The attached document replaces the document previously issued with the above code on 24 December 2024. The following amendments have been made:

[2024] FWC 3594

Fair Work Act 2009

s.234 - Application for an intractable bargaining declaration

Transdev Sydney Pty Ltd, Great River City Light Rail Pty Ltd

Application for an intractable bargaining declaration in relation to the proposed Transdev Sydney & Parramatta Light Rail Operations Enterprise Agreement 2023

• [1] On 2 August 2024, Transdev Sydney Pty Ltd and Great River City Light Rail Pty Ltd (the Applicants) made an application for an intractable bargaining declaration pursuant to s.234 of the Fair Work Act (the FW Act) in relation to the proposed Transdev Sydney & Parramatta Light Rail Operations Enterprise Agreement 2023 (the Proposed Agreement).

• [2] The Australian Rail Tram and Bus Industry Union (RTBU) is an employee organisation that is a bargaining representative in relation to the Proposed Agreement. There are also seven individual employee bargaining representatives. The RTBU initially opposed the application,

• [3] The matter was listed for hearing on 31 October and 1 November 2024. By consent of the parties, the hearing was adjourned to 19 December 2024.

• [4] On 18 December 2024 the Applicants' lawyers advised my Chambers that the parties had reached a consent position and that the RTBU was no longer contesting the Application. The Applicants provided draft orders which the parties proposed to be made by the Commission by consent.

• [5] The hearing was vacated and the matter was listed for further directions on 19 December 2024. At the directions hearing, the Applicants and the RTBU submitted that the application could be determined on the papers and subsequently filed a Statement of Agreed Facts.

• [6] For the reasons that follow I have made an intractable bargaining declaration in relation to the Proposed Agreement.

• [7] The Applicants are related employers. They employ employees to work on Sydney Light Rail and Parramatta Light Rail in the classifications of Driver, Customer Service Officer, Authorised Officer, Controller and Trainer.

• [8] Employees of Transdev Sydney Pty Ltd working in those classifications on Sydney Light Rail are currently covered by the Transdev Sydney Pty Ltd (Inner West Light Rail) - Enterprise Agreement 2021 and Transdev Sydney Light Rail Operations Enterprise Agreement 2019, which both have a nominal expiry date of 31 October 2023.

• [9] Employees of Great River City Light Rail Pty Ltd are not currently covered by any enterprise agreement.

• [10] On 31 May 2023, the Applicants issued a notice of employee representational rights (NERR) to employees to be covered by the Proposed Agreement. Bargaining has been occurring for more than 18 months, however the parties are unable to reach agreement on the following key terms of the Proposed Agreement:

a. the quantum of the wage increases for Years 1, 2, 3 and 4 of the Proposed Agreement; and

• [11] The Applicants and the RTBU agree that they have exhausted all avenues in an attempt to reach agreement on the terms of the Proposed Agreement.

• [12] The main features of ss. 234 and 235 of the FW Act are described in detail in the Full Bench decision in United Firefighters' Union of Australia v Fire Rescue Victoria (UFU v FRV)[1] and I rely upon what is said in that decision.

• [13] Section 234 of the FW Act makes provision for a bargaining representative to make an application for an intractable bargaining declaration. Section 235(1) sets out the circumstances in which the Commission may make an intractable bargaining declaration which are that the application has been made, the Commission is satisfied of the matters set out in subsection (2) and it is after the end of the minimum bargaining period as defined in s. 235(5).

• [14] The minimum bargaining period as defined in s.235(5) as the later of:

• the day that is 9 months after the nominal expiry date(s) of the existing agreement(s); or

• the day that is 9 months after the day that bargaining starts, being the 'notification time' for the proposed agreement.

• [15] This is essentially an issue of fact.[2] The notification time for a proposed agreement is as set out in s.173(2). The issue of the NERR in respect of a single-enterprise agreement (other than a greenfields agreement) must occur not later than 14 days after the notification time for such an agreement, so the fact that the NERR has been issued will usually be a reliable indicator that the notification time has already occurred.[3]

• [16] The matters that the Commission must be satisfied about in s.235(2) before making a declaration are:

(a) the FWC has dealt with the dispute about the agreement under s.240 and the applicant participated in the FWC's processes to deal with the dispute; and

(b) there is no reasonable prospect of agreement being reached if the FWC does not make the declaration; and

(c) it is reasonable in all the circumstances to make the declaration, taking into account the views of all the bargaining representatives for the agreement.

• [17] Satisfying the criteria in s.235(2)(a) requires a finding of fact that the Commission has dealt with the dispute about the agreement under s.240 and the applicant for the intractable bargaining declaration has participated in the Commission's processes to deal with the dispute.[4] The Commission must have had a real opportunity to take action with respect to the bargaining dispute in order to have dealt with it within the meaning of s.235(2)(a).[5] However, it is not necessary for the Commission to be satisfied that the Commission has had the opportunity to use all of its efforts to assist the parties to resolve the dispute, using its powers under s 595, and the Commission has dealt with the s.240 proceedings to conclusion.[6] The Commission may, at a particular point in time, have dealt with the s.240 application extensively, notwithstanding that it may have future dealings with the dispute.[7]

• [18] Section 235(2)(b) requires the Commission to make an evaluative judgment as to whether there is 'no reasonable prospect of agreement being reached' if an intractable bargaining declaration is not made.[8] In assessing whether there is no reasonable prospect of agreement being reached if the Commission does not make a declaration, it is necessary to have regard to the history of negotiations and any developments or negotiations which take place up until the time of the assessment.[9] Further, consideration as to whether there is no reasonable prospect of agreement being reached does not require any assessment of the merits of possible alternative provisions that might be arbitrated in a later determination.[10] Section 235(2)(c) requires the Commission to make a further evaluative judgment, in relation to whether it is reasonable in all the circumstances to make the declaration sought, taking into account the views of the bargaining representatives for the agreement.[11]

• [19] The 'reasonable in all the circumstances' criterion requires an assessment of what is 'agreeable to reason or sound judgment' in the context of the relevant matters and conditions accompanying the case.[12] The requirement to take into account the views of the bargaining representatives means that their views must be treated as a matter of significance, but not necessarily a determinative consideration, in the assessment of whether it is reasonable in all the circumstances to make the determination sought.[13] Where the Commission is satisfied as to each of the matters in paragraphs (a)-(c) of s 235(1), it retains a residual discretion as to whether an intractable bargaining declaration is actually made. However, it is difficult to identify what discretionary matters might remain for consideration if the Commission has already satisfied itself as to the criteria in s 235(2).[14]

• [20] Section 235(3) provides the matters which must be specified in the declaration. Section 235A provides that the Commission may, if it considers it appropriate to do so, specify a period in the declaration called a 'post-declaration negotiating period'.

• [21] The parties rely upon a Statement of Agreed Facts signed by the Applicants' legal representative and by the RTBU. The facts stated in the Statement of Agreed Facts are about matters known to the Applicants and the RTBU. I accept that the Statement of Agreed Facts is a reliable evidentiary basis to determine the matter.

Has an application for the declaration been made? - s 235(1)(a)

• [22] On 2 August 2024, the Applicants filed an application for an intractable bargaining declaration in the Commission in relation to the Proposed Agreement. I therefore find that a valid application has been made under s.235(1)(a).

Is it after the end of the minimum bargaining period? - s 235(1)(c)

• [23] Employees of Transdev Sydney Pty Ltd working on Sydney Light Rail are currently covered by the Transdev Sydney Pty Ltd (Inner West Light Rail) - Enterprise Agreement 2021 and Transdev Sydney Light Rail Operations Enterprise Agreement 2019, which both have nominal expiry dates of 31 October 2023.

• [24] The notification time for the Proposed Agreement was 31 May 2023. More than 9 months have elapsed since the nominal expiry date of the current Agreements which apply to employees working on Sydney Light Rail and the notification time for the Proposed Agreement. I therefore find that the precondition under s 235(1)(c) is established.

Has the FWC dealt with the dispute about the agreement under section 240, and have the applicants participated in the FWC's processes to deal with the dispute? - s 235(2)(a)

• [25] On 19 July 2024, the Applicants made an application under s.240 of the FW Act for the Commission to deal with a bargaining dispute in relation to the Proposed Agreement (B2024/922). On 26 July 2024, the parties attended a conciliation conference before Deputy President Cross in relation to this application.

• [26] On 18 October 2024, the Applicants made a further application under s.240 of the FW Act for the Commission to deal with a bargaining dispute in relation to the Proposed Agreement (B2024/1374). On 24 October 2024, the parties attended a conciliation conference before Deputy President Cross in relation to this application.

• [27] I find that the Commission has dealt with the dispute about the Proposed Agreement under s.240, and that the Applicants have participated in the Commission's processes to deal with the dispute.

Is there no reasonable prospect of agreement being reached if the Commission does not make the declaration? - s 235(2)(b)

• [28] The parties rely upon the following agreed facts in relation to this matter:

1. the parties have participated in over 20 bargaining meetings;
2. the Applicants made six offers in resolution of bargaining each of which were rejected by the RTBU and individual employee bargaining representatives;
3. the RTBU has made two offers in resolution of bargaining, each of which were rejected by the Applicants;
4. the parties reached in-principle agreement on the terms of the Proposed Agreement. However, the in-principle agreement did not ultimately result in an agreed enterprise agreement being put to a vote of employees, on the basis that the RTBU's members declined to endorse the terms of the in-principle agreement;
5. the parties have participated in two s.448A compulsory PABO conciliation conferences;
6. employees of the Applicants have engaged in protected industrial action on multiple occasions in various forms, with such action including stoppages of work and partial work bans;
7. the Applicants have filed an application for bargaining orders and an application for an order suspending industrial action, and participated in a conciliation conference arising from these applications;
8. Employees have voted down a Proposed Agreement on the following three occasions:
   1. first vote conducted between 22 June 2024 to 24 June 2024;
   2. second vote conducted between 28 and 29 October 2024; and
   3. third vote conducted between 12 and 13 December 2024.

• [29] On the basis of the material before me, I am satisfied that there is no reasonable prospect of agreement being reached if the Commission does not make the declaration. The Applicants and the RTBU have each made multiple offers which have been rejected by the other party. The employees covered by the Proposed Agreement have voted against a Proposed Agreement on three occasions during a six month period. The Commission has provided assistance on numerous occasions but agreement between the parties has not been achieved. It is clear that bargaining has reached an impasse.

Is it reasonable in all the circumstances to make the declaration, taking into account the views of all the bargaining representatives for the agreement? - s 235(2)(c)

• [30] The Applicants and the RTBU jointly submit that it is reasonable in all the circumstances to make the declaration and that the parties have taken all reasonable steps to ensure that only those matters that are incapable of resolution between the parties remain outstanding.

• [31] The Applicants and the RTBU have advised the Commission that on 19 December 2024, individual bargaining representatives were informed that the RTBU was no longer contesting the Application. On 18 December 2024 the Applicants' lawyers copied the individual bargaining representatives into the correspondence in relation to this matter which was sent to my Chambers. The individual bargaining representatives were issued a Notice of Listing by my Chambers in relation to the directions hearing on 19 December 2024. No individual bargaining representatives have expressed any views as to the making of the declaration to the Applicants, the RTBU or the Commission.

• [32] I am satisfied that it is reasonable in the circumstances to make the declaration given that the parties are at an impasse, bargaining has been protracted and has been ongoing for over eighteen months, that the Applicants and the RTBU support the making of a declaration and that no individual bargaining representative has advised that they oppose the making of a declaration.

• [33] All the preconditions for the making of an intractable bargaining declaration pursuant to s.235(1) are satisfied. In the exercise of my residual discretion, there is no matter which I can identify which would weigh against making an intractable bargaining declaration. Accordingly, I make the declaration sought by the Applicants.

• [34] The parties agree that it is not appropriate for there to be a post-declaration negotiating period. Taking into account the views of the parties and the history of bargaining to date, I accept that it is not appropriate for there to be a post-declaration negotiating period and will not specify such a period in the declaration.

• [35] I make an intractable bargaining declaration in relation to the proposed Transdev Sydney & Parramatta Light Rail Operations Enterprise Agreement 2023.

• [36] The declaration is made by a separate order that is published in conjunction with this decision and which, in accordance with s.235(4)(a) of the FW Act, will operate from the date of this decision.

[1] [2023] FWCFB 180.

[5] Transport Workers' Union of Australia v Cleanaway Operations Pty Ltd T/A Cleanaway Operations Pty Ltd [2024] FWCFB 127, [12].

[8] UFU v FRV [2023] FWCFB 180, [29].

[9] Transport Workers' Union of Australia v Cleanaway Operations Pty Ltd T/A Cleanaway Operations Pty Ltd [2024] FWCFB 127, [11]

[11] UFU v FRV [2023] FWCFB 180, [30]

[12] Suncoast Scaffold Pty Ltd [2023] FWCFB 105 at [17] cited in UFU v FRV [2023] FWCFB 180, [30]

[13] UFU v FRV [2023] FWCFB 180, [31].

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