The Fair Work Commission has found that Pacific National was not prevented by its enterprise agreement from obtaining a locomotive driver’s mobile phone billing records and relying on them in a disciplinary process that ended in dismissal, despite the rail freight operator never having made the communications monitoring policy the agreement called for.
Deputy President Cross answered a question agreed by the parties in Australian Rail, Tram and Bus Industry Union v Pacific National Services Pty Ltd [2026] FWC 3374, a dispute dealt with under s.739 of the Fair Work Act 2009, which allows the Commission to deal with a dispute under an agreement’s dispute settlement procedure. The RTBU lodged its application on 19 December 2025. Conciliation conferences were held on 23 December 2025 and 16 January 2026, the matter was arbitrated in Sydney on 8 April 2026, and the decision issued on 4 September 2026.
The union member, a locomotive driver who began with the operator in August 1979, was working as a second driver on freight service MR908 on 23 October 2025. Pacific National alleged that he sent a group text message at 11:18:34 and took part in a text exchange between 11:21:57 and 11:22:42 while the train was in a Safety Critical Zone. Under the operator’s In-Cab Behaviours Procedure, such a zone starts “2.5 km from any known stopping location”, and only safety critical communication is permitted within it.
The decision records that at about 1:53pm that day the regional operations manager was copied into an email from the driver and, after checking train location software, saw that the train was moving, which led to an instruction for a supervisor to telephone him. Pacific National obtained pre-bill call logs for the work-issued phone from its telecommunications provider, Telestar Communications, and compared them against the train logs. Those logs show the numbers called or texted and the times involved, but not the content of any call or message. A letter of allegations was sent on 24 November 2025, a show cause letter followed on 4 December 2025, and the employment was terminated on 19 December 2025.
Any device used within a current or proposed procedure to record any Employee actions or interactions is only to be accessed for post incident investigations as defined in the RSNL, or where a formal complaint is raised by an Employee against another Employee. Any disciplinary action will be in line with the agreed disciplinary procedure.
that a mobile phone can record employee actions or interactions and would therefore fall within any communications monitoring policy, and that clause A48.4 speaks of “any device”, not only devices used solely to record employees. There had been no formal complaint by one employee against another and no post-incident investigation as defined in the Rail Safety National Law, so none of the permitted circumstances applied. The union submitted that the employer’s “failure to fulfil their obligations under the Agreement does not permit it to unilaterally access a device”.
that clause A48.4 is engaged only for “any device used within a current or proposed procedure”, and that with no communications monitoring policy in place there was no such procedure. The phone had not been provided for the purpose of monitoring employees and, in any event, no data on the phone was accessed, because the pre-bill call logs were billing information held by the provider about the use of its own services.
that clause A48 permitted the access. The Commission rejected the operator’s threshold argument that the absence of a policy meant the clause could not be engaged, holding that clauses A48.3 and A48.4 set out some of the boundaries of the proposed procedure and that the parties had themselves used those boundaries to argue what would be permitted or restricted. However, “Clause A48.4 clearly relates to devices that have the purpose of recording any employee actions or interactions”, and the uncontested evidence of the regional operations manager was that “there was no recording, surveillance or monitoring taking place”. For completeness, the Deputy President found that the logs were not accessed but were produced by the provider, and that they belong to Telestar.
Both parties relied on the interpretation principles summarised by the majority of the Full Court in James Cook University v Ridd [2020] FCAFC 123, among them that a “purposive approach is preferred to a narrow or pedantic approach”. The decision also considered the Workplace Surveillance Act 2005 (NSW), noting that tracking surveillance is defined in s.3 by reference to an electronic device “the primary purpose of which is to monitor or record geographical location or movement”.
The agreement was approved on 20 February 2023 and operative from 27 February 2023, so a policy was due to be formulated by 23 August 2023. The Deputy President recorded that the clause was also contained in the predecessor 2018 agreement, with an earlier version appearing in the 2013 agreement, “however no such policy was ever promulgated”. Pacific National accepted in the proceedings that no policy exists and that its development is a matter still to be completed.
At a glance
- Parties: Australian Rail, Tram and Bus Industry Union v Pacific National Services Pty Ltd (C2025/12995)
- Citation: [2026] FWC 3374, Deputy President Cross, 4 September 2026
- Provisions: s.739 Fair Work Act 2009; clause A48 of the Pacific National Bulk Rail NSW Enterprise Agreement 2022
- Outcome: Pacific National was permitted, and not restricted, by clause A48 from accessing the pre-bill call logs of the work-issued mobile phone
- Who it affects: Employees covered by the Pacific National Bulk Rail NSW Enterprise Agreement 2022
Pacific National had asked that any findings be confined to the records it actually obtained, so they were not read more broadly, and the answer given by the Commission was expressed by reference to those logs. The obligation in clause A48.2 to consult employees and their representatives and formulate a communications monitoring policy and procedure remains unmet.
Source: [2026] FWC 3374
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