Intractable Bargaining Workplace Determination – Wage Increases and Extra Personal Leave
A recent Intractable Bargaining Workplace Determination (IBWD) decision by the Full Bench with respect to the light rail in Sydney, provides interesting observations regarding how the FWC may decide the quantum of wage increases. Of particular relevance to the Bus and Coach Industry, this matter also examines how they may deal with claims for increases in conditions arising from fatigue-related fitness for duty obligations.
Wage Increases
The RTBU sought wage increases totalling 23% over 4 years comprising of increases of 7%, 6%, 5% and 5% operative from 1 November each year, commencing on 1 November 2023.
The Full Bench FWC concluded that the Determination should include wage increases totalling 16% over 4 years comprising of increases of 6%, 3.5%, 3.5% and 3% operative from 1 November each year, commencing on 1 November 2023.
In the Determination, Transdev put forward a position of 11.8% increase over 4 years. However, over the course of the negotiations, Transdev had offered 13.5%, 16.8% and 18.19%. Although the offer of 18.19% included total wage and non-wage related increases. The final offer from Transdev preceding the determination, was 14.5% over 4 years.
The Enterprise Agreement had been rejected by employees 3 times between June and December 2024.
Increase in Paid Personal / Carers Leave
The second term to be decided was the application by the RTBU for an increase to personal/carer’s leave from the National Employment Standard of 10 days per annum to 15 days per annum on the grounds that they were covered by additional obligations under the Rail Safety National Law (RSNL) to manage fatigue.
Notably, the RTBU also advanced the claim for an additional 5 days personal / carers leave for all employees, not just Drivers.
Arguing under the imperative for employees to manage their own fatigue, lest they commit an offence under the RSNL, the RTBU said that this created an enhanced likelihood that drivers would exceed existing leave balances. In doing so, they argued that drivers faced with the option of unpaid leave or pressing on with fatigue, might put themselves and others at risk.
Not convinced, the Full Bench’s Decision declined the claim for an extra 5 days leave.
Terms to be Included in an IBWD
This case is also interesting in the way the Full Bench approaches the issue of determining which terms are to be included in an intractable bargaining workplace determination. I will leave it with you to read this at your leisure.
To read more see: Application by Transdev Sydney Pty Ltd & Great River City Light Rail Pty Ltd – [2025] FWCFB 140
Or go here: Intractable Bargaining Decision – Sydney Light Rail
Bullying does not automatically equate to Serious Misconduct
In this case, the Full Bench considered whether an employer can automatically equate bullying with serious misconduct to justify dismissal.
The decision might surprise you; the Full Bench found that automatically equating bullying with serious misconduct was an error of law.
In doing so, the case sets a clear standard that each allegation of bullying must be assessed on its own merits, rather than applying a blanket approach.
In line with the Fair Work Regulations (see: Regulation 1.07 of the Fair Work Regulations), serious misconduct includes conduct that is wilful or deliberate behaviour that is inconsistent with the continuation of the employment contract.
What does this mean for me?
It’s still okay (recommended!) to have a hard-line stance on bullying. Bullying can still amount to serious misconduct. It’s just that bullying does not automatically equal serious misconduct. You should always have clear policies and procedures on how you deal with these behaviours (remembering your obligations under employment and work health and safety laws).
The key takeaway here is that you thoroughly investigate and assess each incident individually, considering mitigating factors.
As always procedural fairness is king.
This might be a good time to review your procedures that deal with this type of behaviour to ensure that you account for the nuance that can arise in these types of cases.
To read more see: Mark Frost v Ambulance Victoria [2025] FWCFB 94
Or go here: Frost v Ambulance Victoria
