‘Gun to our head’: NSW government to take rail union to Fair Work Commission to stop NYE strike

NSW Transport Minister Jo Haylen will take the state’s powerful rail union to the Fair Work Commission to stop planned industrial action over New Year’s Eve after a previous ban was lifted by the Federal Court.

The Australian Rail, Tram, and Bus Union announced on Monday it would be undertaking further industrial action after members approved a “history making” protected action ballot order that afternoon.

While the exact nature of the action is not known, the vote sparked chaos for the state government and condemnation from the opposition over the possibility that commuters would be put out over New Year’s Eve.

Speaking from Martin Place train station, Ms Haylen said the state government had made an application under Section 424 of the Fair Work Act as it “pursues all legal avenues” to stop the action going ahead.

“That application is around the grounds of community safety and economic harm. The government is pursuing all legal avenues to prioritise passengers, to protect them and businesses,” Ms Haylen said.

“Every year we see over one million people line the foreshore of our beautiful harbour … trains are required over a 48-hour period, including every four to five minutes over Sydney Harbor.

“That is the level of service that is required … We’re talking about a global event here that people look forward to and that businesses need, and that’s why the government is taking legal action to protect it.”

Under the Act, the Fair Work Commission can make orders to “suspend or terminate protected industrial actions” if it is found to be causing “significant damage to the Australian economy or an important part of it”.

Of protracted negotiations with the union, Ms Haylen said the state government would “not negotiate with a gun to our head” and “no level of industrial action is tolerable on New Year’s Eve”.

The vote followed a last-minute injunction by Sydney and NSW Trains, with the backing of Premier Chris Minns, to scuttle earlier planned industrial action. The parties have been in and out of court in the weeks since.

On Thursday, Justice Michael Wheelahan ruled orders made by Justice Nye Perram earlier this month halting action planned for that time would be discharged – paving the way for the resumption of industrial action

Ms Haylen assured commuters that there would be a “level of service” from Friday and urged travellers to check their travel apps as the state government grappled with work bans possibly being reinstated.

Sydney Trains chief executive Matt Longland said the RTBU was poised to reinstate any or all of the 200 work bans that it had in place prior to the court injunction, which was issued earlier this month.

“We haven’t yet been advised of the detail around which bans will be reapplied, from which time should they all be reapplied. Should they all be reapplied, there are more than 200 work bans,” he said.

“So, this will be a very significant impact for the travelling public. In the coming days and weeks, we’ll be doing everything we can to minimise that impact … (and) keep passengers moving safely.”

Mr Longland said additional operations leaders would be deployed at Sydney Trains Rail Operations Centre ahead of any work bans, some of which he said were “contradictory” and hard to manage in real time.

NSW rail union secretary Toby Warnes earlier said he “would hope” Sydney Trains would commit to RTBU demands to run 24-hour trains from Thursday to Sunday, otherwise “action may take place”.

Asked repeatedly if 24-hour bans previously put forward by the powerful union would be activated if Sydney Trains did not bow to its demands, Mr Warnes said they were “very much in play”.

“RTBU members will do whatever it takes to achieve what they deserve, and that will continue indefinitely, over this weekend, and then the reduction in kilometre ban coming from Monday,” Mr Warnes said.

He rejected accusations the union was “holding the city to ransom” and said he as “disappointed” the NSW Labor Party had “gotten to this state of disrepair”.

He said the union was meeting on Friday to discuss whether it would continue to fund the party or whether it may split, stating that its “members have sent us a signal and they’re not happy”.

In a statement, a NSW government spokesperson said shortly after midday the government would “continue to take every possible measure to ensure industrial action does not effect Christmas and New Year’s Eve”.

“Our next step is to lodge a section 424 into the Fair Work Commission to protect New Year’s Eve and stop rail disruption,” they said, with Transport Minister Jo Haylen to from the media at 2.30pm.

The RTBU has been in protracted negotiations with the state government over calls for a 32 per cent pay rise over four years and the implementation of 24-hour train services between Thursday and Sunday.

So far, it has been unable to reach an agreement with the Minns government.

Outside court, Mr Warnes said the state government’s case “was always based on weak legal grounds” and the union would tell its members to “immediately start enforcing industrial action again”.

“We’re going back to our office right now to inform all our members to enforce the bans that were on immediately before the injunction was granted two Sundays ago,” Mr Warnes said of the court order.

Asked what his message was to commuters, Mr Warnes said “they deserve a government that values its public transport system right now” and warned that Sydney Trains may not be prepared.

“Sydney Trains had two weeks to prepare for this eventuality, our understanding is that they haven’t … It’s up to how Sydney

Trains responds to our members enforcing the actions in place two weeks ago”.

Mr Warnes said the RTBU was “still at an impasse” with the state government over negotiations and warned the effect of planned strike action over New Years “may well be” worse than anticipated.

The order prompted immediate calls for an appeal by a lawyer for Sydney and NSW Trains who told Justice Wheelahan on Thursday that the “joint unions intend to immediately resume their industrial actions”.

The lawyer said they would be seeking a stay of the orders, which faced pushback from Justice Wheelahan and RTBU lawyer Leo Saunders, or a further injunction ahead of a case management hearing.

Mr Saunders told the court the RTBU would launch industrial from December 28 given a required seven-day notice period, and that there was “no prospect” a full court appeal would be heard prior to then.

The appeal was later abandoned after the lawyer sought further instructions.

Lawyers for Sydney and NSW Trains earlier told Justice Wheelahan the nature of the bargaining had changed, from single to multi-employer bargaining, meaning previous authorised action was no longer valid.

“Once the single interest employer authorisation is obtained, the statutory mandate is that employers cannot bargain for … anything other than a multi-enterprise agreement,” he said of the December 6 authorisation.

The lawyer went on to add: “And so, industrial action that had been authorised in pursuit to advance claims in respect of a proposed single enterprise agreement could no longer be pursued for that purpose.”

Under the Fair Work Act, a single-interest employer authorisation may be sought by two or more employers who have a “close connection to one another” so that they may bargain for a single enterprise agreement.

Opposition leader Mark Speakman warned commuters on Tuesday to brace for a “catastrophe” this Christmas following the PABO, stating that Sydney residents “deserve more than industrial chaos”.

“This has come about because of outrageous union demands and a weak government. Chris Minns went to the election encouraging expectations of significant public sector wage increases,” Mr Speakman said.

“He has inflated the expectations of the union bosses, and now he can’t afford to do the deals they are demanding. This is a government controlled by unions … they want their pound of flesh and Minns can’t deliver.”

Transport Minister Jo Haylen said earlier on Tuesday the state government would “absolutely pursue all legal options” to ensure passengers and businesses were protected from industrial action on New Year’s Eve.

“The government’s position here is very clear, no level of industrial action is tolerable this time of the year given how tough it’s been for families and businesses,” Ms Haylen said.

“We need New Year’s Eve to run well, and we need each and every one of those public transport services to be available to get the millions of people in and out of our city safely.”