NSW rail crisis averted, but how would a major disruption affect your practice?

Recent events in NSW involving a planned rail strike have raised questions about rights and obligations in the workplace after a major disruption. As businesses across the state held fears around staff and customer availability, workers feared that they would be unable to get to work.

To most people’s relief, the strike didn’t go ahead, but it would be naive to assume that something similar – or as potentially damaging – won’t happen again. This article will shed light on the rights of employers and employees, and provide tips on how to cope if a similar disruptive event occurs in the future.

The strike

Although the purpose of this article isn’t to provide an analysis on industrial action, it’s important to understand why and how the possibility of a rail strike occurred.

In December  2017, the NSW Government overhauled its transport timetables with the aim of providing more bus and train services for commuters. Given staffing levels at Sydney Trains, this would require workers to engage in overtime across the board. In short, it was a recipe for disaster. In early January, rail services were temporarily crippled after a large number of train drivers called in sick on the same day. Before long a 24-hour strike was planned for Monday 29 January 2018. The Fair Work Commission eventually stepped in and placed a ban on the industrial action, stating safety and economic concerns. However, if the strike had occurred, how would your practice have been affected?

Employee entitlements

The most obvious ramification from a workplace perspective would have been employees being unable to attend work – or at least attend with a great deal of difficulty. Although the Fair Work Act 2009 doesn’t provide a specific remedy for a situation like this, employers aren’t without options.

Annual leave

An employee has a right under the Act to request annual leave and these requests can’t be unreasonably refused by the employer. In a situation like the rail strike, it would be a primary recommendation to allow all employees to take a day of annual leave.

Leave without pay

Alternatively, leave without pay can be arranged for those without sufficient annual leave. For employees unwilling to use their annual leave entitlement for a situation such as the one described, both parties can agree on those individuals using leave without pay. Please note, it is always recommended to provide paid leave if it is available.

Personal/carer’s leave

What if there was a major disruption to the school system that required parents to care for their children instead of them being at school? In these circumstances, employees with school children can access their personal/carer’s leave entitlement. Section 97b (ii) of the Fair Work Act 2009 provides that an employee can access personal carer’s leave ‘to provide care or support to a member of the employee’s immediate family, or a member of the employee’s household, who requires care or support because of:

  1. a personal illness, or personal injury, affecting the member
  2. an unexpected emergency affecting the member.

Natural disasters and extreme weather Living in Australia has obvious perks, but we are also prone to extreme weather. In such circumstances, and if employees can’t be usefully employed, those employees can be stood down without pay. This can also be initiated after a breakdown of machinery or any other event that causes work to stop for which the employer can not be held reasonably responsible. Keep in mind that this does not mean that employees cannot access their paid annual leave entitlement if sufficient leave has been accrued.

Where possible, plan ahead!

The ‘silver lining’ to the proposed industrial action was that it had been confirmed weeks before it was due to go ahead. This at least gave employers some opportunity to plan ahead in the hope of mitigating the consequences for their workplace. If this was to occur again, immediately begin discussions with your employees about how best to limit the damage once the event arises. As Benjamin Franklin once famously declared, “Failing to plan is planning to fail”.

Jack Byrnes
HR Advisor
Wentworth Advantage


This article appeared in the Australian Veterinary Journal: Aust Vet J 2018;96(3):N12



The material contained in this publication  is general comment and is not intended as advice on any particular matter. No reader should act or fail to act on the basis of any material contained herein. The material contained in this publication  should not be relied on as a substitute for legal or professional advice on any particular matter. Wentworth Advantage Pty Ltd, expressly disclaim all and any liability to any persons whatsoever in respect of anything done or omitted to be done by any such person in reliance whether in whole or in part upon any of the contents of this publication. Without limiting the generality of this disclaimer, no author or editor shall have any responsibility for any other author or editor. For further information please contact Wentworth Advantage Pty Ltd.

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