s.418 - Industrial action

Aurizon Operations Limited, Interail Australia Pty Ltd

Application for orders to stop industrial action - unprotected industrial action - s.418 - notice requirements for industrial action - the nature of the industrial action - adequacy of the information contained in the notice - what a reasonable person in the position of the addressee would understand the notice to mean - are material aspects of the nature of the industrial action are concealed, withheld or omitted - adequate notice not given - orders made.

[1] On 1 February 2026 Aurizon Operations Limited and Interail Australia Pty Ltd, referred to collectively in this decision as 'the Aurizon Parties', applied for an order under s.418 of the Fair Work Act 2009 (Cth). The Aurizon Parties sought orders that the Australian Rail, Tram and Bus Industry Union, its officers and members do not organise or take particular industrial action.

[2] Like many applications under s.418, this matter arose from a dispute about whether proper written notice had been given under s.414 before commencing what would otherwise be protected industrial action.

[3] After taking all the necessary steps the RTBU issued a written notice to the Aurizon Parties on 23 January 2026 that five different forms of industrial action would commence from 12:01am on Tuesday 3 February 2026. The only controversial form of industrial action was the following:

Nature of Action:

A change to the manner that work is performed in the form of a periodic interruption to work inorder to attach stickers in support of the RTBU's enterprise bargaining campaign to Aurizon trains or assets (that does not impact on safety).

Day on which action commences:

12:01AM on Tuesday, 3 February 2026, continuing indefinitely.

[4] The Aurizon Parties claimed that the RTBU had not met the requirements of s.414(1) and s.414(6) of the Act in relation to this form of industrial action, viz:

414 Notice requirements for industrial action

Notice requirements--employee claim action

(1) Before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.

...

(6) A notice given under this section must specify the nature of the action and the day on which it will start.

[5] The parties agreed that all the other requirements under the Act have been met. Save for an argument about the lawfulness of the activity of placing stickers on the employers' assets (see below), the parties agreed that if the impugned notice met the requirements of s.414(6) then any interruptions to work in accordance with the notice would be protected industrial action.

[6] The Aurizon Parties' application was heard on 2 February 2026. In the evening of 2 February 2026 I made an order under s.418 in the terms sought. A copy of that order, as subsequently amended to correct a drafting error, is Annexure A.

[7] This Decision provides my reasons for making the order.

[8] The Aurizon Parties relied on the witness statement of Mr Mitchell Morgan, who was not required for cross-examination. The key aspects of Mr Morgan's evidence were:

**_(a) employees of Aurizon and Interail covered by the Aurizon NSW Coal Operations Enterprise Agreement 2021 have been bargaining for a new agreement;

(b) the relevant employees perform traincrew operations in various roles;

(c) the Aurizon Safety Management System governs all work performed by the employees to ensure compliance as far as reasonably practicable with all relevant health and legislation;

(d) there are approximately 334 employees covered by the current Agreement based at depots in Newcastle, Wollongong, Antiene and Quirindi;

(e) based on the published Protected Action Ballot results, at least 296 employees are members of the RTBU;

(f) the Aurizon Parties do not know which of their employees are members of the RTBU;

(g) Mr Morgan thinks that "it appears that every possible task that an RTBU member might perform after 12.01am on 3 February 2026 may be interrupted for a completely unknown period of time. It is not possible to understand whether the periodic interruptions will occur at some or all of the depots, or what particular task might be interrupted at any given moment";

(h) the Aurizon Parties cannot know whether any rostered work will be carried out on any shift after 12.01am on Tuesday, 3 February 2026, or how any aspect of rostered work after that time will be impacted by the 'periodic interruptions';

(i) the affixation of stickers on rail assets would inevitably involve an interface between the employee concerned and the asset; and

(j) Aurizon is required by the Rail Safety National Law to have detailed procedures which identify and manage risk associated with any interaction between people and rail assets. If a new method or circumstance of interaction was proposed, Aurizon would have to assess risk and consider controls and risk mitigation strategies before permitting it to occur._**

[9] The RTBU relied on witness statements from Ms Megan Picton and Mr Kevin Pryor. The key aspects of Ms Picton's evidence were:

**_(a) Ms Picton has been employed by Aurizon for approximately 9 years and has worked as a train driver for approximately 8.5 years;

(b) Ms Picton is a Health and Safety Representative and has made a commitment to uphold safety standards;

(c) Ms Picton would not stop a train or delay a train in any way to attach a sticker because the safety qualification in the notice given by the RTBU (that employees will only take action that does not impact on safety) would not allow her to do so;

(d) Ms Picton would not attach a sticker when she is a second person in a cab or interrupt her work to attach a sticker if the train is moving. She would not interrupt her work to attach a sticker whilst the train is on the mainline;

(e) the times Ms Picton considers it to be safe to attach a sticker generally would be when she is at the depot signing on, in the cab before the train has moved and whilst it is secure, as a passenger in the car at the relief point location, before she leaves the depot after returning from the train, when the train is secure and the train is in a loop, and as she is signing off at the depot. Ms Picton said "these are the general times, and I would consider my environment before I choose to attach a sticker at these times. I believe that no train driver would behave differently, because of our clear and explained safety obligations while trains are operational."_**

[10] The key aspects of Mr Pryor's evidence were:

**_(a) under the Rail Safety National Law, drivers have specific duties as rail safety workers;

(b) breaching the Rail Safety National Law carries serious consequences, with penalties imposed for breaches;

(c) train drivers are trained in their safety obligations in detail, and take them seriously and understand them;

(d) the safety undertaking has a real and concrete meaning and operates to limit the times that workers will stop work to engage in stickering. For example, it could not be done at a time when the train is moving, either being driven directly by the worker or when someone is a second person in a cab. As a second person, they must always be observant, and so anything that would divert their attention would impact on safety;

(e) for a locomotive driver, the time in which they can safely attach a sticker is narrow. As examples, they can attach a sticker just after a driver commences a shift, such as when they are in the depot about to depart in the car. They could also attach a sticker as they are about to leave a car but just before they relieve train crew. These obligations are obvious and well understood; and

(f) the qualification in the Notice (that employees will only take action that does not impact on safety) only expresses what workers would do anyway._**

(a) the problems with the impugned notice are twofold:

1. the notice does not convey any information in relation to when, where, or how often or for how long the industrial action (in the form of an interruption to work) could be experienced; and
2. the notice suggests that each individual member of the RTBU can choose at any time to interrupt the performance of work (i.e. stop work), with an individual choice as to how long the interruption will be and how many may occur across each shift for an indefinite period;

**_(b) the context of the Aurizon Parties' enterprise requires that the RTBU give more specific notice because employees may do something potentially unsafe in a safety critical workplace, despite the safety qualification in the notice. This submission was put by reference to the Aurizon Parties' non-delegable health and safety obligations and draws upon what the authorities identify as the intention of s.414(6) being to allow the recipient to take pre-emptive steps to mitigate the potential damage of the protected industrial action (in this case being the potential risk to health and safety);

(c) the notice gave the Aurizon Parties no information at all as to what will occur, and therefore does not meet the notification requirements;

(d) the notice associated the notified stoppage with an intended activity, namely the attachment of stickers on Aurizon trains or assets;

(e) therefore, the Aurizon Parties must assume that on each occasion where there is a 'periodic interruption', it will be associated with the activity of affixing a sticker to a rail asset;

(f) it is critical that the Aurizon Parties know with complete specificity when the 'interruptions' are to occur, involving which employees, at which locations and for how long. They can then respond in accordance with their rights and obligations to prevent unauthorised and potentially unsafe activity which is not protected under the regime;

(g) the effect of the above is that the notice did not afford the Aurizon Parties any meaningful opportunity to respond and make appropriate preparations;

(h) similar notices of industrial action have been the subject of s.418 orders of the Commission (relying on National Patient Transport Pty Ltd v United Voice; Australian Nursing and Midwifery Federation [2018] FWC 2068 at [31]- [40], Burswood Resort (Management) Ltd v United Workers' Union [2019] FWC 7659 at [83]- [87] and Mater Misericordiae Health Services Brisbane Limited v Queensland Nurses' Union of Employees [2014] FWC 2019 at [100] as endorsed in Nyrstar Port Pirie Pty Ltd T/A Nyrstar Port Pirie v CEPU [2022] FWC 449 at [37]);

(i) in circumstances where the Notice does not afford the Aurizon Parties the contemplated opportunity to take defensive action, the Notice is not a valid notice for the purposes of s. 414;

(j) the Commission's focus must be on the terms of the notice itself and the Commission must consider all the circumstances of industrial action which might occur pursuant to that notice;

(k) a legitimate response available to the Aurizon Parties is to take action to prevent their property from being treated in this way. Therefore, for the Aurizon Parties to be put in a position where legitimate response options are reasonably practically available, the Aurizon Parties would need to know (through a properly issued notice) with much more precision, when industrial action will occur and how it will occur;

(l) one feature of the notice issued is that the industrial action described purports to authorise employees to interface with locomotives. The Aurizon Parties have an obligation to ensure that this does not take place in an unsafe way; and

(m) the notice purports to authorise several hundred employees to make their own decision, without reference to the employer or the union, about where, when and how they might safely affix stickers to the Aurizon Parties' assets._**

**_(a) in the notice the RTBU had identified the day on which the action is to commence and it had further particularised that the action will commence at 12.01am that day and continue indefinitely;

(b) although there is a need to be specific, there is a delineation between the need to identify:_**

1. the 'nature' of the action; and
2. the temporal element associated with it, being the day it will start;

**_(c) section 414(6) has not been interpreted as requiring the notifier to precisely identify the time, location, frequency and participants of every incidence of action (relying on Davids Distribution Pty Ltd v National Union of Workers [1999] FCA 1108 at [84], [1999] FCA 1108; (1999) 91 IR 198 at 227-8);

(d) notices do not need be particularised enough to allow full mitigation, but only the facilitation of 'appropriate defensive action';

(e) what is required is 'a measure of particularity greater than what would be conveyed merely by quoting the words of one of the paragraphs in the definition' (per Davids Distribution at [85]);

(f) the decision of the Full Bench in Telstra Corporation Limited v CEPU [2009] FWAFB 1698 is not authority for the proposition that full particulars need be supplied before a notice will be compliant. The single-member decision in Burswood Resort (Management) Ltd v United Workers' Union [2019] FWC 7659 misapplies the decision in Telstra;

(g) Justice Bromberg's judgement in Esso Australia Pty Ltd v The Australian Workers Union [2016] FCAFC 72, [2016] 258 IR 396 provides an instructive contemporary analysis of the section's requirements at [232] to [260], crudely summarised (by me) as follows:_**

1. a generalised description of the nature of proposed industrial action, stating its essential character, is not sufficient;
2. it must have been intended that notices be of some practical utility, otherwise no requirement for the giving of a notice would have been imposed at all;
3. in relation to the nonperformance of work, a specification of the nature of the non-performance has three dimensions to address. There is a functional dimension: what type of work function or duties will not be performed? There is a quantitative dimension: will the non-performance be full, partial, ongoing or intermittent? Lastly, a description of the scope of the non-performance: what categories of employees will be involved?

(h) the notice given by the RTBU complied with s.414(6) because it:

1. identified the actual nature of the industrial action, being periodic interruptions to work;
2. qualified this by reference to the activity that would be undertaken, which crucially gives an indication as to length and scale (as rationally there is only so much time that can legitimately be expended in putting a sticker on something); and
3. further identifies a limit on when the stoppages can occur, by reference to safety;

**_(i) in this context, the RTBU said, the Aurizon Parties reasonably understood the 'nature' of the action because freight rail operations involve safety critical work governed by the Rail Safety National Law. Train drivers are trained in, aware of and cautious of their safety obligations. The nature of these obligations limits the periods in which this action can occur, with such limitation being readily understood and non-nuanced rather than a matter of broad professional assessment. It is sufficient to identify the nature of the industrial action, including in particular its limited scope, facilitating defensive action to the extent actually required by the statute;

(j) individual employees making individual decisions is a feature of any protected industrial action, insofar as each employee can choose for themself whether to participate in protected industrial action. This unpredictability is inherent to any form of industrial action; and

(k) the approach urged by the Aurizon Parties would inject a degree of legalism into the process which is not present in the actual statutory obligations._**

418 FWC must order that industrial action by employees or employers stop etc.

(1) If it appears to the FWC that industrial action by one or more employees or employers that is not, or would not be, protected industrial action:

(a) is happening; or

(b) is threatened, impending or probable; or

(c) is being organised;

the FWC must make an order that the industrial action stop, not occur or not be organised (as the case may be) for a period (the stop period ) specified in the order.

Note: For interim orders, see section 420.

(2) The FWC may make the order:

(a) on its own initiative; or

(b) on application by either of the following:

(i) a person who is affected (whether directly or indirectly), or who is likely to be affected (whether directly or indirectly), by the industrial action;

(ii) an organisation of which a person referred to in subparagraph (i) is a member.

(3) In making the order, the FWC does not have to specify the particular industrial action.

(4) If the FWC is required to make an order under subsection (1) in relation to industrial action and a protected action ballot authorised the industrial action:

(a) some or all of which has not been taken before the beginning of the stop period specified in the order; or

(b) which has not ended before the beginning of that stop period; or

(c) beyond that stop period;

the FWC may state in the order whether or not the industrial action may be engaged in after the end of that stop period without another protected action ballot.

[14] Section 418 requires that an order must be made if the Commission is satisfied that industrial action is happening, threatened, impending, probable or being organised (s.418(1)) and that the industrial action is not, or would not be, protected industrial action.

[15] There is no discretion to decline to make an order if these conditions are satisfied. An order made under s.418(1) does not involve the exercise of a general discretion but rather the discharge of a statutory duty (see United Voice v Foster's Australia Limited [2014] FWCFB 4104 at [35]).

[16] Industrial action pursuant to the contested notice (see [3] above) was threatened and/or impending. If the notice did not meet the requirements of s.414(6), any industrial action taken pursuant to that notice is not, or would not be, protected industrial action.

[17] The Aurizon Parties' application therefore stood or fell on whether the impugned notice met the requirements of s.414(6).

[18] The key Federal Court and Full Bench authorities on the application of s.414(6) are: Davids Distribution Pty Ltd v National Union of Workers [1999] FCA 1108, (1999) 91 IR 198 (Davids Distribution); CFMEU v Yallourn Energy Pty Ltd [2000] FCA 1070, (2000) 100 IR 52 (Yallourn); Tidewater Marine Australia Pty Ltd v Maritime Union of Australia [2014] FCA 172 (Tidewater); Telstra Corporation Limited v CEPU [2009] FWAFB 1698, (2009) 190 IR 342 (Telstra); CEPU v Pinnacle Career Development Pty Ltd [2010] FCA 1350, (2010) 200 IR 467 (Pinnacle) and Esso Australia Pty Ltd v The Australian Workers Union [2016] FCAFC 72, (2016) 258 IR 396 (Esso).

[19] The following principles can be identified from these authorities:

**_(a) whether a particular notice meets the requirements in s.414(6) will depend upon the terms of the notice and the industrial context. Every case is different and each notice must be looked at having regard to all of the relevant considerations (Telstra at [18]);

(b) the terms of the notice are to be examined, rather than subsequent or surrounding communications (Tidewater at [25]-[27]);

(c) disputes about the sufficiency of a notice can involve questions of fact but will more usually involve questions of degree. It is important that the inquiry does not place a premium on legalism; and instead identifies what the notice would convey "in ordinary industrial English" to the reader (Yallourn at [21]);

(d) the construction to be given to the notice is that which a reasonable person in the position of the addressee would understand the notice to mean, what the reasonable addressee would understand the ban involves and does not involve (Esso at [104]);

(e) assessment of the adequacy of a notice must examine expressions used in the context of whether the concepts embodied in the expressions are well recognised in workplace relations (Pinnacle at [58]);

(f) it would be a major and unrealistic constraint on industrial action to require a party to specify exactly what steps it would take three clear working days in advance (Davids Distribution at [84]);

(g) it is unlikely that Parliament intended, by the inclusion of the notice requirements, to neutralise or significantly compromise the Act's objective of facilitating the taking of effective industrial action in the limited circumstances in which that is permitted (Esso at [251] in obiter);

(h) the purpose of the notice requirement is to give the employer the opportunity to respond to the action by making relevant preparations (Telstra at [12] and [16]); and

(i) the kinds of responsive or defensive action that a recipient might take include:_**

1. controlled shutdowns during the notice period and securing valuable equipment (Davids Distribution at [87]);
2. communication with suppliers and customers (Davids Distribution at [87]);
3. commencing proceedings under the Fair Work Act 2009 to stop the action occurring (Esso at [248]); and
4. employer response action (Davids Distribution at [87], Esso at [248]).

[20] It is helpful to note that the references to the adequacy of the notice in these principles and authorities are not references to the amount of time given in the notice, but refer to the adequacy of the information contained in the notice. The minimum notice period, and the adequacy of the amount of notice that must be given, is addressed in s.443(5).

[21] What should be clear from these principles is that the statutory scheme does not allow ambushes or give immunity to wildcat industrial action. A notice that merely says work will be interrupted, without allowing the addressee to have any understanding of the who, when, how and how long of that interruption, does not disclose the nature of the action to be taken and does not meet the requirements of s.414(6).

[22] There was some disagreement in the submissions about just how much opportunity the addressee must be given to take defensive action. The Aurizon Parties said that the notice must give them a reasonable opportunity to take defensive action and to be put in a position where legitimate response options are reasonably practically available. Because the proposed industrial action involves interaction with rail assets in a safety critical environment, the Aurizon Parties said it was critical that the Aurizon Parties knew with complete specificity when the 'interruptions' are to occur. The RTBU submitted that notices do not need be particularised enough to allow full mitigation, but only the facilitation of 'appropriate defensive action', and that the Aurizon Parties' concerns about safety are addressed in the terms of the notice.

[23] In my view the RTBU's approach better reflects the principles established in the above authorities. The notifier is not obliged to disclose any and all information that could assist the addressee to take defensive action or mitigate their damage. The notifier only needs to provide sufficient information to put the addressee on notice of the nature of industrial action so that the addressee (1) reasonably understands the nature of the action that is to come and (2) having been put on notice can make informed decisions about available responses and defensive measures (if any).

[24] If material aspects of the nature of the industrial action are concealed, withheld or omitted such that the addressee is not properly on notice of the nature of the industrial action, then the requirements of s414(6) are not met.

Consideration: does the impugned notice meet the requirements of s.414(6)?

[25] The notice given by the RTBU described the action as "a change to the manner that work is performed in the form of a periodic interruption to work in order to attach stickers in support of the RTBU's enterprise bargaining campaign to Aurizon trains or assets (that does not impact on safety)."

[26] It was not controversial that the ordinary work of the employee cohort did not include placing stickers on assets and therefore such an activity was not "the performance of work ... in a manner different from that in which it is customarily performed" (per s.19(1)(a)).

[27] The activity that will take place during the interruption to work described in the notice (stickering) sets the period or duration of the proposed industrial activity because employees are not authorised to engage in periodic interruptions to work except for the sole and specific purpose of attaching stickers. As the Full Bench in Mornington Peninsula Shire Council v Australian Services Union [2017] FWCFB 4740, (2017) 272 IR 265 (Mornington) found at [25]-[29]:

"[25] The action described in [notice] 2 is:

"Interrupting work periodically, over an indefinite period or for specified periods in order to type or re-type, for the purpose of including in each email to be sent, the following statement: "I am taking protected industrial action because staff deserve job security. Email your objection to the CEO Carl Cowie ..."."

[26] While the action described in [notice] 5 is:

"Indefinite or periodic industrial action in the form of interrupting or stopping work in order to attach campaign material and/or badges on clothes worn at work."

[27] We consider that the action for which authorisation is sought in 2 is the action of "interrupting work periodically, over an indefinite period or for specified periods". That which follows merely describes conduct in which an employee will engage whilst interrupting his or her work. Viewed in this way, the action is quintessentially industrial action as defined. The activity in which an employee will engage during the interruption of work sets the period or duration of the industrial action, being the interruption to the work. That is, the interruption will occur for the period of time that it takes an employee to include the statement in a relevant email or emails that forms part of the work the employee normally performs before sending it to them. The activity also has the effect of delineating the nature of the interruption to work that will be authorised (for the purpose of typing or retyping the statement) from an interruption to work for another purpose that will not be authorised.

...

[29] As to the action described in 5, we also consider the action for which authorisation is sought is the action of "interrupting or stopping work". The described activity which is to follow during the interruption of stopping of work, namely, attaching campaign material and/or badges on clothes worn at work, merely describes action in which the employees will engage whilst interrupting their work. Apart from describing that which the employees will be doing whilst interrupting or stopping work, the activity described serves to set the period or duration of the industrial action in which the employees proposed to engage. That is, the interrupting of or stopping work will occur for the period of time that it takes an employee to affix the material described to the employees clothes worn at work. As earlier noted, the described activity also has a delineating effect on the interrupting or stopping work that will be authorised and that which will not.

[28] The breath of the possible activities that could fall within the descriptor "... to attach stickers in support of the RTBU's enterprise bargaining campaign to Aurizon trains or assets (that does not impact on safety)" is impermissibly wide.

[29] The RTBU argued that the safety qualification in the notice meant that the Aurizon Parties would have reasonably understood, in the IR and operational context, that there would be no interruption to train operations and that there would be only short periods of interruption to work while employees make brief diversions to place stickers on rolling stock.

[30] A brief diversion by an employee on their way to start operating a train is one way to perform stickering, taking a long detour meandering around the Aurizon Parties' assets for most of a shift is another.

[31] The reference to stickering does not give the Aurizon Parties a reasonable understanding of the period or duration of the industrial action - being the period or duration of the interruptions to work.

[32] In my view the notice is not materially different from the notice given in the Telstra case cited above. In that case the notice given by the CEPU described the industrial action as "... an unlimited number of indefinite stoppages of work by those CEPU members whose normal place of work is all States and Territories of Australia ... between the hours of 12.01 am and 11.59 pm on Wednesday 2 December, 2009" (at [4]). As the Full Bench in Telstra found at [15]-[17]:

"... when the notice is read as a whole, the number, length and location of the stoppages which might occur are almost unlimited. The notice does no more than specify that there will be stoppages of an indeterminate number and length at locations at which CEPU members work.

... In order to prepare for all eventualities contemplated by the notice in this case, Telstra would have to plan on the basis that every CEPU member would be on strike for the whole of the day in question. Yet that is not what the notice says. Given the nature of Telstra's operations some greater specification would be required. Indeed, on one view the notice conceals more than it reveals about the industrial action that will in fact occur.

... In our view the formulation in the relevant notices fails to "specify the nature of the action" and does not meet the notice requirements in s 414(6)."

[33] It is possible, perhaps even likely, that the industrial action could be in short bursts that do not interrupt train operations. However the terms of the notice do not contain any limitation of that kind. I accept the evidence of Ms Picton and Mr Pryor about what they think the notified term would allow them to do. Mr Morgan's evidence was helpful but not decisive about what he and the Aurizon Parties understood was possible under the notice.

[34] The proper test is what a reasonable addressee who is not legalistic, pernickety or unnecessarily fatalistic would understand the interruption to work would and would not involve (per Esso at [104]).

[35] To a reasonable addressee the RTBU's notice was no more specific than an indication that an unknown number of employees will interrupt their work for unspecified durations at times of their own choosing, from 3 February 2026 onwards.

[36] For these reasons I was satisfied that the notice given by the RTBU did not disclose the nature of the proposed industrial action and that I was required to make an order under s.418 in the terms sought by the Aurizon Parties.

[37] The Aurizon Parties are hypervigilant about safety, which is no bad thing, and insist that they cannot delegate their obligations under the Rail Safety National Law, which is of course legally correct.

[38] The root of the Aurizon Parties' submissions about safety is that the notice purports to allow employees to decide where, when and how it might be safe to place stickers on assets. The Aurizon Parties are concerned that the notice purports to authorise activities in a safety critical environment that might not actually be safe. They submit that they need to know precisely when and where employees intend to place stickers so that it can attend and intervene to prevent the action altogether or prevent employees from placing stickers unsafely.

[39] Whether a notice could authorise or indemnify employees that engage in an activity that puts themselves or others at risk is a fight for another day (see s.415(1)(a) and s.424(1)(c)). I do not accept the Aurizon Parties' premise that a notifier must give greater particulars of intended industrial action if the conduct that is contemplated raises concerns about health and safety. The notifier only needs to provide sufficient information to put the addressee on notice of the nature of industrial action. As a matter of practicality, the more information that the notifier provides in the notice under s.414(6) to address safety concerns, the less likely it is that the Commission would make an order under s.424(1)(c).

[40] The Aurizon Parties also argued that the activity of placing stickers could never be industrial action as defined in s.19 and therefore could not amount to protected industrial action in any circumstances. The periodic interruptions to work were said by the Aurizon Parties to be inseparable from the associated proposed misconduct (stickering). The Aurizon Parties said:

"If that activity is prohibited and unprotected, the stoppage of work associated with the activity is also prohibited and unprotected. Accordingly, the 'periodic interruptions' cannot be protected industrial action, any more than a 'periodic interruption' for the purpose of engaging in any other misconduct or unacceptable behaviour could be [citing Mornington at [23]].

Importantly, this legal consequence does not require a determination of the true nature of the activity (that is, whether it is unlawful, amounts to misconduct or is just an unauthorised activity during working hours). Nor does it require the Commission to make any order affecting the activity itself, which almost certainly it could not do.

All it requires is acceptance that the activity is not protected and is not authorised. It then follows that the notice is ineffective to authorise any associated stoppage. The Commission's jurisdiction is then engaged to prevent any 'interruption' taken in pursuance of the notice."

[41] The Aurizon Parties argument was adequately answered in the RTBU's written submissions:

To the extent that the Aurizon Parties assert that some different outcome ought follow because of the nature of the activity to be engaged in during the stoppage, the argument is presently undeveloped beyond an assertion ... that is not supported by the cited authority. It does not make intuitive sense.

The fact that an employee engaging in industrial action is doing something that their employer has not authorised, by the fact of the omission. A further unauthorized step does not change that. An employee who stands on a picket line while they are on strike is doing something not 'authorised' by their employer. So is someone who goes fishing instead. For the purposes of a s.418 application the point is what the employee is not doing - working as normal - not what they are doing in the interregnum.

The Aurizon Parties argument additionally relies on the Commission accepting a contested proposition - the idea that putting stickers on things is unlawful or involves actionable misconduct rather than simply being unauthorised - without determining the contest. The RTBU does not accept that an employee placing a removable sticker on - say - the dashboard of a train cab, or the back of a phone is inherently actionable by an employer. More importantly, it is an inquiry that is beyond the scope of these proceedings."

[42] I did not need to decide the correctness of the Aurizon Parties' argument because I was satisfied that an order was required based on the adequacy of the notice given.

Mr L Saunders of Counsel instructed by Ms P Matthews of the RTBU

Printed by authority of the Commonwealth Government Printer

Fair Work Act 2009

s.418 - Industrial action

Aurizon Operations Limited, Interail Australia Pty Ltd

• 1.1. This Order shall be known as the Aurizon and Interail NSW Coal Industrial Action Amended Order 2026

(a) Aurizon Operations Limited (Aurizon);

(b) Interail Australia Pty Ltd (Interail);

(c) Australian Rail, Tram and Bus Industry Union (RTBU), including its office-holders and delegates of the RTBU who are Employees (RTBU Delegates);

(d) Employees of Aurizon and Interail who are members of the RTBU and who are covered by the Aurizon NSW Coal Operations Enterprise Agreement 2021 (the Employees).

• 2.2. In this order, Union Representatives means:

(a) office-holders of the RTBU;

(b) RTBU Delegates;

(c) any employee of the RTBU who attends the Aurizon or Interail workplaces or communicates with any of the Employees while this Order is in effect.

• 2.3. In this order Industrial Action means the industrial action notified by the RTBU by way of its notice sent to Aurizon and Interail on 23 January 2026, being 'A change to the manner that work is performed in the form of a periodic interruption to work in order to attach stickers in support of the RTBU's enterprise bargaining campaign to Aurizon trains or assets (that does not impact on safety)' commencing at 12.01am on Tuesday, 3 February 2026, continuing indefinitely.

1. INDUSTRIAL ACTION MUST STOP, NOT OCCUR AND NOT BE ORGANISED

• 3.1. The RTBU must not organise the Industrial Action.
• 3.2. Each Employee must not take any Industrial Action.
• 3.3. For the purposes of this Order, the expression "Industrial Action" does not include the following:

(a) protected industrial action within the meaning of s.408 of the Fair Work Act 2009

(b) action by an employee that is authorised or agreed to by Aurizon or Interail; or

(c) action by an employee if:

(i) the action was based on a reasonable concern by the employee about an imminent risk to his or her health or safety; and

(ii) the employee did not unreasonably fail to comply with a direction of Aurizon or Interail to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.

• 4.1. The RTBU must forthwith send to each Employee by email a written notice attaching a copy of this Order, which must be signed by an authorised official of the RTBU, In the following terms (Written Notice):

"The Fair Work Commission has issued an amended section 418 Order to stop or prevent industrial action. A copy of the Order is attached.

The order relates to the item of the industrial action set out in the RTBU's Notices of Industrial Action dated 23 January 2026 described as follows:

'A change to the manner that work is performed in the form of a periodic interruption to work in order to attach stickers in support of the RTBU's enterprise bargaining campaign to Aurizon trains or assets (that does not impact on safety)'.

As a consequence of the Order, RTBU members must not engage in this category of industrial action

The Order does not affect any of the other items of action notified in the Notices.

• 4.2. The RTBU must ensure that its Union Representatives comply with this Order
• 4.3. The RTBU must provide a copy of the Written Notice to Johanna Lynch and Ed Lawrie by email at Johanna.Lynch@aurizon.com.au and Edward.Lawrie@aurizon.com.au within one hour of it being sent to Employees.

• 5.1. Without limitation as to other means of service, it will be sufficient service of this Order upon the parties bound by this Order if:

(a) in the case of service upon RTBU, a copy of this Order is either:

(i) emailed to Jarrod Tickle, Organiser / Assistant Secretary (Freight) of the RTBU; or

(ii) delivered to the RTBU's offices at Level 4, 321 Pitt Street, Sydney, New South Wales, Australia addressed to the Rail, Tram and Bus Union; or

(iii) a copy of this Order is handed to or read in the presence of an officer, employee, agent and delegate of RTBU;

(b) in the case of the Employees:

(i) the Order is served on RTBU; or

(ii) a copy of this Order is placed on the notice board(s) usually used for the purpose of communicating with the Employees.

• 6.1. Part or all of any clause of this Order that is invalid or unenforceable will be severed from this Order and the remaining provisions of this Order continue in force.

• 7.1. This Order shall come into effect at 4.00pm (NSW Time) on 03 February 2026. This Order shall remain in force until five days after the notice of industrial action dated 23 January 2026 issued by the RTBU is formally withdrawn.

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