Busways Blacktown Pty Ltd and Busways Blacktown North Pty Ltd v Transport Workers Union of NSW

[2016] FWC 6055

[2016] FWC 6055

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.424 - Application to suspend or terminate protected industrial action - endangering life etc.

Busways Blacktown Pty Ltd & Busways Blacktown North Pty Ltd and Others
v
Transport Workers Union of NSW
(B2016/907)

COMMISSIONER JOHNS MELBOURNE, 25 AUGUST 2016

Application by the Busways Blacktown Pty Ltd & Busways Blacktown North Pty Ltd and Others to suspend protected industrial action.

Introduction
[1] On 24 August 2016 Busways Blacktown Pty Ltd & Busways Blacktown North Pty Ltd and Others (Busways Group) made applications for an order pursuant to s.424 of the Fair Work Act 2009 (FW Act) to suspend, for a period of 90 days, protected industrial action (PIA) that the Transport Workers Union of NSW (TWU/Respondent) and its members have threatened to take.
[2] The effect of the industrial action, if it is taken, is that “all members of the TWU employed by the Busways Group at [various sites in NSW will] engage in, “an indefinite stoppage of work” commencing at 5.00 am on Monday, 29 August 2016 and finishing at 9.00 am [that day].” 1

[3] Subsection 424(3) of the FW Act requires the Fair Work Commission (Commission), as far as practicable, to determine such an application within 5 days after it is made. Noting that there is only 4 days between when the application was made and when the PIA is to be engaged in, there was some urgency attached to hearing and determining the application today.

[4] During the proceedings the parties presented witness and other evidence in relation to the industrial action and its impact.

[5] At the hearing on 26 August 2016:

a) the Busways Group was given permission to be represented by Mr Luis Izzo. Mr Izzo called evidence from:

• Mr Mark Rizzardo, Group Operations Support Manager for the Busways Group Pty Ltd who filed a Statement (Exhibit A2) and a Supplementary Statement (Exhibit A3);

• Dr Elizabeth Seeley-Wait, Clinical Psychologist (Exhibit A4); and

• Mr David Collins the Director of Operations of the Busways Group.

b) the TWU was given permission to be represented by Mr Dean Lestal. Mr Lestal called Mr Nimrod Nyols, an Official with the TWU (Exhibit R2) to give evidence.

Industrial background
[6] On 30 June 2015, the Busways Group (Sydney) and the Transport Workers’ Union Fair Work Agreement 2012 (“2012 EA”) expired. However, the 2012 EA remains in force until replaced by new agreement by the Fair Work Commission.
[7] The 2012 EA covers two “Contract Regions”, as follows:

a) Western Sydney Metro Region (Contract Region 1), which comprises three depots in Penrith, Glendenning and Mulgrave; and
b) Central Coast Region (Contract Region 6), comprising two depots in Kincumber and Charmhaven.

[8] On 10 February 2016, the TWU (being a bargaining representative in relation to the agreement) wrote to Busways Group, to commence negotiations regarding a new enterprise agreement. The Busways Group did not agree to enter into these negotiations.
[9] On 9 March 2016, the TWU filed a majority support determination in the Commission, seeking orders to commence these negotiations.
[10] Since negotiations commenced in March 2016, there have been several issues in dispute between the parties, which to date have been unable to be resolved.
[11] On 12 July 2016, the TWU obtained an order from the Commission to conduct a protection action ballot of its members affected by the new enterprise agreement negotiations.
[12] The role shows that about 35% of permanent bus drivers of the Busways Group are members of the TWU. However, when casual bus drivers are included the number is higher.
[13] Between 21 July 2016 and 9 August 2016, the ballot was conducted by the Australian Electoral Commission, the result of it being that a majority of TWU members voted in support of protected action, including stop work meetings.
[14] To date, the TWU and its members has taken protected industrial action on the following occasions:

a) 17 August 2016: Banning the use of ticketing machines/fare collection devices on Busway services;
b) 19 August 2016: Stop work meeting between 10:00am and 2:00pm.

[15] Further protected action is proposed between today and 27 August 2016, including the same measures implemented on 17 August 2016.
[16] Between 10 am and 12 noon on 23 August 2016, the TWU served a notice pursuant to s.414 of the FW Act on the Busways Group, notifying them of the intention of their members to stop work between 5:00am and 9:00am on Monday, 29 August 2016. It is that action that is the subject of these proceedings.
The industrial action
[17] The threatened industrial action, the subject of the application, is a proposed indefinite stoppage of work between 5.00 am and 9.00 am on Monday, 29 August 2016 (the Proposed Stoppage).
Section 424 of the FW Act
[18] The application by the Busways Group is for an order to be made pursuant to s.424 of the FW Act suspending for 90 days the protected industrial action that the TWU and its members will take (namely in the form of the Proposed Stoppage).
[19] Section 424 provides that the Commission must make an order suspending or terminating protected industrial action if it is satisfied that the action threatens to endanger the life, the personal safety or health or the welfare of the population or part of the population or to cause significant damage to the economy.
[20] Whether an order should be made under s.424 will be a matter to be determined upon a consideration of all the circumstances and having regard to the evidence and submissions before the Commission.
[21] In National Tertiary Education Union v University of South Australia 2 a Full Bench of Fair Work Australia found that:

Within the scheme of the Act, the powers in relation to the suspension or termination of protected industrial action are intended to be used in exceptional circumstances and where significant harm is being caused by the action. This is clear from the Explanatory Memorandum to the Fair Work Bill 2008:

“The Bill recognises that employees have a right to take protected industrial action during bargaining. These measures recognise that, while protected industrial action is legitimate during bargaining for an enterprise agreement, there may be cases where the impact of that action on the parties or on third parties is so severe that it is in the public interest, or even potentially the interests of those engaging in the action, that the industrial action cease — at least temporarily.
It is not intended that these mechanisms be capable of being triggered where the industrial action is merely causing an inconvenience. Nor is it intended that these mechanisms be used generally to prevent legitimate protected industrial action in the course of bargaining.” [PN 1708-1709] 3

[22] I adopt the reasoning of the Full Bench. A termination of industrial action should not be granted merely because of some inconvenience the action may cause to the employer. Inconvenience may cause the employer to need to put in place alternative arrangements to ameliorate the effect of any action. The need to do so is no basis for terminating bargaining. Mere economic costs of the industrial action are not sufficient to grant an application to terminate industrial action. The only basis for termination arises when the action is a threat to the life, personal safety or health, or the welfare of the population or a part of it.
[23] In Ambulance Victoria v Liquor, Hospitality and Miscellaneous Union 4 Kaufman SDP, after considering a decision in F & Others v National Crime Commission5 determined that the approach to such an application should be ‘on the basis of probabilities rather than possibilities’ and also that he ‘must be satisfied that the protected action would threaten to endanger, not endanger.’ That is, in determining if the protected action would threaten to endanger life etc. it must be on the basis of the probability of the action doing so, not the mere possibility.
[24] I have also adopted that approach in this matter before me.
[25] It is therefore necessary to consider if the Proposed Stoppage, if taken, will, in probability, threaten to endanger the life, the personal safety or health, or welfare of a part of the population.
The evidence
[26] I have considered all the evidence in relation to the Proposed Stoppage. However, given the expedition with which this matter has been conducted, I do not in these reasons for decision intend to set out in detail all the evidence presented in the proceedings. In brief terms, the evidence was to the following effect.
[27] Mark Rizzardo gave evidence about:

a) his background and experience which includes managing the operational issues across 16 depots;
b) the extent of the operations of the Busways Group including its operations in Western Sydney and on the Central Coast. I note in particular that in Western Sydney 276 morning shifts would likely be affected by the Proposed Stoppage and that on the Central Coast 137 morning shifts would be affected;
c) daily patronage numbers including in particular the number of school student passengers, being 15,967 in Western Sydney and 5213 on the Central Coast;
d) the operation of dedicated School services, which are about 15% of daily bus services in each region in respect of the morning shift;
e) the experience of the Busways Group arising out of recent protected industrial action;
f) the minimal capacity of the Busways Group to cover any stoppage during peak periods and the fact that the Busways Group is not aware of how many employees or which employees will participate in the Proposed Stoppage;
g) the complexity of scheduling bus services that render quick changes problematic;
h) the difficulties of notifying passengers about disruptions to services and why, in his opinion notification at short notice is likely to be ineffective;
i) the likely safety issues arising from the proposed stoppage by reason of the demographics of passengers, namely schoolchildren and people with disabilities; and
j) the lack of alternative transport services available in the affected areas.

[28] Under questioning from me and cross-examination from Mr Lester:

a) it became apparent that up until the date of the hearing at least the Busways Group had done nothing to notify the public about the Proposed Stoppage on its website or through a media campaign including through the use of its Twitter account
b) Mr Rizzardo also made concessions about the limits of planning that has been done to address shift changes.

[29] Dr Elizabeth Seeley-Wait gave evidence about the likely behavioural responses for children if they are present at a bus stop under circumstances where no bus arrives to pick them up. Her evidence was heavily qualified based on the appropriate concession made by her that a child’s reaction would largely depend on a child’s age or developmental stage, his or her temperament, and whether the child had access to reliable assistance.
[30] Under cross-examination Dr Elizabeth Seeley-Wait conceded that none of her research or opinion was drawn from experiences where some school children or people with disabilities had been abandoned at a bus stop.
[31] Mr David Collins gave evidence about the steps that the Busways Group has taken to notify affected schools about the Proposed Stoppage and, the minimal attempts that have been made to notify customers more generally.
[32] Under questioning from me and cross-examination Mr Collins conceded that the Busways Group had done little to put in place mitigation strategies in the event that its present application, for an order to suspend the Proposed Stoppage, is unsuccessful. Noting the dire predictions made by Mr Rizzardo about the likely impact of the Proposed Stoppage, the failure on behalf of the Busways Group to put into place any strategies or otherwise plan for how it will address the same is bewildering.
For TWU
[33] For the TWU Mr Nyols largely gave evidence about the history of bargaining between the parties, media releases that had been issued by the Busways Group in the past and his view about alternative transport options.
Submissions
[34] Submissions were filed on behalf of the Busways Group (Exhibit A1) and the TWU (Exhibit R1). I have had regard to those submissions.
[35] In short the Busways Group submitted that the Proposed Stoppage would, if engaged in, endanger or threaten to endanger the life, personal safety, health and/or welfare of part of the population. The part of the population identified initially as “some school students and passengers with disabilities left stranded on 29 August 2016”, but in submissions confined to “some school children left stranded on 29 August 2016”.
[36] The TWU submitted that the Proposed Stoppage would not cause any endangerment nor is it threatening to do so. The TWU submitted that there “is no evidence to suggest that a 4 hour stop work meeting on 29 August 2016 meets [the] high threshold” required by s.424 of the FW Act. To the extent that the TWU often referred to the “high threshold”, I reject the use of that phrase. My duty is to apply the words of the FW Act. To adopt a synonym, paraphrase or reformulate the statutory language would likely cause me to fall into error. The language of s.424(1)(c) is clear on its ordinary reading.
Consideration
[37] The main issue for consideration in this matter concerns the probable impact of the Proposed Stoppage on “some school children left stranded on 29 August 2016”.
[38] Subsection 424(1) requires that Commission must make an order suspending or terminating the protected industrial action that is being engaged in, or is threatened, impending or probable if it is satisfied that it has threatened, is threatening or would threaten to endanger the personal safety or health, or the welfare, of part of the population.
[39] It is clear that there must be an appropriate evidential basis to found such a satisfaction. As the High Court said in Coal and Allied Operations Pty Ltd v AIRC 6 in considering somewhat similar provisions in the Workplace Relations FW Act 1996:

“... the nature of the threat as to which a decision-maker must be satisfied under s 170MW(3) of the FW Act involves a measure of subjectivity or value judgment... [A] decision under s 170MW(3)(b) that industrial action is ‘threatening... to cause significant damage to the Australian economy or an important part of it’... is not simply a matter of impression or value judgment... the decision-maker must have some basis for his or her satisfaction over and above generalised predictions as to the likely consequences of the industrial action in question”. 7

[40] I have given careful consideration to all the evidence and submissions presented in the proceedings.
[41] It is not contested and the Commission, as presently constituted, finds that the Proposed Stoppage is threatened.
[42] The question is whether the evidence supports a finding that if that Proposed Stoppage is engaged in it will endanger the personal safety or health, or the welfare of “some school children left stranded on 29 August 2016”.
[43] The primary evidence of the Busways Group sort to address the likely effect of the Proposed Stoppage on “some school children left stranded on 29 August 2016” if the Proposed Stoppage is not suspended.
[44] The consequences of any of the Proposed Stoppage will be intended. If it is allowed to engage in Proposed Stoppage, it will be undertaken for the purposes of imposing pressure on the Busways Group to yield to the industrial demands of the TWU and its members in the course of enterprise bargaining. In this respect the Proposed Stoppage would be in keeping with the scheme of the FW Act. Consequently the Commission should be reluctant to interfere with the capacity of one party to lawfully pursue its industrial demands.
[45] In the present matter if the Busways Group’s application is acceded to then what would otherwise be protected industrial action will lose its protection and immunity under law. That would strengthen the Busways Group’s position in the bargaining process and weaken the position of the TWU. Only when s.424(1)(c) of the FW Act is satisfied should the Commission recalibrate the bargaining position of the parties in this way. In the ordinary course of events it is preferable for the Commission to allow the parties directly involved to resolve their differences as between themselves, even if it involves a war of attrition.
[46] However, the basis for the Busways Group’s application was that the Proposed Stoppage will do more than what necessarily flows when industrial action is afforded legislative protection under the FW Act. The Busways Group says the requirements of s.424(1)(c) exist. In the present matter the Busways Group says the Proposed Stoppage will endanger the personal safety or health or the welfare of the population of or part of it, namely “some school children left stranded on 29 August 2016”. The Busways Group says the Commission should be satisfied that the Proposed Stoppage will affect those members of the population in need of bus services.
[47] In opposing the application the TWU submitted that there is no risk to personal safety or health or welfare. It says there is no evidence of the probability of the same, as opposed to the possibility of it.
[48] In this matter causation (of the likely endangerment) is not to be established by speculation and that there must be a significant logical path to reach the conclusion which the Busways Group invites the Commission to draw.
[49] The TWU rely upon the decision in Transit Australia Pty Ltd v Transport Workers’ Union of Australia.  8I have had regard to that decision and accept the conclusion reached their that,

“public transport is an important service and that the public depends upon it, however, I’m of the view that public transport is not an essential service as with the case with the service in Ambulance Victoria v LHMWU” 9

[50] However, that decision can be distinguished because the evidence there was that school children in particular had an alternative bus service that is dedicated to undertaking school runs. That is not the case in the present matter. I accept the evidence that there are limited alternatives to bus services for schoolchildren in the affected areas. But that is not to say there are no alternatives. The Proposed Stoppage will likely cause significant inconvenience for students and their parents. I regret that, but the inconvenience, no matter how significant is not the statutory test.
[51] I have also been referred to the decision of the Full Bench in National Tertiary Education Industry Union v Monash University. 10 I have had regard to that decision and accept the correctness of it. However, I distinguish it from the facts before me because in that matter the evidence demonstrated greater known variables about the students endangered or likely to be endangered by the indefinite industrial action. The industrial action in the present matter is not indefinite and the evidence before me is not of the substance or quality that was before the Full Bench in the Monash University matter.
[52] The evidence before me constitutes little more than a generalised prediction, no doubt genuinely made, about the likely effect of the Proposed Stoppage. It is a prediction about a possibility. It is not a statement or evidence of a probability
[53] The TWU also say that the Commission is entitled to have regard to what measures the Busways Group could have put in place by way of mitigation and that the Busways Group has not done, but can still do to mitigate against or work around the possible adverse impact of the Proposed Stoppage. The Commission accepts this is a relevant consideration.
[54] In particular I note that the Busways Group:

a) has not:

i. put a notice on its website about the Proposed Stoppage, either on its home page or on the pages relevant to the Central Coast and Western Sydney (although the evidence of Mr Collins is that they have webpages sitting in the background waiting to be posted pending the outcome of this hearing);

ii. utilised its Twitter account to provide information about the Proposed Stoppage;

iii. provided notes to school students, provided notes directly to school students travelling on their buses yesterday morning and this morning (although they propose to do so tomorrow morning pending the outcome of this hearing); and

iv. taken the opportunity to make public address statements on buses to let customers know about the Proposed Stoppage. In this sense the Busways Group lost an opportunity to tell school students about the Proposed Stoppage on Tuesday afternoon, Wednesday morning, Wednesday afternoon, this morning and this afternoon.

b) has:

i. placed notices on some buses behind the driver’s seat;

ii. notified affected Schools by sending out a group email message after 3 PM yesterday (thereby, essentially losing 2 school days in which they could communicate information about the Proposed Stoppage).

[55] In circumstances where, once it was given the notice on the morning of 23 August 2016, the Busways Group knew there was a legislative presumption in favour of the Proposed Stoppage going ahead, the non-communication of anything until after 3 pm on 24 August 2016, and inconsistent messaging since then, demonstrates an incoherent communication strategy that to the extent it leads to confusion in the community the Busways Group must bear full responsibility.
[56] But all is not lost. There remains tomorrow morning and tomorrow afternoon for opportunities to make public address announcements on buses to school students about the Proposed Stoppage. There are further opportunities for the Busways Group to engage with affected schools and seek to have them communicate with the parent group about the Proposed Stoppage.
[57] I also note that the Busways Group has not (on the evidence of either Mr Rizzardo or Mr Collins) made any attempts to change rosters so that known members of the TWU who are on the roster to work on the Monday morning are moved to a roster in the afternoon. In fact, the evidence of Mr Collins is that the Busways Group have taken no steps from a rostering or operational perspective aimed at mitigating the likely adverse effects of the Proposed Stoppage.
[58] In effect, it would seem that the Busways Group has put all its eggs in the one basket, namely the obtaining of an order to suspend the Proposed Stoppage. It has been sitting back awaiting the outcome of these proceedings before taking any real action to mitigate the risks. To the extent that it has, through its own in action increased the risks, again, it must bear full responsibility for that fact. It should not be allowed to profit, in an industrial sense, from its inaction.
[59] In the remaining days, Friday, Saturday and Sunday there is much work that the Busways Group can do to mitigate the adverse implications of the Proposed Stoppage by undertaking a forensic analysis of the logistics associated with shift allocations and the like. No doubt this task will be made more difficult because it is being commenced so late and was not commenced after the Busways Group received notification of the Proposed Stoppage on Tuesday morning. Finally, as Mr Rizzardo suggested it is open to the applicant’s to cancel all services completely and notify the public accordingly. His evidence was that it is sometimes actually safer to take this course.
[60] Consequently, having considered all that has been put in relation to the matter, the Commission as presently constituted, is not satisfied that the Proposed Stoppage will endanger the life, the personal safety or health, of the welfare, of the population or of part of it.
[61]The application to suspend the Proposed Stoppage is dismissed. An Order to that effect will be issued with this decision.

COMMISSIONER

Appearances:

Mr L Izzo for the Applicant.

Mr D Lestal for the Respondent.

Hearing details:

2016.

Melbourne and Sydney

25 August.

<Price code C, PR584682>

 1   See TWU Notice of bargaining representative of intention to take protected action in the form of employee claim action, served on the applicants on 23 August 2016.

 2   [2010] FWAFB 1014 (14 April 2010).

 3   [2010] FWAFB 1014, [8].

 4   [2009] FWA 44.

 5 [1998] FCA 393.

 6 (2000) 203 CLR 194

 7   Ibid at 208 per Gleeson CJ, Gaudron and Hayne JJ.

 8   [2011] FWA 3410.

 9   [2011] FWA 3410, [36].

 10   [2013] FWCFB 5982.

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