s.437 - Application for a protected action ballot order

The Association of Professional Engineers, Scientists and Managers, Australia

Proposed protected action ballot of employees of Metro Trains Sydney Pty Ltd

• [1] This is an application by The Association of Professional Engineers, Scientists and Managers, Australia (APESMA or Applicant) made on 16 September 2025, under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Metro Trains Sydney Pty Ltd (Metro Trains or Employer).

• [2] I note that the Australian Rail, Tram and Bus Industry Union (ARTBIU) has made a separate application for a protected action ballot order in relation to the same proposed enterprise agreement.[1]

• [3] The Application stated that the employees are currently covered by the Metro Trains Sydney Automated Passenger Services Agreement 2023, which has a nominal expiry date of 22

• [4] On 17 September 2025, the Metro Trains notified the Commission that it objected to the Application on two grounds, that were subsequently refined to:

(1) MTS objects to questions 1, 3 and 8, on the basis that the questions are defective and do not sufficiently identify the proposed industrial action such that it is capable of being answered as required by s. 437(3)(b) Act; and

(2) Otherwise, in respect of all questions, Metro Trains seeks an extension of the notification time to 5 days pursuant to s 414(2)(a) of the Act.

• [5] Questions 1, 3 and 8 provide as follows:

1) Employees will work to rule (full compliance with policies, procedures, and pay grade).

3) An unlimited number of periodic or indefinite bans on the use of MTS technology and software which would not result in the stoppage of trains, or otherwise result in the employer having to arrange alternate forms of transport for the public.

8) Changes to the way employees perform work that result in delay or limitation in the

• [6] The matter was subsequently allocated to my chambers at 5.15pm on 17 September 2025 and set down for conference/hearing at 2.00pm on 18 September 2025. APESMA relied upon its Form F34 Application and Form F34B Declaration of Natty Osorio, Organiser. Metro Trains relied on Statements of Katarina Oliveri, Head of Customer Operations for Metro Trains, and Christopher Weir, Head of Response and Engineering Monitoring for Metro Trains.

• [7] Metro Trains submits that the Impugned Questions are defective and do not sufficiently identify the proposed industrial action such that it is capable of being answered as required by s. 437(3)(b) of the Act.

• [8] Metro Trains relied on the decision of the Full Bench of the Commission in John Holland Pty Ltd v the Australian Manufacturing Workers' Union and The Australian Workers' Union (John Holland),[2] wherein the Full Bench stated:

Moving now to the construction of s.437 itself, seen in its statutory context, all that the

section requires is that the questions should describe the industrial action in such a way that employees are capable of responding to them. If the questions are ambiguous or lack clarity there may be consequences for the bargaining representative and the employees if reliance is placed on the result of the ballot in taking industrial action. If the question or questions give rise to ambiguity, the conclusion may be reached that the industrial action specified in a notice under s.414 was not authorised by the ballot and that the action is not protected for the purposes of s.409(2). It is true that ambiguity or lack of clarity in the description of the industrial action is undesirable, but these are matters more appropriate for consideration under other provisions. It follows that in most cases the drafting of the questions will be a matter for the applicant.

• [9] The Full Bench of the Commission in National Tertiary Education Industry Union v Curtin University (Curtin University),[3] confirmed the approach taken in John Holland, and concluded:

In summary, therefore, an application for a protected action ballot order will comply with the requirement in 437(3)(b), and thus will have been "made under section 437" for the purpose of s 443(1)(a), if it specifies a question or questions, capable of being answered "yes" or "no" by the employees participating in the ballot, which propose(s) action of an identified character, kind or sort capable of constituting industrial action within the meaning of s 19(1). A question which meets these requirements can be expressed and understood in ordinary industrial English, and there is no requirement for legalism, technicality or pedantry in the drafting or analysis of such questions. In our view, the proposition that, beyond these requirements, the questions must be interrogated to identify ambiguity in aid of enabling "informed consent" goes beyond the text of the provision and constitutes a gloss on the statute. The concept of "informed consent" is inapposite to a protected action ballot since, unlike a vote to approve an enterprise agreement, there is no requirement for genuine agreement and those voting are not bound by the result (in the sense there is no requirement for any employee to actually take industrial action which has been authorised by a ballot and for which a s 414(1) notice has been issued).

As earlier stated, s 443(1) imposes a duty on the Commission to make a protected action

ballot order if the requirements of paragraphs (a) and (b) of the subsection are met. The

mandatory nature of s 443(1) is the most important factor governing the construction of s 443 as a whole.45 It should not therefore be considered that, in respect of a valid application for a protected action ballot order, the Commission is at large as to the terms of the order to be made subject to satisfaction of the content requirements in the section. The inference to be drawn from the mandatory nature of s 443(1) is that the order required to be made is one which gives effect to an application validly made under s 437. Thus, in respect of s 443(3)(d), we do not consider that the Commission has a general discretion to determine the questions which will be included in the order, or to simply exclude valid questions, independent of what has been applied for.

• [10] I do not accept Metro Trains submission that questions 1, 3 and 8, are defective and do not sufficiently identify the proposed industrial action such that it is capable of being answered as required by s. 437(3)(b) of the Act. The questions use expressions of common industrial parlance, including "work to rule", "periodic or indefinite bans" on the use of technology, and "Changes to the way employees perform work".

• [11] I am satisfied that questions 1, 3 and 8 meet the requirements of ss.437(3)(b) and 443(3)(d) of the Act.

(b) Extension of the Notification Time - s 414(2)(a) of the Act

"443 When the FWC must make a protected action ballot order

(5) If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days."

• [13] Regarding "exceptional circumstances", in National Tertiary Education Industry Union v Charles Darwin University,[4] the Full Bench of the Commission held:

Section 463(5) of the WR Act is in all material respects the same as s.443(5) of the

Act. We consider the discussion extracted above is apposite to the phrase "exceptional

The determination of whether the circumstances in a particular case are 'exceptional'

involves an evaluative judgement. A proper approach to the exercise of the Commission's

discretion under s.443(5) requires first that a member identify or make findings about the

particular facts or circumstances in relation to the proposed industrial action which are said inform the evaluative judgement that such factors or circumstances are exceptional

circumstances. The phrase "exceptional circumstances" carries its ordinary meaning.

Secondly, there must be a consideration whether the identified exceptional circumstances are circumstances "justifying" a longer notice period. This also involves an evaluative judgement made on the basis of probative material. The use of the verb "justifying" in s.443(5) signifies that the identified exceptional circumstances must show or prove that it is reasonable or necessary or the circumstances warrant or provide good reason to require a longer period of written notice.

Thirdly, if the member is satisfied there are exceptional circumstances justifying a longer period of notice, there must be a consideration of whether to exercise the discretion and, if so, the additional period of notice that should be given in the circumstances (noting the

• [14] Metro Trains relied upon the evidence of Ms Oliveri and Mr Weir. I particularly note the following evidence of Ms Oliveri:

4. MTS is a joint venture of MTR Corporation, John Holland and UGL Rail.

5. MTS is the operator and maintainer of the metro train line known as the M1 Northwest and Bankstown Line. MTS has been the operator and maintainer of the Northwest metro line since 2014. In 2019, MTS was awarded the contract to include the Sydney city and southwest components of the M1 Line.

6. On 19 August 2024, the M1 Line expanded from its northwest stations (which operate from Tallawong to Chatswood) to six new stations in Sydney's CBD - Crows Nest, Victoria Cross, Barangaroo, Martin Place, Gadigal and Waterloo - and new platforms at Sydenham and Central.

7. The M1 Line is currently 51.5km of track with a total of 21 stations. It is expected that the M1 Line will expand into the southwest of Sydney (up to Bankstown) sometime in 2026.

8. Since January 2025, MTS is assisting in the testing and commissioning of the southwest extension to the M1 Line with some TCs working in the temporary control centre.

(a) a current average patronage (as at August 2025) of around 1.4 million customers per week, with a daily average of approximately 230,000 passengers on weekdays and 120,000 customers on weekends;

(c) running high-frequency, high-capacity services to major suburban centres including highly visited precincts for the education, residential, retail and health sectors, including at the Hills, Epping, Macquarie University, Macquarie Park, Chatswood, Central and Sydenham;

(d) cleaning and managing 21 stations and the assets located therein, including any lifts and escalators located therein;

(e) operating and maintaining 45 train carriages and 51.5km of track;

(f) providing electrical and engineering services for the M1 Line;

(g) operating the automatic train operation using communications-based train control signalling system via the OCC;

(h) monitoring the system during engineering hours (i.e. outside the times MTS operates passenger services);

(j) managing and maintaining assets worth approximately $1.35 billion .

10. MTS is a 24/7 operation. It operates passenger services between approximately:

(a) 4.00am to 12.30am the following day on Monday to Thursday;

(b) 4.00am to 1.30am the following day on Friday and Saturday; and

Between the above hours, the stations and M1 Line are closed for cleaning and maintenance. They may also be planned closures during non-peak times for additional maintenance.

11. The peak times for the use of metro trains on the M1 Line are 7-9am and 4-6pm on weekdays. During these times, on average, there are approximately 50,000 and 40,000, respectively, number of passengers travelling on the M1 Line.

12. Whilst we do not formally record data on the demographics of MTS passengers, I am informed and verily believe that many customers to use our services rely on the metro trains as their only method of transport. I also understand that our customer base includes:

(d) intellectually and physically disabled people;

(f) individuals working in essential healthcare services, such as health professionals; and

47. A stoppage of work which results in the partial or total shutdown of the M1 Line would impact on the travelling public that relies on the metro for transport. As set out in paragraph 9, this equates to approximately 1.4 million customers per week.

48. MTS is a party to Sydney Metro Alternate Transport Response Plan (ATRP) which:

(a) outline the response to minimise disruptions to the travelling public

(b) describes the responsibilities on operators, including MTS, in respect of unplanned outages, including MTS's consultation obligations with Sydney Trains and the Transport Management Centre; and

(c) outlines the alternate and replacement services available for each of the stations on the M1 Line, which in summary are:

(i) buses only (including bus replacement services) for the stations between Tallawong and Cherrybrook, and Macquarie Uni and North Ryde, Crows Nest, Victoria Cross, Gadigal and Waterloo;

(ii) trains (in addition to busses) for Epping, Chatswood, Martin Place, Central and Sydenham;

(iii) light rail (in addition to buses and trains) for Central; and

(iv) ferry (in addition to buses) for Barangaroo.

• [15] In _Transport Workers' Union of Australia v Westside Bus Company & Ors,[5]_Commissioner Spencer observed:

Certainly I concur that public transport is an importance service and that the public depends on it, and this justified sufficient time to allow for the communication of the affected services. This is particularly so where the passengers included children and special needs children and the members of the public.

• [16] The unchallenged evidence of the impact of proposed industrial action constitutes exceptional circumstances in this matter and justifies a longer period of written notice of such action. I consider it appropriate to exercise my discretion to extend the notice period to 5 working days.

• [17] I am satisfied that the APESMA has made an application pursuant to s.437 of the Act for a protected action ballot order. I am also satisfied that APESMA has been, and is, genuinely

trying to reach an agreement with Metro Trains, that there has been a notification time in relation to the proposed agreement, and that all of the requirements in s.443(1) of the Act have been met.

• [18] On the basis of the material before me, including the declaration of Natty Osorio, Organiser, setting out the steps taken by APESMA in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with Metro Trains, I am satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in s.443(1) of the Act have been met.

• [19] The ballot is to be conducted by Fair Vote Services Pty Ltd (Fair Vote). Fair Vote has been approved as an eligible protected action ballot agent under s.468A of the Act and consequently is authorised to conduct the ballot.

• [20] For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 3 October 2025.[6] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

• [21] An Order [PR791880] was issued on 18 September 2025.

• [22] This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference along with the other related matter if a Protected Action Ballot Order is granted. To the extent that this matter involves any additional bargaining representatives, that Member will issue an Order requiring their attendance in the proposed enterprise agreement at the conference. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

Ms O Badger, on behalf of Australian Rail, Tram and Bus Industry Union

Ms S Behpour, on behalf of the Association of Professional Engineers, Scientists and Managers, Australia.

Mr M Manucci of Counsel, on behalf of the Respondents.

[2] [2010] FWAFB 526, at [19].

[3] [2022] FWCFB 204 at [53] and [54].

[4] [2018] FWCFB 4011, at [22] to [25].

[5] [2016] FWC 3347, at [43]. See also Transit Australia Pty Ltd v. Transport Workers Union of Australia [2011] FWA 3410, 31 May 2011 at [36].

[6] This is, in effect, 10 days from the Commencement Date and was the period sought in the application.

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