Fair Work Act 2009

s.418 - Industrial action

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) & Andrew Peach & Ors

Alleged unprotected industrial action - reasonable concern about imminent risk to safety - terms of order - order made.

• [1] EDI Rail PPP Maintenance Pty Ltd (EDI Rail) is part of the Downer Group of companies. EDI Rail relevantly operates a rolling stock maintenance facility at Auburn in Sydney. EDI Rail is contracted to perform through life cycle maintenance support for Sydney Trains. The Downer Rail Auburn Maintenance Agreement 2023 (Agreement) applies to EDI Rail and its relevant employees working at the Auburn facility. The Agreement does not nominally expire until 30 June 2027.

• [2] EDI Rail recently implemented a new roster pattern which requires the relevant employees to perform more night shifts. Under the previous roster pattern, the relevant employees worked a total of 19-night shifts during a 16-week roster cycle. Under the new roster, which was implemented on 26 May 2025, the relevant employees are required to work a total of 19-night shifts during a 12-week roster cycle. There has been disputation between the "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) and EDI Rail concerning the new roster since late 2024.

• [3] There is no dispute that eight EDI Rail employees have taken actions which fall within the meaning of "industrial action" which appears in s.19(1) of the Fair Work Act 2009 (FW Act) on 10, 11, and 12 June 2025.[1] The relevant employees attended work for rostered night shifts on these dates, but did not perform their regular duties. The relevant employees remained in the site lunchroom on the basis that it was not safe to perform their regular work due to the increased night shifts arising from EDI Rail's new roster. This conduct led EDI Rail to make an application under s.418 of the FW Act seeking orders regarding unprotected industrial action on 11 June 2025. The contentious issue in this case is whether the exclusion in s.19(2) of the FW Act is triggered because the action of the relevant employees was based on a reasonable concern of the employees about an imminent risk to his or her safety. There is also a contentious issue regarding the involvement of the AMWU in organising any unprotected industrial action.

• [4] Section 420 of the FW Act requires this type of application to be determined within two days after the application is made, as far as is practicable. That period expires at midnight on 13 June 2025. I issued directions for the filing of material and listed a hearing via video for 1pm on 13 June 2025. I granted permission for all parties to be represented at the hearing because I was satisfied that would enable the matter to be dealt with more efficiently.

• [5] At the conclusion of the hearing at around 4:30pm on 13 June 2025, I indicated I would reserve my decision. However, I also indicated I intended to publish a decision and any order later that afternoon or in the evening. This decision is reasonably brief given that timeframe.

• [6] Counsel for both parties helpfully took me to several important authorities during closing submissions. These included authorities which dealt with the meaning of "imminent", the subjective and objective test required by s.19(2)(c)(i), and the meaning of "organising" industrial action. I have considered the authorities relied upon by counsel. The timeframe has meant I have not referred to the specific authorities in this decision.

• [7] EDI Rail led evidence from Chris Bradley (General Manager of Operations for EDI Rail) via two witness statements dated 12 June 2025 and 13 June 2025. Mr Bradley gave evidence about the process associated with the implementation of the new roster by EDI Rail and about the actions taken by the relevant employees. Mr Bradley was briefly cross-examined on his evidence.

• [8] The AMWU relied on a witness statement from Raymund Shortill (Lead Organiser) dated 13 June 2025. Mr Shortill provided evidence about the AMWU's involvement in a dispute with EDI Rail concerning the new roster. This included evidence about the AMWU's engagement with SafeWork NSW. Significantly, Mr Shortill gave evidence that:

"On or around 10 June 2025, I and Nathan Everson spoke with HSR Andrew Peach about attending and performing work for the night shift and stated it was the recommendation of the AMWU that any proposed cessation of work be put on hold."

Mr Shortill was not required for cross-examination.

• [9] The AMWU also relied on a witness statement from Andrew Peach dated 13 June 2025. Mr Peach is employed by EDI Rail as a Rolling Stock Maintainer, Grade 2 Technician. Mr Peach is also an elected Health and Safety Representative (HSR) and an AMWU Delegate.

• [10] Mr Peach provided evidence that he sent an email to Mr Bradley, copying three AMWU officials and an official of another union, at 10:42am on 10 June 2025. Mr Peach's email had a notice issued to EDI Rail pursuant to s.84 of the Work Health and Safety Act 2011(NSW) (WHS Act) attached. Mr Peach provided notice that a list of employees identified in his email would be ceasing unsafe work. The unsafe work identified was the increased night shifts under EDI Rail's new roster.

• [11] Mr Peach was cross-examined on his evidence during the hearing. During cross-examination, Mr Peach admitted that he did not hold a concern about having a microsleep at the beginning of his shift on 10 June 2025 or 11 June 2025 at 6pm, or at 7pm, or 8pm. Mr Peach suggested the risk tended to arise from around midnight onwards.

• [12] The AMWU also relied on an email from Bradley Hattenfels (NSW Assistant Secretary) dated 12 June 2025 which was sent to AMWU members. Mr Hattenfels' email advised AMWU members to attend work and perform work until a decision is made in this case. There is no dispute that several employees proceeded to not perform work during night shift on 12 June 2025.

• [13] There is no dispute that eight EDI Rail employees refused to perform work while on night shift on either 10, 11, or 12 June 2025. The employees remained in the site lunchroom and confirmed they had ceased to perform unsafe night shift work in accordance with the notice issued by Mr Peach on 10 June 2025. There is no dispute that this conduct falls within the meaning of "industrial action" in s.19(1) of the FW Act.

• [14] There is no argument that s.19(2)(c)(ii) is relevant to this case. That sub-section requires employees to comply with a direction to perform other safe work. EDI Rail did not argue any direction was issued to the relevant employees.

• [15] The case turns on whether the action taken by each relevant employee is deemed by s.19(2)(c) to not fall within the meaning of "industrial action" because it was "based on a reasonable concern of the employee about an imminent risk to his or her health or safety." The application of this exception requires a subjective and objective test. The relevant employee must hold a subjective concern about an imminent risk to their health or safety. The concern must also be a reasonable concern based on an objective assessment.

• [16] Mr Peach's safety concerns with night shift work arise from the risk of microsleeps, either at work or on the way home. However, Mr Peach admitted during cross-examination that the risk of a microsleep does not arise until at least a few hours into a rostered night shift commencing at 6pm. That admission means Mr Peach did not subjectively have a concern about an imminent risk to his health or safety when he refused to commence night shift work at 6pm on 10 and 11 June 2025. This finding means Mr Peach took at least some period of unprotected industrial action on 10 and 11 June 2025.

• [17] Given the lack of direct evidence from the other seven employees that have ceased work on either 10, 11, or 12 June 2025, I consider I must find that those employees also did not subjectively have a concern about an imminent risk to their health and safety when they refused to commence night shift work at 6pm. This finding means the other seven employees also took at least some period of unprotected industrial action on either 10, 11, or 12 June 2025.

• [18] I consider the situation is less clear for work performed from around midnight onwards. I am prepared to accept that Mr Peach and the other seven employees had a subjective concern about an imminent risk to their health or safety when they refused to work from around midnight to the conclusion of the night shifts on 10, 11, or 12 June 2025.

• [19] However, I am not satisfied that Mr Peach or the other seven employees had a reasonable concern about an imminent risk to their health or safety when they ceased work on 10, 11, or 12 June 2025 for the following reasons.

• [20] Firstly, the evidence establishes that SafeWork NSW has been made aware of EDI Rail's new roster pattern since around 10 February 2025 and has been involved in several discussions with EDI Rail, the AMWU, and HSRs since that time.[2] The AMWU conceded during the hearing that there is no evidence that the regulator has ever found that EDI Rail's new roster poses an imminent risk to the employees' health and safety. The regulator's concerns have primarily been directed at a lack of consultation from EDI Rail.

• [21] Secondly, EDI Rail commissioned an independent report into the new roster from Dr Trent Watson from Ethos Health. Dr Watson concluded the new rosters (and other potential rosters he considered) "exceed the moderate level for Fatigue Index scores but remained below the high Fatigue Index level."[3] Dr Watson also identified that the Fatigue Index score for the new roster was consistent with those for night shifts in the Australian rail sector.[4] Dr Watson's report also indicates the relevant EDI Rail employees voted in support of the new roster pattern in preference to a roster pattern that had a maximum Fatigue Index score that was around the same as the previous roster worked by Mr Peach and other employees.[5]

• [22] Thirdly, I consider the AMWU's evidence, and particularly that of Mr Peach, is directed at night shift work in general, as opposed to any specific safety issues that arise with EDI Rail's new roster. For example, Mr Peach gave evidence that the greatest risk for him arises from his first night shift in a cycle. It is unclear how that risk could be negated absent a complete prohibition on night shift work.

• [23] Fourthly, EDI Rail has made changes to its rostering and other arrangements to try and appease safety concerns raised by employees. EDI Rail has recently agreed to provide cab charge vouchers to employees to use to travel to and from work if they are concerned about not being safe to travel. The AMWU accepted during the hearing that this step has negated any objectively assessed imminent safety concerns relating to employees travelling home from night shift work.

• [24] Fifthly, there does not appear to be any dispute that EDI Rail's new roster is consistent with the limitations imposed by clause 30.5 of the Agreement. The new roster being within the bounds of the terms of the Agreement weighs against a finding that the roster creates a reasonable concern for employees about an imminent risk to health and safety.

• [25] For the reasons identified above, I find that Mr Peach and the other seven EDI Rail employees took unprotected industrial action when they ceased work on 10, 11, and 12 June 2025. I find that the exception in s.19(2)(c) of the FW Act is not triggered in relation to the actions taken by Mr Peach and the other seven employees on 10, 11, and 12 June 2025.

• [26] I am satisfied on the evidence that unprotected industrial action is happening in relation to Mr Peach and the other seven employees. Given Mr Peach's notice to EDI Rail and the actions of the other seven employees in ceasing work in accordance with that notice, I also find that unprotected industrial action is threatening, impending or probable.

• [27] Given my findings above, I am required by s.418(1) to make an order to stop the unprotected industrial action.

• [28] I am not satisfied that it is appropriate to make any orders against the AMWU.

• [29] I am particularly swayed by Mr Shortill's uncontested evidence that the AMWU recommended that its members do not cease work. I also note the AMWU advised its members on 12 June 2025 to not cease work until this case has been determined. Several employees did not follow the advice and proceeded to cease work during night shift on 12 June 2025. I am not satisfied the AMWU can be said to be organising the unprotected industrial action that has been taken by Mr Peach and the other employees.

• [30] I do not consider the AMWU should be considered liable for the actions of Mr Peach and the other employees in circumstances where there is uncontested evidence that the AMWU recommended that the employees do not cease work.

• [31] I am not satisfied there is sufficient evidence to make orders against any of the employees that have not engaged in unprotected industrial action. I am not satisfied that I have sufficient evidence about the conduct and intentions of these employees to justify the imposition of reasonably significant orders against them.

• [32] EDI Rail raised concerns about further s.418 applications being made if I do not make orders against all the employees identified in the schedule to its application. I accept that is a possibility. However, I do not consider that possibility is sufficient to justify the making of orders against employees that have not engaged in unprotected industrial action. I am also hopeful that the other employees will reflect on their position once they review this decision.

• [33] I consider Mr Peach is organising the unprotected industrial action that he and the other seven employees have taken. I consider it is appropriate to order that Mr Peach stops organising unprotected industrial action.

• [34] I consider it is appropriate for the orders to take effect from 10pm on 13 June 2025 and to operate until 5pm on 17 August 2025. The parties agreed that this date reflects the end of a consultation period regarding the new roster. I am hopeful the parties can continue working together to address each other's concerns while the order remains in place and am hopeful an agreed position can be reached.

• [35] I have decided to order that the following EDI Rail employees must stop taking unprotected industrial action until 5pm on 17 August 2025:

• Andrew Peach
• Ron Thuringer
• Jordan Keriacou
• Paul Williams
• Brianan Kentwell
• Damien Garton
• Carlos Enjuto
• Zacery Van Ryn

• [36] I have also decided to order that Mr Peach must not organise unprotected industrial action until 5pm on 17 August 2025.

• [37] I wish to make it clear that I have considerable sympathy for Mr Peach, the other relevant EDI Rail employees, and all employees that are required to perform night shift as part of their employment. I have no doubt working night shifts would present many challenges and that it would have significant impacts on the personal lives of employees and their families. However, I do not consider the health and safety concerns relied upon by Mr Peach and the other EDI Rail employees provided justification to cease work on 10, 11, or 12 June 2025. I encourage the employees to continue working with EDI Rail to try and minimise the risks for all employees moving forward.

Mr J McLean (counsel) instructed by Kingston Reid for EDI Rail.

Mr F Anwar (counsel) on behalf of the AMWU, Mr Peach and the other relevant employees.

[1] I have decided to allow EDI Rail to amend its application and draft order to refer to two additional employees that ceased work after the application was filed.

[2] Mr Shortill statement at [5] to [16].

[3] Attachment AP2 to Mr Peach's statement, page 3 of the report.

[4] Attachment AP2 to Mr Peach's statement, page 3 of the report.

[5] Attachment AP2 to Mr Peach's statement, page 7 of the report.

Printed by authority of the Commonwealth Government Printer