Sydney rail commuters win relief in union battle

The Minns government has scored a major victory in its legal bid to pause industrial action by thousands of rail workers which has repeatedly crippled Sydney’s train network.

After months of frequent disruption to the rail network due to industrial action, the full bench of the Fair Work Commission has suspended industrial action until July 1.

Transport Minister John Graham addresses the media after the ruling.Credit: Wolter Peeters

In delivering the orders, Fair Work Commission president Adam Hatcher, SC, said the commission was ordering the suspension to ease the “significant pressure” and end the “mutual recriminations” between the unions and the government over a deal.

“Notwithstanding that the unions strongly oppose any order for the suspension of industrial action, we consider that such a suspension would be beneficial to the bargaining representatives because it would assist in resolving the matters at issue,” he said.

Transport Minister John Graham said the ruling “promises an end to disruption for commuters in Sydney”.

“This is clear air for these discussions, but most importantly, it’s a clear run for commuters as they’re moving about the city, and that’s what really matters here,” he said.

Treasurer Daniel Mookhey said the government was determined to use the cool-down period to get an agreement. “We don’t want this to linger until July, we want this resolved quick,” he said.

Sydney’s rail network has been repeatedly disrupted by industrial action over the past few months.Credit: Nick Moir

Rail Tram and Bus Union (RTBU) state secretary Toby Warnes said the unions were disappointed at the result but now hoped the government took the chance to try to land a deal.

“It really is an opportunity for us to sit down again and hopefully mend that little bit of the bridge that is left,” he said.

In his judgement, Justice Hatcher criticised the union for resorting immediately to industrial action after the collapse in the negotiations late last week, saying that “instead of the parties maturely seeking to work through this problem” there was an “immediate resort to disruptive industrial action”. He also dismissed the union’s claim that the government had issued a “lockout” against workers, labelling that a “false characterisation”.

He said the “mutual public recrimination” which had followed, coupled with the “public backlash” to the chaos, meant a suspension in industrial action would “allow the parties to nail down the agreed matters and to focus on the merits, rationale and affordability of the outstanding claim”.

The ceasefire until July is less than the six months the government had asked for.

While the government welcomed the “clear air” from the ruling, it does not solve the central problem of the union’s demand for a $4500 bonus payment. Asked following the hearing whether the union would dig in its heels about the payment, Warnes said it was an existing entitlement and, if transport officials wanted to remove it from the new agreement, something would have to replace it.

While Graham said the government would not move from its position that it would not pay the bonus, he said he was “prepared to talk about fair pay and conditions”.

While he conceded the issues “won’t get easier”, he said the fact the government would not be dealing with the “uncertainty [and] disruption” of industrial action would help.

Earlier, a senior transport official told the hearing that rail union bosses were warned five months ago that workers would not receive a “one-off” $4500 bonus, which was at the heart of an eleventh-hour breakdown in negotiations between the Minns government and unions.

At the same time, lawyers for the combined rail unions had accused Sydney Trains of engineering a crisis on the city’s transport network in order to bolster its case that the Fair Work Commission suspend the long-running industrial action by rail workers for more than six months.

Appearing before the commission, Sydney Trains executive director Fatima Abbas said union officials had been told months ago that a $4500 payment to rail workers agreed to by the former government in 2022 would not be repeated.

Sydney Trains human resources head Fatima Abbas (right) leaves the hearing on Wednesday.Credit: Janie Barrett

“My team specifically told the team from combined rail unions we would be removing that clause from the 2022 agreement,” she said.

Her evidence ran counter to claims by the combined rail unions that transport officials never raised the payment during several months of negotiations.

The showdown in Fair Work came after chaotic scenes on the rail network last week, following the collapse in negotiations between the two parties.

When negotiations collapsed over the $4500 payment, the unions signalled their intention to resume industrial action through so-called “go slow” action after a 48-hour pause.

Rail Tram and Bus Union state secretary Toby Warnes (left) and president Craig Turner outside the Fair Work building on Wednesday.Credit: Janie Barrett

In response, the government issued so-called 471 notices against workers, meaning their pay would be docked if they engaged in industrial action. It led to hundreds calling in sick or failing to report for duty.

But on Wednesday, in at-times testy exchanges between the unions’ barrister, Oshie Fagir, and Abbas, a senior transport official who has been heavily involved in the pay negotiations, Sydney Trains was accused of manufacturing the crisis in order to force an end to the industrial action.

Fagir showed Abbas evidence he said demonstrated that Sydney Trains’ own analysis of the impact of the go-slow action would have been “moderate”, and suggested that the decision to issue the 471 notices was “an industrial tactic”.

Abbas, who denied the claim, was also shown evidence the number of workers who had called in sick last week had been similar to previous years.

Asked about the impact of the recent industrial action, Abbas conceded she could not identify specific instances of crews driving 23km/h below the speed limit as part of a “go-slow” action.

She also disputed suggestions by the unions’ lawyer that the decision to issue 471 notices came from the premier’s office.

Abbas said the parties were not close to reaching an agreement when the $4500 bonus reared its head last Thursday.

However, the RTBU’s Toby Warnes said they came within a whisker of reaching an agreement, and “we were 1 per cent apart on year three”.

Warnes, a lawyer by training, said unions offered trading the $4500 bonus for a 1 per cent uplift in year three of a new enterprise agreement.

He came under heavy questioning by Sydney Trains’ lawyer about the union describing the 471 notices as a lockout. Hatcher also asked Warnes how it could possibly be described as a lockout.

Warnes said he believed the notices amounted to a lockout, adding the chaos on Sydney’s rail network last Friday was sparked by workers becoming worried they would be docked a full day’s pay.

In closing submissions, Sydney Trains’ lawyer Simon Meehan, SC, said at least a six-month cooling-off period from industrial action would be appropriate.

“This is not a termination application. This is all about cooling off,” he said. “What is the downside … of introducing a cooling-off period to see what could be achieved?”

He said there had been a distracting influence on the two sides from “all the media attention”, noting that remarks about lockouts had been unhelpful.

However, the unions’ barrister said a suspension would reduce the prospects of an agreement because the evidence had shown industrial action had resulted in bringing the two parties back to the bargaining table.

He said it was “extraordinary” that Sydney Trains believed a suspension of industrial action would promote agreement between the warring sides.

The government and six rail unions have been engaged in a bitter dispute over a new enterprise agreement for the past nine months.

Following last week’s chaos on Sydney’s rail network, the government filed an application under Section 425 of the Fair Work Act to suspend industrial action on public interest grounds to allow negotiations to continue on a new pay deal unhindered by work bans and other actions.

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