In Sydney alone, trains transport over 700,000 workers each weekday. So, when Combined Rail Unions (“CRU”) organised on and off protected industrial action from October 2024 to February 2025 throughout NSW, many workplaces were impacted. The Full Bench of the Fair Work Commission (“FWCFB”) intervened to suspend the industrial action, providing a number of insights and takeaways for onlooking employers.  

The background 

Sydney Trains and NSW Trains (collectively the “Rail Agencies”) and their employees are covered by the Sydney Trains and NSW TrainLink Enterprise Agreement 2022 (the “EA”) and have been engaged in bargaining for a new enterprise agreement since April 2024. Unsatisfied with progress, select unions within the CRU commenced protected industrial action in September 2024. Bargaining intensified as threats of (and actual) industrial action took place. 

On February 14, unions called a “go-slow action” involving employees slowly driving trains. The Rail Agencies provided notice of non-payment for those involved in this partial work ban. Additionally, 652 train crew and guards failed to attend work at all. Sydney Trains’ punctuality performance halted to 13.9%, with 57% of services cancelled and customer numbers down by 70%. The Rail Agencies subsequently filed a joint application to suspend the protected industrial action. 

When will the FWC suspend protected industrial action? 

Under the Fair Work Act 2009 (Cth) (“FW Act”), the Fair Work Commission can only suspend protected industrial action in limited circumstances if it is satisfied that suspension is “appropriate”. In determining whether suspension was appropriate, the FWCFB noted that: 

• suspension would benefit bargaining representatives, since the parties were so close to agreement before the February 14 “go-slow action” derailed bargaining;
• the whole period of protected industrial action (from October 2024), despite being distinct from the specific February 14 “go-slow action”, should be considered and that no agreement had been reached even after several months of industrial action;
• ordering suspension would be in the public interest by restoring confidence in the rail network and preventing threatened escalations of industrial action; and
• certain unions’ mischaracterising the Rail Agencies’ response to the “go-slow” as a “lockout notice” was a significant factor in unduly aggravating non-attendance. 

The FWCFB determined that suspension should be ordered until 1 July 2025 as a “cooling off period” would help facilitate discussions. The FWCFB rejected the Rail Agencies’ proposal of extending this until 1 September since suspension is to enhance the prospects of agreement, not “to operate as a de facto termination of bargaining.” 

Employers’ takeaways 

While NSW employers may be encouraged to know that trains are back to normal until July, employers can also learn much from how the FWCFB intervened in this EA bargaining dispute. Employers should note that: 

• employees may engage in protected industrial action, and if it accords with set legislative requirements, it can only be suspended in limited circumstances;
• employers must not pay employees who are engaging in protected industrial action (and employees must not request payment) unless it is a partial work ban (like the go-slow action);
• if employees are engaging in a partial work ban, employers may give written notice of non-payment until the employee is prepared to perform all their duties, employers may withhold payment without it being considered a lockout or employer response action; and
• the FWC must suspend protected industrial action when it is appropriate considering:
  • whether the suspension would be beneficial to bargaining representatives resolving the matter;
  • the duration of the protected industrial action; and
  • whether suspension is contrary to the public interest or objects of the FW Act.