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Fair Work Act 2009                                                    






s.229 - Application for a bargaining order


Application by Australian Municipal, Administrative, Clerical and Services Union (052V) & Australian Rail, Tram and Bus Industry Union (139V) (215V) and Others





10.00 AM, FRIDAY, 9 SEPTEMBER 2022


THE DEPUTY PRESIDENT:  I note the continued appearances from Tuesday.


MR TAYLOR:  One appearance has changed, if it please.




MR TAYLOR:  That is that Mr Fieger and I, and now Ms Rowe in lieu of Ms Pasfield, seek additional leave to appear for a further party.  The Australian Workers Union is another bargaining representative, not an applicant, but we have instructions to also appear for them.


THE DEPUTY PRESIDENT:  Does anyone wish to be heard in relation to that?


MR DIXON:  If the Commission pleases, may I raise a matter as a preliminary matter?


MR REITANO:  Just before Mr Dixon does that, could I indicate Mr Jacka is at the bar table.  It's essentially to do with power points; as in electricity, not other power.


THE DEPUTY PRESIDENT:  Yes.  Thank you.  There is no issue in relation to the AWU?  No?


MR DIXON:  I didn't hear that.  Is it okay for me to go ahead?


MR TAYLOR:  He just wants you to rule on my application for leave.


MR DIXON:  We have no objection.


THE DEPUTY PRESIDENT:  Okay, thank you, Mr Dixon.


MR DIXON:  If the Commission pleases, we wish to raise the question of conciliation which might take place with the assistance of the Commission.  Deputy President, as you will recall, this issue has been raised on two occasions by our learned friends all on behalf of the clients that our learned friends appear.  On the last occasion the unions raised it again, when we were before you on Tuesday, and I indicated that my clients would take on board that request and also the urging of the Commission that serious consideration – and I'm summarising – should be given to such a course.  In a sense we took it that the provision was urging the parties to consider that matter seriously, which has happened.


We received instructions this morning and I regret that it was only a very short time ago.  To the extent that it causes inconvenience to our opponents, I obviously apologise, but it takes some time.  We received instructions this morning to advise the Commission that our clients wished to proceed into conciliation and to do so starting today, and using the time that has been set aside to do so; to use the days effectively with a view to addressing issues instead to going to a hearing and then dealing with them at a later stage if necessary.


Our clients do so on the basis that it should provide an opportunity where there can be one last chance and attempt to reach an agreed outcome which resolves an industrial dispute that is obviously impacting very significantly on the public of New South Wales.  The parties are here today and, in our respectful submission, there should be no barrier to the commencement of such a course.  Obviously the way in which the manner it would work out would be a matter that the Commission would no doubt do at the very first opportunity in the start of a conciliation.


May I just point to a couple of matters.  The first is that your Honour would have appreciated that in the draft orders that the union seek the first order is that:


Until further order, Trains will not begin an access period in relation to any proposed agreement –


and there has been an undertaken given to that effect.  That is tied in the submissions by the unions to paragraph number 5:


Until further order, the Trains bargaining team will meet with the unions to bargain in relation to the enterprise agreement for four hours on each Tuesday and Thursday.


Now, there has to be a practical consideration of our proposal.  If at the end of the day that we have spent two hearing days and the Commission must write a judgment, and the Commission makes an order to that effect, then we would have spent two hearing days and the Commission's time in arguing about what the parties are prepared to do under the auspices of the Commission starting today.


It seems to us to be contrary to the public interest and the utilisation of resources to wait for a hearing for two days, and then for the Commission to make any order that the parties should bargain when we can use the two days effectively and effectively achieve what ultimately the Commission may order, contrary to our objection, at the end of the day.  I'm elaborating on this because I have a perception that there is some resistance to the course that we're proposing.


Can I also add this in support of the application:  there is clearly an advantage of having the start of this process today and another day later next week.  It means that there can be some serious discussions taking place today, negotiations under the auspices of the Commission.  The Commission will no doubt require the parties to identify precisely what is at issue and what their position is.


There will be a break over the period where consultation can take place between the respective parties and those to whom they have to consult.  In the case of our clients there is clearly a need for consultation with the government and, in the case of our learned friends' clients, with some of the delegates who are part of the negotiating team.  We will do and utilise the time following the requests made and the urging of the Commission, and we do so on the basis that our consent would be for the utilisation of conciliation between now and the 14th.


If necessary we would rely also – and I don't know if this is necessary, but rely on section 240 and I would make an oral application under section 240 that the Commission assists the parties dealing with the bargaining dispute, and there can be no doubt that the case is put to you that there is still a bargaining dispute.  Those are our submissions and we would then request that the matter now be adjourned into conference to discuss firstly the process and the utilisation of those dates, if the Commission pleases.


THE DEPUTY PRESIDENT:  Has this been raised with the applicants and the CEPU?


MR DIXON:  I called my learned friend Mr Taylor within minutes of my getting instructions earlier this morning.  I was not in a position to call Mr Reitano.  I have apologised to Mr Reitano that I was not able to call him, but I understood that he has been in discussions and he understands the position.  If I am wrong, he will – I have not had a chance to discuss matters with my learned friend Mr Reitano, but certainly there has been some feedback to me from Mr Taylor and that's why I have elaborated more than I might otherwise have done.


THE DEPUTY PRESIDENT:  Well, it takes two to Tango.  What is the position of the applicants?


MR TAYLOR:  The position of the applicants in a nutshell is that they are very keen to conciliate, but not in a way that jeopardises the hearing dates that we have.  We are prepared to commence today.  What Mr Dixon said very eloquently about the use that could be used of these hearing dates was precisely what Mr Fieger told your Honour on Friday when the unions offered such an approach.  This is last Friday.  The Commission is well aware that we wrote again last Sunday offering conciliation, copying the Commission in.


The response from the employers was, 'Please tell us what you want to negotiate about.'  We did that at 8 am on Monday in circumstances where the matter was set down for Tuesday.  We were told in short terms that such a list did not suggest to the employers that conciliation could assist.  Then on Tuesday, of course, the employers made a successful adjournment application on the basis that the matter be set down today.  We indicated our willingness to conciliate in circumstances where we anticipated Wednesday and Thursday could be used for that purpose.


Mr Dixon is quite right that he only got instructions about an hour ago.  In fairness to him, he said he called me within minutes; I think the truth of the matter is he called me whilst he was getting those instructions about an hour ago.  So, we are prepared to conciliate.  We think that the potential to do that might be next Monday and Tuesday if the Commission is available.  Inevitably the parties could have some sideline discussions today about how that might work, who might be there, who is going to be in the room.


Certainly from our client's perspective such conciliation is critically important that Trains have decision‑makers either in the room or available in circumstance where, as the evidence will demonstrate, all key bargaining issues have by Trains consistently been left to government or government ministers to make decisions about.  We think we can have some useful discussions on the sideline about those matters.


The last thing I just want to note, our client sought from Mr Dixon's clients agreement to release delegates so that they could be here.  These are the very delegates that Mr Dixon identified with me to be part of bargaining and that was refused, so we're not in a position in any event to have the right people here, but we think in circumstances where these matters have been set down and now we're ready to proceed today, that we should proceed today.  We can open our case, we can call Mr Warnes who is our sole witness and tender materials.  We can at least deal with so much of that part of the case today.


If the Commission is available, then we can certainly also identify the potential for conciliation on Monday and Tuesday next week.  Given the Commission's availability and indeed from discussions between counsel about counsel availability, if we lose these hearing dates there is a risk that there could be a considerable delay.


THE DEPUTY PRESIDENT:  I can tell you my availability on Monday and Tuesday is extremely limited.


MR TAYLOR:  Yes, and it may well be that another member of the Commission could be made available if that were possible.  It may be that the parties could simply have discussions without the benefit of the Commission, although certainly my instructions are that there is benefit in a Commission member being involved.  Let me be absolutely clear, we are very happy to have discussions with Trains to try and resolve the bargaining dispute, but just not ones that are going to be raised an hour before a hearing which would have the effect of adjourning the hearing, if it please.


THE DEPUTY PRESIDENT:  Mr Reitano, do you wish to be heard?


MR REITANO:  There's nothing useful I could add.  I generally adopt the submissions of the other applicants.




MR DIXON:  your Honour, our learned friends suggest that there should be discussions on the sidelines.  (1) they say, yes, they want to conciliate; (2) there should be discussions on the sidelines.  Instead of utilising the time for discussions on the sidelines, it would be our proposal that given their preparedness it would be preferable and in the interests of the overall management of a conciliation process that instead of being on the record today dealing with matters that may be completely resolved - the subject matter of this application may be completely resolved by the discussions that take place under the Commission auspices.


In my respectful submission, what Mr Reitano has outlined that there should be discussions on the sideline, there is a much preferable course to be followed and one which will enhance and facilitate conciliation that they're agreeing to if instead of a hearing we move into conciliation, the Commission uses the time – because obviously there is going to be some time to set the parameters and how it's going to work.


THE DEPUTY PRESIDENT:  You referred me to a section of the Act whereby there might be some compulsion.  Well, you didn't use the word 'compulsion', but how can I compel a party to conciliate if they - - -


MR DIXON:  You can't compel a party to conciliate, but if there is an application under section 240 for the Commission to deal with a matter of dispute - - -




MR DIXON:  240.




MR DIXON:  Yes - the commission could call upon the matter for conciliation or do deal with a dispute and the Commission has powers, other than the arbitration powers, to deal with a dispute.  The Commission can get the parties to outline their positions in relation to the dispute.  They don't have to make concessions necessarily, but that is a facility that is often used in these types of cases where on whatever view one takes there seems to be a dispute about certain matters.


It makes no sense at all, in my respectful submission, to go into a hearing when we could utilise the time efficiently and effectively to get the process underway.  The Commission could make some directions and issue some instructions during the process.  We have consent to conciliation, but it just needs to be put out to a later date and we should be using the time, so my learned friends say, for a one‑day opening and then utilise the time next week.


In our respectful submission, the Commission is in an ideal position to assist the parties with those two days that you have available at inconvenience to the Commission, and we appreciated that, and there can be directions issued to the parties as to what they should do between the dates.  There can be reports backs during the dates, all of which could facilitate the outcome.  It beggars belief that the parties would come to the Commission and say, 'We want conciliation.  We want to resolve this issue urgently.'  They invite our clients to consent.  We consent – the Commission urges us to consent - - -


THE DEPUTY PRESIDENT:  I don't think that's a very accurate recollection of history.  The initial response from the respondents was no - - -


MR DIXON:  It was.


THE DEPUTY PRESIDENT:  - - - on more than one occasion and now we are at the commencement of the hearing.  There is a suggestion that - in light of the fact that I can't compel anyone and we don't have the consent of all bargaining representatives to deal with a conciliation, that's quite clear - - -


MR DIXON:  I am not trying to rewrite history in that sense.  What I'm trying to urge upon the Commission is that the Commission has the power to adjourn proceedings.  Where parties have agreed to conciliate, the Commission has the power to adjourn a proceeding so that conciliation can take place.  We have given undertakings which have taken out the urgency of the matter.


The unions seek particular orders, one in five that I've identified, which can be completely satisfied, in my respectful submission, by the process that I've outlined.  In those circumstances we would urge upon the Commission to assist the parties.  They all want the assistance now.  It has taken time – to assist the parties to see whether the serious dispute can't be resolved and to commence doing so now.


THE DEPUTY PRESIDENT:  Nothing further?  Sorry, I didn't mean to cut you off.  Anything further?


MR DIXON:  No, thank you.


THE DEPUTY PRESIDENT:  Okay.  Well, I note the submissions of the respondents.  The application for an adjournment is refused.  The basis of that is that this matter has some urgency to it.  It has been prepared for hearing, commencing at 10 am today.  That does not preclude conciliation occurring at other times and I can note that I have been updated on my timetable.  I would have at least three hours available on Monday, whereas previously I had one hour, so there can be conciliation occurring but I think it's necessary and required that the proceedings commence.


MR DIXON:  If your Honour pleases, can I understand from your Honour that – I would obviously need instructions.  We would need instructions about the consequence of your Honour's ruling, but if the conciliation is going to be taken up on that basis, would the Commission have specific times on Monday?


THE DEPUTY PRESIDENT:  Well, I do and I'll need to be advised exactly what those times are.


MR DIXON:  So if the Commission could make available a specific time on Monday - - -


THE DEPUTY PRESIDENT:  Might I suggest that it might be better if a different member of the Commission conciliated the matter, just in light of - - -




THE DEPUTY PRESIDENT:  - - - the fact that due to my ruling I'll be dealing with the evidence and making the usual observations, and questions on the way through.  It might be a lot cleaner for a separate member of the Commission, if we can find one, to deal with the conciliation.


MR DIXON:  Could inquiries be made?




MR DIXON:  I don't want to impose on anyone to that effect, if the Commission pleases.


THE DEPUTY PRESIDENT:  We'll be making those inquiries as we speak.  Mr Taylor, do you wish to be heard in relation to the identity of the conciliator?


MR TAYLOR:  No, entirely not.  The last thing I would be doing is that.  It's a matter for the Commission, of course.








MR TAYLOR:  Sorry, I was just checking with my friend.  I wasn't quite clear whether he was foreshadowing needing to get instructions now or at some future time, but I understand there is no issue with me being able to now commence to open our case.


MR DIXON:  I may wish to make a special application which was foreshadowed in our written submissions.  It would be reasons why the Commission should not proceed to hear the matter.  Would you allow me five minutes' adjournment just to get instructions on that point?




MR DIXON:  If the Commission pleases.


THE DEPUTY PRESIDENT:  We will adjourn until 10.40.

SHORT ADJOURNMENT                                                                   [10.32 AM]

RESUMED                                                                                             [10.41 AM]


THE DEPUTY PRESIDENT:  Mr Dixon, over to you.


MR DIXON:  If the Commission pleases.  May we raise as a threshold issue the matter foreshadowed in our written submissions and mainly the fact that the Commission should not be considering the application because of noncompliance with section 229(4) of the Act.  You would be familiar with these provisions, your Honour.  Section 229(4) requires a bargaining representative to raise a concern that one or more of the bargaining representatives for the agreement have not met or not meeting good faith bargaining requirements.


Subparagraph (b) has given a written notice setting out those concerns to the relevant bargaining representatives and you will see that that is a precondition to the making of an application.  A bargaining representative may only apply for an order if those preconditions are met.


THE DEPUTY PRESIDENT:  Subject to subsection (5).


MR DIXON:  Subject to (5).  I'm coming to that.  Yes, of course.


MR REITANO:  Could I again interrupt?  I apologise to Mr Dixon, but I understand there is a problem with the audio on the Teams feed.


THE DEPUTY PRESIDENT:  Thank you.  As I noted on Tuesday, it's not unusual in this particular hearing room.  If you would please just pause for one minute.  There is just a re‑start.


MR DIXON:  I can repeat this, but the relevant letter is at 168‑169 of the DB1 document.


THE DEPUTY PRESIDENT:  Mr Dixon, I think we're back on the record.


MR DIXON:  During the break I did make reference to a page of a document that I was going to come to, but I'll come to that in a moment.  Your Honour, I was submitting that under section 229(4) the prerequisite is not a question of satisfaction, it's not a discretionary issue, it's a prerequisite that written notice has been given to the relevant bargaining representative.  As I indicated earlier, I will come to deal with subsection (5) in a moment.


The unions rely in their application on what appears to be this letter.  You will see from the application in 2.1.1 in answer to the specific question:


Notice of some but not all of the applicants' concerns was given on 9 August 2022 -


so this is 9 August 2022 and the letter of 9 August 2022, which is in the bundle which I assume will be tendered, DB1, is addressed to the Honourable Dominic Perrottet MP, Premier of New South Wales.  It is also copied for the attention of the Transport Minister, Mr David Elliott.  You will see from the last paragraph of that letter that the author of the letter, Mr Costa, who appears to be writing on behalf of the union, says in the last paragraph the unions seek to seek a resolution or attention to their concerns to be dealt with by the Transport Minister, Mr Elliott, on 9 August 2022 and they look forward to some issues to come to a sensible solution on that meeting.


This was not a letter that called upon a response which one would expect a letter under section 229(4) would require.  It's stating the obvious to say that neither the Premier nor Minister Elliott are bargaining representatives for the respondents.  The contents of the letter itself is concerned with conduct essentially or primarily of the government.  You will see in paragraph 8:


This conduct continues a concerning trend of the New South Wales government.


That paragraph alleges that the New South Wales government is reneging on agreed improvements.  There is reference in paragraph 9 to the Fair Work Act and paragraph 10 says:


If this is the way that the New South Wales government wishes to bargain –


et cetera.  If you look at the paragraph, the reneging allegations are dealt with in paragraph 17 and following.  Under the heading 'Not good faith bargaining, lack consistency, accountability and honesty', this takes you to paragraph 25:


The CRU is deeply disappointed in the way in which the New South Wales government and plus the representatives have chosen to bargain –


but what is in paragraph 226 is:


A trend of reneging and walking back on a large number of claims is frustrating union members, but their address is being sought in relation to the resolution of those matters as sought in relation to dealings with Minister Elliott as is set out in paragraph 28 on 9 August.


Reliance on that letter as a matter of concern must take into account the fact that there were extensive steps taken after that letter was written and one will see, for example, if you turn to page 174 of the bundle – which I assume will be tendered – is that on 15 August the Chief Executive of Sydney Trains and the Acting Chief Executive of New South Wales TrainLink wrote to Mr Costa referring to the current enterprise bargaining agreements and refers to an attachment:


Attached table provides detail of the Rail Agency's position on each of the outstanding issues, issues which were apparently complained of about reneging –


which is not accepted.  If you then look at what follows on pages 175 and following, each of the clauses that was the subject of complaint is addressed.  Now, the document at 175 is not - - -


THE DEPUTY PRESIDENT:  Sorry, Mr Dixon.  If the parties following on Teams could please mute their microphones.  Please continue, Mr Dixon.


MR DIXON:  Deputy President, the document that follows at 175 is not the precise document that was sent by the authors on 15 August.  It is a document which attaches the discussions that occurred between the parties on 16 August, so what is on the left is what was provided to the unions and you will see that it's in detail.  It details 20 particular items and it deals with what the meeting was on 16 August 2022.  Those discussions continued on the 24th and they continued to 29, 30 and 31 August.


If you go to the same bundle, at 251, your Honour will see that there were discussions recorded here in an email to a number of participants in the bargaining which clarified - 'Draft updated', so you had a number of issues discussed and agreed upon.  The note says:


We will run through these drafts together at the meeting –


on the following day.  At page 250 you will see that there were further discussions and they are set out there in lists of matters that have been updated, which include, 'Following revised discussions agreed today', and a document is provided in relation to the mark‑up.  On 31 August, you will see another email updating the issue even further, dealing with the amendments made on the 29th – well, there is a reference to the amendments on 29, 30 and 31 August, then set out at 31.


A great deal moves on, but there is no concern expressed at all in a formal sense to the bargaining representatives complying with 229(4) as at the date of the application, taking into account everything that has happened between 9 August when there is a letter addressed to the Premier and the filing of the application.  The questions which then arise so that your Honour could be completely satisfied, in our respectful submission, that there has been no compliance with section 229(4) - the question then is under section 229(5) as to whether the Commission should, notwithstanding the noncompliance, be satisfied that it is appropriate in all the circumstances to do so.


Now, section 229(4)(b) and (c) has a clear purpose to it.  It allows the bargaining representatives to have the most intimate knowledge of precisely what has happened, what has been said, by whom and what has been disclosed and an opportunity with reasonable time to respond.  The bargaining representatives are entitled to even remedy the complaint that has been legitimately brought to their attention.


The section proceeds on the basis that an application may not be made unless those requirements are met and in deciding whether it is appropriate to consider – you will see in subsection (5) the Commission 'may consider the application.'  It's clearly a precondition to the matter proceeding.  The Commission must be 'satisfied that it is appropriate in all the circumstances', but the appropriateness must be informed by the rights that the parties have to remedy the matter in relation to specific complaints at a specific point in time.


Now, it's no good pointing to a letter of 9 August directed to the Premier in order to get into the gateway when events have overtaken that and, in relation to the events that have overtaken, the bargaining representatives have not been given an opportunity prior to the making of an application to deal with the concerns legitimately made.  Of course the concerns can't just be an allegation of concerns, there has got to be a valid basis for it.  In our respectful submission, the statute proceeds on the basis that the parties should be given that opportunity before any matter is considered.


In this case there is no reliance in the letters of concern of anything that happens after 9 August and, in our respectful submission, the Commission should not deprive the relevant bargaining representatives of the opportunity of remedying the issue which is legitimately raised by them before an application is made.  The Act does not operate on the basis that an application should be the means by which the parties respond to correspondence that hasn't been sent to them.


In my respectful submission, it is not appropriate in all the circumstances to do so, to consider the application.  The matter does not have to proceed on to a hearing.  The unions have got the ability to write a letter of concern specifying at this point – at this point – the particular issue of concern and allowing the respondents, the bargaining representatives, to respond to the particular concern and to allow the respondents an opportunity to deal with the particular concern which is not afforded to them.


The proceedings are not intended under the Act to be the means by which that is achieved, so in our respectful submission the Commission should not proceed to consider the application.




MR TAYLOR:  We can deal with this very shortly.  The very existence of subsection (5) of section 299 means this is not a threshold issue.  It just isn't.  Ultimately even if my clients had not expressed concerns that would meet the requirements of subsection (4) which – and I'll come to in a moment – they have, the Commission may nevertheless consider the application and it could only do so on the basis of actually hearing the evidence and submissions.


This is just not a threshold issue on any view and that is all the more the case – we don't even have to establish a prima facie case, but on the very face of the application there is a very strong case that the Commission would exercise a discretion pursuant to subsection (5) of section 229 in circumstances where the primary conduct identified in the application which is complained of is conduct which occurred that day.


There will be evidence that there were complaints made immediately by union officials in meetings about that conduct, orally, and that the response from Trains was, in effect, to throw their hands up and say 'Nothing we can do about it.'  An application was then immediately filed.  In those circumstances the notion this is somehow a threshold issue is just laughable.


Can I also indicate that it seems to ignore the fact that we have filed evidence which identifies a series of expressions of concern and the Commission I think is aware of our reply submissions where there is a series of communications which express concerns.  These are all expressions of concern in respect of the second limb of our case; namely, what we describe as approbation and reprobation, what the Act might describe as capricious conduct, the approach that Trains took of continually changing its position.


As recently as 19 August, the unions complained yet again about the fact that Trains were changing their position having previously negotiated certain terms, so there are plenty of expressions of concern.  There is an absence, with great respect, from Trains in actually engaging with those concerns and their evidence would suggest that the best they can say is they can't be asked to excuse the conduct of those above them who direct them as to what they do.  That, we will ultimately submit to the Commission, is in fact no excuse for a bargaining agent.  This application should be seen for it is.  It's a delaying tactic.  This is effectively the third time Mr Dixon is seeking to have the course of the case adjourned or put off on some different basis.


Can I just say a couple more things in response to matters of detail.  Firstly, with great respect, subsection (4) of section 229 does not require that the letter require a response.  Secondly, the allegation that Ministers are not bargaining agents, it's true that the Trains entities are the bargaining agents, but the evidence that we will lead before this Commission will identify that in respect of key issues those employed by Trains would indicate that those were issues that would have to be discussed with Ministers and they would then arrange those meetings.  They would set an agenda for those meetings and they would then, following a decision by a Minister, then implement them.  The Ministers, we will say, were clearly at all relevant times making decisions and therefore were decision‑makers on behalf of the bargaining agents.


There is some suggestion I think in Mr Dixon's submission that the only letter which he referred to – the one of 9 August to the Premier – was written to the wrong person as if that in some way means that those concerns did not come to the attention of his client.  The Commission will be unsurprised to know that it did and our source for that is no other than their own witness Ms Streimer, who says at paragraph 99 of her statement – which is to be tendered - that that letter did come to her attention.


For whatever reason, Trains have decided not to put on any evidence in response to the bundle of material which is DB3, whereas all the other expressions of concern have been identified.  That's a matter for them, but they can then hardly stand up and say, 'There was only one letter', when clearly there was not.  We urge you to allow us to now proceed to open our case.




MR REITANO:  I don't wish to add too much.  I just want to make three quick points.  The overriding or the main complaint - it comes as number 1 in the list of three in the applicant's submissions – is the pre‑emptory termination of bargaining with the threat to go to ballot and potentially to terminate the existing agreements.  It is hardly surprising in the context that it hasn't been raised or wasn't raised at the time because there was a need to prevent - in order to preserve the bargaining and the good faith bargaining, there was a need to take urgent action to bring the matter before the Commission as was ultimately what happened.


It's a little bit extraordinary in contextual – and it's the second point I want to raise in the light of paragraph 5 of the respondent's outline of submissions that it maintains that despite the fact that it has walked away from the bargaining table and heading off to hand out ballot papers to its employees, that nonetheless it maintains that it's currently meeting the good faith bargaining obligations.  Nonetheless, that will be something that will loom large in the case.  Conceptually it's difficult to conceive how you can be bargaining in good faith or bad faith if there is no bargaining, but that appears to be their case.


The third matter that's important - it's the matter that Mr Taylor raised that I just want to underscore - is that the test in subsection (5) is appropriate in all the circumstances.  Obviously one circumstance in this case is the one that I identified in point 1, the pre-emptory termination of matters.  Other circumstances that no doubt will arise – for example, in relation to the letter that Mr Dixon and Mr Taylor have been discussing – is the fact that that letter was copied to the Minister for Transport.  As Mr Taylor has pointed out, it came to relevant people in Trains' operations attention.


The matter that hasn't presently loomed in the proceedings is of course that the Minister has control and direction of the chief executives of Trains, so ultimately in terms of raising matters of good faith bargaining and the like or raising anything to do with the bargaining, the Minister is an integral part of Trains.  That is, he is, in effect, the human face of Sydney Trains when it comes to questions of its conduct, what it says and its behaviour.


They will all be circumstances that the Commission would need to consider once it has dealt with the evidence.  It's just silly to suggest that this issue could be dealt with, as it were, as a threshold issue in circumstances where the Act itself refers to the need for the Commission to have regard to, in determining whether it's appropriate or not, 'all the circumstances'.


THE DEPUTY PRESIDENT:  Thank you.  Mr Dixon?


MR DIXON:  If the Commission pleases, there is a fundamental flaw in the submissions that our learned friend has put.  Section 229(5) says that the Commission 'may consider the application.'  The idea that the Commission hears the whole application and all the evidence with a view to then deciding to consider the matter is inconsistent with that provision.


The Commission must decide whether it should consider the application and that consideration, in our respectful submission, in our case rests on the material that I have pointed to and particularly the letter which is the founding document which predates the application by many weeks, and on any view was overtaken by events.  It would be erroneous, in our respectful submission, to proceed on the basis that the Commission should hear – as you were invited to – all the evidence and then decide whether you should consider the application, if the Commission please.


THE DEPUTY PRESIDENT:  In relation to the respondent's application that the matter not proceed because of noncompliance with section 229(4), I reject that application.  The terms of 299(5) are clear that I may consider an application even if it does not comply with the requisite paragraphs of subsection (4) if I am satisfied it is appropriate in all the circumstances to do so.


It is interesting in the way that the application has been advanced in that there have been documents referred to but not any specific documents tendered, but, nonetheless, it is apparent that there have been more than one instance of concerns expressed in relation to noncompliance with bargaining requirements that have been made.  I do not consider that there needs to be a response to each and every such expression of concern.  It only need be that the concern is expressed and an opportunity provided, which has been the case.  On that basis in all the circumstances I consider it is appropriate to consider the application.  Mr Taylor?


MR TAYLOR:  If it please.  Since mid‑2021, our clients and the CEPU have been bargaining jointly with the two state‑owned corporations known as Sydney Trains and New South Wales Trains for a single enterprise agreement to replace the two existing enterprise agreements.  The employees concerned have not had a pay rise since 1 May 2020.  That is coming up to two and a half years now.


Bargaining in earnest occurred from about October 2021 when the two state‑owned corporations agreed to bargain together.  This application for good faith bargaining orders was filed by Unions New South Wales on behalf of our clients and the CEPU, filed by Unions New South Wales in circumstances where - as the evidence will demonstrate - the unions were bargaining and recognised to be bargaining as a group known as the CRU, and Mr Costa had a role as being a person speaking on behalf of that CRU.


Now, once the rail entities engaged in bargaining they were of course at that point required by section 228(1) to meet the good faith bargaining requirements, perhaps the most fundamental being to meet but also to consider propositions, to respond, to give reasons and to not act in a manner which is capricious or unfair that would undermine freedom of association or collective bargaining.  It is our client's case that the rail entities have failed to meet those good faith bargaining requirements.  We seek first a finding to that effect, which is a necessary precondition pursuant to section 230(3)(a) and then, secondly, we seek orders pursuant to section 231 specifying the actions that the rail entities must take to ensure that they meet their good faith bargaining requirements.


In opening, I want to identify the three broad bases upon which it is said that the respondents have failed to meet their good faith bargaining requirements, the first of which might be broadly under the heading of 'Capricious and unfair conduct'; namely, constantly changing bargaining positions, approbating and reprobating, combined with a failure when doing so to give adequate reasons and indeed identify why and who is making the relevant decisions.


In that respect, by way of opening, can I point to two broad examples.  The first involves the negotiations in respect of the new intercity fleet, referred to as NIF, N‑I‑F.  The Commission may be aware from past dealings that New South Wales Trains intends to introduce new trains which it procured without having had discussions with the unions on the basis that they were set up to be driver‑only operated; DOO, driver‑only operated.  They subsequently decided that they would have a guard.  The unions have pointed out at all relevant times that the way they are being constructed requires modifications to render them safe.


The dispute as to whether the trains could nevertheless impose a new operating model was a matter that went before the Fair Work Commission, the Fair Work Commission Full Bench, and then by an application before Justice Flick of the Federal Court during the period, November 2019 and June 2021.


I am not going to take your Honour through those decisions but just give you the outcome, which is in short, that Trains cannot direct employees to operate these new trains in the manner that they set fit.  They need the agreement of the unions in order to do so and there is a linked issue, a linked set of claims by the unions dealing with something called Platform Train Interface, PTI, which is the system in place which ensures appropriate staffing by way of drivers and guards, and station staff when such trains arrive at a station.


As I said, I'm dealing with this first example.  The evidence that Mr Warnes puts on by way of his first statement identifies that this issue, the NIF issue, has been the subject of enterprise agreement negotiations.  Indeed, the version of the enterprise agreement that Mr McDonald says in his statement, Mr McDonald for Sydney Trains, says in his statement is the latest version, contains a proposed clause in the enterprise agreement itself dealing with this, under a heading – I'll just get that heading right.  Mariyung(?), sorry, a different title to the same point.


The evidence identifies that on 21 Aril 2022 the union was told that what was being sought was an interim agreement to allow New South Wales Trains to commence the steps required to have the NIF operate in advance of an enterprise agreement, and it was suggested to the union that that be done by way of a deed.


That deed would envisage that there be some stages involved but at the first stage, which would involve steps that would allow the train fleet to move towards a period of operation, would commence before the enterprise agreement ended.  As Mr Warnes' statement reveals, over the next five months something in the order of 15 different negotiating positions were being put on in respect of this issue.


It was going to be in a deed; it was not going to be in a deed; it would be in letters, site letters; it would not be in site letters; that individuals would receive a one-off payment.  It would be dealt with in the enterprise agreement but only if the union made a key concession in respect of clause 12, changes to operations.  Having obtained that concession from the unions, Trains then said it would not, in fact, proceed with the proposal and there would be no deed.  There was then a change, again.


There would be a deed.  Then there would not.  Then there would again but it would be tied to a successful yes votes, the effect of which would be that the unions would have to agree to the NIF commencing in circumstances where, if there was a no vote it would have already given away this issue entirely and there would be no time in dealing with it.


Then it was suggested that it could be dealt with by a deed, but tied to a commitment that there be no industrial action while the parties negotiate the rest of the enterprise agreement.  Then that condition was dropped, and then most recently it was reinstated.  This litany of capricious, constant changing of position was put on by the unions, and in the evidence filed by Trains there is no attempt to deny the truth of any of that material.


The two witnesses who were to be called, neither of whom say they were in any way involved in those negotiations.  The extent of their evidence is that Trains, the two entities, shouldn't be blamed for those various changes of decision because they were made by government.


The difficulty with this proposition is that those decision-makers, that is the people who are making decisions that it would be in the enterprise agreement, that it would not, that it would be partly dealt with by a deed, that it would not, that for example, the latest version it is in the enterprise agreement that the enterprise agreement, itself says it's conditioned upon the existence of a deed.


Those decision-makers were government.  So it is clear that people within government are, in fact, making decisions on behalf of Trains.  In any event, whoever makes the decision, the net effect is the same.  It's Trains' negotiating position, and I use the word, 'Trains', in the plural to mean the two entities who did, as I said, bargain together – it's Trains negotiating position which can be seen on the evidence to continually approbate and reprobate in a manner that we invite the Commission, having heard all the evidence, to find this capricious and unfair, impeding effective bargaining, and in fact inflaming the dispute at various points.


The second example by way of opening, about the capricious behaviour about which we identify, and which was the subject of letters of concern was the very way in which Trains went about negotiating on a whole series of terms, spending months in rooms with delegates, working through the text of clauses to a point where, in late July of this year there was only a relatively small number of issues left.


Then on 4 August, and again on 5 August, to identify to the unions that 12 clauses which had been marked green in a working document where, if it's marked green it's agreed, were in fact, not agreed and put in quite different text.  And when asked the reason for that, the evidence will say that they, in effect, said it was outside their control.  This was something that had been determined by the Public Sector Employment Relations, PSER, also because of such things as, apparently, external legal review and legal compliance.


These were not things that had been properly identified in advance.  They had not been properly identified as being questionable clauses.  The unions raised concerns, including as the third bundle of supplementary material to which I've already referred concludes, concerns directly with Mr Huston of the PSER, as to how it's coming about that Trains are saying that PSER are over-riding agreed positions.


The response, as far as we can understand it from Mr Huston, was that in fact the problem was that Trains had been put in positions outside of bargaining parameters that had been set for Trains, and all PSER were doing was telling Trains that they shouldn't have put those positions in the first place.


Now that's why that, itself, is a breach of good faith bargaining, to put positions which you hold out to have authority to put, and then in fact, you do not.  It is also an example of a complaint that is repeatedly made that there are people not in the room who are making decisions.  There's a song from the musical, Hamilton, 'You've got to be in the room where it happens.'


And a lot of the problems that you'll find, Deputy President, when you concern the evidence, it's that people not in the room who are causing continual issues in the way in which the bargaining has gone, and caused the net result to be these sort of capricious, constantly changing positions which have fundamentally impeded bargaining.  And we seek a series of orders, the effect of which is to remedy that so that we can get some clarity and discipline into the bargaining process so that progress can be made.


The second matter I want to deal with, and which as I identified earlier in the context of Mr Dixon's application was the immediate catalyst for this application, was what was a sudden refusal to keep bargaining, given without notice in the midst of successful bargaining.


I'll come to this in the documents in a moment, but Mr Dixon in making his application, took you to emails from an officer of Transport New South Wales, summarising the bargaining on 29 and 30 August, which identified how successful it was being.  Yet on 31 August, the Minister announced that there would be, in effect, no more bargaining and that was confirmed on 1 September.


If I can just take you through a truncated chronology.  On 22 July, Mr Warnes gives evidence that Trains sent a document which contained a whole series of draft agreed clauses, the net result being that there were substantial issues left, but not many.  On 4 and 5 August, as I mentioned earlier, Trains came to a meeting on 4 August and said they had new text before of the agreed clauses.


When asked for an urgent meeting to discuss this on 5 August, in fact, it turned out to be 12 clauses that they wished to change, which was an impetus for the letter of 9 August which Mr Dixon has taken you to, to the Premier which was copied to Trains by the Premier's office, and which of course, resulted in no response.


On 11 August the evidence will be that there was a meeting between unions and ministers, although not the Minister for Transport, which advanced one of the issues, that is the question of the deed and the NIF.  If I could just pause there for a moment just to emphasise one of the points I have already made.


If the Commission would be good enough to open Mr Warnes' first statement and go to paragraph 84, I mentioned a meeting of 11 August and it's dealt with in paragraphs 83 and 84, and identifies who was present.  It makes clear that there were ministers negotiating on behalf of Trains in respect of this NIF issue.


At paragraph 84, Mr Warnes recounts that the issue of the PTI/DOO clause that is a clause to be contained within the enterprise agreement itself, as well as another issue, a risk assessment clause, was something that they wished to have addressed and it was noted that these had been already agreed by the Transport Minister on 8 February.


The response to that from Minister Tudehope was, 'Minister Elliott's position is not the government's position', which is just an example of the difficulty that the unions have had in attempting to negotiate these matters.  At the conclusion of the meeting on 5 August, Trains said the following working day, which was the 8th, they would provide the reasons for changing twelve clauses.


They didn't, but on 15 August they sent a list of what was now 20 outstanding items, and if the Commission has the second of the bundles - so what I'll be tendering, Deputy President, just so that you know, along, when we call Mr Warnes, are three bundles of documents.  The first was filed with his first statement, DB1.  Then there were two further bundles, the first of which I'll call DB2, and it is a bundle that commences with an email, form Mr Sharp, of 24 March 2022 at 4.06 pm.


There is numbering on the document that the letter of 15 August, that I referred to, is found at page 263.  At this point, one of the many iterations of the transposition on the Mariyung(?) Deed of Agreement, also known as the NIF Deed was being put, in the fourth part:


We remain committed to the Deed, for the testing and interim phases.  Drafting is being undertaken and we propose to discuss it on the 16th.


So, at this stage, still to give the Deed.  And there was a reference there to a further bargaining meeting being scheduled for the following day, in the penultimate paragraph.


Updated drafting, where required, will be provided ahead of the proposed meeting.


The parties are, clearly, very much bargaining and the attached document has 20 different matters about which it's intended to bargain, which include the Mariyung clause.  It does not include wages, and I'll come back to that issue, but, in short, the parties had approached the matter jointly, on the basis that wages had been parked at this stage.


Mr Warnes' statement then goes on to say that on 16 August, the very next day, 'Trains said that the DOOPIT clauses were not supported', which seemed to be somewhat contradicting the position put the very day before and now we're dealing with not a Deed, which was said in a letter the day before to be the approach they were committed to, it's now a letter of commitment.  But, in any event, on 16 August there are no, contrary to what was being put, no fresh positions put.


24 to 26 August there are, though, negotiations over the Deed.  Now involving Minister Farraway - - -


SPEAKER:  Just a sec.


MR TAYLOR:  Whoever's not on mute, can they put themselves on mute, please?


In which Mr Warnes' statement says Mr Farraway ended by indicating that he thought the parties were close to agreement.


Then we get very close to the critical moment, and that is preceded by a letter of 29 August, sent by the RTBU.  That is found in the first bundle, the Commission has that at page 225.


It's a letter from the RTBU to Minister Tudehope, in circumstances where he was a minister who they were meeting with, or the unions had met with, in the course of the previous fortnight, and an offer is put, towards the bottom of 225 and it goes over to 226, to withdraw protected industrial action for a period of time, on the basis that the trains entity agreed to six key items, six, and on that basis an enterprise agreement could go to ballot.


The evidence then shows that on 29 August there was a meeting, scheduled to go from 10 am to 4 pm, to work through the various 20 items, 12 of which had been put back into dispute by trains.  It didn't finish at 4 pm, the parties were still negotiating at 10 pm, so they agreed to resume the next day, on 30 August, and they then negotiated all of that day.


If the Commission could go to that bundle, and this time go to page 250, it will see where the position of the parties were, as at 30 August 2022.


It's an email from Samantha Abeydeera.  Her title is, Executive Director, Strategic Operations, Transport for New South Wales.  Whilst the witnesses for Trains insist that they are the negotiators, the evidence will demonstrate that, at various points, it was Transport for New South and its employees, led by the Secretary, who were, in fact, leading the negotiations and Ms Abeydeera was updating.


Having, if you would briefly go to page 251, identified, on 29 August, the fact that four items had been agreed and that they'd be meeting again at 10 am the next day, on 30 August it was identified that another five items had been agreed, plus agreement that two issues would be dealt with by undertakings and letters, and Ms Abeydeera finished by saying, at page 250:


Please note the prioritised agenda we have development for the Ministerial discussion at 11 is attached.  We've made really good progress today and look forward to continuing discussions tomorrow.


Now, I apologise for asking the Commission to do this, but the relevant annexure is not in this bundle, it is in the second bundle, DB2, it is the very last page of DB2, which is page 273.


Now, this page demonstrates, amongst other things, that there are seven issues of importance which had to be left to the minister to discuss, again belying the notion that the minister is somehow separate to and not part of the negotiating or bargaining team of Trains, and the Commission will see the nature of those include the NIF Deed, but also other issues, which the evidence will reveal, have importance, including the safety risk assessments, a cleaning allowance, the term of the agreement, privatisation, shorts, which surprisingly perhaps, but has become a key dividing line between the parties, the capacity to wear shorts, and pay.  Why were they left the Minister discuss?  One can readily infer, because the Minister is the relevant decision maker.


That's the agenda for 31 August.  The evidence that Mr Warnes will give is the Minister arrived and was present for about 10 minutes.  Ten minutes to discuss the seven key issues.  He commenced, Mr Warnes will say, at paragraph 99, by shouting words to the effect:


I've been instructed by the Premier to tell you that negotiations will end in 24 hours.  The offer will be as it stands after the end of today.  We intend to put out a final agreement in 48 hours for members to consider before the vote.  If there is a no vote we will terminate the agreement.  This is what the Premier wants and there will be no compromise.


Again, Trains, in their submissions, seek to dissociate themselves, in some way, from this conduct saying, 'Well, it's not out conduct', and yet it's clear that the Minister is there on behalf of Trains.  What's also clear, for reasons I'm about to come to in the chronology, it's not as if trains said, 'No, no, we'll keep negotiating' they, in fact, complied, of course, with that very outcome.


The reply statement of Mr Warnes, at paragraphs 23 and 24, expands a little on this meeting and what the Minister said and what's clear, that in the 10 minutes he dealt, in a very perfunctory way, with some of the issues saying, for example, they could have '$2' for cleaning.  But not engaging in any actual negotiation.


That, to the credit of the parties, didn't - sorry, I'll say that again.  That, to the credit of those in the room, did not result in an immediate cessation of bargaining.  Mr Warnes gives evidence about how, at 4 pm, he said, in effect, they've been locked in this room for two long days already and maybe that was time to call it quits.  The response was, 'Look, let's see if we can keep going in some way, get some further things sorted out', something which, ultimately, was to no great avail because anything that they negotiated that day didn't actually end up in the final agreement that Trains put, itself a matter of complaint.


Can I take you to Mr Warnes' reply statement, as to then what happened the next day?  This is paragraph 29 and following.


So the bargaining continued, paragraph 28, till 10.30 that night.  There were issues outstanding that were to be discussed the next day.  These were the issues that the Minister had not engaged with and that Trains had, as their agenda, decided it must be discussed with the Minister.


What happens on 1 September you see in paragraph 29.  Mr Longland, Chief Executive of Sydney Trains, says:


The government has given us instructions that bargaining is concluded and there'll be on more.  Today we'll just present the document to the delegates and talk through what's in it.


Then at the meeting Mr Longland says, again, words to the same effect, paragraph 30:


We received clear direction, from the Premier and the Ministers, that negotiations on the EA have concluded.


Now, that is in circumstances where, on any view, they had not concluded.  That is, that the parties were engaged, actively, in bargaining over the previous couple of days.


Ms Abeydeera was sending emails saying, 'Great progress, and moving on to the next issue'.  Trains, itself, had identified seven issues of critical importance which needed to be discussed.


The decision, though, made, which Trains cannot walk away from, this is what they did, regardless of who they say is the decision-makers, was simply to stop bargaining in circumstances where it cannot be said that the parties had reached some sort of stalemate.  To the contrary.  Progress had been made in a range of matters and there were key issues which were still on the table, which there was an agenda to discuss.


Just continuing on, while that reply statement is in front of you, Deputy President, paragraph 30 recounts, in some detail, what else was said during the course of that meeting, with the benefit of a contemporaneous note made by Sophia Nasser, which is annexed at TW2.


You find, halfway down page 8, that complaints were being made, and I alluded to this earlier, about the conduct.  So about halfway down TW, which is Mr Warnes, says this:


So it didn't matter to Transport NSW Ministers or you two whether bargaining had been concluded or not.  An arbitrary line was put in the sand.


The response to that is not to deny that, as the respondents now seek to so and say, 'No, no, no.  In fact bargaining has concluded, we've done everything we can, it's simply we've been directed.  We have very clear direct instructions that bargaining is finished'.


Mr Warnes then says:


When we find things you haven't responded to I'm going to ask this question every single time, 'Was the decision makers aware that the matter had not been finalised when they decided to terminate bargaining?', 'Yes, they were fully briefed'.


That then removes any excuse that might otherwise be said, that some sort of decision was made, based on the information that, in fact, these matters that were very much - had very much been concluded, that these subjects had been debated.


The Minister, of course, the Minister for Transport, was entirely aware that in the 10 minutes he'd been in the room there'd been no effective discussion on the key matters but, apparently, according to Mr Longland, decision makers, the unknown or at least unstated in these meetings, decision makers were aware as well.


So the net result, on 1 September, is that there's a sudden and immediate holt to bargaining and that is then accompanied, during the course of this meeting, by a letter.


Can I take you now to that letter?  It's in the first of Mr Warnes' bundles, it's at page 503.  This is a letter that arrived in the union representatives email boxes while they were in the room with the two chief executives, who, it is asserted by trains, are in fact the decision makers.  It doesn't come from either of them.


It puts a position, on page 2 of the letter, page 504 of the bundle, immediately before the two numbered points, having alleged in the preceding paragraph, quite wrongly, that no progress was being made, in respect of negotiations, it then simply presents a fait accompli:


I enclose, for your urgent review and endorsement the following documents: final deed of understanding and final draft of the Sydney Trains Enterprise Agreement.  In view of the matters raised above, the government entities will not be undertaking any further negotiations with the CRU.


That statement, in and of itself, is a fundamental breach of good faith bargaining requirements.  This ultimatum, apparently given by those not in the room, that the parties, who had been successfully bargaining up until that point, that Trains would simply stop bargaining, in circumstances where, as I've identified, key issues had been put on an agenda to be discussed and hadn't been, breaches a number of the good faith bargaining requirements.


The first being to attend and participate in meetings.  The second being to respond to proposals made for agreement, in a timely manner.  The third to give genuine consideration to proposals of other bargaining representative.  And perhaps, most fundamentally, the obligation to refrain from capricious or unfair conduct that undermines freedom of association in collective bargaining.


As we put in our submissions, one can conceive of factual scenarios where it is legitimate for a party to say, 'Look, we've been trying for a long time, parties positions are entrenched.  We've had a number of meetings but clearly there's no movement.  On that basis, unless there's a better position you want to put, we think that there's no great utility in continuing to meet'.  That is not this fact scenario.


It's not even a statement to the effect of, 'Well, what would you like to see instead, or do you want to put a different position that we can consider', it's simply, 'Take it or leave it' basis.  What's notable about all of this is that wages or the word 'pay' is used in the agenda the Minister was going to speak to, not being the subject, and there's no dispute about this on the evidence, as not being the subject of discussions.  So what the employer is doing is presenting an enterprise agreement that has pay rates in it, as a final position, a refusal to negotiate about it, in circumstances where they haven't negotiated about it.


There are many important clauses in these enterprise agreements, but you'd think rates of pay are something pretty fundamental to try and bargain about before you come to a view that bargaining must end.


The third aspect of our claim, which we've identified in our written submissions, is the concerns that have been expressed, in writing, about public statements that have been made by various people who, at various points of the negotiations, have clearly identified themselves as decision makers, in respect of Trains bargaining.  They include the Premier and ministers who have made statements to the effect of denigrating the union or unions and their members for taking what this Commission would readily, and we say quite correctly say, is entirely lawful and legitimate industrial action.


The evidence will be that that denigration has occurred and what has followed are threats of violence, and worse, to members of my respective clients, by members of the public.  This has been brought to the attention of Trains who frankly acknowledge that those concerns are well-founded, acknowledge that the behaviour along those lines, by members of the public, is quite wrong and in their evidence, though, simply say, 'Well, what can we do about it?'.


Well, with great respect, the orders we seek identify steps that they can take.  They can and should be not simply wringing their hands and agreeing with us how bad it is, they should be actively identifying, to those who are making the statements, how inappropriate these statements are.


They do have a negative effect on bargaining and such statements are, necessarily, contrary to good faith bargaining because of their potential to inflame a dispute but also to give rise to, and it is, unfair conduct, which is undermining freedom of association and collective bargaining.


If the Commission pleases, that, I think, concludes the broad opening.  There is a lot more detail, particularly when it comes to things like the chronology of the 15 or more different positions put, in respect of NIF, that we will take you through, by documents enclosed, but I think, for our part, we're content, at this stage and now move to calling Mr Warnes.  If the Commission could have available Mr Warnes' two statements and the three bundle of documents.  We call Mr Warnes now.


THE DEPUTY PRESIDENT:  Mr Reitano, you don't wish to make any opening?


MR REITANO:  I did have a (indistinct) of matters that I just wanted to emphasise.  They probably duplicate some things that Mr Taylor has said, but could I just outline those as matters that, from the evidence that we would invite the Commission to focus upon, by way of opening.  I'll be very brief.




SPEAKER:  Can I just ask my learned friend, I'm struggling to hear you, would you mind just raising your voice, as much as you're comfortable with, please.


MR REITANO:  I think that's something of a first, I'll do my best.


SPEAKER:  Thank you.


MR REITANO:  What I said was that I don't want a full-blown opening, but I do want to highlight some things that I would ask the Commission to pay attention to, in terms of the circumstances.  They go both to the subsection (5) issue that we debated earlier, about whether it's appropriate, in the circumstances, for the Commission to deal with it, and they also inform the question of whether there is good faith bargaining happening at the moment and whether the Commission should make any orders about it.


The first proposition is fairly benign, and that is that there is no bargaining happening now, and there has been no bargaining happening since Trains walked out of the bargaining.


Now, whether it did so because of the Minister, or whether it did so because Ms Streimer though it was a good idea, or whether it did so because someone else thought it was a good idea probably doesn't matter, for the purpose of what I'm suggesting and that is that there is simply no bargaining happening and none has happened since 1 September.


As my learned friend, Mr Taylor, said, there might be circumstances, I think it's said in the written submissions, there might be circumstances where going to ballot, unilaterally, thumbing your nose at the other side, and saying, 'We'll ask the employees about it and let democracy rule', might be appropriate, but it's difficult to see, when one pieces together the things that have happened here, how that could be suggested to be appropriate.


Could I outline, I think, six factors that we ask the Commission to focus in on, when it's listening to the evidence?  The first and the most significant of those is that in the circumstances, as at the day before the announcement that bargaining would be over in 24 hours' time, as at the time, significant progress was being made in the bargaining.  That's on any view of the evidence, that progress was happening.


This is not a case, it's always nice to build straw men and then knock them over, but this is not a case where the parties had reached an impasse and they were going nowhere and they were just simply talking to different walls.  This was a case where even they said progress was being made.  That is against the backdrop of a curious position where three weeks earlier, so the bargaining participants, the CEPU and other unions, are participating in bargaining against the backdrop that three weeks earlier Trains had said 12 significant items were 'unagreed'.  That is, they stayed with it, despite what appears to be curious, at the very least, behaviour, in saying, 'We'd agreed on those things, they're now unagreed', yet the union stuck with the bargaining.


The second matter is that it was sudden and unilateral action.  It hadn't been the subject of any discussion earlier, it hadn't been the subject of any notice.  It happened within a 10 minute period when the Minister walked into the room, and that was said to be the position.


The third matter, related to the second, is no deadline had every been set.  No one had ever said that, 'Unless agreement is arrived at by 1 September, or 2 September, it's all over, we're going to ballot without you'.  There was no telegraphing of the intention to do what they did.  There was no discussion about it, there was no negotiation about it, there was, indeed, no bargaining about that.  There was nothing that was put on the table, 'If you don't agree on X we're going to go to the ballot'.  It all happened, all of a sudden, without any deadline in sight.


The fourth matter is that there were matters, and I'm not going to identify the number, but there were matters that were said would be dealt with by the Minister.  That is, Trains had said, 'These matters will be dealt with up the line', and they never were.


The fifth matter is that there is no sound reason, even now, even today, there is no sound reason put forward for why things had to happen so quickly and so suddenly.  To the extent that there was any reason, the reasons were factually displaced, but there was certainly never any sound reason identified for what happened between 31 August and 1 September, in terms of the change in position.


The sixth matter, which is not something that should be lost sight of, it seems, and the inference is open to the Commission on the evidence, it seems that the main reason for why the conduct of ending the bargaining was taken was because it was in retaliation for the protected industrial action that had been going on for some time.


The hard-fought gains that you've made, at the beginning of October(sic), the 12 items that we're taking off the table, have been taken off the table because you're taking that action.  By the end of August we're also going to terminate the bargaining, because you continue to engage in that behaviour.  No one says it, but the inference is well and truly open.


We would invite the Commission to focus, when it listens to the evidence and hears the evidence, to focus on those matters, in order to see that this is not the simple case that often comes before the Commission, of a party having arrived at some deadlock, deciding to go it alone to vote.  That's all I want to say by way of opening.


THE DEPUTY PRESIDENT:  Thank you Mr Reitano.


MR TAYLOR:  I just got a note that there's one matter of detail, perhaps not necessary to mention, but I don't like to say anything on the record which is not entirely accurate.  The meal on the 29th, I think I said finished at 10.00 pm; it finished at 8.00 pm.


If we're content now to proceed, we'll call Mr Warnes.


THE ASSOCIATE:  Please state your full name and address for the record.


MR WARNES:  Toby Warnes, (address supplied).

<TOBY WARNES, AFFIRMED                                                          [12.04 PM]

EXAMINATION-IN-CHIEF BY MR TAYLOR                                [12.04 PM]


MR TAYLOR:  Your name is Toby Warnes?‑‑‑Yes.


And you are the Director of Organising for the New South Wales Branch of the RTBU?‑‑‑I am.


You've been responsible for bargaining with Sydney Trains and NSW Trains since about March 2021 for the new enterprise agreement to replace the current agreements?‑‑‑Yes, that's right.


And for the purpose of these proceedings, there have been two statements that have been prepared.  Can I take you to the first that you may recall occupied you for some little time over the weekend.  That is a statement dated 4 September 2022.  I understand there are two matters that we need to correct before I ask you whether it is true and correct.  The first, I understand, deals with the matter at paragraph 41.  Can you just identify what it is that needs to be corrected in respect of paragraph?‑‑‑So, it's just the date.  41 currently reads 'On 21 April 2022, we met with New South Wales Trains'.  It should read 'On 1 April 2022, we met with New South Wales Trains'.


Thank you.  The second correction is in respect to paragraphs 108 and 109 and really dealing with what documents are annexed, rather than the text.  In order to clarify it, we have prepared a corrected paragraph which move the reference to the documents in paragraph 108 to 109 – sorry Associate, my apologies.  Do you have a copy of that with you, Mr Warnes in the witness box?‑‑‑I do, yes.


Could I provide a copy to the Commissioner - Deputy President?  Is it the case that what is there is a single page, titled 'corrected paragraphs 108, 109' should be read in lieu of the current paragraph 108, 109?‑‑‑Yes, that's right.


Yes, and with those changes that we've identified to paragraphs 41 and paragraphs 108 and 109, do you say that the contents of your statement are true and correct to the best of your knowledge and belief?‑‑‑Yes, I do.


I tender that statement, along with the additional page that I've identified.

***        TOBY WARNES                                                                                                                           XN MR TAYLOR


THE DEPUTY PRESIDENT:  Any objections?




THE DEPUTY PRESIDENT:  That will be exhibit A1.



MR TAYLOR:  Mr Warnes, in that statement, A1, that's been marked A1, there is reference to documents at various points in a bundle that's been referred to by the acronym DB-01, do you have a copy of that bundle with you in the witness box?‑‑‑I do, yes.


I tender bundle DB-01.


THE DEPUTY PRESIDENT:  Any objections?


MR REITANO:  No, thank you.





MR TAYLOR:  There are two further bundles of materials which I understand you also have with you in the witness box.  Can I take you then to the first of those which is a bundle of eight documents, the first of which is an email from Mr Sharp of 24 March 2022, which I will refer to as DB-02.  You have that bundle with you?‑‑‑I do, yes.


I want to ask you a couple of questions about that.  I might firstly tender it and then get you to explain a couple of matters as to how they fit into the chronology.




MR DIXON:  Just bear with me.

***        TOBY WARNES                                                                                                                           XN MR TAYLOR


THE DEPUTY PRESIDENT:  That will be exhibit A3.



MR TAYLOR:  I identified Mr Warnes, that there are eight documents.  Can I just note this.  I'll lead unless my friend has any difficulty with this.  In your first statement that's been marked A1, at paragraph 67 and 68, you give evidence about negotiations that were occurring in respect of what was described as a Deed for the Introduction of the NIF between RTBU Legal and Transport for NSW.  You recall that?‑‑‑Yes, I do.


Is it the case that the documents that are the second, third and fourth documents that commence at pages, respectively, 4, 12 and 19 are emails attaching drafts of the Deed that were exchanged during the course of that day, arising out of those discussions.  They were exchanged between Mr Warnes and Samantha Abeydeera for Transport NSW?‑‑‑Yes, that's right.


Then can I take you to the second of the supplementary bundles.  This is a bundle which commences with an email from Mr Costa of 3 July 2022.  There are nine documents, the last of which is long, because it attaches a draft enterprise agreement, and Mr Warnes, I think you were in the court earlier when I described this as correspondence where unions or those writing on behalf of the unions expressed concerns about the failure to bargain in good faith and responses.  Is that your understanding of this bundle?‑‑‑Yes.  The bundle I have doesn't have a long enterprise agreement at the end.


My apologies.  I think you're absolutely right about that.  I'll just help Mr Dixon so that we're all clear and you're quite right.  I misled myself in that regard.  So, it is a bundle that I think when sent to my friend's solicitors was described as a further supplementary bundle.  It was sent at the same time as the supplementary bundle.  It may well be that my friend's solicitors have simply put them all in the same folder, but they were sent as two different PDF documents, and also sent to the Commission on that basis.  The first of which is an email from Mr Costa of 3 July 2022, at 10.28 am.  I'll just identify the number of pages for my friend.  There are in total, 30 numbered pages, yes, and no enterprise agreement; I got that wrong.  I'm sorry to mislead both Mr Dixon and the witness.  I tender that further supplementary bundle that we have referred to I think as DB-03.


THE DEPUTY PRESIDENT:  Any objections?


MR DIXON:  I just need to ask my learned friend to clarify for me.  So, A3 is one to 273, is that right?

***        TOBY WARNES                                                                                                                           XN MR TAYLOR


MR TAYLOR:  I'll just check.




MR DIXON:  And so, with the supplementary, it's the last 30 pages?


MR TAYLOR:  Yes.  We'll start again, because they were a separate document.


MR DIXON:  No objection.





MR TAYLOR:  Thank you, they're the questions for this witness.


THE DEPUTY PRESIDENT:  What about the reply statement?


MR TAYLOR:  Of course.  The reply statement.  My apologies.  Mr Warnes, do you also have in the witness box with you, a statement that was finalised yesterday which is some 38 pages including annexures?‑‑‑Yes, I do.


Are there any corrections that need to be made to that?‑‑‑No.


Do you say that the contents of that statement are true and correct to the best of your knowledge and belief?‑‑‑I do.


Thank you, I tender that statement.


THE DEPUTY PRESIDENT:  Any objections?

***        TOBY WARNES                                                                                                                           XN MR TAYLOR


MR DIXON:  May I enquire about the source of the document starting at page 23 which purports to be – it's either a recording that's been made, and that's what it's on its face, somehow produced it.  But we'd like to know and I haven't been able to properly verify the contents of that document by reference to any contemporaneous notes, if any that were taken.  But it may have to be marked for identification purposes.  But if it is a recording, from what source is it purporting.  If it's a verbatim note by someone, who took the verbatim note?  Subject to that I would ask it marked for identification and we can sort it out later.


MR TAYLOR:  If I can assist my friend.  Paragraph 30 of the reply statement, the first paragraph after the first quote, so it's towards the bottom of page 7, contains in parenthesis the words 'in preparing what follows, I can assist it by reading notes prepared by Sophie Nasser that were taken during the meeting.  A copy of those notes are annexed and marked TW2'.  That is the document and we press the tender of it.


MR DIXON:  I object at this stage until we've had a proper opportunity of comparing it and ask for it to be marked for identification.  Ms Nasser is not present.  I don't foresee a difficulty with it, but I wish to have the opportunity of double-checking.


THE DEPUTY PRESIDENT:  That would be then for pages - - -


MR DIXON:  23 to 32.


THE DEPUTY PRESIDENT:  23 to 32.  So, the reply statement of Toby Warnes with annexures, other than those at pages 23 to 32 inclusive will be A5.



Pages 23 to 32 will be MFI1.  Is that accepted?



MR TAYLOR:  Mr Dixon, I've just raised the matter with him as to - just confirming that neither of the Trains' witnesses are present in whatever virtual or real capacity exists.  He's just taking some instructions as to that, so I apologise for the brief delay.  But that would conclude the questions in chief.


THE DEPUTY PRESIDENT:  Thank you.  Mr Reitano.

CROSS-EXAMINATION BY MR REITANO                                   [12.18 PM]

***        TOBY WARNES                                                                                                                       XXN MR REITANO


MR REITANO:  I'm not going to go after his credit, but there's just one matter that I just can't resist having tidied up.  Could I just ask you to look at paragraph 18 of the reply statement.  I think you refer there to 2200 hours, I think you might mean 2000 hours?


THE DEPUTY PRESIDENT:  Sorry, which paragraph are you referring to?


MR REITANO:  Paragraph 18, reply statement.


THE WITNESS:  Yes, that's right.


MR REITANO:  It should be 8 o'clock?‑‑‑It should be 8 o'clock, yes, 24 hour time.



CROSS-EXAMINATION BY MR DIXON                                         [12.19 PM]


MR DIXON:  Mr Warnes, you are a tertiary educated official in the union?‑‑‑Yes.


You hold a law degree, obtained from Macquarie University, in 2008 to 2011?‑‑‑I do.


And you have been admitted, as a solicitor, by the Supreme Court of New South Wales?‑‑‑Yes.


And you practice as a solicitor?‑‑‑I have, yes.


You've also been involved with the Transport Workers' Union of Australia, as head of legal and governance?‑‑‑Yes, for a short period, yes.


Yes.  Well, was it for a period of about nine months, and in that capacity you understood - sorry, I withdraw that.  So you worked, in private practice, as a legal officer?‑‑‑No.


But as a solicitor you worked in various - only for unions, is that right?‑‑‑Yes, that's right.

***        TOBY WARNES                                                                                                                            XXN MR DIXON


You would regard yourself as a person of some intelligence?‑‑‑Yes.


From your experience, you are capable, given that you both regard yourself as intelligent, and I'm not challenging that, and you are educated at a tertiary level and an experienced lawyer, you are capable of reading and interpreting documents, whether they are of legal significance?‑‑‑Yes.


And general documents, such as policy documents?‑‑‑Yes.


And you also, through your experience of working for unions and that has involved you having to deal with government bodies and government officials, within central government in New South Wales, over an extended period of time?‑‑‑In my current role and in my role immediately previous to this one, yes.  Not so much at the TWU.


From that you have gathered an insight into the fact that in respect of matters that affect terms and conditions of employment, of employees within government, government departments have, by necessity, to play a significant role and decision making role as well?‑‑‑Sorry, in respect to what?


Wages and terms and conditions?‑‑‑Sort of.  That's not a clear answer, just because of the effect the wages cap has had on negotiations, over the past decade.


I'm going to come to that.  The wages cap has informed you and you were aware of this, throughout the bargaining, that the wages cap required, by necessity, involvement in any decision making about wages and conditions of sections of government, whether it's Treasury, or employment relations sections, within government, do you accept that?‑‑‑I accept that the government had to be involved in making decisions about, yes, wages.  Yes, of course they do.


You have an understanding, do you not, and you had such an understanding throughout the negotiations that NSW Trains, for example, is a statutory corporation within the transport cluster within government?‑‑‑Yes.


You also, throughout the bargaining period, had an understanding that an entity such as that, there were reporting lines to ministers who had responsibility, in respect of the legislation applicable to entities?‑‑‑My understanding about that has evolved throughout this process but, as a general principle, yes.

***        TOBY WARNES                                                                                                                            XXN MR DIXON


As a general principle you had, throughout the bargaining period, had an opinion, an understanding, that Public Sector Employment Relations is a section of government that has responsibility for employment relations matters across NSW government sector?‑‑‑No, and I still don't understand that to be the case.


You also understand that the Expenditure Review Committee is a committee of cabinet that plays an essential role in deciding the parameters of what may be decided upon, in respect of bargaining for government employees?‑‑‑I understand that they are a piece of the puzzle, yes.


When you say, 'A piece of the puzzle', it is an essential part of any decision that can be made, in respect of wages, in terms of participants?‑‑‑Various positions have been put to us, in that respect, in terms of what decisions they actually make.


You understand that the Expenditure Review Committee is a committee which has an essential role to play in expenditure of terms and conditions across government sectors?‑‑‑In terms of expenditure, that was my understanding at one point, yes.  But it's very unclear what the ERC does.


Mr Warnes, you've read the government wages policy, haven't you?‑‑‑Not recently, but I have read it, at the beginning of the bargaining, when it was sent to us, yes.


Yes, it was sent to you at the beginning of bargaining?‑‑‑Mm.


You have read it?‑‑‑Yes.


You regard yourself as intelligent and you are a qualified lawyer and we can take it that you understood the terms set out in the wages policy?‑‑‑As far as they were written, yes, absolutely.


I take it that you have had significant dealings, throughout bargaining, with Mr Costa, who is one of the union representatives?‑‑‑Yes.


Do you regard Mr Costa as an intelligent person?‑‑‑I do.


And you have no doubt that Mr Costa would be able to understand - would be able to read the contents of the wages policy?‑‑‑I have no reason to doubt that.

***        TOBY WARNES                                                                                                                            XXN MR DIXON


What about Mr Claassens, Alex Claassens, you would regard him as an intelligent person?‑‑‑My employment would be at jeopardy if I said no.


You would understand that he would have, throughout your dealings with him, a clear understanding of the wages policy that is published by the NSW government?‑‑‑I would have assumed he would have some level of understanding about the wages policy, yes.


And you certainly know, from your own reading of the document, and from - perhaps I'll tender the document.  I'm not asking you to read it for the moment, because I've got some question to precede it, but perhaps I can tender the NSW Public Sector Wages Policy 2022, it is attached to one of the statements.  It's not essential but can I just leave it on that basis that it - - -




MR DIXON:  Thank you.


You have an understanding, do you not, both from reading the policy and from your dealings with government, that it's a policy that applies across all sectors?‑‑‑Our position has always been it doesn't apply to us.


What do you mean, it doesn't apply to you?‑‑‑Because we operate in the federal system and it's merely just a government position, rather than anything that's binding on us.


Are you saying and endorsing this position, Mr Warnes, and I take it that you stated it this way, at a meeting, for example, in February 2022:


At some point Treasury need to understand that we're not going to get an agreement and at some point Treasury has to open its eyes to get this over the line.  We're in federal enterprise bargaining, we don't come down in yesterday's shower.  If you're not willing to change the status quo because of some government policy, Treasury can't wave this confected wages policy in front of our faces, as we know it's not true.  Being in the federal system, the wages policy does not apply and we are not subject to the IRC.

***        TOBY WARNES                                                                                                                            XXN MR DIXON


I'm quoting from notes made about what you've said, in bargaining meetings, on 3 February 2022.  You've just endorsed that, in simpler terms, that you do not regard the policy is applicable to employees because you think you're in the federal system?‑‑‑I know we're in the federal system.


You know you're in the federal system, but you think, by reason of that, the policy doesn't apply to you?‑‑‑Absolutely.  Well, the policy applies to us, but the policy isn't binding on us.  It doesn't affect the way that the Fair Work Commission approves our agreement.


I'm not asking you that question.  You understand that the policy applies, in respect of employees that are within government agencies, including Trains, within New South Wales?‑‑‑The policy applies?




So you don't now say that the wages policy does not apply and we are not subject to the IRC.  Forget about the IRC?‑‑‑What I'm referring to is it applies only insofar as it's a government position.


Yes, it applies in respect of the government's position as to what the government can, within the terms of the policy, concede to, in relation to claims of employees, including members of the organisation that you represent?‑‑‑Yes, but that's the same as every other national system employer.  They all make decisions according to what their organisation feels it can concede to.  I'm saying it applies the same way.


But you understand - sorry, I'm not understanding you, Mr Warnes.  You understand that, as far as the NSW government is concerned, the employees, who are the subject of bargaining in these proceedings, are employees to whom the wages policy applies?‑‑‑Yes.


You understand that - you accept that in respect of those employees, in any bargaining with the NSW government entities, they have to apply the wages policy?‑‑‑No, I don't accept that.


As far as bargaining is concerned, bargaining must take place within the parameters of the NSW government policy?‑‑‑What I'm saying is, that's a bargaining position.


Yes?‑‑‑There's no binding nature about that policy.


As far as the entities are concerned, are you suggesting that the entities are free to depart from the government's policy?‑‑‑I'm sorry, I don't understand the question.

***        TOBY WARNES                                                                                                                            XXN MR DIXON


Are you suggesting that the entities who have been bargaining are just free to walk away from the wages policy in the negotiating position?‑‑‑They're free to run a position up the chain and the people who make the decisions, in government, can change that position, absolutely.


But the people who are bargaining, the entities, you accept, are bound, in whatever they may offer, by the terms of the wages policy that is enunciated by the NSW government?‑‑‑They're bound in the same way as any employee is bound to the decision of their employer, absolutely.


But the employer is bound, in any bargaining that takes place with your union, or any others, to comply with the NSW government's wages policy, and that's been your understanding throughout the bargaining process?‑‑‑I think you've missed a couple of steps, because Trains aren't the decision makers in this room, the government are the decision makers and they're the ones who set the policy.


Well, that's not my question.  You are a lawyer, you understand you've got to answer questions and not just pontificate, you understand that?‑‑‑Yes.


Now, my question to you is, you understood, throughout the bargaining process for a new enterprise agreement that the entities with whom you were bargaining were bound by the New South Wales wages policy?‑‑‑I can't answer that question because it's misconceived, because they're not bound by - they're bound by it, insofar as any employer who is bargaining is bound by the decision maker of that organisation.


So, form your bargaining perspective, it has been, throughout and is the case now, that it doesn't matter what the wages policy says, your union can demand anything over and above the wages policy, and the two respondents, in this case, can and have the ability to accede to those demands, is that the case?‑‑‑Yes, absolutely.


All right, I'll come back to that, if I may.  Would you look at the wages policy?  If you look at paragraph 3, 3.1, do you see that?‑‑‑Yes.


You've read this policy earlier on?‑‑‑I actually have not read this one, no.  The one I read had the old wages policy in it, so this is obviously an updated version.


But you're aware of what the wages policy is, the limits on the cap?‑‑‑Yes.

***        TOBY WARNES                                                                                                                            XXN MR DIXON


And the cap is 2.5 per cent plus super?‑‑‑Yes, 2.5 plus a couple of decimal points, yes.


2.53 per cent?‑‑‑Yes.


Okay.  You're also, having read the earlier one, why would you not have read the wages policy which is central to bargaining, as far as the New South Wales entitles are, that you are voting?‑‑‑I don't know, I just haven't - I read the one that was sent to me, with the old numbers in it, when the Premier announced that he increased it.  I didn't read the new ones.


From that we can take it that you were one of the lead bargainers?‑‑‑Yes.


Your approach in the bargaining was, you did not have to pay regard for the current wages policy, but you didn't even read it?‑‑‑Have to pay regard to it?


Yes?‑‑‑What does that mean?


Appreciate that there is a limit and that there are terms, within the wages policy, that have to be complied with?‑‑‑I didn't accept that proposition, from the start.


Right.  Therefore you approached bargaining on the basis that the Public Sector Wages Policy of 2022 had absolutely no bearing on bargaining?‑‑‑The Public Sector Wages Policy was a position put by the employers and that's how I had regard to it.


As far as your bargaining, on behalf of the unions is concerned, you could make any claim above the wages policy set out the policy that applies to all New South Wales agencies?‑‑‑Yes, that's right.


And that is a position that pertains today?‑‑‑Yes.


The union's position, as at today, is that it is pressing claims, in monetary terms, about the wages policy limit that is set out in paragraph 3.1?‑‑‑Yes.


The position is, is it not, that the entities, the employers in this case, have indicated that they do not accept the demands, over and above the cap in the wages policy, that has been made clear to your organisation?‑‑‑David Elliott told us that, on 31 August, yes.

***        TOBY WARNES                                                                                                                            XXN MR DIXON


So even before 31 August you were told that, as far as the NSW government is concerned, it would not proceed to grant wages over and above the cap in the 3.1?‑‑‑It was never put any higher than, 'The wages policy applies to this bargain'.


Which you understood, as you've just said a moment ago, David Elliott said they would not go above the cap?‑‑‑Yes, that's what he said, on the 31st.


On the 31st.  But even before the 31st there had been demands made by the unions for wages above the cap?‑‑‑Yes.


Could you have a look at this document, please?  I've shown you a copy of a letter, which is a without prejudice communication from the Secretary of Transport for New South Wales, Mr Sharp, addressed to Thomas Costa.  Thomas Costa is whom?‑‑‑He's the Assistant Secretary of Unions New South Wales.


And he was one of the bargainers?‑‑‑Yes.


He shared correspondence of this kind with all the bargaining team, from the union side?‑‑‑Yes.


You've seen this letter before?‑‑‑Yes, I have.


This letter spells out, as of 17 July 2022, the government's position, in relation to the claims being made by the unions, at that stage, in respect of wages?‑‑‑Sorry, can you ask that again?


This letter sets out a response to a claim, by the union, counteroffer being made, this is a response to a counteroffer and it sets out the reasons why a counteroffer is not acceptable, because of the policy and principles set out on the first page of that document?‑‑‑Yes, it says it's not accepted and then it sets out the wages policy and says it will exceed it.


As a further reason.  As I understood your evidence, a moment ago, that was reiterated and confirmed by Minister Elliott, on 31 August?‑‑‑In different terms.  Minister Elliott said that, 'You'll get nothing above the cap for wages'.  So, yes, similar.


That was said at the meeting on the 31st that the Minister also responded to some of the other items on the agenda, like shorts and the like?‑‑‑Yes.

***        TOBY WARNES                                                                                                                            XXN MR DIXON


I'm not sure whether you adjourn at this time, or 1 o'clock, what your practice is, your Honour?


THE DEPUTY PRESIDENT:  1 o'clock, unless somebody needs a break.


MR DIXON:  I tender the letter.  I'm not sure if it's in evidence in that way.


THE DEPUTY PRESIDENT:  Yes.  This will be exhibit R2.


MR TAYLOR:  No objection.  It is actually somewhere in the evidence, but no objection.



MR DIXON:  It is the case also, therefore, Mr Warnes, that even after Minister Elliott confirmed the position of government, the collective unions are pressing for wages above the cap?‑‑‑Yes.


And - I beg your pardon?‑‑‑There was some feedback, yes, on the screen.


My apologies.  And that that claim is for at least 5 per cent more, 0.5 per cent more.  So in other words, to take it to 3.5 per cent, or is it even higher than that?‑‑‑It's 3.5 per cent with an additional cost of living supplement, based on the model that the government in Queensland adopted recently.


So notwithstanding the position that has been made clear by the government, your union still presses for more?‑‑‑More pay?




There's a full appreciation, on the part of the persons who are representing the unions in bargaining, that that would require the government to go above its own wage cap?‑‑‑Yes.


MR TAYLOR:  Objection.  Sorry, he said yes.  I can't, in fairness, deal with this while Mr Warnes is in the witness box.

***        TOBY WARNES                                                                                                                            XXN MR DIXON


THE DEPUTY PRESIDENT:  Okay.  Mr Warnes, if you just wait outside.

<THE WITNESS WITHDREW                                                           [12.45 PM]


MR TAYLOR:  The Commission has a copy of the wages policy?  It is consistent with that wages policy that amounts above the amounts in 3.1 are agreed and awarded.  It's made clear by clause 8.8.


My friend, at various times, has put propositions which get close to this, but this last question appears to cross the line.  This policy does permit amounts above those amounts in that paragraph.


MR DIXON:  I don't accept that.  I intend to put to the witness a statement made, which you may well be aware of, to the effect that one of the representatives has publicly stated that it will require the government to go half a per cent above its own wage cap.  That is part of the union's bargaining strategy and I'm entitled to put it.


MR TAYLOR:  It's the expression 'wage cap'.  I've got no difficulty with my friend - earlier what he was doing was he was saying the wage cap, that is what's set out at 3.1.  The point where the proposition was put, more broadly, that it's something that's somehow above the policy as a whole, that's a different proposition.  As long as my friend confines the question to the amounts in 3.1, it's a legitimate question and I have no difficulty with it.


MR DIXON:  Perhaps I could put the questions with that objection in mind.


THE DEPUTY PRESIDENT:  Refinement might just make - - -


MR DIXON:  It might overcome it.  I wonder if we could let Mr Warnes take a break and we can have a break and come back later and I could refine the question as well, if - - -


THE DEPUTY PRESIDENT:  That's fine.  We don't run Federal Court hours here unfortunately.  We'll come back at 1 o'clock?


MR DIXON:  1 o'clock?


THE DEPUTY PRESIDENT:  Sorry, 2 o'clock.

***        TOBY WARNES                                                                                                                            XXN MR DIXON


MR DIXON:  2 o'clock, of course.  Yes.  That would be convenient.


THE DEPUTY PRESIDENT:  No objection to that?


MR TAYLOR:  No objection.


THE DEPUTY PRESIDENT:  Thank you very much.

LUNCHEON ADJOURNMENT                                                          [12.47 PM]

RESUMED                                                                                                [2.05 PM]


THE DEPUTY PRESIDENT:  Just one matter before we recommence Mr Dixon.  The issue of conciliation, I believe, there's been some communications that have occurred.  There's been further allocations within the Commission structure.  The regional allocator has allocated the matter, and in fact, to Commissioner Riordan, not Commissioner Ryan.  So, other than that, there has been allocation.


MR DIXON:  Commissioner Riordan is available on the same date?


THE DEPUTY PRESIDENT:  I'm not sure of that; you'll have to check with his chambers.


MR DIXON:  All right.  Thank you.  May I address that issue of conciliation, of Commissioners?




MR DIXON:  We have instructions that on the basis that a Commissioner was going to be available Monday and Tuesday, our clients would participate in that conciliation and steps have been taken and discussions are being held amongst the representatives on both sides as to starting a process of fine-tuning how the process might to.  It may be possible, even before Monday, if Commissioner Riordan is available, that there be some communication by the representatives, so that Monday can kick off – a few house-keeping matters to be dealt with.


THE DEPUTY PRESIDENT:  That would seem to be ideal, and I'm sorry about the confusion between the member, but now you know.


MR DIXON:  Thank you.  Your Honour, can I just indicate one other matter.  As I understand it from our learned friends, and I apologise to Mr Warnes for interrupting cross-examination, that when we've completed his evidence, we will not be required to call our witnesses for cross-examination this afternoon, and that that matter from their perspective, they agree can stand over to the next day, if that's acceptable – is an agreed position.


MR TAYLOR:  Yes, that's something we discussed and Mr Dixon has rightly identified that if that results in us having some little time this afternoon, which I think he's suggesting may well be possible, that might be an opportunity for the parties to do some of this fine-tuning, if that's the word I understood, as to how the conciliation might operate most effectively on Monday and Tuesday.


THE DEPUTY PRESIDENT:  Okay, well on that basis and the conclusion of this evidence - - -


MR DIXON:  I may make a brief opening, if that helps.




MR DIXON:  After that happens, just to utilise some the time if your Honour pleases.

<TOBY WARNES, RECALLED                                                           [2.08 PM]



I just want to go back to touch base on one matter, Mr Warnes.  You will recall that – before I come to the policy, could you just bear with me for the question?  Before I come to deal with that issue, I put to you earlier about statements I'm instructed you made in February 2022, namely that being in the Federal system, the wages policy does not apply to the unions.  You recall me putting that?‑‑‑Yes.


And you agreed that that is something that you've stated to the bargaining representatives of Trains?‑‑‑Look, I can't confirm that those exact words that you read out were the words I said.  But to that effect, that was our position.


To that effect, at least, and that was not a personal statement, that was a position that you were expressing on behalf of all the bargaining representatives, the unions and those that they represented in bargaining?‑‑‑No, I would have been expressing that in my capacity as a Director of Organising for the RTBU.

***        TOBY WARNES                                                                                                                            XXN MR DIXON


Okay, but you understood from your bargaining discussions with the CRU, that the other unions took the same position?‑‑‑I can't answer that categorically, but I would assume so, yes.


Now, can I then ask you to go to the wages policy that I think you were looking at?‑‑‑Yes.


If you look at page 3, the page we've numbered 3, or 3 of 7, under the clause Enhancement to remuneration or other conditions, 3.1, do you see that?‑‑‑Yes.


Now, that's commonly understood, is it not, that that is the cap that the government imposes on improvement in wages and other conditions?‑‑‑Yes, as of the change in July.




Can you then just go to page 223 of the bundle which is your exhibit A2, that's the first big bundle?‑‑‑Yes.


And if you go to page 223, and you'll see that at page 223, you've produced a document which is headed Without Prejudice on 28 August 2022, a letter from the Honourable Member Damien Tudehope and it's addressed to Mr Costa and Mr Claassens, you see that?‑‑‑Yes, I do.


And it deals with a deed and the government says 'that in an endeavour to bring an end to the industrial activities which has disrupted the lives of the commuters in this state, the government proposes the following which will be incorporated in the Deed of Agreement', and then there's some matters the government withdraws and a new proposal is put.  You'll see that there's an endorsement at the bottom.  'This offer is made by the government, not as an acceptance that the work that the RTB has sought to be done on the NIF, it's necessary but rather at attempt to bring to an end', et cetera?‑‑‑Yes.


And 'I request you provide a response by 5.00 pm on Monday 29th'.  Now, if you go to the next document, you'll see that that appears to be, and I assume you know, that it is a letter from Mr Alex Claassens, the Branch Secretary of the 29 August, addressed to Mr Tudehope, the Minister for Finance and Employee Relations.  Do you see that?‑‑‑Yes.

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The letter first of all deals with the offer contained and that's a reference as we understand it, to the offer in respect of the Deed, because it says 'paragraph 2 of the letter refers to the new deed', et cetera.  Then towards the bottom of that page, the RTBU offer, 'If the government agrees to do the following, the RTBU will withdraw our protected industrial action either until 30 September or until the result of a ballot to approve the agreement is delivered'.  The government was required to agreed to the six items on page 226, correct?‑‑‑Yes, that's right.


And you were aware of that letter before it went?‑‑‑Yes.


And that item 5 talks about an increase in wage by 0.5 per cent per year?‑‑‑Yes.


And that was consistent with the union's demands for an increase above the cap, as it's understood?‑‑‑No, that's not consistent with what our wages position was.  But that's above the cap, yes.


But it is – I beg your pardon; I didn't state that correctly.  A demand for wages of 0.5 per cent per year increase, is an increase in the cap on the wages policy?‑‑‑It's over that cap, yes.


Yes.  So, when – in a public interview, Mr Claassens gives the next day, and he's asked by a journalist, 'we've said that they need to come back to us with a wage offer that at least increases by 0.5 per cent from the government wages policy, that is above the cap'?‑‑‑Yes.


When the journalist asks – and that was your understanding of the union's position, consistent with - - -?‑‑‑In respect of this letter, yes.


Yes.  Mr Claassens refers to the letter, if I recall that interview with the television channel is correct, and then the journalist asks 'To be clear, for the actions to be called off for the peace that you mentioned, the government would have to go half a per cent above its own wage cap', and Mr Claassens says 'yes, that's what the letters from us said to him yesterday'.  This is an interview on the 30th so he's referring to the letter of the 29th you'd accept that?‑‑‑The whole of what you just said, or – that he was referring to this letter?


Yes.  He says – I take you back.  Mr Claassens says earlier on, 'you've seen all my letter' and he's referring to the letter of the 29th?‑‑‑Look, I assume so.  I don't have the interview in front of me.

***        TOBY WARNES                                                                                                                            XXN MR DIXON


But he goes on to say – the journalist says 'Just to be clear, for the actions to be called off [this is on the 30th which would assume, immediately after the letter of the 29th] for the peace that you mentioned, the government would have to go half a per cent above its own wage cap'.  And Mr Claassens says 'Yes, that's what the letters from us said to him', I assume the Minister yesterday.  Whatever your view is, was referring to, what Mr Claassens is on the public record said on the 30th that for industrial peace to be achieved, the government would have to go 5 per cent above its own wage cap, you accept that?‑‑‑Point 0.5 per cent?


Did I say 5 per cent?  I beg your pardon, 0.5 per cent per year?‑‑‑Yes, I'm not a hundred per cent clear about the stuff about the industrial peace, but in this letter, he did talk about going 0.5 per cent above the wage cap.


If I can just take you back to page 225.  Withdraw protected industrial action, you'd have to meet the following.  You'd have to pay an extra 0.5 per cent per year and you accept, I think now, that that was a demand by Mr Claassens on behalf of the union that the union was still seeking a 0.5 per cent per year increase and that you accept, is above the government's wage cap?‑‑‑The 0.5 per cent is above the government's wages cap, yes.


Now, your union, and you may know what the collection possession is, but can you give us some idea on number?  How many members were represented – how many members were you collectively representing in the bargaining as the CRU?‑‑‑I don't know.


There's some figures of about 16,000 mentioned in some of the material that I've seen?‑‑‑I think all up, there's about 14,500 employees covered by the agreement.


Okay, well, that helps us?‑‑‑For both agreements, so.


Thank you very much.  So, about 14,500, and are you able to give – do you have a recollection of the sort of annual salary for the bulk of those employees?‑‑‑No.


Do you know what the range is, currently?‑‑‑It could be anywhere – if you're looking at roles covered by the agreement, I think it's anywhere between 50,000 and 160,000.


Right, and so you accept, do you not, that to grant an increase of 0.5 per cent above the cap for approximately 14,500 employees, with that sort of salary range, would have a huge and significant budgetary impact on the State of New South Wales?‑‑‑No, I can't accept that or comment on that, to be honest.

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I suggest to you even a high school economics student would understand that if you have to increase salaries of those ranges above 0.5 per cent, they would readily say it has to have a very significant impact on the budget because it increases hugely the amount of money that's got to come to pay a particular group of employees.  You accept that?‑‑‑No, I don't, and they're a fairly wealthy state.


So your approach is it doesn't matter how much it's going to cost the state and it doesn't matter what a significant impact it has on the budget, because it's a wealthy state, your union will continue to press for that additional 0.5 per cent?


MR REITANO:  Can I object to that?  There's about three questions in that that were all rolled into one.  Two I remember.


MR DIXON:  I'll fix it, thanks.


Is there something I've said that's amused you?‑‑‑Yes.


What?‑‑‑You're asking me about things that I couldn't possibly comment on.


Okay.  And that's amusing, is it?‑‑‑Sure.


I'll move on?‑‑‑Okay.


Are you seriously suggesting that you have approached bargaining on the basis that it doesn't matter how much it costs the state to increase 0.5 per cent above the cap for the 14 and a-half thousand employees?‑‑‑I'm sorry, I can't answer that.  I'm representing my members.


The wages policy, to your knowledge and understanding, covers a large number of other New South Wales employees who are subject to the same wages policy; do you agree?‑‑‑Yes.


Those employees, can you mention the sort of categories of employees?‑‑‑Public sector employees, nurses, teachers, paramedics, firefighters, court staff, TAFE teachers.  Did I say teachers?

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You understand, and throughout the bargaining it was understood, that the wages policy applies across the board to that large group of public sector employees in New South Wales?‑‑‑As I understand it, it applies to public sector employees generally.


Let's stick with the examples you gave.  It applies to all of those people?‑‑‑Yes.


You accept that those employees are also valuable employees to the benefit of the public of New South Wales?‑‑‑Of course.


You wouldn't suggest, would you, that your members that you represent are more valuable than that group of employees that you've just identified?‑‑‑That is a complete value judgment.  There's no open end to that.


But you would not suggest that your members are more valuable, would you?‑‑‑I'm not in a position to answer that question.


You would understand the concept of flow on?‑‑‑No.


You've never heard of the concept of flow on?‑‑‑Like in the context of a stream or a river?  I genuinely have no idea what you're talking about.


Well, perhaps I can spell it out in simple terms.  You understand that if the government were to grant your group of employees 0.5 per cent above the cap, that would likely be used by other groups claiming a similar increase?‑‑‑It may be, it may not be.


There's a real risk that it would happen, would it not?‑‑‑Well, it depends specifically what you're talking about because those who are in the state system aren't able to achieve those sorts of increases because of the regulations that have been put in place.


Yes, but they may still press for the same - politically press for the same because your group got it?‑‑‑Potentially.  I know the nurses are already pressing for something like 7 per cent.


You don't know what flow on is, but you're relying on Queensland, so what happened in Queensland you think should flow through into New South Wales?  That's the position, isn't it?‑‑‑No.


All right?‑‑‑We adopted the same position.

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In your evidence, you attach, in the first bundle, A2.  In the document that I think has been marked exhibit A3 - Mr Taylor opened on this, I think - you will see there is a letter of 15 August 2022 at page 263?‑‑‑In?


That's the supplementary material that was filed after we were last in the Commission?‑‑‑It's supplementary?


Yes, exhibit A3, page 263?‑‑‑Yes.


This is a letter from the chief executive of Sydney Trains and the acting chief executive of New South Wales TrainLink to Mr Costa of 15 August 2022 - 'Without Prejudice'.  Just so we get the chronology right, there had been the negotiations of the 4th and the 5th that Mr Taylor referred to and you outlined where there was some concern on the part of the union representatives that Trains were changing their position?‑‑‑Yes.


As a result, on 15 August, this document is produced and contains the 20 items which I think you refer to in your evidence?‑‑‑Yes.


As Mr Taylor has said, then the unions, of which you were a part, I take it, discussed these matters on 16 August, or some of them at least?‑‑‑Yes.


In that regard, you attached to your first statement at page 175 - sorry, the first bundle, A2, a document at 175 and following?‑‑‑Yes.


Just so that we understand the position, it's marked 'Without Prejudice' at the top and this document, on the left-hand side, appears to contain the information that was supplied by Trains representatives to the unions as set out in 263 and following and, on the right-hand side, are the comments from the union during the bargaining that took place on 16 August.  Is that how we are to understand this document?‑‑‑Yes, I understand that's right.


This document would show - just to be neutral, can I call it the 'refined position', because we don't accept there's a change - but the refined position as at 15 August is now the subject of discussion and those discussions take place on the 16th with comments about explanations and commentary from both sides as to the particular clauses; correct?‑‑‑In terms of the document at 175, that's right - - -


Yes, so in that document - - -?‑‑‑ - - - as I understand it.

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I beg your pardon, I didn't mean to interrupt you?‑‑‑No, no, you're right.


That document, from 175 onwards, you will see various clauses have been discussed through to 185, and it seems that after 185, there aren't those entries, and you may be able to help us because I don't think you got through to all the clauses on the 16th?‑‑‑Yes, that's right.


That's right?‑‑‑We only got through a few.


As a result, there were further discussions on the document on the 24th?‑‑‑Yes, it was the following week.


The following week?‑‑‑So it would have been the 24th, yes.


15 August, what I call the refined position is put; discussions on the 16th in some detail about some clauses; you couldn't get through all of that; further discussions on the 24th.  Did you get through all of those clauses on the 24th?‑‑‑I believe so, and there was discussions before the 15th, too.  The 15th was generated out of similar discussions about this very issue.


About the issue?‑‑‑Yes.


Then there are further discussions which Mr Taylor advised the Commission of this morning on 28, 29, 30 and 31 August?‑‑‑Not the 28th, the 29th, 30th and 31st, yes.


Sorry, 29th, 30th and 31st?‑‑‑Yes.


Those discussions are reflected - I think the paragraphs to those - I'm sorry to be jumping around, but it just makes sense to go to A3, which is the further bundle that came through which picks up at pages 270, 271 and - yes.  Do you have that?‑‑‑Yes, I do.


Just so that I don't confuse people, the 20 items in the 15 August document are discussed the 16th - some issues were discussed before the 15th - but the documents goes 15, discussions 16, discussions 24, not all matters have been finished, and then there are discussions about the matters, some of them at least, on those dates, 29, 30 and 31st?‑‑‑Yes.

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Can you help us here, please, because you would understand this position.  Of the matters at page 271, 29 August, the draft updates there at items 1 to 4, those are items in the list of 20, are they, the topics?‑‑‑Two through 4 certainly are.  I'm not sure about number 1.  Yes, number 1 is in there, too, yes, yes, 1 through 4.


They are all within the 20?‑‑‑Yes.


What about - if you then move to the 30th, what is the position in relation to that list in the email of 30 August at page 270?‑‑‑In what respect?


Sorry, go back to page 270?‑‑‑Yes.


You will see that's an email of 30 August 2022?‑‑‑Yes.


The items clause 7 through to clause 100, whatever it is, are those items within the 20?‑‑‑The domestic and family violence one is.


Yes?‑‑‑And clause 12 sort of is, but the rest aren't.


So the clause numbered 39 and the clause numbered 12 were there, but, on top of that, there was some agreement on the drafting for the other clauses?‑‑‑Yes.


If you then go to the second bundle - just stick with the second bundle - if you go to page 273, this was explained by counsel opening that these are the seven matters that were said were to be addressed by the Minister and Transport for New South Wales and the CRU meeting.  Which of those items - are they the only items following the discussion on 30 and 31 - I'm sorry, I need to go back one and I apologise.


Can I just take you back to your main bundle, which is A2, and ask you to go to page 249?‑‑‑Yes.


From that email, of 31 August 2022, to the various bargaining parties, attaches an updated draft, 'The following amendments have been made', those amendments were by agreement in the discussions that took place, either before or on the 31st?‑‑‑Yes.  So these reflect the discussions that we had after the Minister left, on the 31st.

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Okay.  So on that day - and these further go to the 20 items, or some of the 20 items?‑‑‑Some of them do, yes.


Can you identify which ones?‑‑‑Yes.  So section 1, section 5, subclause 103.9, schedule 3B.


Sorry, you're going too quickly for me.  Subclause?‑‑‑Which one are you up to?


Well, I've got section 1 and section 5?‑‑‑Subclause 103.9.


Yes, thank you?‑‑‑Schedule 3B, item 33.


Yes?‑‑‑I believe subclause 135.2.


Yes?‑‑‑And clause 219, in the NSW TL.  I'm not sure what the reference of clause 188 is.


Okay?‑‑‑Or formally clause 188.


Does that leave us with understanding that if you go back to page 273, which is the seven items, that they were, effectively, the only items that had not been addressed in further discussions?‑‑‑No, that's not right.


Not right?‑‑‑No.


If we take what happened in the discussions, you would accept this, would you not, that all the matters that were in the list of 20 have been the subject of discussion, I'm not saying, necessarily, the agreement, discussion at various sessions since 15 August?‑‑‑Yes, I believe they've all been subject to discussions, probably absent the outsources and privatisation one and the term and wages.


Okay?‑‑‑So items 3, 4 and 5, on page 265.  Sorry, I have just noticed that the peak consultation was in the list, just to revise my earlier answer.


Okay.  I'm not criticising you.  Thank you for your assistance?‑‑‑No, I just wanted to correct the record.

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Thank you for assisting on that.  Can I ask you then, please, just to go back?  Before I do, I'll (indistinct) a question.  Throughout bargaining both parties reserved the position that if they come to a, let's call it a without prejudice in principle position, in relation to particular clauses, they reserved the right, subject to drafting, reflecting the position?‑‑‑Sorry, can you repeat that?


I'll repeat my question.  The bargaining took place on a without prejudice basis?‑‑‑Yes.


And it was on the basis that, ultimately, unless you got agreement on everything, there was no enforceable consensus - sorry, there was no endorsement by both side, on the terms of an enterprise agreement that would go forward?‑‑‑Yes.  I mean subject to the general parlances of bargaining but, yes.


Yes, and the general parlances of bargaining would be, 'If you give me that, we take away this', and the likes.  Both sides have done that in the bargaining?  There've been changes of position by both sides?‑‑‑Just horse trading sort of stuff, yes.


And some of the claims that the union put, subsequently were withdrawn and then replaced with something else?‑‑‑Yes, I think you can characterise it that way.


You say that's a fair characterisation of what happens?‑‑‑I think you could characterise it that way, yes.


But also the parties proceeded on the basis that even if there is agreement, in that without prejudice in principle basis, matters would be subject to drafting?‑‑‑Are you asking me if you have to draft the claim once it's accepted?


No, I'm saying both parties reserved their positions that even if something was agreed, in principle, to go in, in the discussions, what ultimately went into the agreement was subject to agreement on the drafting of such clauses?‑‑‑Well, to a certain point.  The drafting can't take away from what was agreed to.


Well, the drafting - I'll come back to that in a moment, but the parties did agree that matters are reserved - whatever's agreed in principle is subject to ultimate agreement on drafting?‑‑‑No, I don't accept that it was subject to it.  There was an acknowledgement that we had to draft a clause that reflected the agreement, but it wasn't subject to - - -

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Let me take you to page 226 of the first bundle, please.  That's the letter from Ms Claassens, of the 29th.  I took you, earlier, to the six items that the unions required agreement on to stop the industrial action, and you'll see, after the six items, there's, 'If the parties agree to, subject to drafting, which we would expect to be expedited with appropriate resourcing by the government and unions'.  What I was putting to you is that that position applied, generally, to discussions.  Ultimately what went in would be subject to drafting and therefore agreement on the draft?‑‑‑No, that was written in the context of the agreement going out to a vote.  So we were saying we've got to draft it quickly to get the agreement out to a vote.


Correct?‑‑‑In the context of the industrial action.


Before anything was put in the agreement to go out, it was subject to drafting?‑‑‑Yes, it had to be drafted to put in the agreement.


And it had to be agreed as to what the drafting would be, if the unions consent for it to go out to a vote was required?‑‑‑We had to agree on what the drafting would look like, yes, absolutely.


And there had to be consensus on the drafting, on that basis?‑‑‑Of course.


You, as an experienced lawyer, would understand that drafting of enterprise agreements, the terms, is fairly critical?‑‑‑Absolutely.


Mistakes could be very costly to either side, either the employees or the employers?‑‑‑Yes.


You also accept that either side was entitled to legal advice and review of whatever went into the document at the end?‑‑‑Of course.


You also accept that legal advice may well have extended onto the appropriateness of a clause being expressed in a particular way, so whether it made sense or not?‑‑‑Yes.  I would expect both sides to do that exercise.


Your side, and I use the union side when I say that, had input, sought legal advice into some drafting issues - - -?‑‑‑Yes, of course.


- – - in the proposals that you put?‑‑‑Of course.

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No one was critical of the unions for seeking legal advice?‑‑‑No, not that I know of.


You don't criticise the employers for seeking legal advice and legal review of any of the terms that they would ultimately agree to put into the enterprise agreement.  You don't make that criticism?‑‑‑Not getting the legal advice, but the timing of which they sought to obtain that legal advice is my criticism.


Okay.  So your criticism is, of course they were entitle to do so, but it was just late in the piece?‑‑‑Yes, they did it after they agreed to the clause, rather than before agreeing to the clause.


Yes, but all of that was prior to 15 August, what you're saying, isn't it?  Because after 15 August all the clauses were again considered in bargaining, by both sides?  The 20 clauses that were subject to criticism, on the 4th and the 5th, which may have resulted from legal advice but, thereafter, there is intensive discussion, from the 15th to the 31st, of those clauses?‑‑‑Yes.


The position was also, was it not, that even at the end of that process, as to whatever went into an enterprise agreement that was going to go to the vote, either side was entitled to legal advice to vet or verify the drafting as to whether it satisfied one side or both sides' understanding?‑‑‑That was never put to us, no.


But you understood - you said earlier, as I understood your evidence, Mr Warnes, that ultimately what went into the enterprise agreement could be subject of legal advice?‑‑‑Of course.


And that legal advice meant that when you've got a draft, 'I'm not going to put this out to a vote, I want the lawyers to look at it and if the lawyers say, "There's a problem with that"'.  The employer says, 'We understood that to be an X', and the lawyer says, 'Well, that doesn't reflect X.  If you want it to reflect X that's what it must be'.  Either side could raise that, could they not?‑‑‑Yes, but you have to do that before you agree to the clause.  You can't agree to the clause and then go off and do it afterwards.


But you could still have a - all right.  Ultimately, you don't take issue with the fact that either side was entitled to get legal advice as to the final drafting of an enterprise agreement, before it went out to vote, do you?‑‑‑No, not at all.

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In the exhibit A4, which I think is behind tab 2 of the supplementary bundle, there is attachment to the Costa email, in the heading, it's from Mr McDonald, on Friday, 22 July 2022.  On that day Mr McDonald communicates with the union bargaining groups and finishes off by saying, 'Please note that the draft agreement is subject to review by the Public Sector Employee Relations', do you see that last sentence?‑‑‑Sorry, which document am I referring to?


I'm looking at what is behind tab 2 of the RTBU further supplementary bundles, and it starts with page 1.  Have you got that?‑‑‑Page 1?




If you go to page 21 you'll see there's an attachment?‑‑‑Yes.


You see it's addressed, first of all, to Thomas, which I understand is Mr Costa?‑‑‑Yes.


Union official, and it ends up by saying, 'Please note that the draft agreement is subject to review by the Public Sector Employee Relations'?‑‑‑Yes.


Now, that is a position which was not of the making of the two entities, but was a government requirement, as you understood the position, was it not?‑‑‑That's my understanding.


Yes.  Can I then move to another topic that was addressed by Mr Taylor this morning, and you were in the Commission when he made his opening submissions?‑‑‑I was, yes.


There was some submissions made about the unfortunate position, they're my words, about some public reaction adverse to your members, and I'm trying to be as neutral as I can.  I'm just identifying the topic.  I just want to put this to you, so that we can get the context of this.  Protected industrial action by the RBTU commenced in about September 2021?‑‑‑Yes.


It has been ongoing, on a regular basis, until today?‑‑‑Yes, in some form, yes.


In some form or another.  I mean some are just bans that haven't affected the public too seriously, but there have been serious protected actions taken that have impacted significantly on the normal transport arrangements for members of the public of New South Wales?‑‑‑Yes.

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That has impacted on their ability to get to work, you accept that, on time, on the occasions that the trains weren't running at the normal times?‑‑‑I mean I'm not in a position to accept it, but I can't see any reason to doubt it.


You would expect that sort of industrial action, because it was the purpose of it, was it not, to disrupt the normal transport arrangements for the public, because you saw - your union saw it as a pressure point to force the government to change its position?‑‑‑The aim is to put pressure on either the government or the entities, to come to a bargaining position.


But the people who were - - -


MR TAYLOR:  He should let him finish the answer before he asks the next question.


THE DEPUTY PRESIDENT:  Yes, finish the answer, please, Mr Warnes?


MR DIXON:  I'm sorry if I didn't allow you to?‑‑‑I was just saying to pressure the employer or the entities to come to a bargaining position, in our favour.


But the persons who were most disrupted by this were the travelling public in New South Wales, do you accept that?‑‑‑It depends which particular action you're talking about.


Yes?‑‑‑Some of them.


The industrial action that affected the normal operation of trains on the Western line, would have impacted, significantly, on public, in their normal travel arrangements?‑‑‑Sorry, you're going to have to be more specific, 'Action on the Western line'?


Well, the industrial action has covered the network, has it not, or has it been confined to particular lines?‑‑‑It depends which one you're talking about.


The industrial action which prevented the trains from running at their normal timetable basis?‑‑‑Yes, you're going to have to be more specific, because there's more than one type of industrial action that did that.

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Any industrial action that impacted on the normal running of trains - - -?‑‑‑On the Western line?


On all the lines that were affected, let's start with that, affected the normal travelling of the public?‑‑‑Yes.


That would have included, and I'm saying the Western line?‑‑‑Yes, depending on which one you're talking about but, yes.


Well, North Shore line?‑‑‑You're going to have to be more specific, I don't know which industrial action you're talking about.


All right.  There has been industrial action that has impacted on the normal running times of trains, across transport lines, in the state of New South Wales?‑‑‑Between September last year and now?


Yes?‑‑‑Has there been any action that affects the North Shore Line, is that the question?


No delays?‑‑‑Sorry?


We'll you're suggesting there have been no delays on the North Shore line - - -?‑‑‑I'm just trying to figure out what you're asking me.


THE DEPUTY PRESIDENT:  Specification of a particular action that you're identifying, causing the delay?


MR DIXON:  Protected industrial action that has stopped the trains from running, on any particular line, you accept, has an impact, negatively, on the travelling public who normally use that transport?‑‑‑Yes, but there's been very few of those, that have stopped the trains running on lines.


Delayed the running of trains?‑‑‑There's more that have delayed it or affected it, yes, than stopped it.


Significant delays?‑‑‑There have been some actions that do that, yes.


Cancellation of trains running?‑‑‑Yes.

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Overcrowding on platforms, as a result?‑‑‑I don't know.  You'd have to be more specific.  You haven't mentioned any particular kind of industrial action.


What I want to suggest to you, Mr Warnes, and I can try and make this shortcut, is that has it occurred to you that industrial action that is preventing people from getting to work or going about their normal business, to get to a hospital, or a doctor, or visit loved ones, that prevents from doing so, might bring out, for them, frustrations which unfortunately they bring out onto staff?‑‑‑I don't know if we've taken any industrial action that will prevent people from doing any of those things.


Denied people, significantly, are you suggesting that you didn't delay people?‑‑‑No, I won't quarrel with the word 'delay', you said 'prevent'.


Well, some people may have been prevented because they missed their appointment, do you accept that?‑‑‑I'm not in any position to accept that.


The proposition I'm putting to you is, has it occurred to you that the frustrations that are taken out on members of your union, because people are delayed from going about their normal travel arrangements, might because of the disruption to their desire to get from A to B in a timely fashion?‑‑‑Absolutely, may be.


What I'm suggesting to you is that there is no correlation between public statements and a level of frustration and that the real cause of the behaviour, unacceptable behaviour of people, is because of the very significant and ongoing industrial action that is affecting their normal travel arrangements?‑‑‑No, I would categorically reject that.


Just so that we're clear, that the industrial reaction from the RTBU, starting in September 2021, has been pretty much going on, in every month, since 2021, since September 2021?‑‑‑No, there has been some gaps.  I mean at all times there's been sort of those lower level bans, like the uniform ban has been on the whole time.  But particularly around intensive bargaining sessions, if you want to call it that, there was no industrial action taken, save for a period of two months, in April and May.


I take it that consecutive 15 minute stoppage, by RTBU drivers, would impact on the normal running of trains, on the particular lines to which they were rostered?‑‑‑We've never taken stoppages like that.

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Have the other unions done so?‑‑‑I'm not sure.  The other unions don't have train drivers, so I doubt it.


Okay.  That's fortunate, no doubt.  Can I just then ask you about another topic that you address in your evidence, and that is terminating of the existing agreements?‑‑‑Yes.


Just so that we understand the background, the current enterprise agreement that affects your union, as I understand it, has a provision which the courts ruled upon, that the new driverless trains, or the Mariyung trains, or whatever they are, the new trains could not be introduced into the network without the consent of your union?‑‑‑Yes.  That's the NSW Trains Enterprise Agreement.


I'm sorry?‑‑‑That specific issue is about the NSW Trains Enterprise Agreement.


Thank you?‑‑‑Sorry, I pre-empted your question.


No, no, I appreciate your correcting me.  For a long time now the NSW government has been trying, mainly through the deed process, of arriving at a position where it can obtain the requisite agreement, from the union, to introduce those trains into service?‑‑‑Yes, generally.


Those trains have been available to be put into service for how long, do you know?‑‑‑It would have been from mid to late last year, 2021.


It's your understanding that there was a very large capital expenditure made, in order to acquire the trains?‑‑‑Yes.


Those trains are - the proposal is that t hose trains are to be introduced into a new system that's been built in various lines in New South Wales?‑‑‑No, different trains.


Different trains.  So those particular trains are going to go where?‑‑‑So you're talking about the new Metro, these trains go on existing lines, north, west and south, really.

***        TOBY WARNES                                                                                                                            XXN MR DIXON


Thank you.  My mistake, thank you.  The fact of the matter is that, as of now, there is still no agreement, in respect - from your union, as to the - which, effectively, would allow the government to introduce those new trains into the lines that you've identified?‑‑‑No, I disagree with that.  We have an agreement, we just have a dispute about what we're calling the sunset clause, clause 3 of the deed.  We have an agreement on everything else, in the context of the new (indistinct) fleet.


But I think that answers my question but, perhaps, because you haven't reached agreement on the sunset clause, there is no agreement that currently allows the government to introduce those trains into the system?‑‑‑No, there's been no deed signed to that effect.


Therefore, it is precluded, as of today, from introducing those trains into the system?‑‑‑Yes.


The question of whether there's a solution to that problem, is the termination of the enterprise agreement that precludes the introduction of that, has been subject to discussion or raised - sorry, I'll put it differently.  Has been raised with the union representatives, from time to time?‑‑‑Yes, that's right.


So in your reply statement, at paragraph 62, on page 14?‑‑‑Yes.


The issue has been raised, in discussions, for example, with Mr Sharp, who is the Secretary, and Mr Longland, the CEO of - - - ?‑‑‑Sydney Trains.


- - - yes, Sydney Trains, because that may be the way in which the trains, new trains, can come into operation, because of the absence of agreement?‑‑‑No, that was never specifically stated as their reason for terminating, no.


But it would have that effect, would it not?‑‑‑No, not necessarily.


Just bear with me for a minute.  Can I take you to - and I will try and shortcut this and tell me if you need the statement you are responding to - in your reply statement, which is exhibit A5, I think, in paragraph 9 you are responding to paragraph 38 of Ms Streimer's statement, in which she says - and tell me if you need to look at the clause, I don't want to -


On 2 August, Mr Warnes sent an email to representatives addressed to McDonald and me providing a list of six issues that in RTBU's view still required further discussion.


And she goes on to say:

***        TOBY WARNES                                                                                                                            XXN MR DIXON


After considering Mr Warnes' email, retail agencies formed a view that they needed to identify those matters that were outstanding so that we could address them during bargaining and achieve a conclusion on where the parties stood.  This was essential to be able to reach a position where we could take an enterprise agreement to a ballot.


You seem to say in paragraph 9:


In response to paragraph 38, it was never expressed to us that Trains wanted to take the EA to a vote at this stage.


I am suggesting to you that that's not what Ms Streimer says.  She wasn't saying that they wanted to take it to a vote at that stage; they wanted to promote it to get to a stage where they could take it to a ballot.  You don't take issue with that?‑‑‑No, I don't.


That is the cross-examination.



RE-EXAMINATION BY MR TAYLOR                                               [3.07 PM]


Two things.  You were asked a series of questions about the unions' position on wages versus the current state government wages policy.  Are you able to tell the Commission what the outcome of the last round of bargaining was versus the then state government wages policy?‑‑‑Yes.  In 2018, we achieved an agreement that had 3 per cent each year and, at the time, the wages policy was 2.5 for each year, including super, if there was a super increase.  I can't remember whether there was one between 2018 and 2021.


Are you aware at all as to whether that led to any - now that you've been educated on what flow on means - any flow on to state public sector workers?‑‑‑No, not that I know of.

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It was put to you that there's no correlation between what the unions have said to be inappropriate public statements and the behaviour of members of the public and the real cause is disruption by industrial action.  You categorically rejected that.  What's the reason why you categorically rejected that?‑‑‑Generally feedback from our members out on the front line, if I can colloquially put it that way, and the reasons why they were being abused out there, we frequently have words like 'terrorists' and 'bastards' repeated to our members out in the network, which is words that the politicians have used in public parlances, and also the fact that it's always industrial action put to someone when they're being abused verbally as the reason for that abuse.  So, there's sort of those three instances where it's put expressly to the people that the reason a member of the public is angry with them is because of either the language that's been used in public parlances or the characterisation of every disruption as industrial action.


No further questions.  If Mr Warnes could be excused?


THE DEPUTY PRESIDENT:  Yes, thank you, Mr Warnes.


MR TAYLOR:  You will remain, I'm sure, to assist those on this side of the Bar table.

<THE WITNESS WITHDREW                                                             [3.10 PM]


MR DIXON:  Deputy President, I'm happy to give a brief opening if you would find that of any assistance.


THE DEPUTY PRESIDENT:  Yes, that's fine.


MR DIXON:  The respondents submit that the characterisation of the process that has been adopted to try and reach agreement is not an accurate account of the position taking into account all the circumstances.


The authorities have made clear that the present application should be considered in the context, firstly, that the government entities, such as the respondents, do not operate in a vacuum.  There are certain decisions such as funding for consistency across government departments or entities which have to be taken into account and decisions of that kind may be made by decision makers within government.


In addition, bargaining by the actual bargaining representatives who are facing each other and bargaining on a regular basis, bargaining must be seen in its total context, and one of the propositions that we advance is that repeated questioning, as has occurred during some of the bargaining meetings, as to who the decision makers within government are do not advance but, in the context set out above, inhibit genuine bargaining for a new agreement.

***        TOBY WARNES                                                                                                                         RXN MR TAYLOR


This is particularly illustrated by the evidence today.  There is a complaint made about approbation and reprobation, terms that are not industrial terms, of course, but a suggestion that there is a shifting in the sand of the position.  What you can be confident about is that from 15 August, Trains made their position in relation to at least 20 clauses perfectly clear.  They set out in detailed documentation form what they were proposing.  You can accept that the formulation of that may have been different, but from 15 August, the position is made clear.  There are negotiations on the 16th, the 24th, the 29th, 30th and 31st and we say three things in relation to that.


Firstly, there is no suggestion in the evidence and not a word from the witness that negotiations were in any way inhibited because there had not been identified in the type of order that is sought here who in government has authority to decide X, who in government, in Treasury, makes this decision or the like.  The parties got on with it and the complaint made to the Premier on 9 August was taken care of by the way in which the parties went on after that.


The second proposition we advance is that it is clear that, as at today, on a number of occasions prior to today, the government has made clear that in relation to this bargaining under the wages policy, it is sticking to the cap.  What is also clear, and it was made clear by Mr Warnes, that - although briefly, on the 31st, Minister Elliott made that clear - it had been made clear in an earlier letter and what we also know is that the unions do not accept that position and that they demand wages over the cap, and that is a clear indication that the parties had reached, as at the 31st, a position where they could not reach agreement on a central matter - wages - which fully entitled the clients that we represent to take the view that at least they would seek the views of the persons who made the agreement, who make an agreement, the employees to be covered, and they were not required to obtain the final approval of the bargaining representatives.  That is not a requirement (a) for a matter to go to a vote and it's not a requirement under the Act to make an agreement.


The context is also bargaining that has taken place over a very long period of time, and we have summarised that in our written submissions.  Starting from around 13 March 2021, when bargaining was introduced, the number of meetings has been extraordinary, the number of people involved, the time involved has been absolutely extraordinary and very costly, not only costly from a money point of view for persons bargaining but also to the state.


We submit that the respondents did not take a shifting in sands approach.  The evidence will show that in relation to the deed, and as Mr Warnes indicated today, for a very long time, there has been to-ing and fro-ing between the parties to try and reach agreement in respect of the deed, a deed which is necessary to allow the state to introduce the trains, and the deed is a matter that stands separate from the enterprise agreement.


The deed is not an essential for the making of an enterprise agreement, although there is an attempt to, at some stage, incorporate the terms into the enterprise agreement, but it's not an essential for the making of the enterprise agreement; it's not a precondition to the making of an enterprise agreement that the parties enter into a deed.


Of course, a bargaining - and this is not necessarily industrial bargaining - but seeking agreement or negotiating a deed in different forms with different issues, different complexities, there would be changes and the Commission would not, in my respectful submission, attribute to the bargaining representatives and Trains breach of good faith bargaining in relation to the difficulties that the government representatives were having in achieving an agreement in relation to the terms of a deed which was required to try and introduce the trains because of the restrictions in the earlier agreement.


The submissions and the application in this case suggests that the intervention of ministers was required - this is an allegation - by the respondents.  That is not an accurate reflection of the evidence.  It is true that, from time to time, ministers did attend discussions and give information that could be used for the purposes of bargaining or with a view to enhancing bargaining, but there is no requirement by the respondents that the ministers must be bargaining.  They were capable of bargaining the issues on instructions that the ministers gave.


Yes, it's true that at 31 August, Minister Elliott attended meetings and, in fairly short term, expressed the government's final position, one of them being the essential question of wages where he made clear that the government would not move on the cap.


It is not correct to say that the government decided in a peremptory way and without warning that it would no longer bargain with the unions.  That is not, in our submission, as the evidence will show, an accurate statement in the context of where matters were leading, but we will elaborate on that at a later time.


Another allegation is that the government is said to have decided that it would commence an access period to put a draft agreement to a vote on three days' notice.  The evidence, we will submit, does not establish that it had reached a decision to do that when there were discussions on the 31st and 1 September.


We will address the question of the proposed orders in closing.  You will have seen our written submissions.  That's all I wish to say.  I beg your pardon - I apologise, your Honour - there's two things I want to say in relation to the principles of bargaining.


The first is by reference to what is said in the Endeavour Coal case, a Federal Court case.  Unfortunately - - -


MR TAYLOR:  Not a Full Court, just one judge.


MR DIXON:  Yes, I was going to reflect that.




MR DIXON:  Yes, it's Endeavour Coal Pty Ltd v Association of Professional Engineers, Scientists and Managers, Australia.  [2012] FCA is the non-reported version.  I will come back to some of the argument later, but in relation to the principles under section 228, Flick J's reasons at 34 where his Honour says:


The manner in which Endeavour Coal approaches 'bargaining' is, subject to section 228(1), largely a matter for it to determine.  Section 228(1) does not require a party to 'bargain' in any particular manner.


Then at 35:


The putting of a proposal or a counter-proposal, or the suggestion of terms for the purpose of 'bargaining' or advancing the 'bargaining' process, does not irrevocably commit Endeavour Coal to ultimately agree to the proposal or to those terms and limit the 'bargaining' solely to matters which have not yet been agreed upon. To impose such a constraint upon the bargaining process would be contrary to section 228.


This Commission has also accepted that parties are free during bargaining to change their positions for various reasons and to the extent that there is criticism here - the criticism principally that we have heard of today that what happens on 4 and 5 August - and if there was a criticism there, it was fully cured, in our respectful submission, after the event.


I will address the other questions of the orders at a later stage, if necessary, if the Commission pleases.


THE DEPUTY PRESIDENT:  Thank you.  Is there anything more that can be productively done today?


MR DIXON:  Not from our side.  We are content to deal with the balance on the next occasion if it's necessary, thank you.


THE DEPUTY PRESIDENT:  On that basis, I will adjourn the matter to 10 am on 14 September.


MR TAYLOR:  Can I just indicate - I think this is clear from what fell immediately after lunch, but I didn't actually address it myself - my clients are looking forward to conciliating with Riordan C on Monday and Tuesday and no doubt there will be communications with Riordan C's chambers about that.




MR TAYLOR:  Thank you.


THE DEPUTY PRESIDENT:  Thank you very much.  The matter is adjourned.




TOBY WARNES, AFFIRMED............................................................................ PN241

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CROSS-EXAMINATION BY MR DIXON........................................................ PN296

EXHIBIT #R2 LETTER....................................................................................... PN380

THE WITNESS WITHDREW............................................................................. PN388

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RE-EXAMINATION BY MR TAYLOR............................................................ PN611

THE WITNESS WITHDREW............................................................................. PN617