Broadspectrum (Australia) Pty Ltd v Transport Workers' Union of Australia

[2018] FWC 6774

[2018] FWC 6774

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.424—Industrial action

Broadspectrum (Australia) Pty Ltd
v
Transport Workers’ Union of Australia
(B2018/1007)

COMMISSIONER WILLIAMS PERTH, 1 NOVEMBER 2018

Application to suspend or terminate protected industrial action - endangering life etc.

[1] This decision concerns an application made on 30 October 2018 by Broadspectrum (Australia) Pty Ltd (Broadspectrum) for an order to be made under section 424 of the Fair Work Act 2009 (the Act) that would suspend protected industrial action they had been notified would be taken by members of the Transport Workers’ Union of Australia (TWU) employed within Broadspectrum’s Court Security and Custodial Services operations (CS&CS) in Western Australia.

[2] The hearing was conducted on 31 October 2018. At the hearing evidence for Broadspectrum was given by Mr William Galloway (Mr Galloway), Broadspectrum’s Contract Director for the Broadspectrum Court Security and Custodial Services contract. The TWU called as witnesses Mr Duilio (John) Cutrali (Mr Cutrali), TWU Organiser and Ms Patricia Bushby (Ms Bushby), an employee of Broadspectrum.

[3] This application was in response to a notice of industrial action sent by the TWU to Broadspectrum on 29 October 2018 which notified that industrial action by members who would be covered by the proposed Broadspectrum WA CS&CS TWU Enterprise Agreement 2018 (Proposed Agreement) was to be taken. The notice specified that industrial action as follows,

1. an unlimited number of bans on the working of overtime on weekdays, commencing at 5:00am on Friday, 2 November 2018 until further notice;

2. an unlimited number of bans on the wearing of uniform shirts, commencing at 5:00am on Friday, 2 November 2018 until further notice; and

3. an unlimited number of bans on the performance of higher duties, commencing at 5:00am on Friday, 2 November 2018 until further notice.

[4] The uniform shirts ban was explained in the notice to exclude regional locations.

[5] It is not disputed that on 7 August 2018, the TWU gave notice of industrial action to commence on 13 August 2018. This proposed industrial action as notified was:

a. an unlimited number of bans on the working of overtime, commencing at 05:00 hours on Monday, 13 August 2018 to 04:59 hours on Friday, 17 August 2018;

b. an unlimited number of bans on the wearing of uniform shirts, commencing at 05:00 hours on Monday, 13 August 2018 to 04:59 hours on Friday, 17 August 2018; and

c. an unlimited number of bans on the performance of higher duties, commencing at 05:00 hours on Monday, 13 August 2018 to 04:59 hours on Friday, 17 August 2018.

[6] On 10 August 2018, Broadspectrum made an application to the Fair Work Commission under section 424 of the Act for orders to suspend this proposed protected industrial action. This application was heard and determined by Deputy President Beaumont and on 10 August 2018 the Deputy President issued a decision suspending the porposed protected industrial action until 13 October 2018. 1

[7] The industrial action the TWU gave notice of on 7 August 2018 is very similar to the industrial action they gave notice of on 29 October 2018.

[8] The differences between the industrial action specified in the two notices is that the industrial action specified in the notice of 29 October 2018,

•  limits the bans on overtime to weekdays,

•  limits the bans on wearing uniform shirts to Metropolitan locations,

•  the length of the bans is not limited to 4 days but is “...until further notice.”

[9] Mr Galloway gave evidence at the 10 August 2018 hearing. At the hearing of this matter unsurprisingly much of his evidence was the same as the evidence he gave at the 10 August 2018 hearing and he adopted his oral evidence given during that hearing for the purposes of this application. He also on this occasion gave evidence that the evidence given by Mr Clegg at the August hearing regarding the impacts of that proposed industrial action on Broadspectrum’s operations was all known to him and also true. 2

[10] The reasons for decision of Deputy President Beaumont 3 detailed the context for that application including the history of negotiations for the proposed agreement and the scope of services provided by Broadspectrum and examples of how its staff work in practice. I note the Deputy President’s decision was not appealed. There is no necessity to repeat this largely uncontested factual context in this decision all of which is part of Mr Galloway’s evidence which I accept.

[11] Mr Galloway was cross-examined in these proceedings however the bulk of his evidence remains unchallenged.

[12] The evidence of Mr Cutrali and Ms Bushby was to the effect that some of the impacts of the notified industrial action which Mr Galloway’s evidence detailed were less serious than he said and that they believed there were actions that Broadspectrum should take to remove or relieve the threats Mr Galloway says exist to persons’ health safety and welfare.

[13] I accept some of the actions these witnesses say should be taken, if they were taken by Broadspectrum, would reduce the threat to persons’ health safety and welfare posed by the industrial action, there is however no evidence that even if each and every one of these separate actions were taken this would be sufficient to eliminate the multiple threats to health safety and welfare which are identified in Mr Galloway’s evidence.

[14] Separately some of the actions the TWU witnesses say would mitigate the threat involve the use of other persons to do work that would normally have been done in overtime hours by Broadspectrum’s staff, including prison officers and employees of another security contractor, Wilsons. Obviously these other employee resources are not within Broadspectrum’s control so this simply, even if attempted, may not be able to be achieved by Broadspectrum.

[15] Similarly suggestions to increase the use of what are A relatively small number of casual employees Broadspectrum has to work the overtime that would be banned may assist to mitigate threats posed by the overtime ban but the extent of that mitigation will be dependent upon whether these employees have any capacity to accept additional hours and any willingness to do so. There is no evidence about this.

[16] In any event there is real doubt as to whether there is any obligation on the employer to take all of these particular actions to mitigate the threat posed by the TWU’s industrial action.

[17] The TWU also proposed that it could give undertakings that would limit when the bans applied or that would exclude some circumstances from the bans and this would remove some of the threat posed by the bans. It was not clear how such undertakings could override the Notice issued which as required specifies with particularity the protected action to be taken, nor whether such modified types of protected action had been authorised by the prior ballot of employees.

[18] The fact that the bans have been notified to be in place until further notice means they can remain in place for a lengthy period if the TWU’s wishes. This possibility increases the probability that the protected industrial action threatens the health, safety or welfare of part of the population.

[19] Having considered all of the evidence and the submissions I accept Mr Galloway’s evidence that each of the bans in a number of ways across Broadspectrum’s operations threatens the health and safety or welfare of part of the population being prisoners in the care of Broadspectrum’s staff, Broadspectrum’s staff themselves, other persons working within the vicinity of courts and hospitals and members of the public attending courts and hospitals where prisoners escorted by Broadspectrum’s staff are present.

The legislation

[20] The relevant section, section 424 of the Act, is set out below.

“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.

(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.”

Conclusion

[21] The three bans notified by the TWU on 29 October 2018 are each protected industrial action for a proposed enterprise agreement that is impending and I am satisfied that this protected industrial action would threaten to endanger the personal safety, health or welfare of part of the population. Accordingly as required by section 424 of the Act I must make an order either suspending or terminating this protected industrial action.

[22] As to whether the protected industrial action should be suspended or terminated the evidence is that negotiations for the proposed agreement are ongoing and both parties have submitted they continue to have a belief that ultimately some agreement can be reached between them in the future. Consequently suspension of the three types of industrial action is appropriate.

[23] The application as filed seeks the suspension of the protected industrial action most recently notified for a period of six months. I think in the circumstances this is an unnecessarily lengthy period of suspension. In the circumstances I have decided that an appropriate period is for the three forms of protected industrial action to be suspended until 9 January 2019. An Order [PR701997] to that effect will now be issued.

Appearances:

J Snaden of Counsel for the Applicant.

A Dzieciol on behalf of the Respondent.

Hearing details:

2018.

Perth:

October 31.

Printed by authority of the Commonwealth Government Printer

<PR701996>

 1   [2018] FWC 4706, 10 August 2018 and [2018] FWC 4930, 22 August 2018.

 2   Exhibit A1 at paragraph 14.

 3   [2018] FWC 4930, 22 August 2018.