NEW SOUTH WALES COURT ISSUES JUDGEMENT FOR AUSTRALIAN RAIL, TRAM AND BUS INDUSTRY UNION V/S PACIFIC NATIONAL EXECUTIVE SERVICES CASE

Australia, April 12 -- New South Wales Land and Environment Court issued text of the following judgement on March 12:

1. Railway workers were locked out by Pacific National Executive Services Pty Ltd (Pacific National) in October 2023. Their union, the applicant, claims they were entitled to be paid for the period they were locked out under their contracts of employment and can pursue such a claim before this Court as a contravention of the Fair Work Act 2009 (Cth). Whether that is so depends on four issues:

1) Whether s 323 of the Fair Work Act creates a statutory obligation to pay wages due under a contract of employment where the employer's obligation to make payment is disputed.

2) Whether employer industrial action is employer response action as defined (which relieves the employer of the obligation to pay the employees during the period of that action) if it was notified to start at the exact same time as the industrial action notified to be taken by the union.

3) Whether on the facts of this case the lockout commenced only in response to the commencement of industrial action by the employees or commenced regardless of whether they had commenced to take industrial action.

4) Whether the employees who did not attend work did so in response to the employer response action, or because they were taking industrial action. If the latter, whether they are then entitled to be paid.

2. On 23 July 2024, the Australian Rail, Tram and Bus Industry Union (RTBU) filed an Application for Recovery of Money and/or Civil Penalties against the respondent, Pacific National. It applies to this Court for an order under s 545(3) of the Fair Work Act against Pacific National to pay some of its employees compensation for wages that the RTBU contends they were entitled to but not paid.

3. Under s 545(3), an "eligible State or Territory court" may order an employer to pay an amount to an employee if the court is satisfied that the employer was required to pay the amount under the Fair Work Act and the employer has contravened a civil remedy provision by failing to pay the amount. The Industrial Court of NSW is such an eligible State or Territory court.1

4. In addition to compensation, the RTBU applies to this Court for an order to impose a pecuniary penalty upon Pacific National for its contravention of s 323. Under s 546(1) of the Act, an "eligible State or Territory court" may order a person to pay a pecuniary penalty if it is satisfied that they have contravened a civil remedy provision.

5. The RTBU's claims for compensation and penalty rest on the submission that Pacific National was required to pay its employees' wages pursuant to s 323(1) of the Fair Work Act, which is a civil remedy provision under Part 4-1.

*Rest of the document and Footnotes can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1958287099ac7a5367baee7d)

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