Broadspectrum (Australia) Pty Ltd v Transport Workers' Union of Australia
[2018] FWC 6582
•31 OCTOBER 2018
| [2018] FWC 6582 |
| FAIR WORK COMMISSION |
| REASONS FOR DECISION |
Fair Work Act 2009
s.418 - Application for an order that industrial action by employees or employers stop etc.
s.424 - Application to suspend or terminate protected industrial action - endangering life etc.
Broadspectrum (Australia) Pty Ltd
v
Transport Workers' Union of Australia
(C2018/5963)
(B2018/979)
| Deputy President Beaumont | PERTH, 31 OCTOBER 2018 |
s.418 - Application for an order that industrial action by employees or employers stop etc. – Suspension Order – Scope of s 424 Order – s 413(7) – s 418 – s 429 – s 459 – d 429(1)(a).
Introduction
On 24 October 2018, Broadspectrum (Australia) Pty Ltd (Broadspectrum) applied for two orders under the Fair Work Act 2009 (Cth) (Act). The first application was for an order that industrial action by members of the Transport Workers’ Union of Australia (TWU) employed within Broadspectrum’s Court Security and Custodial Services operations in Western Australia (the Employees) would stop, because the industrial action was unprotected (418 Application). The second application was for an order to suspend or terminate protected industrial action on the basis it had threatened, is threatening or would threaten to endanger the life, or personal safety, health or welfare of the population or part of it (424 Application). [1]
Broadspectrum submitted that the 418 Application was the primary application and the 424 Application was made in the alternative. The Applications where heard together because both arose from the same context, Broadspectrum had made the request and the TWU consented. The parties agreed that if the Commission was to find that the industrial action was unprotected and therefore ordered it to stop, the 424 Application would fall away.
Section 420(1) of the Act requires that as far as practicable, an application under s 418 must be determined within two days after it is made, and an application under s 424 must, as far as practicable, be determined within five days[2]. Orders for substituted service were sought by Broadspectrum for both Applications, as it was said to be impracticable for it to serve each Employee in accordance with the Fair Work Commission Rules 2013 (Cth). The applications for substituted service were granted.
The matter was listed for Hearing at 15:30hrs on 26 October 2018. At the Hearing, Broadspectrum requested and was granted permission under s 596(2)(a) of the Act to be legally represented. Mr John Snaden (Mr Snaden) of Counsel, appeared for Broadspectrum and Mr Adam Dzieciol (Mr Dzieciol), appeared for the AWU. Mr Dzieciol’s appearance was confined to the AWU; there was no appearance or representation on behalf of Employees. No party to this application sought an adjournment of proceedings.
Having heard the matter on 25 October 2018, I was satisfied that the industrial action of a Paperwork Ban defined in paragraph [14] and the Industrial Action-Work Bans defined in paragraph [17] of this decision were not protected industrial action. Subsequently, on 25 October 2018, I issued an Order under s 418 of the Act[3] and expressed that the reasons for my decision would follow. On 26 October 2018, I issued a further Order dismissing the 424 Application.
These are the reasons for the decisions made.
Witnesses
Mr William Galloway (Mr Galloway), Broadspectrum’s Contract Director for the Broadspectrum Court Security and Custodial Services contract (CS&CS Contract) provided evidence on behalf of Broadspectrum in the hearing. Mr Galloway had held his position for the last year and amongst his various responsibilities he had oversight of industrial relations issues.[4] The TWU chose not to call any witnesses.
Background
In light of the 424 Application being dismissed due to the Industrial Action-Work Bans and the Paperwork Ban having been found to be unprotected, the context of this matter is summarised to the extent it is relevant to the 418 Application.
History of the negotiations for the Proposed Agreement
From around February 2018, the TWU and Broadspectrum have been negotiating the terms of the Broadspectrum WA CS&CS TWU Enterprise Agreement 2018 (Proposed Agreement).
A protected action ballot order[5] was issued on 13 June 2018. The results of the protected action ballot (PAB), by which various forms of industrial action were approved, were declared on 17 July 2018.
Subsequently, the TWU made an application on 2 August 2018, to extend the 30-day period in relation to the PAB. The application to extend was unopposed by Broadspectrum and an order[6] was issued on 6 August 2018. The period of the extension was for a further 30 days from 15 August 2018. The effect of the order was to give the TWU until 14 September 2018 to commence the various forms of industrial action authorised under the PAB.[7]
On 7 August 2018, the TWU provided Broadspectrum with notice of its intention to organise, and the intention of its members employed under the CS&CS Contract to engage in, protected industrial action (August Notice). The August Notice referred to threatened bans on overtime, the wearing of uniform shirts and the performance of higher duties:
(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 working 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 working of higher duties, commencing at 05:00 hours on Monday 13 August 2018 to 04:59 hours on Friday 17 August 2018.
In response to the August Notice, on 10 August 2018, Broadspectrum made an application under s 424 to suspend the protected industrial action threatened in the August Notice. On 10 August 2018, an order[8] was made suspending the three specific forms of industrial action referred to in the August Notice until 13 October 2018 (Suspension Order).
Current and threatened industrial action
Paperwork Ban
On 11 October 2018, the TWU issued Broadspectrum with a notice of industrial action (11 October Notice). The nature and the timing of that industrial action was stated as:
An unlimited number of bans on the completion of paperwork, commencing at 05:00 hours on Wednesday, 17 October 2018 until further notice.[9] (Paperwork Ban)
At the time of Hearing, the Paperwork Ban that had commenced on 17 October 2018 and was referred to in the 11 October Notice, was presently happening.[10] Approximately 50% of Broadspectrum’s operational workforce (of which there are approximately 300 employees) had been participating in the Paperwork Ban.[11]
As part of the their role, Broadspectrum employees are required to perform paperwork duties including vehicle check sheets, signing records to acknowledge the property of persons in custody, individualised records annotating the journey of every person in custody, security intelligence reports, recording of reportable incidents and records indicating confiscation of contraband.[12] None of the aforementioned duties had been performed as required since 17 October 2018.
Industrial action threatened
On 22 October 2018, the TWU issued Broadspectrum with a notice of industrial action (22 October Notice)[13]. The nature and the timing of that industrial action was stated as:
- The TWU members who are scheduled to perform the duties of transport or hospital sit work intend to take the following industrial action:
An unlimited number of bans on the performance of work for 4 hours, commencing at 0500hrs on Friday 26 October 2018 to 08:59 hours on Friday 26 October 2018.
That is, during the period referred to above, TWU members who undertake the duties described above intend to stop work for one continuous period of 4 hours.
- The TWU members who are scheduled to perform the duties of Court or Fiona Stanley Secure Unit work in tend to take the following industrial action:
An unlimited number of bans on the performance of work for 4 hours, commencing at 08:00 hours on Friday 26 October to 11:59 hours on Friday 26 October 2018.
That is during the period referred to above, TWU members who undertake duties described above intend to stop work for one continuous period of 4 hours.
(collectively, the Industrial Action – Work Bans)
The Paperwork Ban and Industrial Action-Work Bans set out in the 11 October Notice and the 22 October Notice respectively, were not the subject of suspension in the Suspension Order, and were not taken before the beginning of the Suspension Order (and had not been taken at any time before the Hearing).
THE 418 APPLICATION
Submissions of the Broadspectrum
Mr Snaden submitted that in the present case the industrial action that was approved by means of the PAB was the subject of an extension granted under s 459(3).[14] In order for industrial action to qualify as ‘authorised’ by the ‘protected action ballot’ as provided for in s 459(1), the Paperwork Ban and Industrial Action-Work Bans needed to have commenced on or prior to 14 September 2018. Counsel continued that none of the ‘species’ or ‘types’ of industrial action that was the subject of the PAB was commenced before 14 September 2018.
On that basis, Counsel advanced, the Paperwork Ban and the Industrial Action-Work Bans (and each type of the action that comprised it) was not authorised by the PAB and, therefore, was not employee claim action.
Regarding s 429 of the Act, it was Broadspectrum’s contention that this section serves to further extend the deadline for the commencement of industrial action that is authorised by a protected action ballot; but only insofar as it is the subject of the suspension order granted under Division 6 of Part 3-3 of the Act. As it was, none of the constituent elements, namely each type of action that the Paperwork Bank or Industrial Action-Work Bans comprised of, was the subject of the Suspension Order.
According to Counsel, the Suspension Order, was confined, as it had to be[15] to the three ‘species’ of industrial action in respect of which the Commission was satisfied that an order under s 424(1) should issue. Namely, the protected industrial action in the August Notice. It did not, submitted Counsel, and could not, serve to suspend the categories of industrial action now under consideration (Paperwork Ban and Industrial Action-Work Bans).
Submissions of the Respondent
Mr Dzieciol submitted that there was no basis for the 418 Application and that there was Full Bench authority that supported the AWU’s contention. In short, Mr Dzieciol’s contention was that when the Suspension Order was issued that had the effect of suspending all industrial action on the PAB, regardless of how the Suspension Order was phrased. Therefore, it followed, according to the AWU that the 418 Application was without foundation.
Further, Mr Dzieciol advanced that should the Paperwork Ban and Industrial Action-Work Bans be found to be unprotected then it was the case that the 424 Application fell away.
Dispute
The Suspension Orders in this case assume significance because the primary question on which the 418 Application turns is whether the effect of the Suspension Order was to extend the 14 September 2018 deadline, such that the Paperwork Ban and Industrial Action-Work Bans can be said to have commenced in the timeframe contemplated by the Act. If they have commenced in the timeframe contemplated by the Act then it follows that both would be protected industrial action.
The legislative context
The following sections of the Act are relevant to the submissions advanced by the parties, the evidence and the dispute.
Division 8, Subdivision B of Part 3-3 of the Act at s 437 states:
(1) A bargaining representative of an employee who will be covered by a proposed enterprise agreement, or 2 or more such bargaining representatives (acting jointly), may apply to the FWC for an order (a protected action ballot order) requiring a protected action ballot to be conducted to determine whether employees wish to engage in particular protected industrial action for the agreement.
…
Matters to be specified in application
(3) The application must specify:
(a)the group or groups of employees who are to be balloted; and
(b)the question or questions to be put to the employees who are to be balloted , including the nature of the proposed industrial action…
Section 443 provides that a protected ballot order must be made in relation to a proposed agreement if certain requisites are met:
The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:
(a)the application has been made under section 437; and
(b)the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.
The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in circumstances referred to in subsection (1).
A protected action ballot order must specify the following:
(a)the name of each applicant for the order;
(b)the group or groups of employees who are to be balloted;
(c)the date by which voting in the protected action ballot closes;
(d)the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action….
Subdivision D of Part 3-3 sets out the effect of a protected action ballot. At section 459 it provides:
Industrial action by employees is authorised by a protected action ballot if:
(a) the action was the subject of the ballot; and
(b) at least 50% of the employees on the roll of voters for the ballot voted in the ballot; and
(c) more than 50% of the valid votes were votes approving the action; and
(d) the action commences:
(i) during the 30-day period starting on the date of the declaration of the results of the ballot; or
(ii) if the FWC has extended that period under subsection (3) – during the extended period.
Note: Under Division 2, industrial action by employees for a proposed enterprise agreement (other than employee response action) is not protected industrial action unless it has been authorised in advance by a protected action ballot.
If:
(a) the nature of the proposed industrial action specified in the question or questions put to the employees in the protected action ballot included periods of industrial action of a particular duration; and
(b) the question or questions did not specify that consecutive periods of that industrial action may be organised or engaged in;
then only the first period in a series of consecutive periods of that industrial action is the subject of the ballot for the purposes of paragraph (1)(a).
The FWC may extend the 30-day period referred to in subparagraph (1)(d)(i) by up to 30 days if:
(a) an applicant for the protected action ballot order applies to the FWC for the period to be extended; and
(b) the period has not previously been extended.
Section 19 gives the term ‘industrial action’ its meaning and states that it means action of any of the following kinds set out in subparagraphs (a)-(d). Section 408 sets out that industrial action is protected industrial action for a proposed enterprise agreement it if is either employee claim action for the agreement[16], or employee response action[17] or employer response action.[18]
At s 409, a definition of ‘employee claim action’ is provided:
Employee claim action for a proposed enterprise agreement is industrial action that:
(a) is organised or engaged in for the purpose of supporting or advancing claims in relation to the agreement that are only about, or are reasonably believed to only be about, permitted matters; and
(b) is organised or engaged in, against an employer that will be covered by the agreement, by:
i.a bargaining representative of an employee who will be covered by the agreement; or
ii.an employee who is included in a group or groups of employees specified in a protected action ballot order for the industrial action; and
(c) meets the common requirements set out in Subdivision B; and
(d) meets the additional requirements set out in this section.
Protected action ballot is necessary
The industrial action must be authorised by a protected action ballot (see Division 8 of this Part).
Unlawful terms
(3) The industrial action must not be in support of, or to advance, claims to include unlawful terms in the agreement.
Industrial action must not be part of pattern bargaining
(4) A bargaining representative of an employee who will be covered by the agreement must not be engaging in pattern bargaining in relation to the agreement.
Industrial action must not relate to a demarcation dispute
(5) The industrial action must not, if it is being organised or engaged in by a bargaining representative, relate to a significant extent to a demarcation dispute or contravene an FWC order that relates to a significant extent to a demarcation dispute.
Notice requirements after suspension order must be met
If section 429 (which deals with employee claim action without a further protected action ballot after a period of suspension) applies in relation to the industrial action, the notice requirements of section 430 must be met.
…
The common requirements referred to in s 409(1)(c) are set out in Division 2 of Part 3-3 of the Act at s 413, which include:
…
Genuinely trying to reach an agreement
(3) The following persons must be genuinely trying to reach an agreement:
(a)if the person organising or engaging in the industrial action is a bargaining representative for the agreement – the bargaining representative;
(b)if the person organising or engaging in the industrial action is an employee who will be covered by the agreement – the bargaining representative of the employee.
Notice requirements
(4) The notice requirements set out in section 414 must have been met in relation to the industrial action.
Compliance with orders
(5) The following persons must not have contravened any orders that apply to them and that relate to, or relate to industrial action relating to, the agreement or a matter that arose during bargaining for the agreement:
(a)if the person organising or engaging in the industrial action is a bargaining representative for the agreement—the bargaining representative;
(b)if the person organising or engaging in the industrial action is an employee who will be covered by the agreement—the employee and the bargaining representative of the employee.
No industrial action before an enterprise agreement etc. passes its nominal expiry date
(6) The person organising or engaging in the industrial action must not contravene section 417 (which deals with industrial action before the nominal expiry date of an enterprise agreement etc.) by organising or engaging in the industrial action.
No suspension or termination order is in operation etc….
(7) None of the following must be in operation:
(a)an order under Division 6 of this Part suspending or terminating industrial action in relation to the agreement;
(b)a Ministerial declaration under subsection 431(1) terminating industrial action in relation to the agreement;
(c)a serious breach declaration in relation to the agreement.
Section 414 sets out the notice requirements for employee claim action which relevantly includes a subsection (6) that the notice must specify the nature of the action and the day on which it will start.
Section 429 addresses employee claim action after a period where protected industrial action had been suspended. It sets out:
Application of this section
(1) This section applies in relation to employee claim action for a proposed enterprise agreement if:
(a)an order suspending the employee claim action has been made; and
(b) a protected action ballot authorised the employee claim action:
(i) some or all of which had not been taken before the beginning of the period
(the suspension period) of suspension specified in the order; or
(ii) which had not ended before the beginning of the suspension period; or
(iii) beyond the suspension period; and
(c) the suspension period (including any extension under section 428) ends, or the order is revoked before the end of that period.
Further protected action ballot not required to engage in employee claim action
(2) A person may engage in the employee claim action without another protected action ballot.
(3) For the purposes of working out when the employee claim action may be engaged in, the suspension period (including any dates authorised by the protected action ballot as dates on which employee claim action is to be engaged in) must be disregarded.
(4) Nothing in this section authorises employee claim action that is different in type or duration from the employee claim action that was authorised by the protected action ballot.
The Commission can suspend protected industrial action in certain circumstances, including significant economic harm[19], where life, personal safety and health or welfare is endangered[20], or it will cause significant damage to the Australian economy[21], or where the Commission is satisfied a cooling off period is appropriate[22].
Section 424 of the Act prescribes:
424 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 Australia economy or an important part
of it.
…
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 to which the application relates until the application is determined.
Section 418(1) provides as follows:
(1) If it appears to the FWC that industrial action by one or more employees or employers
that is not, or would not be, protected industrial action:(a) is happening; or
(b) is threatened, impending or probable; or
(c) is being organised;
the FWC must make an order that the industrial action stop, not occur or not be organised
(as the case may be) for a period (the stop period) specified in the order.
Consideration
The protected action ballot order[23] was issued on 13 June 2018 and subsequent to that various types of industrial action were approved. The TWU then made an application on 2 August 2018 to extend the 30-day period in relation to the PAB, which the Commission approved. The period of the extension was for a further 30 days from 15 August 2018. This meant that the TWU had until 14 September 2018 to commence the various forms of industrial action authorised under the PAB.[24]
On 7 August 2018, the TWU issued the August Notice, which in short encompassed three types of protected industrial action. Namely, a ban on overtime, wearing of uniform shirts and performance of higher duties. Broadspectrum made the 424 Application and the Commission suspended the three types of protected industrial until 13 October 2018.
On 11 October 2018, the TWU notified Broadspectrum of the Paperwork Ban that thereafter commenced on 17 October 2018. On 22 October 2018, Broadspectrum received the 22 October Notice regarding Industrial Action-Work Bans that were to commence on 26 October 2018. Both the Paperwork Ban and the Industrial Action-Work Bans were different types of industrial action than the types in the August Notice and different to those specified in the Suspension Order.
Section 19 of the Act provides the meaning for ‘industrial action’ by referring to action of the kinds prescribed in subparagraphs (a)-(d). Section 408 outlines when industrial action is protected industrial action and included in this definition is employee claim action (see s 409).
Section 409(2) requires that for industrial action to be employee claim action it must be authorised by a protected action ballot. Division 8 of Part 3-3 sets out the process that allows employees to choose by a fair and democratic ballot whether to authorise protected industrial action in relation to a proposed enterprise agreement.
Subdivision D of Part 3-3 sets out the effect of a protected action ballot. At section 459 it provides amongst other requisites that the action must commence during the 30-day period starting on the date of the declaration of the results of the ballot or if there has been an extension granted to that period by the Commission, during that period of extension.
If, however, there has been an order made to suspend protected industrial, s 429(1)(a) applies, in effect, to excise from the deadline for the commencement of industrial action any period of suspension.
Section 429(1) stipulates three pre-requisites that have to exist in order for there to be in effect any extension of the authorisation period under s 459. The first of those pre-requisites in subparagraph (a) is that there must be an order suspending the employee claim action. In this matter the employee claim action is said to be the Paperwork Ban that commenced on 17 October 2018, and concerning the Industrial Action-Work Bans which were due to commence on 26 October 2018, the types of industrial action were various work stoppages including, in summary form, a Transportation Ban, Hospital Sit Ban, Court Security Ban and FSSU Ban.
It is Broadspectrum’s submission that the suspension applies only in respect of protected industrial action that is suspended and that it does not operate with regard to all forms of industrial action on the PAB. As observed the Suspension Order relevantly suspended three types of industrial action included on the PAB.
The three types of industrial action, namely a ban on higher duties, wearing uniform shirts and working overtime were found to visit the sort of consequences that s 424(1) is directed at. That is the protected industrial action referred to in the Suspension Order was constrained to those types of industrial action that had been found to be such that they threatened or were threatening to endanger the life, personal safety or health, or welfare, of the population or part of it. When the Suspension Order was made there had been no contemplation whether the other types of industrial action on the PAB were such that the required harm or endangerment was threatened.
However, the AWU contended that while the Suspension Order was expressed as suspending the action specified in the August Notice, and that may have been the intention of the Deputy President, the Commission in the Full Bench decision of NTEIU v University of South Australia[25] (NTEIU) had stated that an order under s 424 suspends all protected industrial action that was authorised on a ballot, not just the action that threatens the relevant harm.[26]
Therefore, if the reasoning of the AWU is applied all forms of industrial action on the PAB had in effect been suspended when the Suspension Order was made. It followed that all would be excised from the deadline for the commencement of industrial action and as such a further protected action ballot was not required to engage in the employee claim action of the Paperwork Ban and the Industrial Action-Work Stoppages.
In the decision of the Full Bench in NTIEU the main issue raised related to the proper construction of the power in s 424 of the Act to suspend or terminate protected industrial action. At first instance in University of South Australia v National Tertiary Education Industry Union[27] (USA), the Senior Deputy President suspended industrial action being taken by the NTEU.[28] The Senior Deputy President articulated that the question to be answered was about the extent to which an order to suspend or terminate protected industrial action was necessarily applicable to all protected industrial action as distinct from specified forms of action.[29]
The industrial action included bans on the recording and transmission of exam results which were found to be threatening to endanger the welfare of graduating students. However, when making the order to suspend the protected industrial action the Senior Deputy President decided that s 424 required that the suspension apply to all forms of protected industrial action being taken (note the reference to being taken rather than listed on the protected action ballot). This was notwithstanding that the application specified that it was two specific bans which formed the basis for the orders sought.[30]
In arriving at his decision the Senior Deputy President considered Ambulance Victoria v LHMU[31] (Ambulance Victoria) quoting the following:
[36] A question has arisen as to what is the protected industrial action that is being terminated. Mr Parry contended that it is the industrial action the subject of my order made on 3 July 2009, being that industrial action that was authorised by the protected action ballot declared on 4 June 2009 under section 478 of the Workplace Relations Act 1996. In other words, the order would bring to an end all of the protected industrial action that the LHMU is taking, and can take, to support its case for the proposed enterprise agreement. For the LHMU, Mr Dowling contended that it was only the four hour strikes planned for Wednesday, 22 July 2009 that could be the subject of the termination order. Such an issue did not arise under the previous regime because the order then was to terminate a bargaining period with the consequence that there could no longer be any protected industrial action.
[37] Mr Parry submitted that although bargaining periods are no longer part of the legislative scheme, the mechanism of the Fair Work Act 2009 is designed to replace the scheme for terminating bargaining periods. On the other hand, Mr Dowling submitted that the protected industrial action, the subject of this application, is only that which was scheduled for Wednesday, 22 July 2009. That is the only action about which I had evidence and that is the action that is the subject of the application to terminate. According to Mr Dowling, I can only terminate that protected industrial action that was threatening to endanger, etc. In other words, I can only terminate the protected industrial action comprising the four hour stoppages.
[38] I have been referred to the explanatory memorandum which only provides limited assistance. At paragraph 1707 it states:Suspension or termination of protected industrial action brings to an end the right to take protected industrial action.
[39] Division 3 of Part 2-5 of Chapter 2 of the Fair Work Act 2009 deals with industrial action related to workplace determinations. Section 266 provides:
When FWA must make an industrial action related workplace determination
(1) If:
(a) a termination of industrial action instrument has been made in relation to a proposed enterprise agreement; and
(b) the post industrial action negotiating period ends; and
(c) the bargaining representatives for the agreement have not settled all of the matters that were at issue during bargaining for the agreement;
FWA must make a determination (an industrial action related workplace determination) as quickly as possible after the end of that period.
(2) A termination of industrial action instrument in relation to a proposed enterprise agreement is:
(a) an order under section 423 or 424 terminating protected industrial action for their agreement;
(3) The post-industrial action negotiating period is that period that:
(a) starts on the day on which the termination of industrial action instrument is made; and
(b) ends:
(i) 21 days after that day; or
(ii) if FWA extends that period under subsection (4) – 42 days after that day.[40] It appears to me that although the legislation is different, the scheme of the Fair Work Act 2009, in this respect, is similar to that of the Workplace Relations Act 1996. Once protected action, or previously a bargaining period, is terminated, an arbitrated settlement will be imposed upon the parties, now by Fair Work Australia, then by the Australian Industrial Relations Commission. Section 267 of the Fair Work Act 2009 deals with the terms of an industrial action related workplace determination.
[41] I agree with Mr Parry that the interpretation for which Mr Dowling contends is too narrow. If such a fundamental change had been intended to be wrought, one would have expected that to have been clearly articulated. The scheme of the Act now provides for a 21 day period for the parties to reach agreement before an arbitrated outcome is imposed upon them. Rather than the threat of strike and lockout, the parties now face the threat of having terms and conditions imposed upon them by an outside body – Fair Work Australia.
[42] That seems to me to be the imperative envisaged by section 266 of the Fair Work Act 2009 for the parties to reach agreement. In that scheme it is unlikely that the parliament intended that protected industrial action could take place during the 21 day post-industrial action negotiating period. That 21 day period, in my view, is to be just that – post-industrial action.[32]The Senior Deputy President in USA agreed with the approach adopted in Ambulance Victoria and concluded:
I agree with this approach. Whilst His Honour in that matter concluded that a termination of protected industrial action was appropriate, the adoption of a different approach to the concept of protected industrial action where a suspension is being countenanced would be illogical given that section 424 provides for either suspension or termination. It appears to me that not withstanding that NTEU members endorsed the taking of a variety of forms of protected industrial action, the Act requires that a suspension or termination of protected industrial action for the purposes of sections 424, 425 and 426 applies to all forms of protected industrial action.[33]
On appeal of the decision in USA, the Full Bench in NTEIU stated:
The suspension of protected industrial action is to be construed as a suspension of the protection or immunity which attaches to the industrial action under the Act provided it is authorised in a protected action ballot etc. (see s 409). A reference in s 424 to the making of an order “suspending or terminating protected industrial action for a proposed agreement” would therefore seem to apply to protected industrial action which was authorised by the ballot and not to the particular industrial which is being taken as part of what might be a series of actions authorised by the ballot and which is having the requisite harmful effect.
This reading of s 424 would accord with the wider scheme of the Act and, in particular, with the provisions which apply to the making of workplace determinations where an order has been made terminating protected industrial action (see s 266). It would be inconsistent with that scheme if further protected industrial action was able to be taken even through the jurisdiction for the making of an arbitrated decision was in train (see Ambulance Victoria v Liquor, Hospitality and Miscellaneous Union (2009) 187 IR 119, Kaufman DSP). There is no valid reason for adopting a fundamentally different interpretation of s 424 in respect of the power to suspend protected industrial action than is applied in relation to the termination power.
In any event, we note that even if an order made under s424 was confined to part only of the authorised industrial action, the effect of the order would be to render other industrial action unprotected. The common requirements that apply for industrial action to be protected industrial action are set out in Subdiv B of Div 2 of Pt3-3 of the Act. In particular, s 413(7)(a) provide that industrial action will not be protected industrial action for a proposed enterprise agreement if there is in operation “an order under Division 6 of this Part suspending or terminating industrial action in relation to the agreement”.
The Full Bench in NTEIU formed the view that a reference in s 424 to suspending or terminating protected industrial action for a proposed agreements ‘seemed’ to apply to protected industrial action which was authorised by the ballot and not the particular type which was having the requisite harmful effect. It was the case that the Full Bench in NTEIU did not agree with an interpretation of s 424 in which the power authorised by the section was a more confined and precise power which was directed at particular forms of third party harm.[34]
There are a few observations to make. It is evident that the scheme of the Act provides a regime that is particular to suspension of protected industrial action. As noted, the Commission can suspend protected industrial action in certain circumstances, including significant economic harm[35], where life, personal safety and health or welfare is endangered[36], where it will cause significant damage to the Australian economy[37], or where the Commission is satisfied a cooling off period is appropriate[38]. Section 428 provides for an extension of the period of suspension and following a suspension the question arises whether further employee claim action can be taken without having to have conducted a further protected action ballot.[39] Section 429 addresses this scenario setting out the requisites to be met which will enable a person to engage in employee claim action without another protected action ballot.
Contrast this to the situation that arises where the Commission orders the termination of protected industrial action and s 266 is triggered due to the making of a termination of industrial action instrument. Section 266 provides for a regime that is different to that provided in circumstances of suspension.
When it comes to the common requirements that apply for industrial action to be protected one such requirement is that there can be no suspension or termination order in operation.[40] The AWU advanced that the effect of s 413(7) was such that even if an order made under section 424 was confined to the part only of the authorised industrial action, the effect of the order would be to render other industrial action that was authorised, unprotected. However, unprotected is not synonymous with suspended. The effect of section 413(7) is that if there is a suspension order in place relative to any industrial action, no other industrial action can attract the mantel of employee claim action, it cannot be protected industrial action. But, that is a consequence not of a suspension order but rather the way that s 413, the common requirements, operate.
Section 413(7) states that for industrial action to be protected an order suspending industrial action in relation to the agreement must not be in operation. However, while the effect of s 413(7) may be the loss of the protective immunity for industrial action in the period of the suspension, it does not follow that s 413(7) extends the operation of s 424 to deem suspended, protected industrial action which while authorised by a protected action ballot is not the subject of the application under s 424, and therefore has not been found to have threatened, or is threatening or would threaten, to endanger the life, the personal safety or health, or the welfare, of the population or part of it. So much is clear in the Federal Court decision in Australian and International Pilots Association v Fair Work Australia and Others[41] (AIPA Case).
Back in August 2010, Qantas had commenced negotiations with the Australian and International Pilots Association (AIPA), and later it commenced bargaining for separate agreements with two other unions (Australian Licensed Aircraft Engineers Association (ALAEA) and the Transport Workers Union of Australia (TWU)). Section 424(2) allows the Commission to make an order on its own initiative or by application in this case by the Commonwealth Minister. The Commonwealth Minister made an application under s 424 for an order to suspend or terminate the protected industrial action being engaged in by Qantas, ALAEA, TWU and AIPA claiming that the protected industrial action was threatening to cause significant damage to the Australian economy or part of it.
Regarding AIPA, the industrial action it had engaged in was limited to the colour of ties the pilots wore and the announcement made on the conclusion of long haul flights. However, Qantas gave AIPA notice of a lock out of AIPA employees that would continue indefinitely. The Commonwealth Minister treated the Qantas notice as constituting employer response action and therefore protected industrial action and made the s 424 application referred to above.
In response to the s 424 application, Justice Buchanan stated:
[S]ection 424 empowers FWA to make an order terminating or suspending “protected industrial action” as identified in s 408. Necessarily, that imports a limitation which confines attention to the particular protected industrial action in question. That is because protected industrial action must satisfy s 409, s 410 or s 411, and also the common requirements in s 413. Those requirements include notice of the nature of the action and when the action will commence (s 414(6)). It follows, in my view, that separate consideration must be given to each of the protected industrial actions which is to be terminated or suspended – ie each which has been notified. That may not mean that each must be considered in isolation but that is a question for another day.[42]
Here, FWA did find that the industrial action proposed by Qantas satisfied the tests in s 424(1). However, the FWA did not find that the protected industrial action being taken by members of the applicant satisfied the tests in s 424(1), whether considered individually or in combination with the protected industrial action being taken by the members of the other unions (if that was possible). Hence, FWA should not have made an order terminating the protected industrial action being taken by members of the applicant.[43]
Justice Perram at [179] of the AIPA Case similarly confined the operation of s 424(1) to stopping protected industrial action which meets the requirements of subsections (c) of (d):
The respondents then submitted that s 424(1), once enlivened, permitted an order to be made stopping not only the protected industrial action which was harming the economy (or important parts of it) but also any other protected industrial action to which it was a response. I reject this submission too. It is clear that the “protected industrial action” which is referred to in the first part of s 424(1) is the same as that which is referred to in the second part. The only protected industrial action which Fair Work Australia may order be stopped is that which meets the requirements of subs (d) or (d).
The proposition that arises from the APIA Case is that s 424 is exercisable only in respect of, the industrial action that this Commission is satisfied will have the effect of imperilling the health, safety or welfare of the population or part of it, or as was the case in the AIPA Case, significant economic harm.
The Full Bench of this Commission in National Tertiary Education Industry Union v Monash University[44] similarly reached this conclusion concerning the operation of s 424. When the s 424(1)(c) criterion has been satisfied in a number of respects, the Full Bench stated that the Act required the making of an order suspending or terminating protected industrial action and the only protected industrial action to which the required order may apply was that which satisfies the s 424(1)(c) criterion.[45] The Full Bench acknowledged that once such an order was made that any other industrial action notified, in this case, by the National Tertiary Education Industry Union, ceased to be protected by reason of s 413(7) of the Act.
Findings and conclusion
With regard to s 429, the TWU has been unable to satisfy this Commission that an order suspending the ‘employee claim action’ has been made which would result in an extension of the authorisation period.
The Paperwork Ban which was on foot at the time of the Hearing, and the Industrial Action-Work Bans, which according to the 22 October Notice[46], were to commence on 26 October 2018, were not and have not been the subject of any suspension order. There was therefore no freezing of the authorisation period provided for under section 459(1). The authorisation period expired on 14 September 2018, by which stage there had been no industrial action, certainly none of the types with which the Commission is currently dealing with – the Paperwork Ban and the Industrial Action-Work Bans.
It is the case then that the Paperwork Ban and the Industrial Action-Work Bans are not examples of industrial action that under s 459 are authorised by the PAB or for that matter another protected action ballot. And, because they are not authorised by a protected action ballot they cannot be employee claim action.
On the evidence before me I am satisfied that the Paperwork Ban is happening. This is not disputed and is uncontroversial. Further, I have found that the Paperwork Ban constitutes industrial action that is not protected and it follows that an order must be made that it stops, under s 418.
There is evidence that the Industrial Action-Work Bans as notified in the 22 October Notice[47] are being organised by the TWU given the contents of the 22 October Notice. Further, given the temporal relationship of the 22 October Notice and when the Industrial Action-Work Bans are due to commence, on balance I have found that the industrial action is impending. The Industrial Action-Work Bans constitute industrial action that is not protected and it therefore follows under the Act that this Commission must order that such industrial action stops pursuant to s 418.
Mr Snaden put forward that the stop period should continue until the end of November. The basis for the proposed stop period involved consideration of the time it may take the TWU to arrange another ballot to authorise further industrial action. Having taken to account all of the evidence, submissions and circumstances relevant to the 418 Application, I am agreeable to the stop period continuing until 30 November 2018 and the Order[48] issued reflects this.
424 APPLICATION
Submissions of the parties
Both Counsel for Broadspectrum and the TWU submitted that if the industrial action was found not to be protected and consequently necessitated the making of an order under s 418 then it would follow that the 424 Application would fall away.
Findings and Conclusion
The submissions of both Mr Snaden and Mr Dzieciol on this point are sound. I have found that the industrial action subject of the 418 Application was not protected and as such issued an Order stopping such action. It accordingly follows that the 424 Application must be dismissed as the industrial action which is the subject matter of this Application is not protected and s 424 is confined to the suspension or termination of protected industrial action.
DEPUTY PRESIDENT
Appearances:
Mr J Snaden, of Counsel at the Victorian Bar, for the Applicant.
Mr A Dzieciol, Industrial Officer at Transport Workers’ Union of Australia, for the Respondent.
Hearing details:
2018
October 25.
<PR701737>
[1] Subsections 424(1)(b) and (c) of the Act.
[2] Section 424(3).
[3] PR701738.
[4] Witness Statement of Mr William Galloway (Exhibit A1) (Galloway’s Statement) [4].
[5] Galloway’s Statement, Annexure WG-1; PR608038.
[6] PR609689.
[7] Galloway’s Statement, Annexure WG-2.
[8] PR609847.
[9] Galloway’s Statement, Annexure WG-4.
[10] Galloway’s Statement [19].
[11] Ibid [20].
[12] Ibid [22].
[13] Galloway’s Statement, Annexure WG-9.
[14] PR609689.
[15] Australian and International Pilots Association v Fair Work Australia & Ors (2012) 202 FCR 200 [67]-[70], [128]-[129] and [176]-[180].
[16] Section 409.
[17] Section 410.
[18] Section 411.
[19] Sections 423 and 426 of the Act.
[20] Section 424(1)(c).
[21] Section 424(1)(d).
[22] Section 425.
[23] Galloway’s Statement, Annexure WG-1; PR608038.
[24] Ibid, Annexure WG-2.
[25] [2010] FWAFB 1014.
[26] Galloway’s Statement, Annexure WG-6.
[27] [2009] FWA 1535 (USA).
[28] USA.
[29] Ibid [20].
[30] Ibid.
[31] [2009] FWA 44.
[32] [2009] FWA 1535 [21].
[33] Ibid [22].
[34] [2010] FWAFB 1014 [11].
[35] Sections 423 and 426 of the Act.
[36] Section 424(1)(c).
[37] Section 424(1)(d).
[38] Section 425.
[39] Section 429.
[40] Section 417(3) of the Act.
[41] [2012] FCAFC 65.
[42] Ibid [128].
[43] Ibid [129].
[44] [2013] FWCFB 5982.
[45] Ibid [54].
[46] Galloway’s Statement, Annexure WG-9.
[47] Galloway’s Statement, Annexure WG-9.
[48] PR701738.
Printed by authority of the Commonwealth Government Printer
1
0
0