s.472 - Application for an order relating to certain partial work bans

Application for an order relating to payments for periods involving partial work bans

• [1] The Australian Rail, Tram and Bus Industry Union (RTBU or Applicant) and its members have been engaged in negotiations with Keolis Downer Hunter Pty Ltd (Respondent) for a proposed enterprise agreement covering employees of the Respondent in the Newcastle region. Agreement has not been reached. In support of its claims in the negotiations, members of the RTBU commenced protected industrial action on 3 April 2025. That action included a refusal on the part of bus drivers to operate the Bus Driver Console (BDC) equipment on the Respondent's buses. The action is described in the notice of protected industrial action provided by the RTBU to the Respondent in accordance with s.414 of the Fair Work Act 2009 (Cth) (Act) on 28 March 2025 as "A limitation on the manner in which work is performed, in the form of eligible members refusing to operate the Bus Driver Consoles (BDC)." I will refer to that action as the relevant protected industrial action or BDC action.

• [2] On 15 May 2025, and following the commencement of the relevant protected industrial action, the Respondent provided notice to the RTBU and its employees under s.471 of the Act of its intention to reduce the pay of employees engaging in that action by an amount of 4.58% per shift. That reduction has applied to the pay of employees engaged in the BDC action since 16 May 2025.

• [3] The RTBU has now applied to the Commission under s.472 of the Act to vary the percentage by which the pay of the employees engaged in the BDC action be reduced. They ask that that the Commission makes orders under that section varying the reduction proposed in the Respondent's notice to a range between 0.79% and 1.01%. In the alternative, the RTBU seeks an order that the reduction be zero on the basis that the BDC action is of no material operational significance and that the reasoning of the Respondent in arriving at the reduction of 4.58% does not reflect the nature of the action undertaken.

• [4] For the reasons that follow I have decided that an order should be made varying the reduction that is currently being applied by the Respondent.

• [5] The Respondent has a contract with Transport for New South Wales to provide public bus services in the Newcastle region. Bus drivers employed by the Respondent are required to drive buses on timetabled routes under the terms of that contract. There is a BDC in each of the buses operated by the drivers. The BDC is operated by the drivers, including by turning the BDC on and off at the commencement and end of each shift and at the commencement and end of each trip which occurs on those shifts.

• [6] When in operation, the BDC, amongst other things, enables the collection of fares from passengers as it is the operating system for the multiple 'Opal readers' that are also fitted to each of the buses. The buses are cashless. Drivers are not responsible for the collection of fares as cash payments from passengers and do not issue bus tickets. Drivers do not have any separate device to scan Opal cards or credit cards for the payment of fares. Fare revenue collected through the Opal machines is sent directly to an entity nominated by the State Government.

• [7] The BDC also allows for the tracking of journey data and the GPS locating of buses on the network.

• [8] Witness statements were provided by the parties in support of their respective positions. None of the witnesses were required for cross-examination.

• [9] Mr. Peters is a bus driver employed by the Respondent and has been so employed since 2000. Mr. Peters said that he is not required to collect fares or enforce fare collection. He said he turns on the BDC, sometimes reminds people to tap on, answers questions and offers assistance if someone is having difficulties with the machines. His evidence was that he was typically required to operate the BDC at the start of his shift by entering his employee details and trip information (a total of approximately 30 seconds), to 'change trips' (a total of approximately 15 seconds) and to sign off at the end of the shift (a total of approximately 20 seconds). Mr. Peters said he did not collect fares or cash payments and that this was not within the scope of his position description. He said if he notices that a passenger has not 'tapped on' he has a discretion to remind them to do so but the discretion is not often exercised as it results in anti-social behaviour. Mr. Peters estimated that his total use of the BDC per shift, including all input and processing operations, amounted to approximately 3 minutes. He said that the majority of that time was consumed by the BDC processing information that he would manually enter into the system and that he would perform pre-start duties while the system was processing his login. Mr. Peters provided a video clip of himself performing the BDC functions he would perform during a typical shift.

• [10] Mr. Peters' evidence was that he had observed minimal impact on passengers as a result of the BDC action. In particular, he said that there had been 'no observable decrease in customer engagement' and that boarding and disembarkation had become more efficient because passengers were not delayed by searching for Opal cards or because they had insufficient funds. He said the non-operation of the BDC had not diminished the quality of service he provides and that he continued to assist all passengers with the same level of care and attention as was the case prior to the BDC action. Mr. Peters said the BDC action did not prevent him engaging with passengers and was strictly limited to the non-operation of the BDC.

• [11] The RTBU's Divisional Secretary of the Tram and Bus Division of the union's NSW Branch, Mr. Babineau, also provided a statement. He said the BDC action was limited to the operation of the BDC and that the action comprised between 3 minutes and 4 minutes and 15 seconds of a standard shift which, under the terms of the current agreement, is between 7 and 9-hours duration. On this basis, Mr. Babineau said the work not performed represented approximately 0.79% to 1.01% of a shift. Further, Mr. Babineau said that if one considers only the driver's physical interaction with the BDC and excludes the technology-related waiting time, the time of the action was so minimal it was difficult to calculate. Mr. Babineau said the BDC action here bore a significant resemblance to the action undertaken by employees in the matter of Transport Workers' Union of Australia v. Transit (NSW) Services Pty Ltd t/a Transit Systems[1] (Transit Systems), a matter in which he was personally involved.

• [12] Mr. Babineau said that drivers had been directed by the Respondent not to engage in fare enforcement activity and did not have the devices necessary to check if the correct fare has been paid. He said the only duties the drivers had that related to the Opal machines was firstly to answer inquiries about how the machines worked and that those duties are still performed whether the machines were on or off. He said there were often more inquiries about the machine when it was off. Secondly, he said the other duty associated with the Opal machines was to remind people to tap on or off at the exercise of the drivers' discretion. Mr. Babineau acknowledged that there may be occasions when the time taken to operate the BDC exceeded his estimation referred to above, including when the BDC malfunctioned but those were not the normal working conditions of a BDC.

• [13] Mr. Christie, a Depot Manager, gave evidence for the Respondent. He said that BDC was part of the mandatory pre-departure check and that aside from fare collection, the use of the BDC extended to, amongst other things, the functions associated with the Public Transport Information Priority System (PTIPS) which included GPS positioning to provide location and timing information. The BDC also provided live data as to patronage to inform intending passengers. Mr Christie said that in January 2025 the Respondent had instructed its drivers to use the BDC to capture details of the numbers of 'non-tapping' school students. He disputed that the impact of the BDC action was limited to fare collection and said that the disruption to service extended to the inability of intending passengers to track bus locations and the limitation on the Respondent's capacity to adjust services due to unexpected delays. Mr. Christie described the work that the drivers were refusing to perform as part of the BDC action as including:

b. Sign off, each shift requires 2 sign-ons, one with end of shift print out

e. Reactivation from sleep mode, estimated 2 times per shift

m. Communication failure - force communications, re-boot

• [14] Mr. Christie said he was aware that the BDC action had resulted in increased costs or had come at the expense of other work because of the manual work that was required to obtain data that was not now available from the BDC.

• [15] The Respondent's Operations Manager, Mr. Collis, also provided a statement. He described the methodology used by the Respondent to calculate the percentage deduction referable to the BDC action. He said that in arriving at the figure he distinguished between the time taken for the work associated with the ban and work time that would ordinarily be required whether the ban was in place or not. As an example, Mr. Collis said that in relation to the time taken to interact with passengers in relation to fares he would distinguish between "the work time essential for drivers to perform to (sic) process the (sic) collection of fares, over and above the work related to passengers boarding and alighting the bus." Mr. Collis said he had separately identified the time associated with the simple operation of the BDC and work time "associated with other tasks...based on data and assumptions performed by the employees...". He provided the following calculation for what he described as an average shift:

• [16] Mr. Collis said he considered the calculations to be conservative and fair given the bus operator position description required drivers to gather various customer statistics which they were not doing because of the BDC action. Mr. Collis provided an estimation of increased costs incurred by the Respondent and said these outweighed the reduction in wages experienced by the employees because of the notice given pursuant to s.471. He also provided a video clip demonstrating the operation of the BDC and the time involved in its operation.

• [17] Sections 471, 472 and Regulation 3.21 provide, respectively, as follows:

(a) an employee engaged, or engages, in protected industrial action against an employer on a day; and

(b) the industrial action is a partial work ban; and

(c) the employer gives to the employee a written notice stating that, because of the ban, the employee's payments will be reduced by a proportion specified in the notice;

then the employee's payments are reduced in accordance with subsection (2) in relation to the period (the industrial action period) referred to in subsection (5).

(2) The employee's payments in relation to the industrial action period are reduced:

(a) by the proportion specified in the notice; or

(b) if the FWC has ordered a different proportion under section 472 - by the proportion specified in the order;

and the modern award, enterprise agreement or contract of employment that applies to the employee's employment has effect accordingly.

(3) The regulations may prescribe how the proportion referred to in paragraph (2)(a) is to be worked out.

(a) an employee engaged, or engages, in protected industrial action against an employer on a day; and

(b) the industrial action is a partial work ban; and

(c) the employer gives to the employee a written notice stating that, because of the ban:

(i) the employee will not be entitled to any payments; and

(ii) the employer refuses to accept the performance of any work by the employee until the employee is prepared to perform all of his or her normal duties;

then the employee is not entitled to any payments in relation to the period (the industrial action period) referred to in subsection (5).

(a) an employer has given an employee a notice under paragraph (4)(c); and

(b) the employee fails or refuses to attend for work, or fails or refuses to perform any work at all if he or she attends for work, during the industrial action period;

(c) the failure or refusal is employee claim action, even if it does not satisfy subsections 409(2) and 413(4), if the related industrial action referred to in paragraph (4)(a) is employee claim action; or

(d) the failure or refusal is employee response action, even if it does not satisfy subsection 413(4), if the related industrial action referred to in paragraph (4)(a) is employee response action.

(i) the start of the first day on which the employee implemented the partial work ban; or

(ii) the start of the next day, after the day on which the notice was given, on which the employee performs work; and

(b) ending at the end of the day on which the ban ceases.

(6) The regulations may prescribe requirements relating to one or both of the following:

(a) the form of a notice given under paragraph (1)(c) or (4)(c);

(7) Without limiting paragraph (1)(c) or (4)(c), the employer is taken to have given a notice in accordance with that paragraph to the employee if the employer:

(a) has taken all reasonable steps to ensure that the employee, and the employee's bargaining representative (if any), receives the notice; and

(b) has complied with any requirements, relating to the giving of the notice, prescribed by the regulations.

(a) an employee engaged, or engages, in protected industrial action against an employer on a day; and

(b) the industrial action is a partial work ban; and

(c) the employer does not give the employee a notice in accordance with paragraph (1)(c) or (4)(c);

then the employee's payments for the day are not to be reduced because of the ban.

472 Orders by the FWC relating to certain partial work bans

(1) The FWC may make an order varying the proportion by which an employee's payments are reduced.

(2) The FWC may make the order only if a person has applied for it under subsection (4).

(3) In considering making such an order, the FWC must take into account:

(a) whether the proportion specified in the notice given under paragraph 471(1)(c) was reasonable having regard to the nature and extent of the partial work ban to which the notice relates; and

(b) fairness between the parties taking into consideration all the circumstances of the case.

(4) An employee, or the employee's bargaining representative, may apply to the FWC for an order under subsection (2) if a notice has been given under paragraph 471(1)(c) stating that the employee's payments will be reduced.

Regulation 3.21 Payments relating to partial work bans - working out proportion of reduction of employee's payments

For subsection 471(3) of the Act, the proportion mentioned in paragraph 471(2)(a) of the Act is worked out for an employee or a class of employees by carrying out the following steps.

Step 1 Identify the work that an employee or a class of employees is failing or refusing to perform, or is proposing to fail or refuse to perform.

Step 2 Estimate the usual time that the employee or the class of employees would spend performing the work during a day.

Step 3 Work out the time estimated in Step 2 as a percentage of an employee's usual hours of work for a day.

The solution is the proportion by which the employee's payment will be reduced for a day.

• [18] As is apparent from the above, s.472(3) mandates that there are two matters that must be taken into account in considering whether an order under s.472 should be made. They are whether the proportion specified in the employer's notice was reasonable having regard to the nature and extent of the partial work ban to which the notice relates, and secondly, fairness between the parties taking into consideration all the circumstances of the case.

• [19] The 'proportion' referred to in s.472(3)(a) is the same proportion as is referred to in ss.471(1)(c) and (2)(a). The method for calculating that proportion is referred to in s.471(3) and is set out in Regulation 3.21. The first step in calculating that proportion under Reg. 3.21 is to identify 'the work' that an employee or class of employee is refusing to perform. In this case it is not in dispute that the drivers are refusing to operate the BDC. That is the description of the banned work in the notice issued by the union under s.414.

• [20] The question arises as to whether the work that the employees are refusing to perform also extends beyond the physical operation of the BDC and if so, to what extent. In Transit Systems, Deputy President Easton concluded that the work that was the subject of the bans was "all the essential tasks performed by drivers in order to allow fares to be collected"[2] or "the additional work necessary for drivers to perform in order to facilitate the collection of fares using the Opal machines, over and above the work of boarding and deboarding passengers."[3] I would not express the work in terms of the collection of fares or the broader expression 'revenue protection'. The evidence here is that the BDC has a number of functions, including but not limited to, fare collection. I am of the view that the work in question is the operation of the BDC and the ancillary work of the drivers directly associated with the operation of that equipment. This would include customer interactions directly related to the BDC (including Opal readers) when it is operational. I note in this respect the unchallenged evidence of the RTBU to the effect that the work of answering inquiries about the Opal readers has continued even in circumstances where the machines are not operational because of the BDC action.[4] In that instance the work would only extend to any additional time required to assist passengers to engage with the readers when they are functioning.

• [21] The Applicant properly conceded that BDC operation could, on the rare occasions of systems failure, exceed the estimation of the time that they had provided, given the need for drivers to deal with that scenario. Where it occurs that would also fall into the category of ancillary work directly associated with the operation of the BDC, although on the evidence it is not possible to come to a firm view as to how often this occurs or how much working time would ordinarily be involved in performing that work.

• [22] I accept, as Deputy President Easton said in Transit Systems, that Regulation 3.21 is concerned only with the calculation of the time that would be spent in carrying out the banned work. In relation to the physical operation of the BDC I think that the Respondent's calculation involves an overestimation of that time. Although they have purported to take account of the varying proficiencies of the drivers in operating the equipment, I think that most drivers operating the equipment with the frequency that they would in the absence of the ban, would perform the functions more quickly than the Respondent has estimated. This is supported by the evidence of Mr. Peters. I also think that the estimate of time by the Respondent in relation to ancillary work directly related to the operation of the BDC involves an overestimation. This is particularly so in relation to the Opal card passenger interaction figures which involve estimations or assumptions as to number of passenger interactions and the duration of those interactions. Although the evidence was that drivers typically perform 7 trips per shift, the calculation appears to allow for a 2 second interaction with 15 passengers over 14 trips, or alternatively a two second interaction with 15 customers per trip at both tap-on and tap-off. The evidence did not show that drivers undertook 14 trips per shift. To the extent that the figures are explained by interactions at the point of tapping on and off I also think it less likely that there would be an interaction at the tap-off point and the evidence did not support a contrary conclusion. I am unable to conclude on the evidence that drivers would spend 7 minutes on each shift performing this work as the Respondent asserts. Nor am I satisfied that the other identified duties would involve three additional minutes of work per shift.

• [23] As to whether the proportion specified in the s.471(1)(c) notice was reasonable having regard to the nature and extent of the partial work ban, this requires as assessment of the action itself beyond the purely temporal assessment of the period over which the action occurs. This aspect of the exercise was described by the Full Bench in OSM Australia Pty Ltd and anor v. Construction, Forestry and Maritime Employees' Union[5] as a consideration of the qualitative aspects of the work bans. In this respect I think it is relevant to note amongst other things that the ban is a targeted form of action which involves a relatively limited restriction on work on the part of some of the employees and minimal disruption to the services provided to the travelling public. It is not necessary or appropriate to make a detailed assessment of the 'absolute inconvenience or damage arising from the work ban'.[6] Nonetheless, I have taken into account the evidence of the parties including the Respondent's evidence as to the effect of the action, including estimated costs and the loss of associated data collection and tracking functionality, as well as the role of fare collection through the use of the BDC as part of the duties of the drivers.

• [24] After taking into account the evidence relating to the Respondent's calculation of the proportion of the work and the nature and extent of the bans that are in place, I have come to the view that the proportion specified in the notice is not reasonable and that a reasonable proportion would be less than the 4.58% specified in the notice.

• [25] In determining whether I should make an order under s.472 I have also taken into account fairness between the parties taking into consideration all the circumstances of the case as required by s.472(3)(b) of the Act. I note that the Respondent did not apply the reduction from the commencement of the BDC action. I also note that there was no evidence to the effect that the BDC action had directly reduced the revenue of the Respondent given that the fares collected through the Opal machines are remitted directly to a nominee of the State Government rather than to the Respondent. In this respect, a reduction in wage costs without a reduction in revenue from the Respondent's client would, by itself, operate in the Respondent's favour. However, there was some limited evidence from Mr. Collis to the effect that the ban had resulted in increased costs to the Respondent given the need to manually enter customer statistics and also because of the Respondent 'failing contractual requirements ...based on the total number of trips and customer boardings.' Aside from a general estimate by Mr. Collis, further details as to how these costs arose were not provided. Mr. Christie said there were cost increases associated with the implementation of manual processes but the details were limited and there was no indication from Mr. Christie as to the quantum of such costs. I also note the evidence of the RTBU to the effect that those engaging in the BDC action continue to interact with passengers and otherwise provide the usual transportation and customer services in the absence of operational BDCs. Both parties provided a brief history of the negotiations to date and the circumstances that resulted in the imposition of the bans and the reduction in payment. Both expressed a willingness to continue the process to reach agreement without the need to escalate the protected action or the employer response.

• [26] The shift lengths under the current enterprise agreement vary between 7 and 9 hours. The RTBU's proposed deductions of 1.01% to 0.79% were based on an outer estimate of 4 minutes and 15 seconds for a 7 and 9-hour shift respectively. The Respondent's deduction of 4.58% was based on a period of 21 minutes of time not worked over an average shift length of 459 minutes, excluding the meal break. In my view it is appropriate to provide for a percentage deduction of 1.7%. The same percentage would apply across longer shifts recognising that the time engaged in BDC-related action is likely to increase with the increasing shift lengths.

• [27] An order reflecting this decision will be published separately.

By video using Microsoft Teams at 10:00am AEST on Monday, 2 June 2025.

[1] [2021] FWC 6561.

[4] Babineau Statement at [41]. And see Peters Statement at [32].

[5] [2024] FWCFB 237 at [34].

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