Sydney Trains v Australian Rail, Tram and Bus Industry Union (No 2) [2022] FCA 1264

FEDERAL COURT OF AUSTRALIA

Sydney Trains v Australian Rail, Tram and Bus Industry Union (No 2) [2022] FCA 1264 File number(s): NSD 884 of 2022

Judgment of: RAPER J

Date of judgment: 25 October 2022

Catchwords: PRACTICE AND PROCEDURE – interlocutory application for expedited hearing – applicable principles

Legislation: Fair Work Act 2009 (Cth) ss 19, 343(1), 408, 443

Cases cited: Ford, In the matter of Zhong Ao Zhi Hong Investment Holding Pty Ltd (Receivers and Managers Appointed) [2021] FCA 1373 Frigger v Trenfield (No 6) [2022] FCA 1233 Hird v Chief Executive Officer of the Australian Sports Anti-Doping Authority [2014] FCA 1090

Division: Fair Work Division

Registry: New South Wales

National Practice Area: Employment and Industrial Relations

Date of hearing: 24 October 2022

Number of paragraphs: 22

Counsel for the Applicants: Mr A Gotting

Solicitor for the Applicants: Ashurst Australia

Counsel for the Respondent: Mr M Gibian SC

ORDERS NSD 884 of 2022

BETWEEN: SYDNEY TRAINS First Applicant

NSW TRAINS Second Applicant

AND: AUSTRALIAN RAIL, TRAM AND BUS INDUSTRY UNION Respondent

order made by: RAPER J DATE OF ORDER: 25 OCTOBER 2022

THE COURT ORDERS THAT:

1. Pursuant to r 30.01 of the Federal Court Rules 2011 (Cth), the Court will hear separately the following questions: Question 1: Whether the actions notified by the respondent to the applicants: a. on 3 August 2022 in the form of station staff (being employees of the applicants) leaving all gates open or ensuring that all gates stay open at train stations from 12:01am on 13 August 2022 continuing until 12.01am on 6 September 2022; b. on 31 August 2022 in the form of station staff leaving all gates open or ensuring that all gates stay open at train stations from 12:01am on 10 September 2022 continuing until 12.01am on 10 October 2022; and c. on 11 September 2022 in the form of station staff delaying the performance of work when Opal machines are operative to ensure that they are inoperative which is due to commence on 12:01am on 21 September 2022 and to continue indefinitely, (collectively, the First Impugned Action) are forms of "industrial action" within the meaning of that phrase in s 19 of the Fair Work Act 2009 (Cth) (FW Act)? Question 2: Whether the First Impugned Action was authorised by the protected action ballot ordered to be held on 24 January 2022 by the Fair Work Commission and the protected action ballot declared on 9 February 2022 and whether the First Impugned Action thereby met the additional requirement in s 409(2) of the FW Act? Question 3: Whether the actions notified by the respondent to the applicants on 16 October 2022 in the form of station staff: a. interrupting their performance of work for the purpose of deactivating Opal gates by pressing the red deactivation button on any occasion that the Opal gates are not deactivated; and/or b. engaging in the performance of work in a manner different from that in which it is customarily performed by deactivating Opal gates by pressing the red deactivation button on any occasion that the Opal gates are not deactivated, (collectively, the Second Impugned Action) are forms of "industrial action" within the meaning of that phrase in s 19 of the FW Act. 2. The hearing of these questions be set down for two (2) days in February 2023 or March 2023. The parties are to confer as to their availability and are to provide proposed short minutes to the Court by Friday 28 October 2022. 3. The matter be listed for case management on Wednesday 2 November 2022 at 11:00am. 4. The respondent's application for expedition, supported by the applicants, is dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.