No Extra Notice Required for Train Bans

No extra notice required for potential train bans

On September 30, Sydney Trains’ request for extra notice of RTBU plans to turn off Opal readers and gates so it could safely do so itself has been rejected by the FWC, a senior member observing that on the employer’s own evidence it would only make any potential disruption worse. Described by RTBU NSW Branch Secretary Alex Claassens as a “bizarre” proposal, Sydney Trains and NSW Trains, while not opposing a Protected Action Ballot sought, asked that the notice period be extended from three to seven days so it could direct electricians or trained technicians to complete deactivations across the network. The request was rejected – Deputy President Michael Easton granting a later updated PABO – before the Deputy President provided detailed reasons as to why he found no exceptional circumstances justifying an extension. The ballot asks if, in support of negotiating a new agreement, members approve of taking protected action including “any or all of” deactivating Opal readers and gates; ensuring that Opal readers and gates remain deactivated; opening ticket gates at train stations; and ensuring that ticket gates at train stations remain open. In arguing for seven days’ notice of any such action, Sydney/NSW Trains told Deputy President Easton that station staff are not authorised to power off Opal poles and gates except in “limited emergency situations”. The cabinets and switchboards containing the power switches were “inherently dangerous”, the employers said. To avoid exposing employees to any risk, “Sydney Trains and NSW Trains would be required to consider, plan for and implement a controlled power off and shut down of all Opal readers and gates across the entire network; by electricians or trained technicians, members of the Facilities Management team or contractors engaged by that team”. Noting that the employers acknowledged that the public would not be “compromised” by the proposed industrial action, Deputy President Easton in weighing whether the necessary exceptional circumstances existed nevertheless agreed that, “on the materials before me”, the risk of harm or injury for some workers would be increased.

“Progressive” deactivation would exacerbate situation

The Deputy President further noted that “in this matter there is no concern that allowing Sydney and NSW Trains extra time to make preparations will nullify the effect of the industrial action or weaken the RTBU’s bargaining position”. “In fact, Sydney and NSW Trains plan to engage electricians to perform the threatened action instead of the employees.” “Moreso”, the Deputy President said, with the employers estimating it would take 7-12 days to turn off all their Opal readers and gates, their plan of “progressively deactivating Opal poles... will exacerbate rather than negate the deleterious effects of the RTBU’s proposed action”. Ultimately, the Deputy President preferred an RTBU analysis of Sydney/ NSW Trains’ evidence suggesting the employers could deactivate the Opal system at all 160 station inside three days. “Having found that there are no exceptional circumstances that justify an order to extend the notice period, there is no discretion for me to do so,” Deputy President Easton said. The latest development in the long-running dispute comes after the RTBU earlier this month withdrew a threat to turn the Opal machines in the wake of the NSW government’s s418 application to terminate the action. The new PABO was sought after the union received legal advice that it could lose the right to take further industrial action if the FWC found the Opal shutdown did not constitute a “specific ban” approved by RTBU members in a Protected Action Ballot back in January.