This article is more than 2 years old

This article is more than 2 years old

The 24-hour rail strike will not go ahead, after the New South Wales government was successful in its bid to have the action deemed unlawful.

Unions have warned that the right to strike is “very nearly dead” after the Fair Work Commission’s deputy commissioner, Jonathan Hamberger, ruled that Sydney’s rail workers were unable to take protected strike action in part because of the threat to the economy.

Hamberger agreed with the government’s argument that the Rail, Tram and Bus Union’s protected action should not go ahead because it would pose too great a risk to Sydney’s economy and safety.

He ordered the suspension of both the 24-hour action slated for Monday and the continuing overtime ban, saying it was “threatening to endanger the welfare of part of the population” and “threatening to cause significant damage to the Australian economy or an important part of it”.

Sydney train strike: minister makes last-ditch effort to block union action Read more

“I am satisfied, based on the evidence, that this industrial action taken together – or indeed separately – threatens to endanger the welfare of part of the population, including the large number of people in Sydney and surrounding areas who rely on the services provided by Sydney Trains and NSW Trains to get to work, attend school or otherwise go about their business, as well as those who will suffer from the increased congestion on the roads that would be an inevitable consequence of the industrial action,” Hamberger said in his judgment.

The orders prevent the union from taking any protected action for at least six weeks and will force it to end its overtime ban from 6pm on Thursday.

The head of the Australian Council of Trade Unions, Sally McManus, said the decision showed Australia’s industrial relation laws were “stacked in favour of the employers”.

“The basic right to strike in Australia is very nearly dead,” she said. “Rail workers followed every single rule and law, and still the minister of the day can get an order to cancel bans on working excessive overtime.

“When working people and their union go through every possible hoop and hurdle and are still denied these basic rights, it is no secret why so many workers haven’t had a pay rise.

“Working people’s wages in Australia are so stagnant because the rules are stacked in the favour of the employers.

“We need to change the rules, because Australia needs a pay rise.”

The FWC can suspend or terminate protected industrial action if it deems that it endangers the life, safety, health or welfare of part of the population, or causes significant damage to the Australian economy – or if the commission decides that bargaining representatives would benefit from a cooling-off period during negotiations.

The NSW government, through two applications made separately by both the minister for industrial relations, Dominic Perrottet, and the city’s train network, argued both.

After the decision, the premier, Gladys Berejiklian, said the decision was a “huge relief” that had “vindicated” the government.

“The government’s intention, always from the outset, was that we wanted to avoid inconvenience for customers [and] to make sure they avoided inconvenience and had certainty about rail services into the future,” she said.

She believed an agreement was close to being reached with the union but said she was “concerned that the union movement did not withdraw its strike action”.

She said the union had “crossed a line” by pursuing the action.

“There is no reason to have a strike when your members are yet to consider properly the offer that was on the table,” she said.

But the national secretary of the Rail, Tram and Bus Union, Bob Nanva, agreed with McManus, saying the decision “marks the death of the right to strike in Australia”.

“Australia already has some of the most restrictive industrial laws in the world when it comes to the rights of workers to withhold their labour,” he said. “The Fair Work Commission has said workers cannot strike even when they have complied with these restrictive laws.

“Australian workers are being treated like second-class citizens in their own country.

“It is clear that the rules are broken and we need to start again with a new set of laws to protect the basic rights of everyone who has a job.”

During the hearing on Thursday, Sydney Trains’ barrister, Michael Seck, said allowing the strike to go ahead would be “the antithesis of good-faith bargaining” because it would impact on the continuing negotiations.



“Whilst there has been extensive bargaining taking place between the parties since July 2017 on a weekly basis, there is still a number of significant issues outstanding between the parties, particularly the issue of pay,” she said.

Seck said in the hearing that the evidence of the impact of the strike to the economy was “compelling”, pointing to modelling done by NSW Treasury that, he said, had found the 24-hour work stoppage would cost the state $51.7m.

But the Rail, Tram and Bus Union barrister, Anthony Howell, had sought to argue the government’s claims about the impact of the strike were overstated.

During cross-examination of the government’s witnesses, he questioned whether statements by government departments including health, education and justice about the impact of the action on its workforce were accurate.

Sydney train strike: workers vote to go ahead with 24-hour stoppage on Monday Read more

When Michael Baldi from the Department of Justice said the department estimated up to 45% of its staff would be affected by the action, Howell questioned how they reached that figure and suggested it was “more of a guesstimate”.

Baldi agreed.

Similarly, Howell was scornful of the evidence of Robyn Bale from the Department of Education about the impact on student attendance, including that it was “likely” that students would truant.

He argued that suspending the action could harm negotiations, saying it was a “reasonable and measured form of stoppage” taken after months of negotiations.

“The industrial action ought to be afforded time to run before it’s suspended,” he said.

He said the economic impact of the strike modelled by the government was “minuscule” compared with the state’s $600bn gross state product.