Busways Blacktown Pty Ltd t/as Busways Group v Transport Workers' Union of Australia

[2014] FWC 2993

[2014] FWC 2993

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 418 - Application for an order that industrial action by employees or employers stop etc.

Busways Blacktown Pty Ltd t/as Busways Group
v
Transport Workers' Union of Australia
(C2014/4234)

Road transport industry
DEPUTY PRESIDENT SAMS	SYDNEY, 7 MAY 2014

Application for an order that industrial action by employees stop etc - order issued.

[1] This decision will confirm the ex tempore decision given and orders made in transcript on 30 April 2014.

[2] On the morning of 30 April 2014, an application was filed by Busways Blacktown Pty Ltd (the ‘applicant’), pursuant to the provisions of s 418 of the Fair Work Act 2009 (the ‘Act’). The application sought orders from the Fair Work Commission (the ‘Commission’) that industrial action stop, not occur or not be organised, against all bus drivers employed by the applicant at its Penrith Bus Depot. The grounds upon which the application was made were said to be:

‘1. On 30 April 2014 at approximately 6:00am, officers of the Applicant noticed that a document had been placed on the Transport Workers Union (TWU) locked noticeboard that directs all drivers at the Applicant’s Penrith bus depot at 47-53 Mullins Rd, Penrith NSW 2750 (Penrith Depot) to cease work from 9.30am and attend a TWU organised meeting at 10.00am at the depot.

2. A copy of the notice is annexed and marked “A”.

3. The locked noticeboard is provided to the TWU by the Applicant for the purposes of enabling the TWU to communicate with the Applicant’s workforce at the Penrith Depot.

4. Based on the content of the notice, it appears that industrial action is not only threatened, impending and probable, but is imminent.’

5. The industrial action has not been authorised by any protected action ballot and the employees who have been directed to take the industrial action are currently covered by an operative enterprise agreement, the Busways Group (Sydney) and the Transport Workers Union of Australia Fair Work Agreement 2012.

6. In such circumstances, the industrial action is threatened, impending and probable is unprotected industrial action.’

A copy of the notice referred to in point 2 above is annexed to this decision as Annexure A.

[3] The application was accompanied by an application for substituted service to be served on the employees who will be bound by the orders by putting a copy of the application on the noticeboard in the lunch room at the Penrith Depot and served on the Transport Workers’ Union of Australia (the ‘Union’) by email. That application was granted.

[4] At the hearing of the application, Mr L Izzo, who appeared with permission with Mr K Scott, Solicitor for the applicant, relied on a statement of Mr David Collins, Group Operations Manager for Busways. Mr T Warnes appeared with Mr N Nyols for the Union. Mr Nyols also gave oral evidence at the proceedings.

[5] Section 418 of the Act is expressed in the following terms:

‘418 FWC must order that industrial action by employees or employers stop etc.

(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.

(2) The FWC may make the order:

(a) on its own initiative; or

(b) on application by either of the following:

(i) a person who is affected (whether directly or indirectly), or who is likely to be affected (whether directly or indirectly), by the industrial action;

(ii) an organisation of which a person referred to in subparagraph (i) is a member.

(3) In making the order, the FWC does not have to specify the particular industrial action.

(4) If the FWC is required to make an order under subsection (1) in relation to industrial action and a protected action ballot authorised the industrial action:

(a) some or all of which has not been taken before the beginning of the stop period specified in the order; or

(b) which has not ended before the beginning of that stop period; or

(c) beyond that stop period;

the FWC may state in the order whether or not the industrial action may be engaged in after the end of that stop period without another protected action ballot.’

[6] This matter concerns a stoppage of work in the form of a stop work meeting, organised by the Union delegates and OH&S Committee members. Organisation of the stoppage was by way of an unequivocal notice placed on the noticeboard at the Depot sometime around 6:00am this morning. The Union does not contest the contents of the notice or its intent. Indeed, the fact there is a serious dispute, which appears to lie behind the industrial action, is demonstrated by the Union filing a s 739 dispute notification less than an hour before the proceeding commenced.

[7] It was Mr Collins’ evidence that between 9:30am and 1:30pm, approximately 17 drivers ceased driving buses as rostered and returned to the Depot for the organised meeting. He believed some of those 17 drivers did not return to work, notwithstanding they were rostered for the remainder of the day.

[8] I am satisfied that the Union Official responsible for the Depot, Mr Nyols, was unaware of the notice and of the meeting. I am further satisfied that Mr Nyols had effectively prevented earlier industrial action around 20 March 2014, when the applicant became aware of possible industrial action at that time. There is little doubt that the industrial action, then and now, has been prompted by the giving of notice by the applicant of changes to the roster which the drivers are dissatisfied with.

[9] While Mr Warnes raised the drivers’ dissatisfaction in the context of occupational health and safety issues, such as fatigue and threats from bus passengers, he did not press the proposition that the stoppage was not industrial action as defined by s 19(2)(c)(i) of the Act. Nevertheless, he opposed the orders sought by the applicant on the basis that no industrial action is taking place and no further action is organised or contemplated.

[10] The Commission is satisfied, pursuant to s 418(1) of the Act that, at least in respect to those drivers who have not turned up for their roster this afternoon, that unprotected action is happening. Even if I be wrong about this finding, I am satisfied from the evidence of Mr Collins and my own knowledge of the history of the matter, that the issue at the centre of the dispute between the parties has deteriorated to a point where industrial action remains probable; See: Harbour City Ferries Pty Ltd v Maritime Union of Australia, The and another [2014] FWC 1880 and Transpacific Industries Pty Ltd v Transport Workers’ Union of Australia[2013] FWC 6175.

[11] Having made these findings, under s 418(1) of the Act, the Commission has no alternative - that is, I must make an order that the industrial action not occur and not be organised. I made the orders as sought by the applicant in Annexure B to its application, save for the order being for two months. The orders took effect from 6:00pm, 30 April 2014.

DEPUTY PRESIDENT

Appearances:

Mr L Izzo, Solicitor and Mr K Scott, Solicitor for the applicant.

Mr T Warnes for the Transport Workers’ Union of Australia.

Hearing details:

2014

Sydney:

30 April.

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