risk, and that at most, access to part of a line for rolling stock may be restricted while the equipment is booked out.

[90] Mr Dobosz gave evidence with regard to each of the categories of bans. With regard to the Sydney Metro Bans, he stated that the bans require work under live overhead wires, and that this work can only progress with a ‘working under live’ permit. Mr Dobosz stated that it is not difficult for Sydney Trains to implement a working under live permit for most works. With regard to the Maintenance Bans, Mr Dobosz gave evidence that all signals maintenance employees may be required to do in relation to contractors is to provide access to the contractor, and that such work can be performed by other Sydney Trains employees not involved in the industrial action. Mr Dobosz stated that signals are occasionally required to provide support including installing bonding to replace rail for non-Sydney Trains civil crews.

[91] Mr Dobosz stated that none of the CEPU bans affect the ability to perform work necessary to correct a significant signals failure, and noted that the ability to perform incident response work in his area in Signals Maintenance has not been affected by the CEPU industrial action.

Toby Warnes

[92] Mr Toby Warnes, Director of Organising of the RTBU, provided three witness statements in these matters, but only two statements dated 5, 23 and 8 July 2022,24 were received into evidence. In his statements, Mr Warnes provided evidence of the protected industrial action taken by the RTBU.

[93] In his witness statement of 5 July 2022, Mr Warnes commented on the economic data provided by Joann Wilkie. Mr Warnes stated that the data provided in Ms Wilkie’s statement does not align with observed fare declines. Mr Warnes stated that the assumption in Ms Wilkie’s statement that 6-8% of people will not work appeared to be invalid given that the same modelling only allows for 2-3% of people not attending work due to taking annual leave. Mr Warnes stated that, assuming that only people who cannot make alternative arrangements will take paid or unpaid leave, one would expect the split would more closely resemble the proportion of casual employees, being 23% according to the ABS.

[94] Mr Warnes stated that lack of spending in the CBD is likely to be balanced by suburban spending. Mr Warnes accepted that workers who went to work on a train will lose 12 minutes, however stated that the 13% productivity gain made by working from home means that every full-time employee working from home would gain 58.5 minutes, thereby offsetting the 12-minute loss. Mr Warnes provided the following alternative costs of the protected industrial action, based on the counter-assumptions previously outlined:

•  If 70,000 train commuters are impacted by the protected industrial action,

•  30% of them will work from home, which, applying the 13% productivity increase, would involve a gain of 21, 000 hours,

•  5% of workers would be on annual leave, thereby not impacting productive hours,

•  2% of workers do not work, resulting in a loss of 10, 500 hours,

•  64% of workers experience a delay of 12 minutes, resulting in 8960 hours lost,

In summary, this would lead to a net outcome of 1540 productive hours gained.

[95] Mr Warnes stated that the RTBU tries to avoid impacts on traveling public, but that all significant rail industrial action has an effect on service delivery, and that sometimes this is the only way the RTBU can ‘make the government listen.’ Mr Warnes stated that any safety risk whatsoever is a “no-go area” for the RTBU, and that safety is the RTBU’s highest priority. Mr Warnes noted that the RTBU had lifted bans whenever Sydney Trains and NSW Trains have made such a request for a legitimate safety reason.

[96] Mr Warnes stated that Sydney Trains and NSW Trains did not raise concerns regarding the safety or economic impact of the rolling stock bans that occurred on and before 14 December 2022 with the RTBU, although there was some media comment. Mr Warnes stated that there was considerable media coverage around the rolling stock ban of 1 July 2022, but that Sydney Trains and NSW Trains did not raise concerns about the impact of the ban on the economy or the health and safety whatsoever. Mr Warnes stated that some decisions of the Applicants have resulted in a further reduction in train services, over and above the impact of RTBU protected actions.

[97] In cross examination, Mr Warnes was asked questions in respect of the offers made by CEPU and RTBU to withdraw certain industrial actions if an offer put by the CEPU was accepted by the Government. Mr Warnes conceded that the terminology of withdrawal of actions referred to in his third witness statement referred in effect to a suspension, and that theoretically the RTBU could cease the suspension of industrial actions. He later confirmed that the RTBU were not going to resume those industrial actions without a new notification to the Government after the conclusion of the suspension period.

[98] Mr Warnes advised the Commission that there were many factors that went into a decision to take industrial action, and that such decisions were made democratically within the union and with member input.

[99] Mr Warnes was asked questions about the industrial actions that were suspended by the RTBU on 7 July 2022, and after some discussion as to the date and form of the notification of any withdrawals, advised the Commission that CEPU industrial actions 5, 6 and 15 had been withdrawn.

Adam Jacka

[100] Mr Jacka is a Senior Industrial Officer at the CEPU, and filed a witness statement on 8 July 2022, 25 in order to update the Commission in respect of the live industrial action. Mr Jacka summarised which of the 27 notified industrial actions are subject to the Applicant’s live orders sought, identifying these as 7, 11, 13, 15, 17, 21, 22, 23 and 27.

[101] In cross examination, Mr Jacka advised that he discussed industrial matters contained within paragraph 12 with Alan Hicks, from the commencement of the Application and as recently as 8 July 2022. Mr Jacka was asked whether the CEPU was contemplating further industrial action, and advised the Commission that he didn’t know because he wasn’t aware, and didn’t know what further action may be taken, but confirmed that it would be possible for there to be more than the 27 notified industrial actions in consideration given the CEPU’s right to take those actions.

[102] Mr Jacka was asked questions about the overlap between the CEPU’s undertaking to provide a 5-day notice period and the suspension period of current action. He advised the Commission that there is theoretically an overlap, but clarified in re-examination that the CEPU had no intention of notifying action in the suspension period.

Consideration

[103] There was no issue between the relevant parties that there were both threats of protected action, and actual protected industrial action being undertaken by the Unions.

[104] Nor was there any challenge to the standing of the Applicants to bring the Applications. The critical issue was whether the Commission could be satisfied that the protected action threatened to endanger the life, the personal safety or health, or the welfare, of the population or of part of it, or threatened to cause significant damage to the Australian economy or an important part of it. If the Commission was satisfied of the existence of such threats, it must make an order suspending or terminating the relevant protected industrial action.

[105] Section 424 of the Act provides:

FWC must suspend or terminate protected industrial action-endangering life etc.

Suspension or termination of protected industrial action

(1) The FWC must make an order suspending or terminating protected industrial action for a proposed enterprise agreement that:

(a) is being engaged in; or

(b) is threatened, impending or probable;

if the FWC is satisfied that the protected industrial action has threatened, is threatening, or would threaten:

(c) to endanger the life, the personal safety or health, or the welfare, of the population or of part of it; or

(d) to cause significant damage to the Australian economy or an important part of it.

(2) The FWC may make the order:

(a) on its own initiative; or

(b) on application by any of the following:

(i) a bargaining representative for the agreement;

(ii) the Minister;

(iia) if the industrial action is being engaged in, or is threatened, impending or probable, in a State that is a referring State as defined in section 30B or 30L--the Minister of the State who has responsibility for workplace relations matters in the State;

(iib) if the industrial action is being engaged in, or is threatened, impending or probable, in a Territory--the Minister of the Territory who has responsibility for workplace relations matters in the Territory;

(iii) a person prescribed by the regulations.

Application must be determined within 5 days

(3) If an application for an order under this section is made, the FWC must, as far as practicable, determine the application within 5 days after it is made.

Interim orders

(4) If the FWC is unable to determine the application within that period, the FWC must, within that period, make an interim order suspending the protected industrial action to which the application relates until the application is determined.

(5) An interim order continues in operation until the application is determined.

[106] In National Tertiary Education Industry Union v University of South Australia, 26 the Full Bench of Fair Work Australia observed:

“[1708] Within the scheme of the Act, the powers in relation to the suspension or termination of protected industrial action are intended to be used in exceptional circumstances and where significant harm is being caused by the action. This is clear from the Explanatory Memorandum to the Fair Work Bill 2008:

“The Bill recognises that employees have a right to take protected industrial action during bargaining. These measures recognise that, while protected industrial action is legitimate during bargaining for an enterprise agreement, there may be cases where the impact of that action on the parties or on third parties is so severe that it is in the public interest, or even potentially the interests of those engaging in the action, that the industrial action cease — at least temporarily.

[1709] It is not intended that these mechanisms be capable of being triggered where the industrial action is merely causing an inconvenience. Nor is it intended that these mechanisms be used generally to prevent legitimate protected industrial action in the course of bargaining.”

[107] In Australian and International Pilots Association v Fair Work Australia, 27 Buchanan J. observed:

“Section 424 empowers FWA to make an order terminating or suspending “protected industrial action” as identified in s 408. Necessarily, that imports a limitation which confines attention to the particular protected industrial action in question. That is because protected industrial action must satisfy s 409, s 410 or s 411, and also the common requirements in s 413. Those requirements include notice of the nature of the action and when the action will commence (s 414(6)). It follows, in my view, that separate consideration must be given to each of the protected industrial actions which is to be terminated or suspended – i.e. each which has been notified. That may not mean that each must be considered in isolation but that is a question for another day.”

[108] The endangerment threat is on the balance of probabilities rather than possibilities, and the protected action would be such as to threaten to endanger, rather than would endanger. 28 The assessment of the threat on the balance of probabilities also involves an issue of the requisite standard of proof.29 In this matter, were the Commission to find just one notified action offended s.424 of the Act, and so must be terminated or suspended, the consequence would be that all notified actions, no matter how innocuous, would lose their protection,30 and all employees and unions, including the AMWU, APESMA, AWU, CFMMEU and ASU would be forced into a Workplace Determination,31 in which at least the AMWU, APESMA and the ASU do not wish to participate. In that circumstance I agree with the submissions of the Unions that I should take care in determining whether or not the elements of the provision are satisfied taking into account the subject matter of the proceeding and the gravity of the matters alleged.

[109] As to the threat to cause significant damage to the Australian economy or an important part of it, when considering a predecessor provision of s.424, the High Court found: 32

“As already explained, the nature of the threat as to which a decision-maker must be satisfied under s 170MW(3) of the Act involves a measure of subjectivity or value judgment. A decision under that sub-section would involve appealable error if, for example, regard was had to irrelevant material, relevant material was disregarded, or, although there was some factual material by reference to which the decision-maker might be satisfied, he or she mistook those facts. If the Full Court intended to suggest otherwise, it was wrong. More to the point, however, is that a decision under s 170MW(3)(b) that industrial action is “threatening … to cause significant damage to the Australian economy or an important part of it” (emphasis added) is not simply a matter of impression or value judgment. The presence of the words “significant” and “important” in s 170MW(3)(b) indicate that the decision-maker must have some basis for his or her satisfaction over and above generalised predictions as to the likely consequences of the industrial action in question. That was the point of the observations of Giudice J with respect to the absence of economic data.”

[110] The Applicants placed significant reliance upon the decision of Hamberger SDP in the matter of Re Sydney Trains, 33 involving as it did effectively the similar parties and industry, where the Senior Deputy President found that the protected industrial action by the relevant unions, in the form of a proposed 24-hour stoppage and overtime bans, either separately or together:34

“threatened to endanger the welfare of a part of the population, including the large number of people in Sydney and surrounding areas who rely on the services provided by Sydney Trains and NSW Trains to get to work, attend school or otherwise go about their business, as well as all those who would have suffered from the increased congestion on the roads that would have been an inevitable consequence of the industrial action”.

[111] The Applicants submitted that same endangerment to welfare exists in the matter at hand. The Applicant also referred to the conclusion of Hamberger SDP in Re Sydney Trains regarding threat of damage to the Australian economy or an important part of it, where he found:

“The evidence was also sufficient to establish that the industrial action would have threatened to cause significant damage to the economy of Sydney – the largest and most economically important city in Australia.

This finding was supported by the NSW Treasury modelling that estimated that the cost to the NSW economy would have been in the order of $90 million. I note that this figure assumed no impact at all on the output of public sector workers, nor on the output of private sector workers who do not usually travel to work by train, even though many of them would have been affected by increased congestion on the roads. It also assumed that the output of the majority of private sector workers who do normally travel by train would have been unaffected. Moreover, the modelling only estimated the cost of the threatened overtime bans until 31 January 2018, even though they were of an indefinite nature. It is quite likely, in my opinion, that the cost to the economy, if the industrial action had gone ahead, would have been significantly more than $90 million modelled by Treasury. Such a loss of output would represent – in absolute terms – significant economic damage”.¹⁸

[112] I do not consider that the above conclusions from Re Sydney Trains assist in the consideration of this matter. The proposed action considered in Re Sydney Trains was a proposed 24-hour stoppage and overtime bans. The bans considered in these proceedings are somewhat more nuanced, involving limitation but not cessation of services, and bans designed to hinder and frustrate Sydney Trains and NSW Trains in the management of their systems.
[113] As Mr Warnes observed succinctly in his evidence, which I accept accurately set out the strategy of the RTBU:

“The strategy is to be agile and respond to changing circumstances. The union needs to balance the need to maximise our impact on the government, so as to best utilise our members’ industrial strength to support their claims, with avoiding both inconvenience to the travelling public or any safety risk.

The latter, i.e. effects on the travelling public, is something we try and avoid as much as possible. This is why the action at the moment is work bans rather than, for example, a rail strike. However, all significant rail industrial action has an effect on service delivery. We try and minimise this, but sometimes action like this is the only way we can make the government listen.

Any safety risk whatsoever is an absolute no-go area for the union. Safety – for the travelling public and for workers – is the union’s highest priority. As such, whenever Sydney Trains or NSW Trains have asked us to lift a ban for a legitimate safety reason, we have done so (see e.g. the response to transpositions discussed in my previous statement). We are always willing to talk about real safety concerns.”

(a) Concessions/Undertakings, and Whether Action is Threatened

[114] One issue squarely raised in the proceedings was the concessions and undertakings made by the Unions, and whether those actions the subject of the concessions/undertakings were still threatened. It was put by the Applicants that the concessions/undertakings were mere “window dressing”, and that as soon as the Applications were determined, the Unions would reimpose the retracted bans, and possibly more bans.

[115] I reject the above submission. It was based substantially upon questioning of Mr Warnes and Mr Jacka about the future intentions of their respective unions regarding future possible actions. Neither Mr Warnes nor Mr Jacka could give any solid indication of the future possible action, however I accept that was solely because such decisions, made by groups rather than individuals, had not been made. Both Mr Warnes and Mr Jacka were clear, responsive and open in their answers, and any criticism of their evidence was without foundation.

[116] For the Applicants’ submission to have any weight, it would be necessary for any reimposed bans to offend s.424 of the Act, which I have found below would not be the case.

[117] It should also be noted that both of the timeframes included in the undertakings provided by the Unions, particularly the RTBU, would provide the Applicants with ample time to approach the Commission and seek relief pursuant to s.424 of the Act within the five day period specified for determination of such application.

(b) The Applicants’ Economic Evidence

[118] I accept that in the timeframe available for these Applications, detailed evidence may not be able to be marshalled, 35 however, I have difficulty in accepting the accuracy, expressed in the broadest sense, and acceptability of the economic evidence relied upon by the Applicants.

[119] The Applicants relied on the evidence of Ms Wilkie, Mr Lawson and Mr Burton/Mr Bugeja. As noted below, Mr Lawson presented only estimates regarding the Sydney Metro Bans, with no supporting calculations. The evidence of Mr Burton/Mr Bugeja suffered from the fact that the person who gave evidence, Mr Bugeja, simply accepted Mr Burton’s unexplained calculations without doing the calculations himself.

[120] Nonetheless, the key economic witness for the Applicants was Ms Wilkie, the Deputy Secretary of Economic Strategy and Productivity within the NSW Treasury. Overall, I consider I cannot safely rely on Ms Wilkie’s evidence because:

(a) Many of the assumptions upon which she relied were difficult to understand or inexplicable;

(b) Her explanations for the preference of some assumptions over others were unable to be understood;

(c) Ms Wilkie’s explanation that there were lots of ‘ins’ and ‘outs’ which were not taken into account without robust data to quantify their impact, but that they ‘evened out’ in the overall assessment, was less than convincing; and

(d) In response to calls for documents, different documents to those that were before Ms Wilkie were produced, resulting in the Respondents being unable to properly test the evidence.

[121] I could not confidently place any reliance on the economic evidence of the Applicants.

(c) Sydney Metro Bans

[122] I will consider the case regarding the Sydney Metro Bans unamended by the concessions/undertakings by the Unions. The challenge to the Sydney Metro Bans relates to economic harm only. The effect of the Sydney Metro Bans is said by the Applicants to be preventing and/or impeding the construction of the new Sydney Metro which is Australia’s biggest public transport project. Since October 2021 access to sites has been hindered by the Unions refusing to ensure electrical isolation and/or de-energisation of areas. The Sydney Metro Bans affect “possessions” on rail corridors for which applications must be made and approved 14 weeks in advance. For longer periods (such as school holiday periods), the application for possession must be made 26 weeks in advance. If work cannot be undertaken for the period of a possession due to the Sydney Metro Bans, the possession itself will typically go ahead as scheduled, as Sydney Trains is unable to reschedule drivers and train services at short notice.

[123] The current possession is for the July school holidays (for the period 2 July 2022 to 15 July 2022). If not utilised, and the time is lost, the consequences would involve significant losses including:

(a) loss of productive work hours – in the order of 160,000 hours;

(b) loss of costs associated for plant, materials;

(c) claims from contractors for prolongation and other costs associated with the cancellations;

(d) payments for alternative accommodation for residents who would have been affected by the constructions works, such payments and arrangements needing to be made again when the work goes ahead;

(e) payments for notification and community liaison that will have to be done again; and

(f) the flow-on costs from the delay in finalisation include the loss of future revenue and the reduction in the profitability of the project.

[124] While the Applicants claim that the Sydney Metro Bans have resulted in costs amounting to approximately $54 million, and if the Sydney Metro Bans continue, projected additional costs range between $250 million to $1.5 billion, depending on when the protected industrial actions cease, I note that the figures regarding future loss are all described as “estimates,” without any calculations as to how those estimates were arrived at. While it is accepted that in the timeframe available for these Applications detailed evidence may not be able to be marshalled, 36 I do not find on there is any basis for satisfaction of threatened significant damage to the NSW economy other than generalised predictions, and even those predictions, while large figures, would not cause “significant damage” to an economy of half a trillion dollars.

[125] Even absent consideration of the concessions/undertakings by the Unions, I do not consider that the threat of damage to the NSW economy could extend past July 2022. After the 2 to 15 July 2022 possession, there is no scheduled possession until the weekend of 30/31 July 2022, and no possession longer than a weekend thereafter until 3 to 9 October 2022. Whatever damage after 31 July 2022 which is asserted, and which is only expressed as estimates, cannot be expressed as currently threatened.

[126] Further, and stepping back to consideration of the concessions/undertakings by the Unions, even the figures relied upon by the Applicants for July 2022, do not take into account the fact that since 7 July 2002, those bans are actually lifted and work is now occurring, and the losses identified above are being ameliorated.

(d) Rolling Stock Bans

[127] The Respondents had engaged in actions directed to banning the use of A sets, B sets, Oscars and/or Millennium trains on the network, though the ban set to apply to on Millennium and B Set Trains from 6 July 2022, was lifted on 5 July 2022, and confirmed by the undertaking of the CEPU.

[128] Of more significant moment is the fact that the bans also lapsed in accordance with their terms on 8 July 2022. In that circumstance I cannot find that the Rolling Stock Bans are engaged in or threatened, and so s.424 is not enlivened.

[129] But even were I to have found that the Rolling Stock Bans are engaged in or threatened, there was a complete absence of reliable evidence, as opposed to assertion, to establish either a risk to safety, health or welfare, or the requisite economic impact.

(e) The Transposition Ban

[130] Transpositions are used on a daily basis for a range of purposes including recovering delays for late running services, enabling the repositioning of the fleet for balance, maintenance and cleaning, altering service routes and patterns to support incident response and recovery, and diverting services around line closures. The Transposition Ban limits the ability to recover from incidents resulting in overcrowding and delays, interrupts the timely throughput of freight at destinations including coal mines and ports, and limits the capacity to redirect the fleet for cleaning or maintenance activities.

[131] The Transposition Ban was lifted due to a severe weather event commencing 4 July 2022, and now is subject to the RTBU undertaking. That lifting was consistent with previous agreements and conduct lifting previous transposition bans at times when such bans applied.

[132] Far from constituting a safety, health or welfare risk, I find that if any such risk were perceived that the RTBU would, in accordance with their agreement with the Applicants and previous practice, likely suspend any Transposition Ban.

(f) The Maintenance Ban

[133] The Maintenance Bans prohibit the safe closure of portions of track to undertake significant maintenance tasks such as corrective maintenance, as well as other activities which foul the adjacent line. As a result, maintenance activities need to be rescheduled and if inspections are missed, assets may need to be booked out of use to ensure safety.

[134] Only one of the two bans (RTBU Ban 4) was operative at the time the RTBU undertaking was given. The only evidence regarding the Maintenance Bans was the problematic cost impacts contained in Mr Burton’s statement which was ‘adopted’, without independent calculation by Mr Bugeja. Even were such evidence to be given weight, it would fall well short of the necessary standard of proof.

(g) The Cleaning Bans

[135] The Cleaning Bans involve bans on cleaning of liquids, urine, vomit, drug paraphernalia or hazardous waste from trains, train platforms, lifts, escalators or other areas, which the Applicant says endangers the personal safety, health or welfare of commuters, and can result in unavailability of assets that are necessarily taken out of service due to their condition.

[136] The Cleaning Bans were modified by the RTBU on 6 and 7 July 2022, with the effect that RTBU members will clean crew cab windows at any time, clean lifts and a disabled toilet (or other toilet if there is no disabled toilet) on each station at all times, clean hazardous waste in lifts and a disabled toilet at all times, clean any hazardous waste on each Sunday and Wednesday, and Station Staff or Cleaners will work away from their home station/depot.

[137] At first blush, the descriptions of the alleged risks to health, safety and welfare arising from the Cleaning Bans as originally notified had some superficial attraction. It was not difficult to perceive at least conceptually the risks asserted. However, no such finding of probable risk to the health, safety and welfare of even part of the population can be made to the requisite standard because;

(a) There is a complete lack of evidence of the actual hazardous environmental factors and states said to arise from the Cleaning Bans that are said to cause the asserted risks. While unsavoury, in an age where almost every member of the population carries a camera, this is all the more remarkable; and

(b) The RTBU, consistent with their stated focus on safety as its highest priority, took steps, independent from any urging by the Applicants, to ameliorate possible risks arising from their notified protected action. Those actions were substantial steps to addressing any perceived risks.

[138] The Cleaning Bans did not appear to eventually be put on an economic basis of damage to the economy, and there was little evidence of trains being unavailable due to the Cleaning Ban.

Conclusion

[139]  I find that no part of the protected action of the Unions (either individually or together), or the totality of the protected action of the Unions (either individually or together), that is challenged in the Applications has threatened, is threatening, or would threaten to endanger the life, the personal safety or health, or the welfare, of the population or of part of it, or cause significant damage to the Australian economy or an important part of it.

[140] The Applications are dismissed.

DEPUTY PRESIDENT

Appearances:

Ms K Nomchong SC and Mr H Pararajasingham, for the Applicants.
Ms L Saunders, for the Respondents.

Hearing details:

2022.
7 – 8 July.
Sydney.

Printed by authority of the Commonwealth Government Printer

<PR743416>

ANNEXURE A

 1   [2022] FWC 1724.

 2   Exhibit A1.

 3   Exhibit A2.

 4   Exhibit A3.

 5   Exhibit A4.

 6   Exhibit A5.

 7   Exhibit A6.

 8   Exhibit A8.

 9   Exhibit A7.

 10   Exhibit A9.

 11   Exhibit R3.

 12   Exhibit A10.

 13   Exhibit R5.

 14   Exhibit R8.

 15   Exhibit R9.

 16   Exhibit R10.

 17   Exhibit R11.

 18   Exhibit R12.

 19   Exhibit R13.

 20   Exhibit R14.

 21   Exhibit R15.

 22   Exhibit R16.

 23   Exhibit R17.

 24   Exhibit R18.

 25   Exhibit R19.

 26   (2010) 194 IR 30 at [8].

 27   [2012] FCAFC 65 at [128].

 28   Ambulance Victoria v Liquor, Hospitality and Miscellaneous Union (2009) 187 IR 119, at [29].

 29   Briginshaw v Briginshaw (1938) 60 CLR 336; Evidence Act 1995 s.140.

 30   S.413(7) of the Act.

 31   S.266 of the Act.

 32   Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [28].

 33   (2018) 277 IR 389.

 34   Ibid at [44].

 35   Svitzer Australia Pty Ltd v The Australian Maritime Officers’ Union [2022] FWC 493 at [66].

 36   Svitzer Australia Pty Ltd v The Australian Maritime Officers’ Union [2022] FWC 493 at [66].