Commonwealth of Australia represented by the Department of Home Affairs Trading as Department of Home Affairs v United Workers' Union
[2025] FWC 603
•27 FEBRUARY 2025
| [2025] FWC 603 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.424 - Application to suspend or terminate protected industrial action - endangering life etc.
Commonwealth of Australia represented by the Department of Home Affairs Trading AS Department of Home Affairs
v
United Workers' Union
(B2025/286)
Immigration Detention Centres
| DEPUTY PRESIDENT SLEVIN | SYDNEY, 27 FEBRUARY 2025 |
Application by Commonwealth for orders to suspend or terminate protected industrial action of employees of Serco Pty Ltd who work in immigration detention centres. Stoppages of 2 and 4 hours have occurred at detention centres. Finding that further stoppages are probable. Question of whether stoppages will threaten welfare of persons detained in the detention centres. Finding – evidence not sufficient to establish industrial action would threaten the welfare of detainees. Application dismissed.
The Commonwealth as represented by the Department of Home Affairs (DOHA) has, pursuant to s424 of the Fair Work Act 2009, applied for an order for suspension or termination of protected industrial action that is being engaged in, or is threatened, impending or probable at immigration detention centres across Australia. The protected industrial action is occurring in a bargaining campaign in which the United Workers’ Union (UWU) is seeking to reach an enterprise agreement with Serco Australia Pty Ltd (Serco) which manages the centres and is the employer. DOHA is not involved directly in the bargaining.
An application for an order under s. 424(1) may be made by a person described in s. 424 (2)(b). DOHA submits that it has standing to bring the application as it is responsible for the management of good order, safety, and security, including the health and welfare of detainees within immigration detention centres. It fulfils those obligations through a services contract with Serco. Consequently, it submits, it is directly affected by the industrial action consistent with regulation 3.10 of the Fair Work Regulations 2009 which is a regulation made for the purpose of s. 424(2)(b)(iii). The UWU did not submit otherwise. I am satisfied that DOHA has standing to bring the application.
DOHA asks for orders that protected industrial action being engaged in, and threatened, impending or probable be terminated or alternatively suspended for not less than three months. The application was made on the ground that industrial action threatens to endanger the life, the personal safety and health, and welfare of detainees held at the immigration detention centres, the staff at those work sites who are not participating in the industrial action, and to members of the public associated with the facilities.
The employees who have engaged in the industrial action are members of the UWU. The UWU opposes the application.
Serco did not appear in the proceedings and made no submission in support of, or opposing, the making of the orders.
DOHA sought under s. 596 of the Act to be legally represented. There was no opposition to permission being granted. I was satisfied that the matter was of sufficient complexity that I would be assisted by the applicant being legally represented and granted permission.
At the hearing DOHA relied upon two witness statements of Sharan Brown Superintendent of Yongah Hill Immigration Detention Centre and Christmas Island Immigration Detention Centre. Ms Brown was cross examined. Her evidence covered events in all of the detention centres. Her knowledge of recent events at other centres was gained through reports from others. Ms Brown also provided copies of correspondence and other documents.
DOHA sought confidentiality Orders under ss 593 and 594 of the Fair Work Act 2009. They were not opposed, were made, and are published separately. These reasons are in places expressed with less precision than they might otherwise to accommodate the confidentiality of much of the material provided. DOHA requested a draft of my decision prior to publication and requested that redactions be made in the interest of ensuring operationally sensitive information not be disclosed publicly. The matters of concern identified related to details of staff and detainee daily schedules, staffing levels, risk plans, incident details and the scope of ABF’s role in the detention facilities. I have reviewed the requested redactions, considered the DOHA’s request, adopted most, but not all, of them and used psuedonyms where operational personnel have given evidence. The redactions have been incorporated in this the published decision.
The UWU relied upon witness statements of; AB, Detention Services Officer at Villawood Immigration Detention Centre, qualified Health and Safety Representative, qualified First Responder Negotiator, and UWU delegate, DC, a Detention Services Officer at Melbourne Immigration Detention Centre and UWU delegate, EF, Detention Services Officer at Melbourne Immigration Detention Centre and elected Health and Safety Representative, and Ian Madgwick, who is employed by the UWU as a coordinator who has responsibility for bargaining with Serco. Mr Madgwick also provided documents associated with the bargaining and correspondence concerning the protected industrial action, and a copy of the contract for services between Serco and the Commonwealth. The UWU witnesses were not cross examined.
DOHA sought confidentiality Orders under ss 593 and 594 of the Fair Work Act 2009. They were not opposed, were made, and are published separately. DOHA requested a draft of my decision prior to publication and requested that redactions be made in the interest of ensuring operationally sensitive information not be disclosed publicly. The matters of concern identified related to details of staff and detainee daily schedules, staffing levels, risk plans, incident details and the scope of ABF’s role in the detention facilities. I have reviewed the requested redactions, considered the DOHA’s request, and adopted most but not all of them. The redactions have been incorporated in this the published decision.
Background
The background to the application is largely uncontested. Much of it is recorded in correspondence.
On 11 December 2014 DOHA entered into a services contract with Serco Australia Pty Ltd to manage all of Australia’s immigration detention centres and other places of detention. In November 2024, DOHA informed Serco that it was unsuccessful in tendering for the renewal of the services contract and entered into a plan for the transition of services to a new provider. The plan includes a staggered handover of mainland detention centres and other places of detention between 6 March and 10 May 2025.
On 1 November 2024, Serco issued a notice of representational rights to its employees and shortly after commenced bargaining with the UWU for a proposed enterprise agreement to replace the Serco Immigration Services Enterprise Agreement 2023 which has passed its nominal expiry date. On 20 December 2024, after learning that the services contract with DOHA would not be renewed, Serco advised the UWU that negotiations for the proposed enterprise agreement would not continue.
In early January 2025, the UWU raised concerns with Serco that it was not meeting its good faith bargaining obligations. It also applied to the Commission for a protected action ballot order (PABO) under s. 437 of the Act and on 14 January 2025 the PABO was made. The order authorised a ballot to asking the following questions:
1. An unlimited number of stoppages of work of 2 hours duration, for the purpose of conducting Union meeting in the workplace car park?
2. An unlimited number of stoppages of work of 4 hours duration?
3. An unlimited number of stoppages of work of 8 hours duration?
4. An unlimited number of stoppages of work of 24 hours duration?
5. An unlimited number of bans on all paperwork of indefinite duration?
On 29 January 2025, the protected action ballot was declared, with all proposed forms of protected industrial action approved and the UWU gave notice to Serco of four-hour stoppages at all mainland detention centres on 4 February 2025. DOHA wrote to the UWU raising concerns that the action would threaten to endanger the life, personal safety or health, or welfare, of part of the population and foreshadowed making application under s. 424 of the Act for orders that it be suspended or terminated. The UWU responded that as Serco had agreed to meet with the UWU the action had been cancelled. The UWU invited DOHA to attend the negotiations. An invitation that appears to have been declined.
On 10 February 2025, the UWU gave notice to Serco of stoppages of work at the Melbourne immigration detention centre to occur on 14 February 2025. The stoppages were described as follows:
1. A stoppage of work of 2 hours’ duration, for the purpose of conducting a Union meeting in the workplace car park. This action will commence at 5:30AM AEDT on 14 February 2025, ceasing at 7:30AM AEDT on 14 February 2025.
2. A stoppage of work of 2 hours’ duration, for the purpose of conducting a Union meeting in the workplace car park. This action will commence at 5:30PM AEDT 14 February 2025, ceasing at 7:30PM AEDT on 14 February 2025
A notice was also issued notifying of bans on paperwork at all centres.
The union also wrote to Serco to offer assistance in making mitigation arrangements around minimum staffing levels to ensure the safety and welfare of detainees and staff. The offer included releasing members of the union from stoppages to provide assistance if other measures such as rostering overtime, accessing casual employees, and having management employees perform some work were not adequate. The letter asked Serco to provide rosters to assist the union in planning for contingencies. Later correspondence suggests the offer of providing rosters was not taken up by Serco.
In separate correspondence on 10 February 2025 the UWU withdrew the ban on paperwork.
On 11 February 2025, the UWU applied for a further PABO, with a ballot period ending on 24 February 2025.
A letter from the UWU dated 11 February 2025 provided Serco with assurances to not block emergency services and to not block any employee who wished to attend work from accessing the Melbourne immigration detention centre during the protected industrial action on 14 February 2025.
Serco responded to the letter on 12 February 2025 acknowledging the assurances as measures to health and safety of staff and detainees and requesting that in the event of an unforeseen incident a contingent number of staff be available and confirming that a communication protocol was in place to allow Serco to approach employees participating in the stoppage to provide support as required.
The UWU responded the same day giving an additional commitment to encourage employees taking part in the stoppage to assist as required to mitigate health and safety risks, confirming that it was willing to provide contingent staff and requesting a copy of roster to assist in putting that arrangement in place, and confirming that communication protocols were in place and describing those protocols.
In an email dated 13 February 2025 the UWU confirmed that it would accommodate Serco’s request for contingent staff to be available the following morning including ten contingent staff and six further staff on standby. The standby staff would be in the carpark to the centre, just outside the gate at a planned union meeting. In an email later that day the UW referred to a meeting that afternoon and provided similar details of contingent staff available for the evening stoppage.
An email from the UWU to Serco at 5.25 pm on 14 February 2025 provided a list of names who would work on contingent staffing arrangements. The email referred to an incident that was ongoing at the Melbourne immigration detention centre and confirmed that employees who were currently working should remain as needed to assist in dealing with the incident.
On 14 February 2025, the stoppages at the Melbourne immigration detention centre went ahead. Ms Brown’s statement provided the following account, based on her review of incident reports from the Melbourne immigration detention centre for the period 1600 to 2000 hours on 14 February 2025, of three incidents:
57.1. At approx. xxxxxx a DSO initiated xxxxxxxxxxxxxxxxxxxxxxxxx due to a detainee (A) being in a heightened state of agitation resulting from a change in A’s visit schedule from xxxxx to xxxxx due to the stoppage. Upon being informed of the schedule change, A displayed aggressive, abusive behaviour towards staff by screaming and using abusive/offensive language. A took a computer screen from their unit and deliberately smashed it onto the footpath, causing damage. After several attempts at negotiation and clarification of the situation, A and their visitor were informed that A’s visits had been rescheduled for the following day. A began to calm down and settle.
57.2. At approximately xxxx hours a detainee service officer called XXXXX after another detainee (B) broke a tree branch and used it to strike plant pots in a courtyard. At approximately XXX0 hours B self-harmed by using broken wood on an existing wound on their left arm. The wooden stick was removed from B.
57.3. At approximately XX hours an officer initiated XXXXX XXXXX X sighting another detainee (C) on the roof. First responding officers onsite along with the emergency response team attempted to negotiate, however C declined to comply and threatened self-harm. The MIDC Superintendent attended the scene and became involved in negotiating with C, who eventually climbed down from the roof at 1XXX hours.
I note that the third incident was an hour before the second stoppage on that day commenced. It is the incident referred to in the UWU email of XXXX Mr BC is a DSO at the Melbourne centre. He was present at the centre at around 4.30 pm when the third incident referred to by Ms Brown took place. At the time it commenced he was in a meeting with the UWU and Serco about the mitigation measures in place for the stoppages. He left the meeting to attend to the incident. He and other DSOs remained at work after the stoppage commenced to assist with the incident. They also remained working to complete all necessary reports before taking part in the industrial action.
Ms Brown said that on 14 February 2025, a large number of staff who were not participating in the protected action took unplanned leave. This level of absenteeism coinciding with the stoppages was said to impair the ability of Serco to deploy mitigation measures to manage the action and ensure health and safety.
Ms Brown also said that an anonymous complaint was raised with WorkSafe Victoria which she understands relates to concerns regarding contingency staff not having relevant experience/training and the timing of the stoppage being during the dinner period impacting detainees receiving their meals and the risk of that triggering retaliation by detainees against staff.
On 17 February 2025, the UWU gave notice to Serco of stoppages of work on 21 February 2025. The action was described in the notice as follows:
Victoria
1. At worksites located in Victoria, a stoppage of work of 2 hours’ duration, for the purpose of conducting a Union meeting in the workplace car park, commencing 5:30AM AEDT, 21 February 2025.
2. At worksites located in Victoria, a stoppage of work of 2 hours’ duration, for the purpose of conducting a Union meeting in the workplace car park, commencing 5:30PM AEDT, 21 February 2025.
New South Wales
3. At worksites located in New South Wales, a stoppage of work of 2 hours’ duration, for the purpose of conducting a Union meeting in the workplace car park, commencing 5:00AM AEDT, 21 February 2025.
4. At worksites located in New South Wales, a stoppage of work of 2 hours’ duration, for the purpose of conducting a Union meeting in the workplace car park, commencing 5:00PM AEDT, 21 February 2025.
South Australia
5. At worksites located in South Australia, a stoppage of work of 2 hours’ duration, for the purpose of conducting a Union meeting in the workplace car park, commencing 6:00AM ACDT, 21 February 2025.
6. At worksites located in South Australia, a stoppage of work of 2 hours’ duration, for the purpose of conducting a Union meeting in the workplace car park, commencing 6:00PM ACDT, 21 February 2025.
Queensland
7. At worksites located in Queensland, a stoppage of work of 2 hours’ duration, for the purpose of conducting a Union meeting in the workplace car park, commencing 5:00AM AEST, 21 February 2025.
8. At worksites located in Queensland, a stoppage of work of 2 hours’ duration, for the purpose of conducting a Union meeting in the workplace car park, commencing 5:00PM AEST, 21 February 2025.
Northern Territory
9. At worksites located in the Northern Territory, a stoppage of work of 2 hours’ duration, for the purpose of conducting a Union meeting in the workplace car park, commencing 5:00AM ACST, 21 February 2025.
10. At worksites located in the Northern Territory, a stoppage of work of 2 hours’ duration, for the purpose of conducting a Union meeting in the workplace car park, commencing 5:00PM ACST, 21 February 2025.
Western Australia
11. At worksites located in Western Australia, a stoppage of work of 2 hours’ duration, for the purpose of conducting a Union meeting in the workplace car park, commencing 5:00AM AWST, 21 February 2025.
12. At worksites located in Western Australia, a stoppage of work of 2 hours’ duration, for the purpose of conducting a Union meeting in the workplace car park. commencing 5:00PM AWST, 21 February 2025.
The UWU sent correspondence on the same day inviting Serco to discuss mitigation measures. The letter included the following:
UWU provides the following commitments/assurances:
a. UWU will not block any emergency services from accessing the immigration centres and associated Commonwealth Land.
b. UWU will not block any employee who wishes to attend work at the immigration centres and associated Commonwealth Land.
c. UWU will allow and encourage employees taking part in the stoppages to assist as required to mitigate any Health, Safety or Security Risks.
d. If Serco requires support from employees participating in the action, Serco contact UWU via Surya Nagulapalli or Ian Madgwick.
The UWU also invited Serco to discuss contingent staffing needs and suggested Serco could use non-union employees to mitigate the effects of the stoppage. The UWU again offered to review rosters to help identify the number of union members who may be needed to meet any contingencies.
The UWU also wrote to DOHA on 17 February 2025 providing it with copies of the correspondence to Serco and expressed the view that while it did not believe the action would endanger the life, personal safety or welfare of part of the population especially given the mitigation commitments offered, and invited DOHA to express any concerns regarding the action.
On 18 February 2025, the UWU gave notice to Serco of stoppages of work on 24 February 2025. The action was described in the notice as follows:
Victoria
1. At worksites located in Victoria, a stoppage of work of 4 hours duration, commencing
4:30AM AEDT, 24 February 2025.2. At worksites located in Victoria, a stoppage of work of 4 hours duration, commencing 4:30PM AEDT, 24 February 2025.
New South Wales
3. At worksites located in New South Wales, a stoppage of work of 4 hours duration, commencing 4:00AM AEDT, 24 February 2025.
4. At worksites located in New South Wales, a stoppage of work of 4 hours duration, commencing 4:00PM AEDT, 24 February 2025.
South Australia
5. At worksites located in South Australia, a stoppage of work of 4 hours duration, commencing 5:00AM ACDT, 24 February 2025.
6 At worksites located in South Australia, a stoppage of work of 4 hours duration, commencing 5:00PM ACDT, 24 February 2025.Queensland
7. At worksites located in Queensland, a stoppage of work of 4 hours duration, commencing 4:00AM AEST, 24 February 2025.
8. At worksites located in Queensland, a stoppage of work of 4 hours duration, commencing 4:00PM AEST, 24 February 2025.
Northern Territory
9. At worksites located in the Northern Territory, a stoppage of work of 4 hours duration, commencing 4:00AM ACST, 24 February 2025.
10. At worksites located in the Northern Territory, a stoppage of work of 4 hours duration, commencing 4:00PM ACST, 24 February 2025.Western Australia
11. At worksites located in Western Australia, a stoppage of work of 4 hours duration, commencing 4:00AM AWST, 24 February 2025.
12. At worksites located in Western Australia, a stoppage of work of 4 hours duration. commencing 4:00PM AWST, 24 February 2025.
The UWU also sent a letter confirming that the commitments it offered in relation to the 21 February 2025 proposed action applied extended to the 24 February 2025 proposed action. Copies of the 18 February 2025 correspondence were also sent to DOHA.
Serco responded to the letter on 19 February 2025 acknowledging the cooperation of the UWU and its members in minimising the impact but expressing concern that notwithstanding those arrangements there was still a potential safety risk. To address its concern Serco annexed a list of contingency staff numbers required at each centre. Serco’s concern was said to arise due to the number of staff absent during the protected action on 14 February 2025.
Ms Brown provided with her first statement two risk assessments conducted by DOHA and Serco, respectively. The assessments addressed the risks that may arise from the industrial action. They were prepared on 19 February 2025 following the 14 February 2025 action. The DOHA risk assessment addressed both 2 hour and 4 hour stoppages. It identified as high risk at all centres the following matters: ‘no or reduced security staff and escorts’, ‘the impact to transport and escort staffing’, and ‘reduction of structured programs and activities’. At the XXXXX XXXXX XXXXX XXXXX XXX‘ reduction in catering services’ was also identified as high risk. At the XXXXX X centres ‘limited incident response capability’ was identified as high risk as well. For each area where risk was identified mitigation strategies were identified. These included, for example, notifying local police forces, requesting support staff from private security staff in non-detainee facing roles, and using management and other non-EBA staff to assist.
The Serco risk assessment was more general in nature and did not deal with the risks on a centre by centre basis. It identified ‘high level risks of adverse behaviour’, ‘self-harm’, ‘negative impact on operations’, ‘criminal behaviours’, ‘protest activity’, and ‘escape’. It also identified ‘extreme risk of violent behaviour’. The report suggests there is an ongoing risk of these behaviours in detention centres and that these risks are heightened when there is a reduced staffing profile. Serco noted in its report that:
All Centres have developed Business Continuity Plans (BCPs) considering site specific operations and staffing assumptions to best manage the immediate business impacts and operational risks, with a focussed response also being coordinated by the National Operations Team.
On 20 February 2025 DOHA responded to the UWU’s correspondence of 17 and 18 February 2025 requesting that the protected industrial action proposed for 21 and 24 February 2025 be withdrawn. The letter referred to 7 incidents of adverse behaviour at Melbourne immigration detention centre during the stoppage on 14 February 2025, including 4 major incidents, staff reporting feeling unsafe, and absenteeism being high with XX staff at Melbourne IDC and XX at Villawood IDC taking unplanned leave. The letter stated DOHA’s belief that the protected action threatened the safety of detainees and staff due to reduced security and response capabilities. It said the proposed mitigation measures were insufficient to address the identified risks. The letter stated that DOHA was considering making application under s. 424 of the Act for orders to suspend or terminate the action.
The UWU and Serco met in the afternoon of 20 February 2025. Following the meeting the UWU wrote to Serco confirming that contingent staff arrangements would be made at all centres the following day and that emergency response staff would be in attendance at union meetings near the centres and would be contactable by radio and able to respond to emergency calls. The UWU’s proposed numbers of contingent staff for each centre was provided in the email.
On 21 February 2025 Serco responded to the UWU that it continued to be concerned about the impact of the industrial action, acknowledged the cooperation of the union and its members, and proposed contingency staff numbers that were greater than the numbers suggested by the UWU in its 20 February 2025 email. Serco asked if the UWU numbers for the 21 February 2025 stoppages were also the numbers proposed for the 24 February 2025 stoppages.
The 21 February 2025 stoppages went ahead. Ms Brown received reports regarding incidents which occurred during the stoppages. She described six incidents occurring at the Villawood detention centre during the morning stoppage as follows:
…There were 3 incidents during this stoppage at VIDC:
64.1. at XX hrs, there was a fire alarm activated in the XXXXX XXXXX XX requiring attendance by Serco officers
64.2. at 0632 hrs, a detainee was identified on the roof of the XXXXX XXXXX . A second detainee was assisting the first detainee to get to the roof with a rope made from bed sheets that was used to climb up
64.3. at 0657 there was a fire alarm activated in the XXXXX XXXX.
Ms Brown described three incidents at Villawood during the afternoon stoppage as follows:
67. There were 3 incidents reported at VIDC:
67.1. at XXX hrs, an evacuation was required due to a fire alarm activation in the XXXXXXXX . NSW Fire and Rescue arrived onsite at XXX hrs
67.2. at XX hrs, a DSO reported that a detainee was being threatening, and flooding and damaging their room including throwing food. To address this, staff monitored the behaviour on CCTV, removed the detainee from their compound and relocated them.
67.3. at XXX hrs, an ambulance was called to assist a detainee who had fallen. The detainee declined to be escorted offsite.
AB works at Villawood as a DSO. She gave evidence that there are XXXX reportable incidents at the centre per day. They range from fights, smoke detector activation, the passing of drugs, self-harm, and medical emergencies. She was working on day shift on 21 February 2025. She described the incidents involving a detainee on the roof and two fire alarms as about average. She stated that the activation of fire alarms by detainees as a form of protest and that it is not uncommon at Villawood.
On 22 February 2025, the UWU responded to Serco’s request for confirmation that the same contingency arrangements would be in place for the 24 February 2025 stoppages by confirming they would be.
On 23 February 2025 DOHA filed the current application to suspend or terminate the proposed protected industrial action. The application was heard on 24 February 2024.
Ms Brown’s second statement addressed the morning stoppages on 24 February 2025. She described some compounds within the Villawood centre as being locked down due to no staff being available. She also described one incident, which occurred at Villawood, xxxxxxxxx xxxxx meaning an evacuation which required investigation by staff. No details were provided of the incident.
At the conclusion of the hearing, I issued a recommendation that the employees confine the afternoon stoppages to 2 hours rather than 4.00 and that the UWU recommend the employees return to work after 2 hours. The union was directed to provide a report as to whether the recommendation was accepted. The UWU reported that the UWU believed that members who were taking, or intending to take protected industrial action accepted the recommendation and returned to work at all facilities except for Yongha Hill detention centre and returned to work after 2 hours. DOHA confirmed that protected industrial action ceased at around the 2 hour mark in all centres except Yongha Hill. DOHA also informed me that there was a medical emergency being a detainee with chest pain who required attendance by staff during the stoppage at the Melbourne detention centre. Compounds at Villawood were locked down during the industrial action, due to a shortage of staff and there were two incidents, being smoke in a bin and a false fire alarm which required attendance by staff. In Darwin and Yongah Hill the stoppages ran for the full 4 hours. There was no indication of any incidents being reported.
Ms Brown described the use of regular lockdowns lasting an hour and occurring four times a day. They occur for welfare checks and making head counts. She said extended lockdowns of several hours are not a usual occurrence. Lockdowns are not used to simply address unplanned absences of employees. Where there are absences, Serco draws on casual staff to fill gaps in the roster and maintain normal operations. Ms Brown stated that the casual pool was reduced during the protected industrial action because many casual staff are union members and others did not want to work while industrial action was occurring.
The witnesses also gave their opinions about the impact, or lack of impact of the industrial action on the functioning of the detention centres. Ms Brown insisting that the action had a significant impact and that reports received from the centres indicated that the UWU did not provide contingency staff. The employees’ evidence was that the impact of the action was minimal and that the number and nature of incidents was not out of the usual.
Section 424
Section 424(1) provides:
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.
A Full Bench of the Commission in CEPU v Transgrid [2024] FWCFB 333 (Transgrid) described s. 424(1)(c) as calling for an exercise of discretion in the broad sense in that the threat as to which the Commission must be satisfied for the purposes of s 424(1)(c) involves a degree of subjectivity or value judgment[1]. The Full Bench went on to observe that s. 424(1) requires the Commission to initially identify whether particular protected industrial action is being engaged in or is threatened, impending or probable. If so, the Commission must then determine if it is satisfied that the particular protected industrial action has threatened, is threatening or would threaten to have consequences of the type set out in s 424(1)(c) or (d)[2].
If the industrial action meets the description and has the effect described in 424(1) the Commission must make an order to either suspend or terminate the action. A Full Bench in Victorian Hospitals' Industrial Association v Australian Nursing Federation[2011] FWAFB 8165 (ANF) said:
[49] 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 in considering somewhat similar provisions in the Workplace Relations Act 1996:
“... the nature of the threat as to which a decision-maker must be satisfied under s 170MW(3) of the 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”.
As to endangerment, the Full Bench in ANF said:
[51] We were taken in the proceedings to previous decisions of FWA and its predecessors regarding the meaning of the terms in s.424(1), including the references to “welfare” of the population and the concept of endangerment. These are commonly used words and expressions which are widely understood in the community, and which should be given their ordinary meaning. Conduct that puts a person’s physical or mental state at risk of material detriment – or that materially hinders or prevents improvement in a person’s poor physical or mental state – may qualify as conduct that endangers personal health or safety. Although the conduct might not be of such a serious nature as to amount to an endangerment to “life”, it might nevertheless be such as to constitute a significant risk to “personal safety or health”. Conduct that delays or puts off the efficient supply of public health services has the capacity to impact adversely upon the welfare of at least some of the persons who require those services. The impact of the conduct must, however, be more than merely to cause inconvenience to the persons concerned – it must be such as to expose them to danger.
In Re Svitzer Australia Pty Limited[2022] FWCFB 213the Full Bench said:
[29] The terms “endanger” and “welfare” used in s 424(1)(c) are not defined in the FW Act, however they bear their ordinary meaning, and it is a matter for the Commission, in each case before it, to determine whether or not it is satisfied that industrial action is threatening to endanger the welfare of the population, or a part of it.
I was referred by the parties to decisions of single members of the Commission. I was taken to the decision in G4S Custodial Services Pty Ltd [2014] FWC 5496 in which Commissioner Bissett dealt with an escalation of industrial action from shorter stoppages to 4 hour stoppages which resulted in the only step available to the employer to lockdown prisoners. In that case the evidence was that lockdowns would result in prisoners being required to have two meals a day in their cells, have the dispensation of medication along with medical appointments disrupted, have limited time available for visits, not being able to participate in paid work, and having scheduled transfers for court appearances or teleconferences with third parties delayed or cancelled. The Commissioner considered that on this evidence the lock downs would have a detrimental impact on the prisoners. The Commissioner was also satisfied the prisoners formed “part of the population” for the purpose of s. 424(1)(c) and the proposed protected industrial action, if allowed to proceed, would threaten the life, personal safety or health, or welfare of the relevant prisoner population.
I was also taken to the decision in United Workers’ Union v Serco Australia [2024] FWC 1275 where Deputy President Hampton declined to make an order under s. 424 having found that the evidence did not support a finding that the protected industrial action had at that stage threatened or was threatening the safety, health or welfare of part of the population. The evidence was that Serco had been able to secure the equivalent of full staffing at the Adelaide remand centre, the subject of the proceedings, to mitigate the impact of the action and that future action did not, at the time of deciding the matter, present the relevant threat. The Deputy President referred to the lockdown of prisoners as a mitigation strategy that was undesirable if applied for significant periods and that lockdowns for longer periods may lead to the requisite endangerment to satisfy the requirement in s. 424(1)(c).
Consideration
Section 424(1) requires the Commission to consider two things. First, whether protected industrial action is being engaged in or is threatened, impending or probable. Second, if it is, whether it is satisfied that the industrial action had threatened, is threatening or would threaten to have the effects set out in s 424(1)(c) or (d).
To satisfy the first step the industrial action that DOHA relies upon is the industrial action notified in the UWU’s notices of protected industrial action for the action taken on 14, 21 and 24 February 2025. While that action is no longer taking place, I am satisfied that it is probable that the UWU will again take action authorised in the ballot that occurred as a consequence of 14 January 2025 PABO. The UWU’s recent conduct suggests that it is willing to take 2 and 4 hour stoppages as part of its bargaining campaign. The stoppages on 14 and 21 February 2025 were 2 hours long. The stoppages notified for 24 February 2025 were for 4 hours. I find it is probable that 2 and 4 hour stoppages in any future protected action will occur. It is possible, given the questions authorised in the ballot, for stoppages to be longer. The ballot authorised 8 hour and 24 hour stoppages. I find however, based on the conduct of the UWU to date, that while 8 and 24 hour stoppages are possible, 2 to 4 hour stoppages are probable.
The second step is not so straight forward. DOHA relies on the endangerment of detainees, staff, and members of the public. There is little evidence regarding staff. The anonymous complaint by an employee at the Melbourne detention centre following the 14 February 2025 stoppages is not sufficient evidence to make a finding that the employees are endangered. Hearsay evidence of employees saying that they felt unsafe is also not sufficient to make the requisite finding. I do not draw inferences about the absenteeism of staff on the days of the stoppages as suggesting that they occurred because there was a threat to those employees as contemplated by s. 424(1)(c). There was no evidence about members of the public being in danger.
The focus of the evidence was on the welfare of detainees. I agree with earlier decisions that detainees are part of the population. I also accept that there is potential danger to detainees that may arise from the stoppages. The UWU appears to have also done so in its correspondence to Serco on 10 February 2025 in which it offered to assist Serco in planning to deal with the anticipated low staffing levels that would arise during the 14 February 2025 stoppages. The offer was made to ensure the safety and welfare of detainees.
The question for determination here is whether the protected action amounts to a threat to endanger the health or the welfare of the detainees. It requires focus on the impact of that action. In answering that question all of the circumstances must be taken into account.
As the focus is on the detainees it is necessary to first consider who the detainees are. The reasons for persons being detained are touched upon in the evidence. Serco’s risk assessment refers to the circumstances that may lead to detention. The document says the detainees fall into three main categories: Detainees who have had a visa refused or cancelled on character grounds. A non-citizen who has been found by the Department of Immigration and Border Protection to have breached Australian immigration laws, e.g. non-citizens who remain in Australia after the expiration of their visa or working in Australia in contravention of their visa conditions. And unauthorised maritime arrivals – persons who arrive in Australia by sea without a visa. The Commonwealth’s response to these transgressions is detention. The risk assessment further observes:
However, whilst previously, detainees have engaged, at least to some extent, in the detention environment in line with their detention reason type, this no longer holds true. The lines between cohorts have become increasingly blurred when seen from the detainee perspective with reason type no longer giving an expected level of interaction within the Immigration Detention Network.
A relevant circumstance is the nature of the risk to the welfare of these detainees. Serco and DOHA identified in their risk assessments the risks associated with detention centres being short staffed as a result of the industrial action. I have set those out earlier. They include; no or reduced security staff and escorts, reduction of structured programs and activities, reduction in catering services, limited incident response capability, risks of adverse behaviour, self-harm, criminal behaviours, protest activity, escape, and risk of violent behaviour. Some of these matters do not arise from the industrial action. The Serco risk assessment makes the following observation:
Determining the threat from detainees during a period of reduced staffing or impact on services is difficult to achieve without a specific breakdown of detainees motivations and intent during their stay within immigration detention and awareness of the probability and extent of staff participation related to protected action.
I consider the observation applies equally to determining the threat to detainees. Any conclusion on whether there is a threat must to the detainees’ welfare must be based on evidence. It is not a question of whether the harm is possible, or likely, it is whether it is probable. The question being whether there is a threat to endanger the welfare of the detainees arising from the industrial action. That assessment needs to be made based on the evidence of the circumstances at the centres and an assessment grounded in that evidence of the impact that industrial action will have, with a focus on the impact it will have on the welfare of the detainees.
The circumstances include the mitigation measures that the UWU were willing to, and in fact has, put in place for the stoppages. Those mitigation strategies included assurances not to block access by emergency vehicles, not to hinder employees who wished to work, to assist in ensuring that contingent workers were available to address staff shortages, and facilitating access to employees engaged in industrial action to assist in emergency responses as needed. Serco welcomed these measures. There was some debate in correspondence between the UWU and Serco about the implementation of the strategies - the numbers of contingent workers needed, Serco’s response to requests for rosters to assist in finalising planning, and the UWU’s record in providing names of contingent workers - but overall, it appears that these measures were in place for the stoppages which have occurred. I am satisfied, based on the UWU’s conduct in approaching Serco to assist in mitigating the effects of previous action that the same arrangements will be in place for any future protected industrial action.
Serco’s risk assessment also points to all centres having developed business continuity plans that are site specific to manage the immediate impacts of the industrial action and makes reference to a national operations team coordinating responses. Serco did not give evidence in the proceedings, so the details of these arrangements are not available. They are however further plans to mitigate the impact of the industrial action.
I regard the list of risks in the risk assessments as at least possible threats that may endanger the detainees and possibly others. Whether those threats are probable can be assessed in this case against the evidence of what occurred during the earlier stoppages. A significant part of the evidence in this regard is what occurred during the stoppages on 14, 21, and 24 February 2025.
On 14 February 2025 at the Melbourne detention centre there were three incidents. The first commenced before the industrial action started. The industrial cannot be said to have caused it. Further, the mitigation measures in place led to some employees not stopping work and remaining to assist in resolving the incident. This suggests that those measures assist in reducing the harm to the welfare of the detainees involved. The second incident involved a detainee acting adversely and self-harming. The incident was dealt with. The evidence does not suggest that the lower staff numbers caused the incident or hindered its resolution. The self-harm was most likely a reaction to the detention. It is possible that there being fewer staff meant that intervention did not occur early enough, but the evidence did not suggest that was the case. The third incident involved a detainee becoming agitated due to a change in a scheduled visit. The person caused some property damage. The evidence is that this incident arose because the visit was rescheduled due to the industrial action. The rescheduling had an impact on the welfare of the detainee. In that sense it could be said to have been caused by the industrial action. The situation was resolved by the staff present explaining that the visit would occur, just not on that day. It is possible that this circumstance may arise again. It would not if people are told before the industrial action occurs that visits are rescheduled. I do not regard it as probable.
On 21 February 2025 there were six incidents at Villawood detention centre. Three of those involved detainees setting off fire alarms. AB gave evidence that this is a known means of protest used by detainees at that centre and it is not unusual. I do not consider setting off alarms as harm to the welfare of detainees. It is no doubt an inconvenience to those running the centre, but it does not constitute harm to the welfare of the detainees. Another incident involved a detainee climbing onto the roof of a building. No details were given as to any harm being suffered or how the matter was resolved. I see no link between that event occurring and the industrial action. Evidence was given that this is another means of detainees protesting their detention. The evidence suggested that it is not common, but it is not unusual. I might infer that the person may have been prevented from doing so if there had been more security officers at work. Inferences must be drawn from facts. I find that there is insufficient evidence for me to draw such an inference and to do so involves too much speculation. I am not satisfied that the detainee being on the roof was a result of the industrial action. There was another incident involving a detainee acting in a threatening way and flooding their room. The detainee was monitored by staff and relocated. There was also what I regard as a minor incident involving the health of a detainee. That issue was also resolved. These two matters involve the welfare of detainees, but I do not consider they were caused by the stoppage.
On 24 February 2025 there was one incident being a medical incident at the Melbourne detention centre. It was dealt with by the staff on duty. Again, this involved the welfare of a detainee, but I do not consider it was caused by the stoppage.
None of the incidents lead me to conclude that a probable result of further 2 or 4 hour stoppages would cause or threaten harm to the welfare of detainees. The incidents were not caused by the stoppages and the mitigation steps in place, at least in relation to the first incident on 14 February 2025, assisted in there being sufficient numbers of staff to resolve the incidents.
A further matter arises from the evidence that might be said to cause harm to the welfare of detainees. It is the use of lockdowns to address the challenge of lower staff numbers. This occurred in some compounds during the 21 and 24 February stoppages. I consider this to be a matter of some concern, as I agree with observations in earlier cases that lockdowns may be detrimental to the welfare of detainees, especially when they are for longer periods. I note the evidence of Ms Brown that lockdowns are a regular part of immigration detention. I take from that fact that DOHA and Serco accept that it is acceptable to lockdown detainees for certain purposes and have assessed that one hour lockdowns, four times a day, are acceptable. Given that approach I do not consider that the lockdowns arising from the industrial action are any greater a threat to welfare than the usual practice. Which is to say, I am not satisfied that the proposed industrial action will cause a threat to the welfare of the detainees where lockdowns are already a feature of the detention. The evidence is that the lockdowns that have occurred have been of longer durations than usual but not excessive so. This may have been an issue if I considered that future stoppages will result in longer lockdowns, but the evidence was no sufficient for me to form that view.
Conclusion
I have concluded that the threatened industrial action is 2 or 4 hour stoppages of work. I am not satisfied on the evidence that those stoppages will endanger the health and welfare of detainees, staff, or members of the public.
As I am not satisfied that there is the requisite threat to endanger the life, the personal safety or health, or the welfare of a part of the population arising from protected action.
As the requirements for making an order under s424(1) are not met the application is dismissed.
DEPUTY PRESIDENT
Appearances:
C O’Grady KC and L Cameron of counsel for the Applicant
N Pefanis and L McDonald for the Respondent
Hearing details:
24 February 2025
By video
The Fair Work Commission
Sydney
[1] At [20]
[2] At [25]
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