Union claims Fair Work Commission’s order on Sydney trains industrial action ban was made in error

A workers’ union that temporarily halted critical maintenance on Sydney’s rail network is seeking to overturn an order that put to rest months of chaos for millions of commuters.

A full bench of the Fair Work Commission ruled in favour in February of a “cooling off period” until July 1, halting all industrial action to focus on negotiations and reaching a final deal.

It came after months of escalating industrial action and brinkmanship between Sydney Trains and NSW Train Link and the Combined Rail Unions, led by the Rail, Tram, and Bus Union.

Earlier this month, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union applied to the Federal Court to squash the FWC’s order.

Appearing before an expedited hearing on Wednesday, Patrick Knowles SC - who is representing the union - argued the FWC had erred in the legality of its decision to suspend all action.

Mr Knowles said the tribunal failed to indicate which bargaining representative was undertaking which action, and how any suspension assisted the parties.

“(The FWC) needed to consider the specific industrial action being undertaken at the time, not some global suspension of all industrial action,” Mr Knowles said.

“It is a contention that the tribunal misconstrued the law, which was material to the outcome.”

He said the FWC was legally required to take specific actions into consideration, even though the rail unions were jointly represented and this specific argument was not raised.

Mr Knowles admitted the CEPU did not put before the FWC tribunal that specific argument, instead “something quite similar” about the need to identify the specific actions.

The union, known as the CEPU, broke away from the Combined Rail Union and the RTBU following February’s FWC decision, and also includes the Electrical Trades Union NSW/ACT.

The CEPU and the RTBU had been seeking a 32 per cent pay rise across four years, but the government has only offered 15 per cent for the same period, as well as the merger of the rail entities.

Prior to the FWC order last month, Premier Chris Minns rejected that he was “giving in” and labelled the industrial action as being “completely outrageous industrial blackmail of Sydney”.

Transport for NSW in a statement said the FWC had found that it was “in the public interest” for industrial action to pause, and that passengers would now have certainty in rail services.

More to come.