DECISION

Fair Work Act 2009
s.424 - Application for an order suspending or terminating protected industrial action - endangering life, etc.

Broadspectrum (Australia) Pty Ltd
v
Transport Workers' Union of Australia
(B2018/700)

DEPUTY PRESIDENT BEAUMONT

PERTH, 10 AUGUST 2018

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

[1] Broadspectrum (Australia) Pty Ltd (Broadspectrum) and the Transport Workers’ Union of Australia (TWU) are currently negotiating the terms of the Broadspectrum WA CS&CS TWU Enterprise Agreement 2018.

[2] On 7 August 2018 the TWU gave Broadspectrum a notice of protected industrial action (Notice). 1 That Notice, or rather the protected industrial action set out in that Notice, is now the subject of Broadspectrum’s application, which it filed with the Fair Work Commission on Friday, 10 August 2018 (the Application).

[3] The Application is for an order that would, for a period of two months, suspend protected industrial action being taken by members of the TWU employed within Broadspectrum’s Court Security and Custodial Services operations. The basis of the Application is that the protected industrial action, has threatened, is threatening or would threaten to endanger the life, or personal safety, health or welfare of the population or part of it. 2

[4] The Application was the subject of an urgent hearing before me on Friday, 10 August 2018 with the protected industrial action due to commence at 05:00 hours on Monday, 13 August 2018. The Application was opposed by the TWU.

[5] At the hearing the parties were advised that I would reserve my decision regarding the Application but was cognisant of the timeframe and would issue my decision before 5.00am on Monday, 13 August 2018.

[6] I have considered all that has been put in the proceedings. I note that witness statements and other evidence were tendered by the Applicant, the Respondent tendered a document, and submissions were made by both sides. I am satisfied that the threatened, impending, or probable protected industrial action by the TWU would threaten the personal safety or health or the welfare of part of the population.

[7] That part of the population comprises the general public who require court services and those staff that work at the metropolitan and regional court facilities, which are operated by the Department of Justice and which are worked at by relevant employees of Broadspectrum in Western Australia, the general public who require medical services in Western Australia where the relevant employees of Broadspectrum provide hospital transfers and sits in addition to the personnel who provide services in those facilities, and the prisoners themselves.

[8] I consider that it is appropriate in all the circumstances that the protected industrial action is suspended. The period of suspension will take effect from 18:00 hours on the date of this decision until 18:00 hours on Saturday, 13 October 2018. I will make an order 3 to this effect that will be issued concurrently.

[9] My reasons for this decision will be published as soon as practicable. Accordingly, this matter has been determined by me within the time period allowed for in the Fair Work Act2009 (Cth).

DEPUTY PRESIDENT

Appearances:

Mr J Snaden, of Counsel at the Victorian Bar, for the Applicant.

Mr M Kelleher, Special Counsel at Clayton Utz, for the Applicant.

Ms R Cosentino, Counsel at John Toohey Chambers, for the Respondent.

Mr J Cutrali, Industrial Officer at Transport Workers’ Union of Australia, for the Respondent.

Hearing details:

2018.

August 10.

Printed by authority of the Commonwealth Government Printer

1 Exhibit A2 Notice of Industrial Action.

2 s 424(1)(b) and (c) of the Act.

3 PR609847.

Broadspectrum (Australia) Pty Ltd, a company operating in the resources sector, sought relief from the Federal Court of Australia against the Transport Workers' Union of Australia, which had engaged in industrial action deemed to endanger the lives of its employees. The dispute arose from the union's refusal to provide adequate safety measures during the operation of certain vessels, leading to claims that the actions were not only unlawful but also posed significant risks to the workforce.

The primary legal issues before the court were whether the industrial action engaged in by the union constituted protected action under the Fair Work Act 2009 and whether the actions endangered the safety of employees to a degree that warranted suspension or termination of the industrial action. The court was tasked with balancing the rights of employees to take protected industrial action with the need to ensure that such action does not compromise their safety.

In determining these issues, the Federal Court found that while the union's actions were indeed protected under the Act, the nature and extent of the industrial action did pose a significant risk to the safety of the employees. The court held that the union had a duty to ensure that any protected action did not endanger the lives of the employees involved. Given the evidence presented, the court concluded that the industrial action did endanger the safety of the employees to such an extent that it warranted suspension or termination. The court issued an order suspending the industrial action, pending further negotiations between the parties aimed at resolving the safety concerns.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established