Australian Services Union of NSW & Ors v Transport Secretary (Transport for NSW) (No 2) [2021] NSWIRComm 1100

Australian Services Union of NSW & Ors v Transport Secretary (Transport for NSW) (No 2) [2021] NSWIRComm 1100

The proceedings were dismissed because the Unions did not discharge their onus of demonstrating that the Commission should make the proposed award. The proposed award lacked sufficient certainty: it would incorporate terms of enterprise agreements that were not in evidence, without identifying which terms applied to the relevant employees, leaving the Commission unable to determine the conditions it was being asked to make or to be satisfied that they were fair and reasonable under s 10, in the public interest under s 146(2), or otherwise compliant with relevant requirements. The Commission was also not persuaded that TfNSW was avoiding a bargain to which it should be held, that ss 66 and...

Jurisdiction
Australia
Judgment Date
22 December 2021
Procedural Posture
Industrial Dispute Proceedings Seeking Relief in the Form of a New Award / Final Determination After Hearing
Outcome
Proceedings dismissed
Legal Topics
['awards and Enterprise Agreements' 'approval and Creation of Awards' 'transfer of Employment' 'preservation of Terms and Conditions of Employment' 'public Interest in Award Making' 'wage Fixing Principles']
['employment and Industrial Law'] ['awards and Enterprise Agreements' 'approval and Creation of Awards' 'transfer of Employment' 'preservation of Terms and Conditions of Employment' 'public Interest in Award Making' 'wage Fixing Principles']

Case Brief

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Procedural Posture

Industrial Dispute Proceedings Seeking Relief in the Form of a New Award / Final Determination After Hearing

Legal Issues

  1. 1 ['Whether the Commission should make the proposed Transport for NSW (Former NSW Trains/Sydney Trains Employees) Award.' 'Whether there was sufficient certainty in the terms of the award sought, given that the proposed award would incorporate former industrial instruments including enterprise agreements not in evidence.' 'Whether TfNSW or the Transport Secretary should be held to the bargain reflected in enterprise agreements made by Sydney Trains and NSW Trains under the Fair Work Act 2009.' 'Whether past practice by TfNSW or other NSW Government agencies of preserving employment conditions on transfers supported making the proposed award.' 'Whether the circumstances attracted the special case sub-principle of the Wage Fixing Principles.']

Ratio Decidendi

The proceedings were dismissed because the Unions did not discharge their onus of demonstrating that the Commission should make the proposed award. The proposed award lacked sufficient certainty: it would incorporate terms of enterprise agreements that were not in evidence, without identifying which terms applied to the relevant employees, leaving the Commission unable to determine the conditions it was being asked to make or to be satisfied that they were fair and reasonable under s 10, in the public interest under s 146(2), or otherwise compliant with relevant requirements. The Commission was also not persuaded that TfNSW was avoiding a bargain to which it should be held, that ss 66 and...

Court Disposition

Proceedings dismissed

Orders

  • ['The proceedings be dismissed.']