Serious hole in claim that safety demanded Sydney’s train shutdown

On Monday morning, Sydney woke up to public transport chaos – train networks closed down, and a war of words between the government, Sydney Trains and the unions over the blame for this purported “strike” action.

During the day it became clear that the chaos stemmed not from “strike action”, but from a management decision to shut down the train network because of its concerns that planned protected industrial action by the union would make the train network “unsafe” to run.

The shutdown of Sydney’s train services on Monday left thousands stranded.Credit: Edwina Pickles, Wolter Peeters, Kate Geraghty

Yet, in January 2018, Dominic Perrottet, as then NSW minister for industrial relations, sought and obtained an order under s 424 of the Fair Work Act in the Fair Work Commission suspending proposed protected industrial action by the same union citing the desire to avoid the very same chaos that descended on Monday.

That proposed protected industrial action, involving an overtime ban and 24-hour work stoppage, was suspended on the basis that it posed a threat to the welfare, life, health and safety of the population of Sydney, and threatened to damage the economy.

In his decision, senior deputy president Jonathan Hamberger relied on evidence presented by the NSW government that the proposed action threatened the welfare of NSW commuters, including affecting students, those attending for hospital admissions and court services, increased road congestion, reduced waste collection, not to mention a purported $90 million hit to the NSW economy.

Now just four years later, it appears that rather than urgently seeking similar orders under section 424 of the Fair Work Act, suspending the proposed industrial action on the threat posed to the safety of the people of Sydney, management and the NSW government opted to shut down the entire transport network.

If, as has been claimed loudly in the media, the proposed protected industrial action posed such a threat to the safety of commuters on the Sydney rail network that it necessitated shutting down the network entirely, why weren’t these claims put to the test before the commission on Sunday night in the urgent hearing listed at the request of Sydney trains?

The rules around protected industrial action under the Fair Work Act are complex. In essence, the provisions allow for a level of industrial “rough and tumble” in the form of protected industrial action. For employees this can span a range of conduct from refusing to wear work uniforms, overtime or other bans, right through to a total refusal to work (or a “strike” in the traditional sense). For management, this includes the right to respond to such action by employees through a lockout of their workers.

All of this takes place in the context of bargaining for a collective agreement to govern working conditions and wages for up to four years (the timeframes between these two disputes are not a coincidence). The ability of workers to take the action is highly constrained – only after a current agreement has expired, only after a strike ballot has approved the action and notice requirements have been met, and always with the possibility that the action might otherwise be brought to an end through suspension or termination by the commission if it threatens to endanger welfare, health, safety or life.

Significantly, the union in this matter had learned well the lessons of 2018. The action proposed was carefully calibrated to avoid the kind of threat to welfare, health, safety or life that would require the commission to make an order suspending it.

The inability of management clearly to articulate this threat and to seek an order on Sunday suspending the action on this basis speaks volumes about the credibility of the claim itself, and casts a serious cloud over the necessity of managements’ decision to shut down the network.

But, now that management has withdrawn its work commission claim what happens next?

The union’s right to take protected industrial action is not suspended, and it insists the proposed action is safe for the rail network. If it is genuinely not safe as claimed, management should seek a suspension order under section 424, sending the parties back to the bargaining table without more action.

Otherwise, the union action will continue in accordance with the scheme of the act, and if management choose to shut down the network again, it should own the decision for what it genuinely is – a lockout in support of its bargaining claims – not an employee strike. To say otherwise is political spin.

Professor Shae McCrystal is the deputy head of school and deputy dean of the University of Sydney Law School. She is a professor of labour law.

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