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Sydney Trains decision undermines workers’ rights, lawyer says

The suspension of the Sydney Trains strike has sparked debate over workers’ rights in Australia.

user iconTom Lodewyke 30 January 2018 Big Law
Sydney Trains decision undermines workers’ rights, lawyer says
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Sydney commuters were relieved to find the city’s train system operating yesterday morning, after the Fair Work Commission decided last Thursday that the planned 24-hour strike could not go ahead.

Jonathan Hamberger, senior deputy president of the Fair Work Commission, ruled that the strike threatened to endanger the welfare of part of the population and cause significant damage to the economy – under which criteria the Fair Work Act requires the commission to suspend industrial action.

However, the decision has generated debate over the state of workers’ rights in Australia.


“The right to strike in Australia is close to being dead,” Australian Council of Trade Unions secretary Sally McManus tweeted after the decision was announced.

“Rail workers follow every single rule and law and still the minister of the day can cancel even bans on working their excessive overtime.”

James Shaw, an employment lawyer at Turner Freeman, told Lawyers Weekly the Fair Work Commission should have upheld the strike.

“This decision undermines the right of workers to strike,” he said.

“There are clear rules set out in the Fair Work Act about what’s required for a protected action. The RTBU [Rail, Tram and Bus Union] have complied with those rules and I see no reason as to why a protected industrial action shouldn’t be able to go ahead.”

Mr Shaw said that while the strike would have caused significant disruption, this does not mean that rail workers should be treated differently to workers in other industries.

“It is tricky in that sense but, at the end of the day, train drivers and people who work on railway stations are workers like anybody else, and they shouldn’t have diminished rights,” he said.

“Almost all industrial action, in one sense or another, causes disruption, but all workers should ultimately have the right to strike.

“Industrial action by railway workers is not a common thing. It’s been a long time since weve had an industrial action, so theyve actually been quite restrained in exercising this and I think thats why this decision by the Fair Work Commission is disappointing.”

The employment lawyer said the government should look at changing the Fair Work Act to better protect workers’ power to withhold their labour.

Harmers Workplace Lawyers, which launched legal action last Tuesday in an attempt to stop the strike, voiced its support for the Fair Work Commission’s decision in a statement on 25 January.

“Sydney commuters and businesses have suffered enough with the impacts of the overtime ban today,” the firm said.

“A strike on Monday would have been totally unacceptable and as senior deputy president Hamberger said: ‘the industrial action threatens to cause significant damage to the economy of Sydney’.”

Harmers argued that the strike would unfairly impact its employees and cause considerable loss of revenue to the firm. While many businesses around the city undoubtedly share the same view, the industrial action has raised broader concerns about the management of Sydney Trains.

Drivers’ refusal to work overtime last Thursday reduced services from 2,900 to 1,600, demonstrating how heavily the new timetable, implemented in November, relies on overtime.  

“The Transport Minister has squeezed our transport system to the point where it is reliant on workers doing overtime simply to keep a normal timetable running,” RTBU NSW secretary Alex Claassens said in a statement on Thursday.

“It beggars belief that a Transport Minister can run a rail system into the ground so much that normal services can’t continue if workers refuse to work overtime.

“Workers are being forced to do too much with too little.”

The criticism of Sydney Trains in recent months has included accusations of top-heaviness and putting undue pressure on drivers by understaffing the railways.

The Daily Telegraph reported on 12 January that the top four executives at Sydney Trains, including chief executive Howard Collins, each received an average salary increase of over $40,000 – roughly 9 per cent – last year. This came despite the 2.5 per cent salary increase cap for NSW public servants.

Meanwhile, the RTBU is asking for a 6 per cent annual pay rise for four years. An anonymous Sydney train driver told lifestyle publication Lifehacker this would bring drivers’ salaries in line with those in Brisbane and Melbourne.

A current job advertisement for a qualified train driver in Sydney lists a salary of between $70,175 and and $75,499.83, plus 9.5 per cent superannuation, shift allowances and leave loading.

A South-East Queensland driver earns a base salary of $98,211, according to The Courier Mail. Comparison site Glassdoor lists the average salary for a driver on Melbourne’s Metro Trains network as $95,014.

Some Twitter users said the Fair Work Commission’s decision to shut down the industrial action highlighted the need for an Australian bill of rights. Mr Shaw agreed, saying: “Our constitution has very limited protections for basic human rights and its a problem we’ve had in Australia since federation”.

The strike and the overtime ban have been suspended until 8 March to give the RTBU and Sydney Trains more time to negotiate.

The ABC has reported that a new offer will be put to union members this Thursday.