Sydney Trains v Australian Rail, Tram and Bus Industry Union (Separate Question) [2024] FCA 1479

FEDERAL COURT OF AUSTRALIA Sydney Trains v Australian Rail, Tram and Bus Industry Union (Separate Question) [2024] FCA 1479 File number:

Judgment of: WHEELAHAN J

Date of judgment: 19 December 2024

Catchwords: INDUSTRIAL LAW — protected industrial action – employee claim action – separate trial of a claim made by the applicants (the Rail Agencies) for a declaration that particular industrial action to be engaged in by their employees was not protected industrial action within the meaning of ss 408 and 415 of the Fair Work Act 2009 (Cth) (FW Act) – where the Rail Agencies and the respondents (the Unions) had been bargaining for a new enterprise agreement to replace an existing agreement since June 2024 – where the Rail Agencies and the Unions were not agreed as to whether the Rail Agencies were related employers within the meaning of s 172(5A), and so whether the proposed enterprise agreement should be a single-enterprise agreement or a multi-enterprise agreement – where notices of employee representational rights issued by the Rail Agencies described the proposed enterprise agreement as a proposed single-enterprise agreement – where the Unions had applied for, and obtained, protected action ballot orders – where protected action ballots had subsequently been conducted, and notice given to the Rail Agencies of various forms of proposed industrial action in support of claims made in relation to the proposed enterprise agreement – where the Fair Work Commission subsequently, on 6 December 2024, issued a single interest employer authorisation, which by force of s 172(5) required the Rail Agencies not to bargain for any enterprise agreement other than a single interest employer agreement, a type of multi-enterprise agreement – where the Rail Agencies submitted that the making of the single interest employer authorisation had the result that the proposed industrial action was no longer protected because it was not "authorised by a protected action ballot" within the meaning of s 409(2) of the FW Act – held: the statutory expression "proposed enterprise agreement" is a generic expression, which is not pitched at a level of specificity that includes a fixed or immutable type of enterprise agreement – the making of the single interest employer authorisation did not affect the character of the "proposed enterprise agreement" – declaration refused.