Application by State of Victoria, Department of Sustainability and Environment & Australian Workers' Union, the

[2016] FWC 203

[2016] FWC 203

REASONS FOR DECISION

Fair Work Act 2009

s.424—Industrial action

State of Victoria (Department of Environment, Land, Water and Planning)

v

The Australian Workers’ Union

(B2015/1760)

COMMISSIONER BISSETT	MELBOURNE, 13 JANUARY 2016
Application to stop protected industrial action.

[1]        The Victorian Government, through the Department of Environment, Land, Water and

Planning (the Department) has made an application pursuant to s.424 of the Fair Work Act

2009 (the Act) for an order to stop protected industrial action (the application) being

undertaken by members of the Australian Workers’ Union (The AWU).

[2]        The application was made on 22 December 2015 and was heard on 24 December

2015. At the end of proceedings I advised the parties of my decision and issued an Order

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terminating the protected industrial action. I indicated at the time that I would issue written

reasons for my decision. The reasons are as follows.

Background

[3]        The Fair Work Commission issued a protected action ballot order (PABO) on 6

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August 2015. The ballot was subsequently declared by the Australian Electoral Commission

on 31 August 2015 with all questions put to the relevant employees endorsed by those

employees.

[4]        The industrial action approved by employees included various stoppages of work, bans

on overtime, and a range of other types of industrial action. The AWU gave notice of intent to

take protected industrial action pursuant to s.414 of the Act to the Department on 11 and 25

September, 6 and 26 October, 11 and 30 November and 10 December 2015.
[2016] FWC 203

[5]        The notices declare an intention to take a number of forms of industrial action

including bans on the performance of overtime. A number of bans were in place at the time

this application was made. These included a ban on overtime notified on 26 October 2015 as

follows:

Five consecutive bans on working overtime for a period of 24 hours each, commencing

at 12.01am on 2 November 2015 and recurring at 12.01am on Monday each

subsequent week until the AWU notifies otherwise.

[6]        It was put by the Department and not disputed by the AWU that this is a ban on

overtime being worked every Monday to Friday.

[7]        The Department has a particular concern about this ban and the effect it has on the

ability of the Department to retain a state of readiness at the required level as indicated by the

Fire Danger Index (FDI) at any particular time.

[8]        Particular states of readiness require fire service officers (FSOs) to be held at the depot

beyond their normal finishing time, on overtime, ready to respond to a fire event immediately.

The Department’s objective is to have the staff and resources available to have 80% of fires

suppressed at the first attack on that fire and before more than five hectares of land is burned.

[9]        The level of readiness and the number of employees who may be required to be

available to respond from the depot instantly depends on the FDI. The higher the FDI the

more important it is that a state of readiness is maintained. The readiness level determines the

number of crews, number and type of machinery, number of incident management teams etc

to be available.

[10]      By letter on 7 December 2015 the AWU advised the Department that the ban on

overtime notified on 26 October 2015 superseded all other notices in relation to bans on

overtime.

[11]      The Department did, by correspondence to the AWU, attempt to determine if there

was any flexibility around the overtime ban. By letter dated 4 December 2015 Mr Gary

Atherton, Executive Director People and Culture asked Mr Ben Davis, Victorian Secretary of

the AWU:

 Whether the overtime bans apply in relation to Emergency Work under Section III

of the Field Staff Agreement 2012;

 What the AWU and its members will consider to be ‘extreme weather’; and

 What the AWU and its members will consider to be an ‘emergency’.

[12]      Mr Davis responded to that letter and addressed other matters raised but did not

address these specific questions.

[13]      Mr Atherton again sought a response to these matters by letter dated 22 December

2015. He received a curt reply from the AWU lead organiser who said:

AWU members will not work overtime Monday to Friday unless they are

[2016] FWC 203

responding to an emergency.

Extreme weather is not determined by AWU or our members.

An emergency is defined in the Emergency Management Manual.

[14]      The definition of an ‘emergency’ in the Emergency Management Manual is ‘an

emergency due to the actual or imminent concurrence of an event which in any way

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endangers or threatens to endanger the safety or health of any person in Victoria’.	Such an
event includes a fire.

[15]      The Department says that FSOs have responded to emergencies as defined. However,

some FSOs have not been prepared to remain at the depot in a state of readiness when

required and have cited the industrial action, in particular the ban on overtime, as the reason

for this.

[16]      The Department says (and it was not disputed) that a state of readiness is required

before an emergency occurs and is the state in which the Department can most effectively

respond to the emergency. The state of readiness is required before the emergency occurs.

[17]      The notice of the ban on overtime is, in effect, a ban on the working of all overtime

Monday to Friday of each week.

The provisions of the Act

[18] Section 424 of the Act states:

Section 424 FWC must suspend or terminate protected industrial action—

endangering life etc.

Suspension or termination of protected industrial action

(1) The FWC must make an order suspending or terminating protected industrial action

for a proposed enterprise agreement that:

(a) is being engaged in; or

(b) is threatened, impending or probable;

if the FWC is satisfied that the protected industrial action has threatened, is threatening,

or would threaten:

(c) to endanger the life, the personal safety or health, or the welfare, of the

population or of part of it; or

(d) to cause significant damage to the Australian economy or an important part

of it.

[2016] FWC 203

(2) The FWC may make the order:

(a) on its own initiative; or

(b) on application by any of the following:

(i)         a bargaining representative for the agreement;

(ii)        the Minister;

(iia)	if the industrial action is being engaged in, or is threatened,
impending or probable, in a State that is a referring State as
defined in section 30B or 30L—the Minister of the State who has
responsibility for workplace relations matters in the State;
(iib)	if the industrial action is being engaged in, or is threatened,
impending or probable, in a Territory—the Minister of the
Territory who has responsibility for workplace relations matters
in the Territory;
(iii)	a person prescribed by the regulations.

Application must be determined within 5 days

(3) If an application for an order under this section is made, the FWC must, as far as

practicable, determine the application within 5 days after it is made.

Interim orders

(4) If the FWC is unable to determine the application within that period, the FWC must,

within that period, make an interim order suspending the protected industrial action

to which the application relates until the application is determined.

(5) An interim order continues in operation until the application is determined.

[19]      Whilst the concern of the Department goes to the overtime ban, the structure of the

Act is such that a suspension or termination of protected industrial action applies to all of the

protected industrial action. Further, a decision to terminate protected industrial action brings

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about a process leading to the making of a workplace determination.	.
Consideration

[20]      In considering the matters relevant to the decision I must make I have taken into

account the extensive and highly informative evidence of Mr Ian Jephcott for the Department.

I have also taken into account that material filed in connection with the statement of Ms

Sharon Thomas of the Department. I have also had regard to the submissions of the

Department and the AWU.

[2016] FWC 203

[21]      I am satisfied that the overtime ban is protected industrial action, that it is being

engaged in and that it is threatened, impending or probable.

[22]      Issue is not taken with the validity of the notices of protected industrial action served

by the AWU upon the Department. These notices provide advice of action that is ongoing.

Specifically the advice of 26 October 2015 indicates that the overtime ban is ongoing. The

AWU had not, at the time of the hearing of the application, provided any advice to suggest

that the ban on overtime had been withdrawn.

[23]      The second issue I must determine is if the protected industrial action has threatened,

is threatening or would threaten to endanger the life or personal safety or health of a part of

the population.

[24]      In considering this matter I have had particular regard to the material provided in the

statement of Ms Thomas about the state of the fire season.

[25]      I am satisfied that Victoria is facing a severe fire season. This is borne out in the

material of Ms Thomas and the evidence of Mr Jephcott.

[26]       The ability of the Department to respond to the fire danger in a way that minimises a

risk to the Victorian community is dependent on its ability to be in an appropriate state of

readiness for the given FDI. As stated above, in certain circumstances this will require

employees to remain at their depot after the end of their normal working day. If they are not in

this state of readiness to respond to an emergency there is some diminution of the

Department’s ability to respond as necessary and meet its targets in controlling fires.

[27]      Whilst it is true that employees could be at home and ‘on-call’ as suggested by the

AWU, employees in these circumstances will be further from the depot and the response time

may well effected. I am not convinced, as suggested by the AWU, that it is possible to hold

employees ‘on-call’ but in the depot without them being on overtime. It seems to me that any

time beyond normal working hours where an employee is required to remain at work is

overtime. Under any other circumstances I think the AWU would agree.

[28]      I agree with the submissions of the Department that the fire threat and danger for

which the Department must plan cannot be overstated. A fire event may well lead to the loss

of homes, infrastructure and, in the worst case, lives. The devastating effect of bushfires is

well articulated in the 2009 Victorian Bushfires Royal Commission Report and cannot be

ignored. The minimisation of loss depends on the ability to respond quickly.

[29]      Chapter 3 of Part II of the 2009 Victorian Bushfires Royal Commission Report found

that:

The best opportunity to bring a fire under control is at or near the point of ignition

when the fire is small. The role of first attack is to contain the bushfire swiftly at this

initial stage and minimise the risk to life and property. Initial attack is successful when

ground crews…can quickly gain access to and make an effective and safe attack on the

fire to limit its size…

[30] Ms Thomas’ material indicates that the fire season this year is comparable to that of

2008-09. Whilst she provided examples of the danger posed by an uncontained fire, the Black
[2016] FWC 203

Saturday fires are not that long ago that memories of the devastation of those fires has been

forgotten.

[31]      I am satisfied that the ban on overtime may affect the level of readiness and hence the

ability of FSOs to respond to a fire event. This may have consequences for the ability to bring

a fire under control quickly with subsequent effects on the safety of members of the public

and on infrastructure. Even if the effect is limited to infrastructure this may have a

concomitant effect on the personal safety or health of the population.

[32]      There is no evidence that the bans in place have threatened to endanger a part of the

population so far. However, this does not mean they could not do so at some point after the

hearing of this matter. The lack of qualification around the ban on overtime and that the ban

does apply to a state of readiness (as it will only not apply to an emergency as defined) does

not convince me that the ban may not pose such a threat in the future.

[33]      For these reasons I am satisfied that the protected industrial action is threatening, or

would threaten to endanger the life, the personal safety or health, or the welfare, of part of the

population.

[34]      Having said this I should make clear that I do not consider that FSOs would not

respond to any emergency or danger as they have been trained to do. I am satisfied that they

would respond with the utmost professionalism. My concern is that the slight delay in

responding caused by FSOs not being at the required state of readiness may have

consequences that no one considered. Given Victoria’s recent experiences with bushfires this

is not a risk that should be taken.

[35]      The third issue I must determine is if I should suspend or terminate the industrial

action.
[36]	Bargaining has been occurring between the Department, the AWU and one other

bargaining representative since early to mid-2015. The industrial action has been in place in

varied forms since 21 September 2015.

[37]      An in principal agreement was reached in negotiations between the Department and

the AWU in December 2015. This proposed agreement was rejected by members of the

AWU.

[38]      I am well aware of the consequences of termination of the protected industrial action.

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[39]      In Metropolitan Ambulance Service v Liquor, Hospitality and Miscellaneous Union

Deputy President Kaufman considered whether he should suspend or terminate the protected

industrial action. He found:

[79] I must now consider whether in the exercise of my discretion I should suspend or

terminate the bargaining period. Both parties acknowledge that there is little likelihood

of agreement being reached during the period of suspension were I to suspend the

bargaining period. Accordingly, it seems that if any order is to be made it should be

one of termination of the bargaining period.

[2016] FWC 203

[80] Given the threat that I have identified I consider that I should exercise my

discretion to terminate the bargaining period…

[40]      In this case the Department argues that there is little chance of reaching agreement and

bargaining is at a standstill. Further, it submits that the nature and extent of the threat from the

industrial action is so serious that termination is warranted. The AWU put little to me to

counter the submissions of the Department.

[41]      For these reasons I decided to terminate the protected industrial action.

COMMISSIONER

Appearances:

M. Richards Senior Counsel with M. Harding for the State of Victoria (Department of

Environment, Land, Water and Planning).

B. Davis and L. Aksu for The Australian Workers’ Union.

Hearing details:

2015.

Melbourne:

December 24.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR576018>

1

PR575500.

2

PR570514.

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‘Emergency Management in Victoria Part 1: Emergency Management Manual Victoria’ (February 2015) 1-5.

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Fair Work Act 2009 s 266.

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PR950276.