1 Fair Work Act 2009 s.437 - Application for a protected action ballot order Australian Rail, Tram and Bus Industry Union v Metro Trains Sydney Pty Ltd (B2026/798) DEPUTY PRESIDENT SLEVIN SYDNEY, 10 JULY 2026 Proposed protected action ballot of employees of Metro Trains Sydney Pty Ltd – application for extension of notice period – s 443(5) – exceptional circumstances not made out – application refused – order to issue. Introduction [1] This is an application by the Australian Rail, Tram and Bus Industry Union (RTBU or Applicant) made 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 (MTS or Employer). [2] I note that the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU)1 has made a separate application for a protected action ballot order in relation to the same proposed enterprise agreement (CEPU Application). The CEPU Application was heard together with this application and a separate decision has been issued in that matter2. [3] MTS does not oppose an order being made but does seek that the Commission exercise the discretion under s. 443(5) to extend the written notice period for the taking of the industrial action in respect of each of the proposed questions in the ballot to 5 days. Extended notice period [4] The power to extend the time for the notice period for industrial action is found in s. 443(5): It reads: (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 or 120 hours (whichever is applicable), the protected action ballot order may specify a longer period of up to 7 working days. 1 B2026/803. 2 [2026] FWC 2618 [2026] FWC 2616 DECISION [2026] FWC 2616 2 [5] The determination of whether the circumstances in a particular case are exceptional involves an evaluative judgment and must be based on findings of fact about the circumstances that are said to be exceptional.3 [6] The parties referred me to the decision in NTEU v Charles Darwin University [2018] FWCFB 4011 (NTEU), where the Full Bench described the nature of the discretion in s. 443(5) as follows: [20] The exercise of a discretion under s.443(5) results in an interference with the right of a bargaining representative to otherwise give three working days’ written notice of industrial action that is to be organised and engaged in by employees in support of a proposed agreement. That this right should not lightly be curtailed by the imposition of a longer period of notice is evident in the grant of power itself. There must be “exceptional circumstances” in relation to the proposed industrial action the subject of the order justifying a longer period. [7] The Full Bench went on to describe a three-step process in exercising the discretion under s. 443(5): [23] 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. [24] 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. [25] 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 maximum period). [8] The expression “exceptional circumstances” as it is used in s, 443(5), was considered by the Full Court of the Federal Court of Australia in Construction, Forestry, Maritime, Mining and Energy Union v DP World Sydney Ltd [2019] FCAFC 99. The Court endorsed the above passages from NTEU and referred to a passage from an earlier decision of the Australian Industrial Relations Commission describing the same expression in earlier legislation CEPU v Australia Post [2007] AIRC 848 as apt: [10] In this passage his Honour was concerned with the ordinary meaning of the expression “exceptional circumstances” and the approach identified is, in my view, equally applicable to the use of that expression in s.465(3). In summary, the expression “exceptional circumstances” requires consideration of all the circumstances. To be exceptional, circumstances must be out 3 National Tertiary Education Industry Union v Charles Darwin University [2018] FWCFB 4011 at [23]. [2026] FWC 2616 3 of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon. [9] The Court also endorsed the following statement: [21] Essentially, what is required in determining whether exceptional circumstances justify an extension of the required notice period is a weighing of the interests of the employer and third parties in the employer having a greater opportunity to take appropriate defensive action as against the diminutions in the effectiveness of the employees’ bargaining power that results from such an extension. The fact that the legislature has seen fit to condition the ordering of an extension of the required notice period on the presence of exceptional circumstances justifying it, as distinct from merely conferring a simple discretion to extend the required notice period, indicates that ordinarily there should be no extension. [10] The proper approach to the exercise of the discretion under s 443(5) may be summarised as follows: a) The Commission may extend the notice period for industrial action beyond 3 working days (up to 7 days) only if there are exceptional circumstances (s.443(5)). b) Determining 'exceptional circumstances' requires an evaluative judgment based on factual findings about the specific situation. c) 'Exceptional circumstances' must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. They can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. They may include a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon. d) The process involves three steps. The Commission should: (i) Identify and make findings about the facts or circumstances claimed to be exceptional; (ii) Assess whether these circumstances justify a longer notice period meaning they must show it is reasonable, necessary, or warranted; and [2026] FWC 2616 4 (iii) Decide whether to exercise the discretion to extend, and if so, determine the appropriate additional period but only up to 7 working days e) The decision must balance the employer’s and third parties’ interests in having more time to respond against the reduction in employees’ bargaining power. f) Extensions should not be granted lightly; the default is that no extension unless justified by exceptional circumstances. Consideration [11] As MTS seeks to have the discretion under the subsection exercised it falls on it to satisfy the Commission that it should exercise the discretion. To that end MTS provided a witness statement of Michael Leah, its General Manager Engineering and Maintenance Delivery. The statement is provided in support of the extension of time application both in this matter and the CEPU application. Mr Leah provided a detailed overview of MTS’s operational structure, maintenance responsibilities, staff roles, contractual obligations, regulatory environment, and the potential for industrial action to affect service delivery. He annexed lengthy documents going to MTS’s minimum operating standards, Asset Maintenance Standards, employee Position Descriptions, Operating Safety Management Systems Framework, and Alternate Transport Response Plan. [12] MTS is the operator and maintainer (O&M) of the metro train line known as the M1 Northwest and Bankstown Line. MTS has been the operator and maintainer of the M1 Line since 2014 and its first passenger service occurred on 26 May 2019. In late 2019, MTS was awarded the contract to include the Sydney city and southwest components of the M1 Line. 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 - with new platforms also at Sydenham and Central. 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 this year. [13] According to Mr Leah’s statement MTS: • Serves an average of 2.5 million passengers per week (about 255,000 daily). • Runs approximately 2,600 weekly train services. • Operates high-frequency, high-capacity services to major suburban centres and key precincts (education, residential, retail, health) including the Hills, Epping, Macquarie University, Macquarie Park, Chatswood, Central, and Sydenham. • Manages and maintains assets worth approximately $1.35 billion. • Cleans and manages 21 stations and their assets, including lifts and escalators. • Operates and maintains 45 train carriages and the 51.5 km of track. • Provides electrical and engineering services for the M1 Line. • Runs automatic train operations using communications-based train control via an Operations Control Centre. • Monitors the system during engineering hours (outside passenger service times) • Is subject to obligations imposed by the Rail Safety National Law which is regulated by the Office of National Rail Safety Regulator. [2026] FWC 2616 5 • Has developed technical maintenance plans, maintenance standards and minimum operating Standards. • Employs the equivalent of 60 full time equivalent employees in 7 roles. • Operates train services between 4.00am to 12.30am the following day on Monday to Thursday; 4.00am to 1.30am the following day on Friday and Saturday; and 4.00am to 11.00pm on Sunday. [14] Mr Leah understands that the passengers on the services include school children, students in tertiary education, elderly people, intellectually and physically disabled people, tourists, individuals working in essential healthcare services, such as health professionals, factory, port, and mine workers. [15] The ballot questions proposed by the RTBU are: 1. Performing work in a manner different from that in which it is customarily performed? Yes [ ] No [ ] 2. Taking an unlimited number of stoppages of work, between 1 minute and 72 hours? Yes [ ] No [ ] 3. Bans, limitations, or restrictions (including changes to the performance of work resulting in bans, limitations, or restrictions) on the manner in which work is undertaken? Yes [ ] No [ ] 4. Interrupting work periodically, in order to: a) wear or display on your person union and/or industrial campaign material; b) distribute union and/or industrial campaign material by any means; c) attach union and industrial campaign material to outgoing mail, emails, and add it to employer materials and displays; d) attach union and industrial campaign material to Aurizon trains or assets (that do not impact on safety); and/or e) provide information, in any form and by any method, concerning the views of employees about any aspect of the bargaining campaign to any members of the public, including the media? Yes [ ] No [ ] [16] Mr Leah sets out the industrial action proposed by the RTBU in the current application, as well as the industrial action proposed in the CEPU application. He responds to that proposed action together. There no distinction between the RTBU and CEPU action. The workforce is relatively small, at 60 full time equivalent. There are seven distinct roles ranging from System [2026] FWC 2616 6 and Infrastructure Response Team Leaders to Asset Engineering Technicians. The employees are ostensibly engaged in maintenance work. [17] In relation to the proposed industrial action in 1.(performing work differently), Mr Leah states that deviations from standard work practices during industrial action can create a growing backlog of maintenance, heightening operational and safety risks for the Metro network. He explains that if maintenance tasks are only partially completed such as inspecting only part of a track section the unfinished work must be rescheduled for a later maintenance window. This leads to a cumulative backlog, as maintenance activities are carefully planned to meet technical and compliance requirements. When tasks are delayed, future scheduled work is displaced, making it difficult to maintain compliance with safety and maintenance obligations. Over time, this can affect MTS’s ability to complete safety-critical maintenance on schedule and keep assets certified as safe for operation. [18] Mr Leah further notes that bringing in contractors does not necessarily resolve these issues, since incomplete work may not be identified until after the maintenance window has closed. As a result, outstanding maintenance accumulates, increasing pressure on future maintenance windows and raising the risk of non-compliance with safety requirements. In summary, deviations from standard work practices during industrial action can create a growing backlog of maintenance, heightening operational and safety risks for the Metro network. [19] It was not clear from Mr Leah’s statement, but MTS raised in submissions that maintenance employees are required to inspect and certify trains fit to operate before operations commence each day. The Position Descriptions for the roles include inspections of assets. It was not clear how many employees are required for these tasks or how often it occurred. There are references to checks in the positions descriptions for example fortnightly checks of tracks, and weekly inspections of the smart rail system. [20] In relation to the industrial action proposed in 2., stoppages of work, Mr Leah explains that MTS only has access to the network for maintenance during short 'engineering hours' each night, when safety-critical inspections, maintenance, and certification must be completed. If industrial action causes repeated or intermittent stoppages during these periods, the available time for maintenance is reduced, increasing the risk that critical tasks will not be finished within required timeframes. This could lead to breaches of safety requirements, loss of essential maintenance time, and potentially the partial or complete stoppage of Metro services if critical maintenance cannot be completed. Delays and compliance risks would also increase as maintenance activities are deferred. Leah notes that, in such cases, MTS would first try to reprioritize work, but if safety-critical tasks cannot be deferred, external contractors would need to be engaged. However, contractors cannot be deployed immediately; MTS must review safe work methods, validate competencies, provide site-specific inductions, and ensure all approvals and paperwork are in place. Sometimes, contractors also require additional training. [21] Mr Leah’s view on the action proposed in the RTBU’s question 3, bans on work, was similar to the view expressed about the first category of action. He said that an indefinite ban on plumbing-related work, for example, would not only affect amenities but also critical infrastructure such as water systems, cooling towers, and wet fire systems, potentially leading to hygiene issues, water leaks, and even station closures. Similarly, bans on work on heating ventilation and air conditioning systems threaten the operation of essential server rooms and [2026] FWC 2616 7 communications systems, risking outages that could disrupt Metro services. The highly integrated nature of Metro’s systems means a failure in one area can have cascading effects across multiple safety-critical functions. He also said that a ban on allocating work orders would severely impair the ability to schedule, track, and complete maintenance, leading to backlogs and increased risk of non-compliance. Similarly, restricting team leaders from ordering materials or arranging contractors would undermine incident response and prolong outages of critical systems [22] Mr Leah describes the impact of the industrial action in 4. as employees working on the Metro must wear mandatory personal protective equipment, so any union or campaign material worn must comply with these safety requirements. [23] The gravamen of Mr Leah’s concerns is that industrial action will lead to delays in maintenance. Delays in maintenance will lead to a back log. This will lead to challenges for MTS in completing safety-critical maintenance on schedule and may result in MTS being able to guarantee that the system can be operated safely including where trains not being certified as safe for operation. The end result being that the service cannot be provided – the trains stop running. [24] Mr Leah's witness statement explains the challenges MTS would face if given only three days' notice of widespread protected industrial action. Maintenance activities are planned well in advance to ensure qualified staff, equipment, and resources are available for safety- critical work. If a significant number of Asset Engineering Technicians become unavailable with just three days' notice, MTS would need to rapidly reorganize maintenance, reprioritise resources, and attempt to engage contractors. As many maintenance tasks require specialised skills not easily found in the external labour market, and contractors need much longer lead times for engagement, induction, and familiarisation with metro systems, planned maintenance and inspections would not be completed on time, leading to a backlog and increasing difficulty in meeting compliance and safety standards. In some cases, this could force MTS to remove assets from service or restrict Metro operations until safety requirements are met. More notice would help MTS better manage these risks and disruptions. [25] Mr Leah explains that if MTS is notified of protected industrial action, management would contact rostered employees to confirm participation, seek relief from other staff or contractors, who require two weeks' notice and training, and consider management support. [26] Mr Leah’s statement speculates about the broader impacts of protected industrial action. He notes he is unaware of the exact union membership numbers. He explains that a work stoppage would disrupt travel for the 2.5 million weekly passengers who rely on the M1 Line, Sydney’s busiest rail corridor. If maintenance cannot be completed on time, Mr Leah says MTS may be unable to certify assets as safe, leading to service restrictions or disruptions. Failures in critical infrastructure could affect passenger safety, information systems, and emergency management. MTS participates in the Sydney Metro Alternate Transport Response Plan to minimise public disruption during outages. Mr Leah states that the metro’s highly automated and integrated systems mean failures in one area can cascade across the network. Industrial [2026] FWC 2616 8 action could also cause MTS to breach contractual obligations, incur financial penalties, and risk government intervention or contract termination if key performance indicators are not met [27] MTS submits there are exceptional circumstances justifying an extension of the time for notice of any industrial action due to the nature of its operations. The metro service is a fully automated, highly integrated network where failures in one system can impact multiple safety- critical functions, and safe operation depends on tightly scheduled night-time maintenance. It submits that MTS’s workforce is highly specialised and lean, with limited ability to redeploy staff or arrange contractor support at short notice contractor mobilisation alone requires about two weeks. Strict rostering and fatigue controls further limit flexibility. The metro serves around 2.5 million passengers weekly, including vulnerable groups, making public safety and communication paramount. Additionally, MTS faces significant contractual and commercial risks if services are disrupted. These factors, individually and collectively, are out of the ordinary and justify extending the notice period to ensure safety, service continuity, and effective contingency planning. [28] The RTBU and CEPU oppose the extension and submits the circumstances MTS relies upon merely describe the nature of its business and the impact of industrial action on it. The facts that the metro is a fully automated and integrated system, the workforce has specialist skills and limited ability to redeploy them, the lead time needed to hire and train external specialist contractors, the regulatory requirements for rostering and fatigue management, the regular volume and composition of passengers and stations, and MTS’s ongoing commercial obligations and risks under its project agreements are all circumstances unique to its business but they are not exceptional. What is described is the expected impact of industrial action which may result to disruption to an employer’s business. It submits that MTS has not established that the additional two working days notice is necessary to ameliorate the adverse impact of the action and so the extension of time is not justified. [29] I agree with the unions’ submission. While the circumstances of MTS’s business may be out of the ordinary, or unusual, or unique to it in an operational sense, it being the only metro service in Sydney required specialised maintenance workers, I am not persuaded that the possibility of potential delay in maintenance leading ultimately to trains and other losing certification as safe for operation is sufficient to justify a departure from the statutory notice period in s. 414(2)(a). For the purposes of s. 443(5), the exceptional circumstances are not focussed on the operations of the employer, although the operations of the employer may be relevant, the focus is on the proposed industrial action. The question is whether there are exceptional circumstances associated with the action that justify an extension of the period of notice. [30] What is described in the evidence and submissions does not make MTS’s business any different from other businesses that may be subject to industrial action. Many industries such as the maritime industry, the mining industry, and the electricity industry, to name three, work under safety critical maintenance regimes. Those industries are subject to the same challenges when industrial action is proposed. They must adapt to meet the potential interruptions associated with industrial action. There is nothing exceptional about this. MTS operations are not relevantly exceptional due to its safety critical system such that this factor alone justifies extending the relevant timeframe. [2026] FWC 2616 9 [31] MTS also relied on the importance of the public transport service it provides. The potential for the disruption to the service is said to give rise to exceptional circumstances. I was taken to an earlier decision of the Commission where the discretion was exercised to extend the notice period to 5 working days Australian Rail, Tram and Bus Industry Union v Metro Trains Sydney Pty Ltd [2025] FWC 2799. The decision was made by reference to another decision of the Commission on the basis that public transport is an importance service and that justified sufficient time to allow for the communication of the affected services to and that this is particularly so where the passengers included children and special needs children and the members of the public passenger TWU v Westside Bus Company Pty Ltd [2016] FWC 3347. I was also taken to other decisions of the Commission in the transport industry. My reading of those cases however is that the Commission was dealing with industrial action that directly impacted the provision of transport services because the action proposed involved drivers stopping work: service cannot operate if a driver stops work. MTS’s service is different. The trains do not run with drivers. The workers here are maintenance workers. Mr Leah describes the way in which the stoppages by maintenance workers can result in services being disrupted. The impact is not as immediate as the bus driver example. [32] I also note that the impact will not be as great on customers in the context where alternative methods of transport are available in Sydney. Mr Leah annexed to his statement the Sydney Metro Alternate Transport Response Plan, which is a comprehensive plan devised by the NSW Government to deal with disruptions to services caused by outages on the metro network. The plan provides for means of notifying passengers of changes promptly. [33] Further, I am not satisfied that the two day extension would alleviate the concerns raised by MTS. It appears that the concern is that industrial action will be taken at all, rather than the notice of the industrial action is too brief. There was no evidence as to what difference a longer timeframe would make to addressing Mr Leah’s concerns about the ultimate impact of the action on service reliability should the maintenance activities fall behind. A statutory regime for the taking of protected industrial action has existed in Commonwealth legislation since amendments to the Industrial Relations Act 1988 took effect in 1994. The scheme, although modified, was repeated in the Workplace Relations Act 1996. The scheme has always included the requirement that notice be given to employers of proposed industrial action. The purpose of the notice period was described by the Full Federal Court of Australia in Davids Distribution Pty Ltd v National Union of Workers [1999] FCA 1108 by reference to s. 170MO of the Workplace Relations Act 1996 as follows: [87] We think s170MO(5) was designed to ensure that industrial disputants who are to become affected by protected action, in relation to which their usual legal rights are significantly diminished, are at least able to take appropriate defensive action. For example, an employer may operate a sophisticated item of equipment that will be damaged if precipitately shut down. If warned in advance of a ban that might affect the continued operation of that plant, the employer might choose a controlled shut down during the period of the notice. More commonly, perhaps, an employer might use the notice time to communicate with suppliers and customers, and thereby reduce the consequences for them of the notified industrial action. Very often, the recipient of the notice will respond in a way that has a legal dimension. For example, a union might react to a notice by an employer of intent to lockout some employees by giving notice [2026] FWC 2616 10 that all employees will strike indefinitely as from the commencement of the lockout. Similarly, an employer might respond to an employees' notice of bans by giving notice of a lockout of some or all employees. [34] This is not a case where TMS needs additional time to take mitigating steps to avoid catastrophic damage to its business. The circumstances here may be contrasted to the circumstances described in BlueScope Steel (AIS) Pty Ltd v Australian Workers' Union (No 1) [2012] FCA 935 where industrial action threatened the protection of the physical integrity and continuing operation of a blast furnace giving rise to injunctive relief to shorten the length of stoppages. [35] I am not persuaded by the suggestion that two additional working days are necessary to make contingency plans as defensive measures to ameliorate the impact of the industrial action. The matters raised going to sourcing alternate labour through external contractors do not ring true. Steps to source external labour capable of performing the work could commence now. The unions assert that MTS was aware of the intention to seek a protected action ballot order in early June 2026. The sourcing of labour could have commenced then. The site specific inductions can also occur now. This would put MTS in a position where it will have three working days at least to engage that labour. MTS complained that commercial realities many not allow the labour to be secured in time and that the two extra days’ notice may assist in that task. I do not consider those matters as justifying departing from the statutory timeframe for notice of industrial action set out in s. 414(2)(a). [36] MTS submission that passengers may be inconvenienced if the industrial action leads to interruptions in service is also not persuasive in that regard. Inconvenience to passengers is a common outcome of the taking of industrial action. Again, the evidence does not suggest that the extension sought will lessen the risk of disruption and measures are already in pace for dealing with disruptions of the metro service. [37] Consequently, weighing the interests of MTS as against the diminutions in the effectiveness of the employees’ bargaining power that results from an extension of the notice period I decline to exercise the discretion in s. 443(5). In doing so I note that the legislature has seen fit to require that an extension of the notice period requires exceptional circumstances as distinct from merely conferring a simple discretion to extend the notice period. I also note observations in earlier cases that ordinarily there should be no extension. Decision [38] On the basis of the material before me, including the declaration of Amanda Perkins, Organiser, setting out the steps taken by the RTBU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with MTS, 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. [39] The ballot is to be conducted by True Vote Pty Ltd (True Vote). True 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. [2026] FWC 2616 11 [40] 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 24 July 2026. This also establishes the ballot period for the purpose of s.448A(2) of the Act. [41] I refuse the application by MTS that the order specify that the period of written notice referred to in paragraph 414(2)(a) of the FW Act be a period of 7 working days. [42] An Order has been separately issued in PR811959. [43] This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference along with the other related matters. That Member will issue an Order requiring the attendance of all bargaining representatives 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. DEPUTY PRESIDENT Printed by authority of the Commonwealth Government Printer <PR811964>