Might is right in the Australian justice system: Sydney Trains wins appeal against unvaccinated train drivers

Goliath uses the law to crush the little guys

Last week, I received a text from Joseph Galea to tell me that his Fair Work win against his employer, Sydney Trains, had been overturned.

Galea is one of the five unvaccinated train drivers who won a Fair Work Commission case against Sydney Trains last year after being wrongly stood down without pay for ten months for failing to comply with Sydney Trains' Covid vaccination policy. Sydney Trains was ordered to backpay the five employees, which included not just forfeited wages, but restoration of leave entitlements used because of being stood down.

Though back paying five train drivers was trivial in and of itself for a company as large as Sydney Trains, there are, according to court documents, approximately 180 total drivers in Galea’s position. Thus, this case set a precedent for the rest of those who had been stood down by Sydney Trains who now might feel more confident about lodging their own Fair Work cases seeking reimbursement.

Sydney Trains appears to have taken the threat seriously. They lodged an appeal and hired both a King’s Counsel and a Junior Barrister from top law firm Minter Ellison, which I’m told would likely have cost somewhere between $50K-$100K for representation on this case.

Of the five train drivers who initially won the Fair Work decision, only two proceeded with legal representation in the appeal. Galea and his colleague Nellanisiara Cambridge were represented by Sydney human rights lawyer Peter Fam.

The initial Fair Work decision in favour of the five train drivers was overturned on a technicality relating to Clause 33.5 of the drivers’ Work Enterprise Agreement (WEA), in a decision handed down on 15 March. The drivers had been told by Sydney Trains that they were being stood down due to their vaccination status, and that they would be subject to an investigation. Clause 33.5 of their WEA stipulates that workers must be paid in full during such investigations, and this is the basis on which the drivers initially won. However, in the appeal, Sydney Trains successfully argued that they had never actually begun an investigation into the drivers, and that therefore Clause 33.5 did not apply.

“I think this decision says a lot about where work culture is at in Australia,” says Fam. “Sydney Trains left a huge number of their staff off work without pay, without any consideration of the impact on their lives.”

The toll of ten months without work or pay was not just financial, says Cambridge. “It really impacted our lives being locked out of work and being isolated at home,” she says. Galea is stoic: “It took a toll on us mentally, but it made us more resilient.”

Fam points out that Sydney Trains was not subject to any public health order that required them to institute a ‘No Jab, No Work’ policy. “Companies thought they had to implement these measures in order to be compliant with Workplace Health and Safety regulations,” says Fam, and yet, “they were implementing medical procedures that they didn’t understand.” This kind of corporate overreach, “speaks to the way that fear was used to manipulate individuals and corporations. People should be pretty wary of how companies were so quick to throw their employees under the bus.”

Fam says he is not surprised that Sydney Trains succeeded in overturning the Fair Work decision, even though he had really hoped for a win.

“I was a human rights lawyer before Covid started, and this era has just highlighted what was already the case in Australia,” says Fam. “There are boundaries around what’s allowed to be considered human rights or not. The bodies responsible for upholding human rights are selective about whether the human rights in international covenants are in fact protected. It speaks to corruption, distraction and distortion of our human rights protection systems by other interests.”

Fam expresses concern that if our institutions fail to consistently uphold human rights, over time, the government and its associated institutions will lose legitimacy.
”Government gains its legitimacy from the consent of the governed,” he says. “Failing to uphold human rights will make our current governance structures unsustainable. And that would cause huge social disruption.”

Galea is disappointed about the outcome but remains upbeat. After telling me about a fellow vaccinated train driver who ‘died suddenly’ on his way to work (word over the water cooler is that the man, in his 40s, had vaccine-induced myocarditis), Galea exclaims, “Either way I have already won! We are just blessed that we didn’t have to take the vaccine.”

[2023] Fwcfb 49

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