Kingston Reid advised Sydney Trains and NSW Trains in relation to an application before the Full Court of the Federal Court of Australia affirming the suspension of industrial action under the ‘cooling off’ provisions in s425 of the Fair Work Act 2009 (Cth) (FW Act). This case is the most authoritative judgment on s425 and one of only a handful of cases considering the extent to which the Fair Work Commission (FWC) may suspend industrial action under that provision.

A judicial review application filed by the CEPU sought to appeal a Full Bench of the FWC order, made on 19 February 2025, to suspend protected industrial action engaged by the CEPU and the RTBU. This application is one of several ongoing legal skirmishes between the Combined Rail Entities (which includes the CEPU and the RTBU, amongst other unions) (CRU) and the Rail Agencies (being Sydney Trains and NSW Trains) relating to the negotiation of a new enterprise agreement between the parties.

The FWC’s intervention came notwithstanding advanced discussions between the parties when a last-minute demand by the unions for a $4,500 sign-on bonus was rejected by the NSW Government on budgetary grounds. The RTBU then reimposed a ‘go-slow’ work ban. In response, the Rail Agencies informed employees that partial performance of duties would not be accepted, and wages would not be paid for that time.

The following day, 652 train drivers and guards did not attend work. 57% of services were cancelled and customer numbers were reduced by 70%. That afternoon, the Rail Agencies sought ’cooling off’ orders from the FWC under s425 of the FW Act — a little-used provision which allows the FWC to suspend protected action if it is satisfied that a suspension would assist the parties in resolving their bargaining dispute.

Following a hearing the next week, the FWC’s Full Bench granted the orders, suspending all protected action until 1 July 2025. It concluded that continued action would do little to progress bargaining, given the NSW Government’s fixed position on the sign-on bonus, and that the public disruption caused by the action was substantial. It also noted the potential for long-term damage to negotiations if industrial tactics escalated further.

Section 425(1)(a) of the FW Act empowers the FWC to suspend protected industrial action if it is satisfied that this will assist the parties to resolve the matters in dispute. Unlike termination powers (such as under s423 or s424), s425 of the FW Act is not focused on safety or economic damage — it is forward-looking and strategic, allowing the FWC to preserve the bargaining environment where ongoing action threatens to derail progress.

It was in this context that the CEPU sought judicial review of the FWC’s decision on the following grounds:

• misapplication of s425(1)(a): the CEPU argued the FWC erred by failing to assess whether the suspension would benefit each bargaining representative individually, rather than the group as a whole;
• irrationality or unreasonableness: the CEPU submitted that the FWC acted unreasonably by concluding that further action would not close the gap between the parties, despite the NSW Government’s budget constraints; and
• lack of evidence: the CEPU claimed that there was no evidence to support that it had engaged in mutual recriminations or that it had reverted to a previously notified go-slow action.

The Court was not persuaded by any of the grounds advanced by the CEPU and dismissed the appeal.

Although the circumstances arising from this case are unique — given the advanced stage of bargaining, the Government’s role, and the scale of the disruption — the case stands as a precedent for how employers might use s425 of the FW Act strategically. It confirms that the FWC has latitude to pause protected industrial action not only to prevent escalation, but to protect fragile progress toward agreement.

For employers facing novel or prolonged industrial tactics, s425 may be a powerful tool in their bargaining toolbox.

The views expressed in this article are general in nature only and do not constitute legal advice. Please do not hesitate to contact us if you require specific advice tailored to the needs of your organisation in relation to the implications of these changes for your organisation.