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[2026] FWC 1177
General information, not legal advice.
Fair Work Commission
2026-04-08
Original judgment source is linked above.
s.426 - Industrial action
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
Application to suspend protected industrial action - significant harm to a third party - suspension orders made
[1] On 3 April 2026, the Cross River Rail Delivery Authority (the Applicant) applied for an urgent application for orders suspending protected industrial action by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the ETU or Respondent) under s.426 of the Fair Work Act 2009 (Cth) (the Act) on the basis of significant harm to a third party, being the Cross River Rail Delivery Authority.
[2] I heard the matter urgently, on 4 April 2026 via Microsoft Teams, with a second day of hearing on 5 April 2026. I provide an ex tempore decision at the conclusion of the hearing. These are my reasons.
[3] The Applicant is a statutory body under Queensland legislation. It operates for the purposes of delivering and managing the Cross River Rail project (the Project). The project has three components: Tunnel, Stations and Development (TSD), Rail, Integration and Systems (RIS) and European Train Control System (ETCS). This application relates to the RIS package. The framework for the RIS package is governed by the RIS Project Alliance Agreement (the PAA). The Applicant and Queensland Rail are parties to the PAA.
[4] The project is a brownfield civil project which is one of the largest government projects in the past decade. It is being constructed amongst the existing railway infrastructure in Brisbane, which is in constant use, and in many cases, at capacity. For the construction of the extra track, signalling and stations the Applicant requires possession of specific sections of the Queensland Rail network to allow for the connection and construction of new infrastructure, track and switching equipment.
[7] During the Easter 2026 school holidays, the following track possessions have been planned:
(a) Agreed Track Possession- South - from 3 April 2026 to 26 April 2026 (24 days) (SCAS South); and
(b) Agreed Track Possession - North - from 3 April 2026 to 11 April 2026 (9 days) (SCAS North)
[8] The Applicant does not argue that there is any significant harm in relation to the Northern Possession. The subject of this application is the Southern Possession, between Boggo Road and Salisbury. The following work has been scheduled to occur for the South SCAS:
(a) works to construct the Clapham Yard Viaduct as well as the northern abutment and retaining wall construction in this precinct including associated retaining walls, piling, foundations, placement of precast, and concrete substructure;
(b) Down Suburban diversion implementation including signal works, overheads and track works;
(c) Platform 1 and 2 decommissioning and demolition, earthworks and foundation works to progress the Moorooka Station upgrade;
(e) formation construction, drainage, combined services route (CSR) and cabling works at Yeerongpilly Junction;
(f) signalling installation and commissioning at Rocklea Station;
(g) signalling works at Dutton Park to Yeerongpilly signalling and cable installations; and
(h) civil construction works around Moolabin Creek Bridge,
[9] Of particular importance is the construction of the Clapham Yard viaduct. Construction of the viaduct will commence during the SCAS South and continue for approximately 7.5 months.
[10] A "multistage possession" is currently planned for Q1 2028, during the Christmas school holiday period. The overview for this stage of the project states:
Yeerongpilly Junction and Clapham Area Reconfiguration Commissioning (RIS-S-8) multistage is the critical program that converts completed southern construction works into an operational railway through staged commissioning of track, signaling and systems across the Yeerongpilly- Clapham-Salisbury corridor, delivered via extended and weekend possessions.
This supports Day 1 and steady-state configuration required for three sector operations.
[11] The Clapham viaduct is required to be completed in order to reconfigure the tracks during the Multistage possession. Given the extensive works to be completed during the multistage possession, an extended possession is required. The Christmas holiday period provides a 10-to-12-week window in which these works can be completed. On that basis, the Applicant argues that if the multistage possession is delayed as a result of works not being completed during the SCAS south, then the next available window to complete the works would be the Christmas holiday period between December 2028 and January 2029. That would delay the project by a year.
[12] The ETU issued s.414 notices of protected industrial action between 27 March 2026 and 2 April 2026 for the following protected industrial action. The protected industrial action was notified separately for each day, but I have elided the notices below for simplicity's sake:
[13] A Form C is a form that records that the de-energisation has taken place.
[14] The SCAS South works did not commence between 3 April 2026 and 5 April 2026. The de-energisation required to ensure work can safely begin did not take place as a result of the bans.
Is protected industrial action "being engaged in"?
[15] Unlike sections 423 and 424 of the Act, s.426 requires that the protected industrial action is being engaged in. This was an issue in dispute on the first day of the hearing, as the ETU argued the action had merely been organised but was not being engaged in. That is to say, the ETU had notified of work bans between 2 April 2026 and 12 April 2026, but argued that the disruptions to the work on 2 April 2026 and 3 April 2026 were caused by the ETU members' response to the s.471(4) notices issued by Queensland Rail, rather than the action notified under the s.414 notices themselves. The s.471 notices were withdrawn by Queensland Rail on Friday, 3 April 2026.
[16] By the second day of the hearing, it was not in dispute that the protected industrial action was being engaged in. Section 414 notices have been issued, and have not been withdrawn, for the protected industrial action between 2 April 2026 and 12 April 2026 as set out in paragraph [12] above.
[17] Section 426(2) requires that the protected industrial action is adversely affecting:
(a) the employer, or any of the employers, that will be covered by the agreement; or
(b) any of the employees who will be covered by the agreement.
[18] The Applicant initially argued in its application that both the employer and employees were being adversely affected by the protected industrial action. However, in the hearing, the Applicant, sensibly, in my view, confined the argument to whether Queensland Rail was being adversely affected.
Section 426(2) requires the Commission to be satisfied the protected industrial action is adversely affecting either the employer or any of the employees who will be covered by the proposed agreement. As a question of statutory construction the word 'adverse' must be given some work to do. It is unlikely, in context, to simply mean that the industrial action is causing some inconvenience or consequence: this would be achievable by the word 'affecting' alone. In context s.426(2) requires something more than the usual or expected incidents of industrial action. To be satisfied some specific detriment, albeit lower than the 'significant harm' threshold, must be established.
[20] I respectfully consider that this submission is importing a higher standard than the Act requires. I consider that inconvenience can be sufficient.
[21] "Adverse" is defined in the Macquarie Dictionary to mean:
1. antagonistic in purpose or effect: adverse criticism.
2. opposing one's interests or desire: adverse fate; adverse fortune; adverse influences; adverse circumstances.
3. being or acting in a contrary direction; opposed or opposing: adverse winds.
[22] Analogously, "adverse action" in s.342 of the Act is defined to include a range of circumstances, some which may be very serious and some which may be less so (for example, altering a person's position to their prejudice can be adverse action). If Parliament had intended to set a higher standard for the requisite level of impact under s.426(2), they could have done so. I do not consider that there is a basis upon which to conclude that "adversely affecting" is ambiguous.
[23] I consider that the definition of "adversely affecting" which should be applied is whether the protected industrial action is currently causing an effect which is against the employer's or employees' interests. There must be a causative nexus between the protected industrial action and an ongoing adverse effect, which is made clear by the words "the protected industrial action is adversely affecting...".
[24] In this matter, I am satisfied that the protected industrial action being engaged in by the ETU is adversely affecting the employer, Queensland Rail. At the very least, the evidence demonstrates that there is potential for inconvenience and duplication of work as, if the date in which work is performed were moved or extended as this would require further approvals from Queensland Rail. Or more significance, I am further satisfied that Queensland Rail is a party to the PAA and as was stated in the hearing, the interests of Queensland Rail and the Applicant are aligned. Protected industrial action which undermines the completion of the project in a timely manner is adverse to Queensland Rail's interests.
Is the protected industrial action threatening to cause significant harm to a third party?
[25] It is not contested that the Applicant is a third party and is not a bargaining representative for the proposed agreement.
[26] In CFMEU v Woodside Burrup Pty Ltd [2010] FWAFB 6021, the Full Bench of the Commission held:
[32] The power conferred by s.426 of the FW Act is a power to suspend protected industrial action on the basis of significant harm to a third party. There is no power conferred on FWA to terminate protected industrial action the basis of significant harm to a third party. Importantly, there is no provision for a workplace determination where an order suspending protected industrial action is made under s.426.
[33] The absence of a power in FWA to terminate protected industrial action on the basis of significant harm to a third party (as distinct from suspend protected industrial action on that basis) and the fact that only one suspension on that basis may be ordered are matters of particular significance in the present context. It is to be inferred that Parliament did not intend that protected industrial action should be terminated on the basis of harm to third parties unless that harm, actual or threatened, can be brought within the circumstances in identified in s.423 or s.424 or unless the Minister can be persuaded to make a declaration pursuant to s.430. This suggests, as is emphasised in the Explanatory Memorandum, that Parliament intended that a suspension under s.426 to provide a single instance of temporary respite for third parties from the adverse effects of protected industrial action.
[38] Viewed in the context of the Act as a whole, and having regard to the legislative
purpose behind the regime in the FW Act for the taking of protected industrial action as a means of advancing claims for an enterprise agreement as the vehicle through which
employees are able to seek to achieve improvement in their terms and conditions of employment, the precise meaning intended by the Parliament in using the expression "significant harm" in s.426(3) is unclear. The ordinary meaning provides insufficient guide to distinguish what harm is significant for the purposes of Section 426 since most industrial action threatens harm which is "important" or "of consequence" to the bargaining parties and also often to third parties. This ambiguity activates an entitlement to have regard to the Explanatory Memorandum pursuant to s.15AB(1)(b)(i) of the Acts Interpretation Act 1901.
[39] The Explanatory Memorandum for the FW Act includes the following in the introductory remarks in relation to Part 3-3 which deals with "Industrial Action":
"Division 6 - Suspension or termination of protected industrial action by FWA
1706. Division 6 sets out the grounds upon which FWA may suspend or terminate protected industrial action organised, or engaged in, in relation to a proposed enterprise agreement.
1707. Suspension or termination of protected industrial action brings to an end the right to take protected industrial action. Protected industrial action may be resumed after any period of suspension, but will be subject to any requirements for the giving of notice before any action may be taken. A termination of protected industrial action may lead to FWA making a workplace determination under Part 2-5.
1708. The Bill recognises that employees have a right to take protected industrial action during bargaining. These measures recognise that, while protected industrial action is legitimate during bargaining for an enterprise agreement, there may be cases where the impact of that action on the parties or on third parties is so severe that it is in the public interest, or even potentially the interests of those engaging in the action, that the industrial action cease - at least temporarily.
1709. It is not intended that these mechanisms be capable of being triggered where the industrial action is merely causing an inconvenience. Nor is it intended that these mechanisms be used generally to prevent legitimate protected industrial action in the course of bargaining.
• may suspend or terminate protected industrial action if the action is causing (or threatening to cause) significant economic harm to the employer and/or employees (clause 423);
must suspend or terminate protected industrial action if the action has threatened, is threatening or would threaten to endanger life, personal safety or
the health of the population or cause significant damage to the economy (clause
• must suspend protected industrial action to provide for a cooling-off period (clause 425); and
• must suspend protected industrial action if the action is adversely affecting the employer and its employees and is threatening to cause significant harm to a third party (clause 426)."
[40] The Explanatory Memorandum contains the following in relation to s.426:
"1726. FWA is required to suspend protected industrial action if action is being engaged in and it is satisfied that (subclause 426(1)):
1727. The factors that FWA may take into account when determining whether protected industrial action is threatening to cause significant harm to a third person are specified in subclause 426(4). They are:
• any potential damage to the ongoing viability of an enterprise carried on by the
• any threatened disruption to the supply of goods or services to an enterprise carried on by the third party;
• any threatened reduction to the third party's capacity to fulfil a contractual obligation; or
1728. FWA may make the order on application by an organisation, person or body directly affected by the industrial action, the Minister, or a person prescribed by the regulations (subclause 426(6)). The Bill provides employees with right to take protected industrial action in support of a proposed single enterprise agreement. The purpose of this clause is to provide FWA with a means to address significantly serious impacts that industrial action is having on the welfare of third parties. It allows for a respite from industrial action which is causing them significant harm. The harm to the third party would need to be significant, that is a more serious nature than merely suffering of a loss, inconvenience or delay. Therefore, it is anticipated that FWA would suspend industrial action on this basis only in very rare cases.
1729. Protected industrial action cannot be terminated on this ground."
[44] When regard is had to context of the FW Act as a whole and to the explanatory memorandum, the expression "significant harm" in s.426(3) should be construed as having a meaning that refers to harm that has an importance or is of such consequence that it is harm above and beyond the sort of loss, inconvenience or delay that is commonly a consequence of industrial action. In this context, the word "significant" indicates harm that is exceptional in its character or magnitude when viewed against the sort of harm that might ordinarily be expected to flow from industrial action in a similar context. In this way, an order will only be available under s.426 in very rare cases, as contemplated by the Explanatory Memorandum. It follows that it will not, of itself, be sufficient that the harm, viewed in isolation, can be characterised as "substantial". Substantial harm to third parties is a common consequence of effective industrial action. Unless the harm is out of the ordinary then suspension would contrary to the legislative intention that suspension should not be able to used generally to prevent legitimate protected industrial action in the course of bargaining. In assessing whether there is "significant harm" context is also important. A particular quantum of financial loss may constitute "significant harm" in one context but not in another.
[47]In the same way, the presence of the word "significant" in the expression "significant harm" s.426(3) of the FW Act, and the attention that s.426(4) directs to the "extent" of harm of the kind expressly identified in s.426(4), means that a member at first instance must have some basis for his or her satisfaction over and above generalised predictions as to the likely consequences of the industrial action in question. That is not to say that, in relation to financial loss, the evidence must precisely quantify the amount of a loss. Rather, there must be evidence that allows for an assessment of the order of magnitude of any financial harm relied upon by an applicant. Contrary to the submissions of the CFMEU, we accept that there was some evidence of that sort in this case. The decision in Coal and Allied reinforces our view that the expression "significant harm" when properly construed has a meaning that in truth accords with the Explanatory Memorandum.
[27] In Shoalhaven Starches Pty Ltd T/A Manildra Group v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2024] FWC 1282, Deputy President Saunders made an order suspending protected industrial action for a period of three days. The Deputy President referred to the Woodside decision, as I have set out above, and concluded in relation to significant harm as follows:
[31] I am satisfied that the protected industrial action which is likely to be taken in the future in this case threatens, and is very likely, to cause economic loss to Manildra (s 426(4)(d) of the Act). The economic loss will take the form of higher costs for Manildra to purchase electricity from the spot market than it would have incurred if it had been able to run its turbines to their capacity and use the turbines to power the Site. Those ongoing costs are likely to be in the vicinity of about $190,000 per week ($19,000 per day plus a loss of approximately $8,220 per day due to not obtaining Carbon Credit Units), together with higher daily costs if the spot prices on the market spike, as they did to a significant extent on 7 and 8 May 2024. On any view of it, and even having regard to the size and profitability of Manildra's business, the fact that Manildra is likely to incur ongoing additional costs of at least about $190,000 per week as a result of protected industrial action being taken by members of the ETU is significant. Over three months this equates to at least $2,470,000. Over six months it equates to at least
[32] In my assessment, this is one of the very rare cases where the impact on a third party (Manildra) of protected industrial action is above and beyond the sort of loss, inconvenience or delay that is commonly a consequence of industrial action. The harm being incurred, and likely to be incurred, by Manildra is, in my view, exceptional in its magnitude when viewed against the sort of harm that might ordinarily be expected to flow from industrial action in a similar context.
[28] This is not a matter where the consequences of the work not being performed are purely a matter of speculation. To use the language of the High Court in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194, it is not a matter of "impression or value judgment". I consider the evidence which was provided was compelling and convincing in positively demonstrating that a delay in completion of works during the SCAS South will delay the project by twelve months.
[29] Evidence was provided by Mr Warren McReight, Group Executive Major Projects with Queensland Rail and Mr Jeremy Kruger, Program Director at the Cross River Rail Delivery Authority. Mr McReight and Mr Kruger both gave evidence that the South SCAS works in April are "critical path" works. That is to say that the completion of these works will affect the completion of the project going forward. Their evidence was that the ETU's provided industrial action has delayed the SCAS South works, because critical work has not been able to commence without the de-energisation work being carried out.
[30] Mr Jason Young, ETU President, gave evidence for the Respondent.
[31] Both Mr McReight and Mr Kruger were credible and convincing witnesses. Mr Kruger, in particular, as Program Director was a very knowledgeable and convincing witness. Mr Young was also a credible witness in my view, though he less direct knowledge f the project having not been an employee of Queensland Rail, and not being privy to the contract arrangements in place under the PAA.
[32] Mr McReight wrote in his witness statement:
35. Based on my knowledge and experience in the role as Group Executive Major Projects, and through my discussions with my colleagues at the CRRDA, it is my belief that the works in the Southern Possession, and in particular the works at Moorooka Station and Clapham Yard, are on the critical path to maintain the program to complete various aspects of the Cross River Rail Project. This is because their completion is required to maintain the program to complete the Clapham Yard connections to the mainline and allow for commissioning and what is known as the multistage Quarter 1 2028 works. Their delay has significant impacts for the ongoing delivery of the Cross River Rail Project.
36. The Southern Possession works are also required to be undertaken on our Gold Coast line which is one of our busiest lines, with over 60,000 passengers a day, and for a period of over 20 days, including 9 days of closures, so finding the appropriate time to do so is rare.
37. Electrical Isolation Work is scheduled to be carried out at the start of the track possessions by employees who are members of CEPU to enable the Cross River Rail Project works to be conducted safely.
38. If the CEPU Protected Action goes ahead as proposed the Northern Possession and Southern Possession works outlined above in paragraph 34, will have to be rescheduled as it will not be safe for the works to proceed if the relevant high voltage, low voltage isolations cannot be performed by the Network employees as planned.
41. The Southern Possession works are more complex. This is due to the nature of the work involved at the Clapham Yard, and the site itself being a particularly complex site. It involves works to prepare for the Clapham Yard fly over (which requires completion of the Clapham Viaduct) to allow faster trains to proceed directly to the Gold Coast without impacting safety at the Yard.
42. At Clapham Yard we also have a high volume of interstate and intrastate trains with different gauges, a line to the Gold Coast, and a track to the Port, and a large number of personnel and works required in a more limited workspace. All of this makes Clapham Yard more complex, and therefore more difficult to reschedule. I estimate that if the Southern Possession works are required to be rescheduled, for all the reasons above, it will need to be for a minimum of 6 months, and most likely into the September / October school holidays.
43. If the Southern Possession works are delayed by 6 months, this will also impact the multi-stage Q1 2028 works. Given the nature, length and duration of these works, they are required to be performed during low patronage times and this is typically the Christmas holidays up to the Australia Day public holiday in January. If the multi-stage Q1 2028 works need to be rescheduled there is a high probability that these will not be able to occur until Q1 2029, a further 12 month delay.
[33] Mr McReight was asked why the Applicant could not use other contractors to complete the de-energisation works. The uncontested evidence of Mr McReight is that he had approached a number of labour hire companies already but that the labour hire companies could not provide workers with the relevant qualifications. Mr McReight disputed the ETU's evidence that there were contractors who could perform the work.
[34] Mr McReighy said that the difficulty is that in order to complete a Form C, the worker must be a "Nominated Person". That is, a person with both relevant electrician qualifications and accreditation required to issue a Form C. Though Queensland Rail has a process for "derogations", which where people who would otherwise be precluded from performing work are allowed to perform the work. It was described by Mr McReight as meaning "A derogation, if you go outside the boundaries of our safety, environment, engineering and our standards process. So, whether it be a track and civil task or electrical task, there is a derogation process." Though there was evidence that the process for derogations had been started, there was no signed authorisation. However, any managers given authorisation under the derogations process would still have to have the relevant qualifications to perform the work. In order to be a nominated person, they would be required to have sat the relevant tests and to have maintained a logbook. Mr McReight was not aware of any managers who met this criteria.
[35] Mr McReight agreed that some work on the SCAS South was able to be completed without de-energisation, but not the critical works. At the time of the hearing the de-energisation had not been completed as the Form Cs had not been signed. Given the construction work was to take place in an energized zone with overhead wires, it would not be safe to commence work without the Form C.
[36] During the hearing I asked Mr Kruger a number of questions regarding why the work was required to be performed in this scheduled timeframe of 24 days, what the consequences would be if it were not, and how the Applicant could mitigate these consequences. Mr Kruger described the work to be performed during the SCAS south as requiring a Down Suburban diversion implementation which would take approximately 8 days, as well as foundation construction works for the Clapham Viaduct, which is of critical importance.
[37] Mr Kruger stated that though works could theoretically be performed in shorter periods, in practical terms, the set up required for cranage and equipment means the work will take longer if performed over shorter periods. Mr Kruger stated, and was not challenged on this point, that if the Clapham Viaduct was not completed within the window of the SCAS South, and was instead completed over smaller increments, such as weekends, then the bridge would take a couple of years to complete instead of 7.5 months as it is currently scheduled.
[38] Mr Kruger further stated, and was not challenged on this point, that the work could not be completed in the June/July school holidays as other work has been scheduled for those dates. The SCAS South work could be completed in the September/October holidays, but again extending the works out by 6 months would mean that the viaduct would not be complete in time of the multistage possession in Q1 2028 and the reconfiguration works scheduled in that period.
[39] Mr Kruger gave evidence, and was not challenged on the point, that the works planned for the multistage possession requires an extended possession.
[40] Mr Kruger stated in his witness statement:
If the Clapham Yard Viaducts works are progressed in this piecemeal fashion as a result of the protected Industrial Action (PIA), there is a significant risk that the Clapham Yard Viaduct will not be complete in time for Multistage Possession currently scheduled in Q1 2028.
This means that the Multistage Possession will have to be delayed. The Multistage Possession is a large possession we have planned for 2028. The Multistage Possession will involve approximately 3 months of work, including substantial brownfield track movements, signalling and overhead upgrades to enable works to go to final track configuration state. This will involve a large shut down of the network and will result in significant impacts to the public. This is scheduled as the final major track reconfiguration in the South and it is necessary to connect Clapham Yard into the network and must occur prior to the handing back of the network to QRL. It has been in planning for since 2024 and planning remains ongoing given the size and complexity of it, impacts on freight, the network and the public...
[41] It was suggested in cross-examination that the Q1 2028 works are not "locked in", but rather they have been provided planning approval but have not been agreed with Queensland Rail. When pressed, Mr Kruger stated that the risk of Queensland Rail blocking approval was a risk, but a low risk.
[42] With respect, the attempt to re-characterise the Q1 2028 multi-stage possession as being subject to change does not engage with the evidence provided. It does not engage with the fact that both Mr McReight and Mr Kruger stated that those works were required to be completed in the Christmas period to allow sufficient time to complete the works. In addition to lessening the impact on the public, which is an object of the PAA, completing the work over the Christmas school holiday period allows access to school buses as alternative means of transportation. If the works cannot be completed in the Q1 2028 window, then the next period with the same amount of time is the Q1 2029 window.
[43] The fact that months' of notice required to approve the multistage possession in Q 1 2028 in fact proves the Applicant's point regarding the criticality of the works being completed in the timeframe set in the extended possession. Mr Young provided evidence that possessions can be rescheduled to accommodate for events such as sporting events and concerts. This is not an argument in the Respondent's favour. Sporting events and concerts can be planned for in advance. The SCAS period accounts for some periods of wet weather but, on Mr Kruger's evidence, there is limited flexibility within the dates for the work to be performed under the SCAS.
[44] I am satisfied that if the works are not completed within the SCAS South timeframe, then the project will be delayed by a year. It was suggested by that the Applicant was required to prove, with certainty, that the protected industrial action would cause the delay of one year. However, it would be impossible for the witnesses to say with certainty what will happen in 2028. It would be impossible to say that the project would not get delayed for another reason, such flooding of the Brisbane River. What the witnesses can say, and what was demonstrated in their evidence, is that the works must be completed within the allocated SCAS South period in order to meet the schedule for the project. What Mr Kruger also demonstrated is that the multistage possession works have been scheduled for Q1 2028, have been planned for since 2024, and require a large window in order to complete the scope of works.
[45] I am satisfied that the protected industrial action is the direct cause of the threatened delay of one year because the critical works, particularly in relation to the Clapham Viaduct, cannot commence without de-energisation, which involves switching and the issuing of a Form C.
[46] I am satisfied that a delay of one year is significant harm in the sense described by the Full Bench in Woodside. Of course, delays in a civil construction project as a result of protected industrial action are common. However, what is significant is a delay of one year being caused by protected industrial action occurring over less than 2 weeks. What would be expected is delays in the order of weeks or months. A delay of one year is above and beyond the ordinary consequences of protected industrial action. I am satisfied that this delay is significant and that it reduces the capacity of the Applicant to fulfil its contractual obligations under the PAA.
[47] It is not necessary, for a s.426 application, that there should be a finding of significant economic harm, or even that the harm be specifically quantified. However, economic harm is one of the matters I may take into account under s.426(4). It was led in evidence that the delay may directly lead to additional costs of $50 million. However, the provenance of those calculations is uncertain. It is sufficient to note, in my view, that the protected industrial action has already incurred costs for the Applicant. As was noted in Mr Kruger's evidence, the workers had been mobilised to start work over a public holiday and had been unable to commence work between 3 and 5 April 2026.
[48] The Respondent submitted that making a suspension order would negatively impact upon bargaining, which is not in the public interest. I accept that submission. However, I do not accept that making a suspension order would unduly delay the parties in reaching agreement. Neither do I accept that a suspension order would prevent the ETU from taking protected industrial action altogether.
[49] In relation to the other bargaining representatives, the Applicant noted that a suspension order would have the effect of preventing them from taking protected industrial action in the period of the suspension, pursuant to s.413(7) of the Act. I accept this submission but note that none of these bargaining representatives would be prevented entirely from taking protected industrial action.
[50] The Applicant submitted that the completion of the project without significant delays is in the public interest, due to the positive impact the project will have on the infrastructure for South east Queensland. The Applicant submitted:
[51] I am satisfied that it is appropriate to make a suspension order. I am satisfied that a short suspension would not be contrary to the public interest.
[52] I turn now to the form of the order. I have made an order for suspension in two separate parts - a period of suspension for two days for the bans on electrical switching and a period of four days for the bans on issuing and recovering Form Cs.
I agree with the ETU that the effect of s.413(7) is that all protected industrial action ceases to be protected for the period in which the suspension order is in place (i.e. 4 days). However, I consider that I am required to consider each of the protected industrial actions separately (as per Buchanan J in AIPA v FWA [2012] FCAFC 65 at [128]). For that reason, the length of the suspension is different for the different bans. For the third ban on implementation and removal of SA1 and SA2 forms, it was not clearly articulated how bans on issuing those forms would hold up work. On that basis, I cannot be satisfied that there is any significant harm arising out of that protected industrial action and have not included it in the order.
Printed by authority of the Commonwealth Government Printer
Cross River Rail Delivery Authority
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2026] FWC 1177
(2000) 203 CLR 194