Eleven alleged breaches of shift-length limits for long-distance freight train drivers have been set aside on appeal. On 9 October 2026 the Full Court of the Federal Court allowed Pacific National’s appeal, set aside the declarations and orders entered by the South Australian Employment Tribunal, sitting as the South Australian Employment Court, on 30 July 2025, and dismissed the Australian Rail, Tram and Bus Industry Union’s application for pecuniary penalties (court-imposed fines for breaching a civil remedy provision) dated 28 August 2023.
At a glance
- Parties: Pacific National Pty Ltd v Australian Rail, Tram and Bus Industry Union
- Citation: [2026] FCAFC 135 (Raper, McDonald and Vandongen JJ), judgment 9 October 2026, heard 18 March 2026
- Appeal from: Australian Rail, Tram and Bus Industry Union v Pacific National Services Pty Ltd [2025] SAET 70
- Legislation: Fair Work Act 2009, s 50 (contravening a term of an enterprise agreement), s 557A (serious contraventions), s 565 (appeals from eligible State or Territory courts)
- Outcome: Appeal allowed; declarations and orders set aside; penalty application dismissed
- Who it affects: Train crew covered by the Pacific National Intermodal Train Crew Enterprise Agreement 2021, particularly at the Port Augusta, Kalgoorlie and Perth depots
The union alleged that Pacific National contravened s 50 of the Fair Work Act 2009 on 11 separate occasions in 2023 by failing to relieve train drivers from duty and sign them off within maximum shift lengths set by the Pacific National Intermodal Train Crew Enterprise Agreement 2021. A deputy president of the South Australian Employment Tribunal, sitting as the South Australian Employment Court, declared that the contraventions were established and that several were “serious contraventions” within the meaning of s 557A.
The relevant clauses sit in Attachment 1 to the agreement, headed “Rostering Guidelines”. Clause 4.1.1 sets a maximum rostered shift length of 12 hours, subject to limits set out in a table that varies according to the crew arrangement. Clause 14.1 fixes a rostered shift length of 15 hours for “3-Up Working” on the Kalgoorlie to Cook and Cook to Port Augusta sectors. Clause 4.3.1 provides that employees who are unable to complete a rostered shift because of an emergency must be relieved from duty and signed off “after a maximum period of sixteen (16) hours”.
The local depot clause that decided it
Attachment 6 is headed “Local Agreements”. Its preamble states that the specific details it sets out “will prevail over the main body of the [Enterprise Agreement] and the Rostering provisions in Attachment 1 to the extent that there is any inconsistency”. Item 1 of that attachment applies to the Port Augusta, Kalgoorlie and Perth depots.
Hours in excess of 12 hours on a rostered 12 hour shift or where a crew works more than 15 hours on a rostered 15 hour shift will be treated as overtime and paid at overtime rates.
that cll 4.1.1 and 14.1 limited only the length of shifts as rostered, not the actual hours employees could be required to work, and that in any event item 1 of Attachment 6 contemplates crews working in excess of 12 hours and 15 hours for overtime pay, so it is inconsistent with any such limits and prevails over them. On the agreed facts, it said, the relevant depots in each case were Port Augusta, Kalgoorlie and Perth.
that the maximum shift lengths in the table in cl 4.1.1 were limits on actual hours worked, pointing to the notes stating that “Actual shifts may be worked up to” particular numbers of hours, and that the words “(sign on to sign off)” in cl 14.1 showed that actual work time was limited. It submitted that cl 4.3.1 operated as an exception to those limits, available only in a defined emergency and only subject to the crew’s indication of fitness to continue.
that the appeal must be allowed and the declarations and other orders set aside. Raper and McDonald JJ upheld ground 3, that item 1 of Attachment 6 is inconsistent with, and prevails over, any limits on actual shift lengths in cll 4.1.1 and 14.1 for the shifts in question. McDonald J would also have upheld grounds 2 and 4, and Raper J agreed on ground 4. Vandongen J would have allowed the appeal on grounds 1 and 2, and said he would have allowed ground 3 had it been necessary to determine it.
Two routes to the same answer
McDonald J held that cl 4.1.1, read with cl 6.6.1 of Attachment 1, does impose “hard caps” on actual shift lengths, but that cl 14 does not, and that item 1 of Attachment 6 displaces the whole scheme of hard caps for the depots it covers, including the 16-hour emergency extension in cl 4.3.1. On his Honour’s construction, crews of two or three working those services may be required to work beyond the maximum rostered shift limits, with the additional hours “treated as overtime and paid at overtime rates”.
Vandongen J reached the same result by a different route, holding that cll 4.1.1 and 14.1 limit the extent to which Pacific National can use rosters to impose obligations on employees, but impose no obligation on the employer to sign employees off and relieve them from duty within those limits. His Honour noted that cl 4.1.4.4 expressly contemplates provision being made to relieve crews who may exceed the 12-hour shift limit, which would be unnecessary if that limit could never be exceeded.
McDonald J recorded the difficulty of the drafting, and said the Court “has not been assisted by any extrinsic evidence that would enable us to better ascertain the purpose of the clauses which are in dispute”.
Unfortunately, the Agreement is not the archetype of a coherent instrument. Some clauses that appear to be intended to achieve similar results are drafted in different language, and similar language appears to be used in different places, sometimes with different meanings.
McDonald J
The judgments also record confusion about which entity employed the drivers. The proceeding was commenced against Pacific National Pty Ltd and the declarations were made against it, but the response below was lodged by Pacific National Services Pty Ltd, and the statement of agreed facts identified that company as the employer. Neither party took the point on appeal, and the Court proceeded without resolving it.
Why the serious contravention findings would also have gone
It was not necessary to decide ground 8, which challenged the declarations that contraventions 2 to 7 and 10 were serious contraventions under s 557A. At the relevant time that provision required proof that the person knowingly contravened the civil remedy provision and that the conduct constituting the contravention was part of a systematic pattern of conduct relating to one or more other persons. Vandongen J said he would have allowed the ground, and McDonald J agreed.
His Honour found the deputy president made no finding that the conduct was part of a systematic pattern of conduct relating to one or more other persons, treating it as sufficient that the conduct “involved” or “affected” more than one employee. He also found the deputy president had blended the elements of ss 557A(1) and 557B(1) and applied a test of “implied or tacit knowledge of a likely breach”. As his Honour put it, “knowledge of a ‘likely’ breach of the Enterprise Agreement is not the same as having ‘knowingly contravened’ s 50 of the FW Act”.
That analysis concerns s 557A as it stood before the amendments made by the Fair Work Legislation Amendment (Closing Loopholes No 2) Act 2024, which commenced on 27 February 2024 and do not apply retrospectively. The appeal reached the Federal Court under s 565, which allows an appeal from an eligible State or Territory court exercising jurisdiction under the Fair Work Act without leave, the South Australian Employment Court being such a court under reg 1.05(b) of the Fair Work Regulations 2009. Because that court was constituted by a deputy president, the jurisdiction of the Federal Court had to be exercised by a Full Court.
Source: [2026] FCAFC 135
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