[2025] FWCFB 38
protected industrial action, and the RTBU has had to deal with anger amongst its membership about the potential or actual loss of pay resulting from the operation of the s 471(4)(c) notices. The parties have engaged in mutual public recrimination, and both sides have come under significant pressure because of a public backlash against the disruption to train services and associated media attention upon this. A suspension would allow the parties to nail down the agreed matters and to focus on the merits, rationale and affordability of the outstanding claim for a sign-on bonus free of these pressures.
[9] In relation to the second matter (s 425(1)(b)), protected industrial action has been taken in various forms for about five months. We accept that it may be inferred that the pressure on Sydney Trains and NSW Trains caused by the protected industrial action has contributed to it improving its wages offer over time and thus has narrowed the gap between the parties. However, we consider that the bargaining has reached a point whereby the continuance of protected industrial action is very unlikely to contribute to the finalisation of the dispute about the claimed sign-on bonus, having regard to evidence concerning NSW Government funding constraints upon Sydney Trains and NSW Trains. Indeed, the mutual recrimination engendered by events since 13 February 2025 suggest that further protected industrial action may result in the parties moving further apart. Thus, the duration of the protected industrial action, considered in the entire factual context, weighs in favour of the grant of a suspension.
[10] The third matter for consideration (s 425(1)(c)) concerns the public interest and the objects of the FW Act. The public interest plainly invokes considerations wider than the direct interest of the parties. We consider that a suspension would not be contrary to the public interest and indeed would positively be in the public interest. In this respect, we take into account that a suspension would pause any disruption to train services in Sydney and regional NSW and would allow public confidence in the reliability of the rail network to be restored. In the absence of a suspension, we consider it likely that the protected industrial action will continue for a considerable period of time, and perhaps escalate, given the NSW Government's publicly-stated immovable opposition to the payment of the sign-on bonus. We do not consider that a suspension would be inconsistent with that part of the object of the FW Act in s 3(f), which concerns 'achieving productivity and fairness through an emphasis on enterprise-level collective bargaining underpinned by simple good faith bargaining obligations and clear rules governing industrial action'. The purpose of the suspension remains to assist the parties to make an enterprise agreement covering Sydney Trains and NSW Trains, and we would understand the 'clear rules governing industrial action' to include the temporary deprivation of the right to take protected action by way of a suspension under s 425. In terms of the specific enterprise bargaining objects in s 171, we likewise consider that a suspension would not be contrary to those objects since we consider it would improve the prospects of an enterprise agreement that 'deliver[s] productivity benefits to be achieved.
[11] The other matter which we consider relevant (s 425(1)(d)) is that the view of some RTBU members appears to have been inflamed by adverse publicity about the protected industrial action, and also by the s 471(4)(c) notices and the false characterisations of these by the RTBU as lockout notices. There is some evidence that this has meant that such members are taking matters into their own hands and are encouraging or organising industrial action beyond that authorised by the RTBU's leadership. We consider that a cooling off period, which would likely reduce ongoing adverse media publicity and render the s 471(4)(c) notices
3
