Minns government’s ‘line in the sand’ sparked Fair Work ban on trains strikes: court

A “line in the sand” was drawn when the rail unions were forced into a “cooling off period” after months of industrial brinkmanship, a court has been told.

A ban on industrial action giving NSW’s rail unions a “cooling off period” to focus on negotiations was brought by the state government because it “drew a line in the sand”, a court has been told.

A full bench of the Fair Work Commission in February ruled in favour of a “cooling off period” until July 1, halting all industrial action to focus on negotiations and reaching a final deal.

It came after months of escalating industrial action and brinkmanship between Sydney Trains and NSW Train Link and the Combined Rail Union, led by the Rail, Tram, and Bus Union.

Earlier this month, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union (CEPU) applied to the Federal Court to quash the FWC’s order.

Protected industrial action could return to Sydney’s railways as the union and state government return to court. Picture: NewsWire / John Appleyard

Appearing before an expedited hearing on Wednesday, Patrick Knowles SC, representing the union, said the state-run rail agencies sought the order because of the government’s own hard-line position.

“It can’t be the case that a state-owned enterprise is permitted to apply for a cooling-off period, and that the reason is said to be appropriate because the state says there is a hard line in the sand,” he said.

Mr Knowles told the court that the CEPU was seeking relief for the matter to be readmitted to the Fair Work Commission, which he said had erred in the legality of its decision to suspend all action.

He went on to add that the tribunal failed to indicate which bargaining representative was undertaking which action, and how any suspension assisted the parties.

“(The FWC) needed to consider the specific industrial action being undertaken at the time, not some global suspension of all industrial action,” Mr Knowles said.

“It is a contention that the tribunal misconstrued the law, which was material to the outcome.”

He said the FWC was legally required to take specific actions into consideration, even though the rail unions were jointly represented and this specific argument was not raised.

The Fair Work Commission order a ‘cooling-off period’ in February. Picture: NewsWire/ Gaye Gerard

Mr Knowles admitted the CEPU did not put before the FWC tribunal that specific argument, instead “something quite similar” about the need to identify the specific actions.

The CEPU would also seek a costs order, not from the Fair Work Commission but from the Transport Minister who Mr Knowles said had a “statutory right to intervene”.

In its submissions, the FWC told the court the tribunal would have had to, on the logic of Mr Knowles application, “specifically assess the beneficial affecting of suspending” each individual action.

Speaking on the union’s evidence to the FWC, its lawyer said: “There is a strong theme that without further industrial action they did not see that they would be successful in advancing the claims they were seeking.

“The commission found that, notwithstanding all the protected action that had been happening, when it was recently reinstated that talks broke down.

“The proceedings to come before the commission to seek a resolution of the issue were vacated.”

Premier Chris Minns dismissed labelled the industrial action ‘completely outrageous industrial blackmail of Sydney’. Picture: NewsWire / Max Mason-Hubers

The lawyer went on to add that the CEPU’s claim that the FWC should have assessed every individual claim “must be considered in the context” that the unions were seeking a single agreement.

The CEPU broke away from the Combined Rail Union and the RTBU following February’s FWC decision It also includes the Electrical Trades Union NSW/ACT.

The CEPU and the RTBU had been seeking a 32 per cent pay rise across four years, but the government has only offered 15 per cent for the same period, as well as the merger of the rail entities.

Prior to the FWC order last month, NSW Premier Chris Minns rejected that he was “giving in” and labelled the industrial action as being “completely outrageous industrial blackmail of Sydney”.

Transport for NSW in a statement said the FWC had found that it was “in the public interest” for industrial action to pause, and that passengers would now have certainty in rail services.

Originally published as Minns government’s ‘line in the sand’ sparked Fair Work ban on trains strikes: court