Commonwealth of Australia (represented by the Department of Immigration and Border Protection) v CPSU, the Community and Public Sector Union

[2016] FWC 2526

[2016] FWC 2526

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 Immigration and Border Protection)
v
CPSU, the Community and Public Sector Union
(B2016/421)

COMMISSIONER WILSON MELBOURNE, 27 APRIL 2016

Application for an order to suspend or terminate protected industrial action pursuant to s.424; whether interim orders should be made final.

[1] This decision is further to Reasons for Decision issued by me on 5 April 2016 concerning an application made to the Fair Work Commission on 1 April 2016 by the Commonwealth of Australia as represented by the Department of Immigration and Border Protection. 1 That application sought orders from the Commission that would suspend protected industrial action (PIA) for a period of three months and, while the substantive application is being determined, an interim order of the Commission that would suspend the protected industrial action pending the Commission’s determination of the substantive matter.

[2] The Reasons for Decision issued on 5 April 2016 related to a decision originally issued on 3 April 2016 in which an interim order was made suspending the relevant protected industrial action.

[3] This decision is concerned with whether the interim order should now be replaced with a final one. It relies upon the material submitted in evidence at all stages of the proceedings, including that provided to the Commission prior to the decision to make an interim order.

[4] Section 424 of the Fair Work Act 2009 (the Act) provides as follows:

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.

(2) The FWC may make the order:

(a) on its own initiative; or

(b) on application by any of the following:

(i) a bargaining representative for the agreement;

(ii) the Minister;

(iia) if the industrial action is being engaged in, or is threatened, impending or probable, in a State that is a referring State as defined in section 30B or 30L—the Minister of the State who has responsibility for workplace relations matters in the State;

(iib) if the industrial action is being engaged in, or is threatened, impending or probable, in a Territory—the Minister of the Territory who has responsibility for workplace relations matters in the Territory;

(iii) a person prescribed by the regulations.

Application must be determined within 5 days

(3) If an application for an order under this section is made, the FWC must, as far as practicable, determine the application within 5 days after it is made.

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 action to which the application relates until the application is determined.

(5) An interim order continues in operation until the application is determined.”

[5] 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.

Background

[6] The Australian Border Force (ABF) is described as being the frontline operational agency within the Australian Government Department of Immigration and Border Protection (DIBP), with its mission being to protect Australia’s border and manage the movement of people and goods across it. This decision refers interchangeably to the Commonwealth, the DIBP and the ABF as the applicant in the proceedings. The ABF comprises more than 13,000 employees and operates on a large scale. The evidence of Clive Murray, the ABF’s Assistant Commissioner, Strategic Border Command, included the following about the scale and nature of the ABF’s operations;

“7. The DIBP manages very large flows of passengers, revenue and cargo. For example, during 2014 - 2015, the DIBP, in an average week (i) cleared around 650,000 international travellers (ii) collected more than $300 million in revenue (iii) inspected more than 38,000 air cargo consignments and 1 million mail items and (iv) detected or seized more than 600 drug imports and other prohibited items.

8. In order to manage this level of movement of people and goods across the border, the DIBP:

(a) conducts risk assessments of people and goods arriving into and out of Australia every day; and

(b) responds to risks identified (either by the DIBP itself or as notified by other agencies) through intervention activities.

9. DIBP operations involve considerable complexities, cooperation with external agencies and partners (domestic and international), sophisticated technology and, critically, employees with specialist skills for identified roles.” 2

[7] There are nine international airports, namely Sydney, Melbourne, Brisbane, Perth, Darwin, Cairns, Adelaide, Townsville and Coolangatta (the Major Airports). The ABF processes the bulk of international travellers through those airports, as well as a limited number through cruise ship terminals. It is also responsible for clearance of cargo and international mail through Australia’s air and sea ports.

[8] Bargaining within the DIBP and the ABF has been progressing for a considerable period. A Notice of Employee Representational Rights was issued by the DIBP on 16 June 2014. 3 At that time the ABF had not been formed and was a separate agency, with the predecessor agency having issued its Notice of Employee Representational Rights on 18 September 2014.4 In March 2015, and prior to the integration of the predecessor agency into DIBP, both agencies reissued their notices indicating a desire to work to a single agreement covering both agencies. The CPSU evidence records that since the decision was taken for there to be single agreement there have been at least 23 bargaining meetings; however only 5 of those meetings have been since October 2015.5

[9] A protected action ballot order was issued by Commissioner McKenna on 8 May 2015 6 with certain undertakings having been given by the CPSU as to the application of certain proposed questions to particular groups of employees and also as to the periods of notice to be given for the taking of protected industrial action, in both cases should the questions be carried upon the ballot. In due course the ballot was carried by a considerable margin on each proposed question with more than 3500 employees voting in favour of each question. Relevant to this matter is that questions 8 and 9 both carried, with the questions being in the following terms;

“Question 8 – An unlimited number of stoppages of work for periods of up to and including 1 hour?

Question 9 – An unlimited number of stoppages of work for periods of more than 1 hour and up to and including 24 hours?” 7

[10] Protected industrial action pursuant to the ballot has been notified to the DIBP on several occasions. Without it being a complete register of all the industrial action that has been taken by its members employed by the DIBP, the CPSU’s evidence indicates that there have been notifications of protected industrial action on at least the following occasions; 8

• Between 15 and 30 September 2015;



• Between about 3 November and 16 November 2015;



• Between 7 and 18 December 2015;



• Between 13 July 2015 on 7 August 2015;



• Four hour duration work stoppages in June 2015 and a national stoppage on 1 July 2015 for a period of two hours;



• 3 August 2015, four hour stoppages in all states and territories at various times;



• 15 September 2015, four hour stoppage of members in the DIBP in the Australian Capital Territory;



• Between 16 and 30 September 2015. stoppages of work for an average of two hours in duration per stoppage across all DIBP workplaces including airports;



• 9 November 2015, 24 hour stoppage of CPSU members in the DIBP in all states and territories;



• Between December 2015 and January 2016 stoppages of 2 to 4 hours duration of ABF marine unit employees whilst in port.

[11] Mr Murray’s evidence about the scale of the protected industrial action includes his observation that it has evolved over several rounds, having escalated from partial work bans on relatively short stoppages to stoppages where action may be taken every hour on the hour. He says that the stoppages have escalated to apply more broadly across the DIBP and that the combination of those factors creates greater uncertainty for the Department over a longer period. While the DIBP has been able to manage the effects of the industrial action to this point, including by using replacement employees, in his view “the nature of the industrial action has evolved such that it has become much more difficult to deploy available, suitable resources to meet operational requirements”. 9

[12] As referred to in the foregoing, Mr Murray’s evidence is that the industrial action has evolved and in particular has escalated from partial work bans or short stoppages to stoppages of a more sustained nature. The focus of his evidence and the concern of the Department were very squarely upon the impact of the protected industrial action as notified since early March 2016 in the Major Airports and scheduled to continue, on the face of the notification material, to 12 April 2016. Protected industrial action was notified as potentially occurring on these dates 10;

• Tuesday, 22 March 2016 – four airports;



• Wednesday, 23 March 2016 (later suspended by the CPSU following the Brussels terrorism attacks) – six airports;



• Thursday, 24 March 2016 (later suspended by the CPSU following the Brussels terrorism attacks) – nine airports;



• Friday, 25 March 2016 (later suspended by the CPSU following the Brussels terrorism attacks) – eight airports;



• Sunday, 27 March 2016 (later suspended by the CPSU following the Brussels terrorism attacks) – nine airports;



• Monday, 28 March 2016 (later suspended by the CPSU following the Brussels terrorism attacks) – three airports, but only for one hour of the day;



• Tuesday, 29 March 2016 - nine airports;



• Wednesday, 30 March 2016 – seven airports, with one of those only for one hour of the day;



• Thursday, 31 March 2016 – nine airports, but with two of those only for one hour of the day;



• Friday, 1 April 2016 – seven airports;



• Saturday, 2 April 2016 – five airports, with one of those only for 15 minutes of the day;



• Sunday, 3 April 2016 – seven airports, with two of those only for one hour of the day;



• Monday, 4 April 2016 – nine airports;



• Tuesday, 5 April 2016 – six airports, with one of those only for 15 minutes of the day;



• Wednesday, 6 April 2016 – five airports;



• Thursday, 7 April 2016 – eight airports, with one of those only for one hour of the day;



• Friday, 8 April 2016 – six airports, with one of those only for one hour of the day, and one other for 15 minutes of the day;



• Saturday, 9 April 2016 – eight airports, with one of those only for one hour of the day;



• Sunday, 10 April 2016 – four airports, with one of those only for 15 minutes of the day;



• Monday, 11 April 2016 – seven airports, with two of those only for one hour of the day;



• Tuesday, 12 April 2016 – seven airports.

[13] The suspensions of the protected industrial action by the CPSU following the Brussels terrorism attacks included this advice by Rupert Evans, CPSU Deputy National President and Team Leader, Border Protection and International Affairs;

“After considering the implications of the appalling terrorist attacks overnight in Brussels and the Prime Minister's intervention this morning, and after consultation with your senior elected DIBP representatives, the CPSU has made the difficult decision to postpone our 24-hour strike tomorrow and rolling stoppages over the Easter Weekend.

In making this decision, the CPSU has expressed sympathy with the victims of the Brussels attacks and acknowledged heightened concern from travellers.

This has been a difficult decision, but with our strike coming just 24 hours after a major terrorist incident in an airport departure hall, there is enormous community interest in our strike, concern about airport security and a potential loss of the community's support for our members' action were we to go ahead.

We know, you know and even the PM acknowledged that our industrial action does not endanger people's security. Nothing has changed in the facts of that today.

The Prime Minister called on the CPSU to call off strike action this morning, saying “We strongly encourage them to rethink their call for industrial action and stay at work and pursue their complaints, their disagreements with the government through other means.”

As you know, the whole point IS OUR MEMBERS DON'T HAVE ANY OTHER MEANS – the Department can't negotiate a decent outcome and the Government won't talk.” 11

[14] The characteristic of the protected industrial action as notified was for there to be stoppages of up to one hour at a time at nominated Major Airports, and in most cases at most of them. However, the provisions of the notification meant that the protected industrial action might occur in any or all of nominated consecutive hours. The protected industrial action notifications allowed stoppages anywhere in the nominated airports, with the exception of functions exempted from industrial action.

[15] A notification from Mr Evans to the Secretary of the DIBP pertaining to one of the days, on which airports were notified as affected, includes the following;

“Dear Secretary Pezzullo

Notice of industrial action in B2015/491 by CPSU members

In accordance with the requirements of s 414 of the Fair Work Act 2009 (Cth), the Community and Public Sector Union (CPSU) provides written notice that CPSU members employed by the Commonwealth in the Department of Immigration and Border Protection (DIBP) intend to take the following protected industrial action on [date].

All CPSU members in the International Terminal of [location]:

1. a stoppage of work starting at 00:00 hours local time and ending at 00:15 hours local time.
2. a stoppage of work starting at 05:00 hours local time and ending at 06:00 hours local time.
3. a stoppage of work starting at 06:00 hours local time and ending at 07:00 hours local time.
4. a stoppage of work starting at 07:00 hours local time and ending at 08:00 hours local time.
5. a stoppage of work starting at 08:00 hours local time and ending at 09:00 hours local time.
6. a stoppage of work starting at 09:00 hours local time and ending at 10:00 hours local time.
7. a stoppage of work starting at 10:00 hours local time and ending at 11:00 hours local time.
8. a stoppage of work starting at 11:00 hours local time and ending at 12:00 hours local time.
9. a stoppage of work starting at 12:00 hours local time and ending at 13:00 hours local time.
10. a stoppage of work starting at 16:00 hours local time and ending at 17:00 hours local time.
11. a stoppage of work starting at 17:00 hours local time and en ding at 18:00 hours local time.
12. a stoppage of work starting at 18:00 hours local time and ending at 19:00 hours local time.
13. a stoppage of work starting at 19:00 hours local time and ending at 20:00 hours local time.
14. a stoppage of work starting at 20:00 hours local time and ending at 21:00 hours local time.
15. a stoppage of work starting at 21:00 hours local time and ending at 22:00 hours local time.

…” 12

[16] The same correspondence separately notified a potential total of 120 hours of industrial action on the one day in 8 airports (106 hours in total) and one other locality (14 hours in total). The ABF summary sheet tendered to the Commission shows that for the day in question, protected industrial action may impact on 6 airports for up to 16 hours of the day; 1 airport for up to 8 hours; 1 airport for up to 1 hour; and 1 airport would be unaffected. 13

[17] Another of the notifications relates to a day on which 7 airports may be affected. That notice reads, in part;

“Dear Secretary Pezzullo

Notice of industrial action in B2015/491 by CPSU members

In accordance with the requirements of s 414 of the Fair Work Act 2009 (Cth), the Community and Public Sector Union (CPSU) provides written notice that CPSU members employed by the Commonwealth in the Department of Immigration and Border Protection (DIBP) intend to take the following protected industrial action on [date – different to that referred to above].

…

All CPSU members in the International Terminal of [location – different to that referred to above]:

17. a stoppage of work starting at 04:00 hours local time and ending at 05:00 hours local time
18. a stoppage of work starting at 05:00 hours local time and ending at 06:00 hours local time.
19. a stoppage of work starting at 06:00 hours local time and ending at 07:00 hours local time.
20. a stoppage of work starting at 07:00 hours local time and ending at 08:00 hours local time.
21. a stoppage of work starting at 08:00 hours local time and ending at 09:00 hours local time.
22. a stoppage of work starting at 09:00 hours local time and ending at 10:00 hours local time.
23. a stoppage of work starting at 10:00 hours local time and ending at 11:00 hours local time.
24. a stoppage of work starting at 11:00 hours local time and ending at 12:00 hours local time.
25. a stoppage of work starting at 16:00 hours local time and ending at 17:00 hours local time.
26. a stoppage of work starting at 17:00 hours local time and ending at 18:00 hours local time.
27. a stoppage of work starting at 18:00 hours local time and ending at 19:00 hours local time.
28. a stoppage of work starting at 19:00 hours local time and ending at 20:00 hours local time.
29. a stoppage of work starting at 20:00 hours local time and ending at 21:00 hours local time.
30. a stoppage of work starting at 21:00 hours local time and ending at 22:00 hours local time.
31. a stoppage of work starting at 22:00 hours local time and ending at 23:00 hours local time.
32. a stoppage of work starting at 23:00 hours local time and ending at 24:00 hours local time.

…” 14

[18] The same correspondence separately notified a potential total of 82 hours of industrial action in 7 airports on the one day. The ABF summary sheet tendered to the Commission shows that for the day in question, protected industrial action may impact on 5 airports for up to 16 hours of the day; 2 airports for up to 1 hour; and 2 airports would be unaffected.

[19] The notified protected industrial action was significant, both as it took place before the interim order was issued by the Commission and as was notified for the remaining days of the 2016 protected industrial action period. Typically the notified protected industrial action could take place anywhere in an airport for up to 8 hours in the morning and the same in the afternoon and evening.

[20] However, the notifications did not mean that the protected industrial action would take place at those times in those airports, merely that it may. Whether industrial action took place; when it took place; and how prevalent it might be throughout the airport would be up to the CPSU members concerned. 15

[21] The ABF operations at international airports are significant and, no doubt, complex operations. Passengers arriving for departing flights to foreign destinations must be processed; passengers arriving on flights from other destinations must also be processed. Further, passengers arriving from foreign destinations must have their luggage and other effects cleared. There may be a necessity for passengers to be referred to more than one ABF staff member. 16

[22] Because of the nature of international travel, criminal and other undesirable activity may take place. Risk assessment and risk control are constant activities for international airports. The ABF assesses risks, no doubt, in many ways. Its staff are very diligent in those activities and assess risks not only through their own observations, but through intelligence received from other organisations. Risk assessment may require tracking certain known persons of interest or may require implementation of procedures in respect of persons exhibiting a certain demeanour or other attributes. The ABF submitted the organisation’s work and functions and risks it faced required it to operate with ever present vigilance.

[23] The evidence clearly shows that the ABF staff available in international airports cover many functions. Together, they encompass many skill sets and functions, providing a cohesive service to passengers and thereby to the community.

[24] The characteristics of the notified protected industrial action not only had the effect of withdrawing labour in certain parts of the airports for an amount of time, but its nature led to the further effect of reducing the ABF’s ability to undertake its functions as effectively and efficiently at an airport as would otherwise be the case.

[25] That reduction in service standards or degradation could be offset by the ABF with deployment of replacement staff, which it called “surge staff”. The purpose of the surge staff was to augment deficiencies in capacity across key areas of the ABF’s operation. 17 That is, to have a back-up workforce capability that could provide a scaled-up response to a range of eventualities; for example, to deal with short-term increases in passenger demand as well as to deal with protected industrial action. Surge staff are experienced ABF employees, centrally based, who could be expected to work in a variety of functions at an airport; however the evidence is that they may not be able to work in all functions.18

[26] The ABF submitted that the scale of protected industrial action, coupled with its frequency and duration, presented it with difficulties. Surge staff could not be everywhere and, like every other employee, experienced fatigue or exhaustion when required to work for long successive periods. The rolling one hour nature of the current stoppages means that some hours of a shift may be fully or significantly staffed, but others may not. The ABF considers this makes the efficient and effective deployment of surge staff “extremely difficult”. 19

[27] The combination of these factors, together with its forward staffing forecasts, cause the ABF to consider its available workforce in each airport to be lower than the minimum required levels. The further combination of these factors with the ABF’s forecast of passenger flow through international airports, and especially as a result of the school holidays occurring in most states and territories around the time, led to the ABF considering its organisational risk to be intolerable.

[28] The ABF’s evidence is that the weekly passenger flows through the Major Airports is around 650,000. A small proportion of that number may have criminal or terrorist intent. The function of the ABF is to process the total number of passengers having regard to its risk assessments. If staff are depleted or affected by fatigue, it becomes difficult to undertake passenger processing to the required standard. Potential risks might be missed, or inadequately tracked, or airport congestion – referred to as compression and compaction – may occur which has its own risk factors, including contributing, in conjunction with reduced staffing, to the degradation of border security measures. 20 Equipped with knowledge of probable wide-scale protected industrial action, people with criminal or terrorist intent may be opportunistic in their endeavours and may deliberately aim to move through a particular airport if they anticipate less scrutiny than would otherwise be the case.

[29] The ABF thus expected that with sustained high passenger flows and with lower than the minimum required staff, the potential for missing a criminal or terrorist activity, or that something not be subject to sufficient completion (referred to as a “Missed Alert”), would be significantly higher than usual. It did not say there are no Missed Alerts at times when there is no protected industrial action, but that the numbers of such misses are low and when they occur they are rigorously dealt with through the agency’s integrity review processes.

[30] The ABF also relied for its argument about risks on the likelihood and consequences of passenger congestion. A congested airport terminal would potentially both make it more difficult to be vigilant, as well as to perhaps have greater consequences should there be a serious event.

[31] The evidence of Mr Murray to which I have regard includes the following;

In relation to the ABF’s operations;

• The DIBP manages very large flows of passengers, revenue and cargo, with those flows of people and commodities increasing significantly in recent years. The ABF’s detection of illicit movements of drugs and firearms is significant. 21



• A description in some detail as to the work performed by ABF employees at airports and the significance of certain functions within the airports to the organisation’s ability to assess and control risks. His evidence gave details of the nature of alerts received and their sources and volume. 22 It also took the Commission to the different groups of employees that might be found at airports and those working away from the physical border and provided an opinion about the impact of operating with staff numbers below the minimum required numbers.23

In relation to the ABF’s assessment of risk;

• The ABF conducts risk assessments of people and goods arriving into and out of Australia every day and responds to risks identified whether through its own activities or as notified by others. 24 Its operations involve considerable complexity and cooperation with external agencies and partners domestically and internationally and it engages employees with specialist skills for identified roles.25



• His evidence canvassed threats to Australia stemming from international security as well as organised crime, providing evidence about the impact of such activities, drawing upon his experience in policing and with the ABF. 26 Within the context of certain identified examples of detections within the week prior to the settlement of his witness statement, Mr Murray offered an opinion about the consequences of Missed Alerts.27

On the effects of the protected industrial action;

• Mr Murray offers the opinion that the current industrial action has reduced available numbers of employees with specialist skills which is “increasingly compromising the DIBP’s ability to assess and respond” to the risks identified and assessed. He considers that the current industrial action “is now creating greater disruption and uncertainty across critical functions” including its ability “to effectively deploy additional surge staff and meet operational requirements”. 28 His evidence was also that there has been a high rate of participation rates by DIBP employees in various rounds of industrial action in 2015.29



• The rolling one-hour nature of the stoppages creates uncertainty as to when protected industrial action will take place. He put forward that in practice “some hours of a shift are fully or significantly staffed and some hours of a shift are not. This means that efficient and effective deployment of surge staff is extremely difficult.” 30



• There are some complexities associated with the use of surge staff, including that in some instances such employees are the only ones who can replace others, and in other instances the surge staff do not have the skills and capabilities to be used in those functions. There is a limit on the time that the available surge staff can perform duties because of the maximum duration of shifts and the requirement for rest periods; this in itself may contribute towards a shortfall in staff. 31



• His evidence gave examples of what he considered to be the practical effect of staff shortages caused by protected industrial action. 32



• His evidence also indicated estimated staffing shortfalls that might arise from protected industrial action. 33 The shortfalls were identified numerically in a table of staff in several categories at each of the Major Airports. He connected those estimated shortfalls with his opinion about the impact.34

[32] A large part of the ABF’s case for its view that its risk profile had moved to an unacceptable point, as articulated through Mr Murray’s evidence, was that the number of staff it would have available to it would be fewer than the minimum acceptable level. The ABF evidence included an assessment comparing its minimum needs with the staff available to it; both from regular staff rosters and the availability of surge staff, as well as taking into account its assessment of the numbers of staff who would not be available because they would likely participate in the industrial action. Such forecasts were criticised by the CPSU, but were not shown to be inherently or substantially wrong.

[33] At least in respect of the proposition on staffing shortfall, the CPSU argues the Commission ought not to accept the ABF’s evidence about its estimates about staffing shortfall. They are imprecise and to the extent they rely upon the evidence of Mr Murray, it is said he repeats without attribution the data of others, without explaining the assumptions made in preparation of the data; and, to the extent he is put forward as an expert witness, is not an expert about the matters he asserts, for reason of having been with the ABF only since August 2015, and because his evidence does not set forth the basis of his expert opinions, which would ordinarily be required for the acceptance of his evidence as expert.

[34] The CPSU argues that in contrast the evidence of its witnesses shows there is not a staff shortfall, or if there is one, its impact on risk assessment may be remedied by slowing passenger movements down and maintaining an otherwise rigorous scrutiny of passengers, thereby ensuring no alerts are missed.

[35] In the context of the matters requiring determination, I am prepared to accept Mr Murray’s evidence. He is in a leadership role within the ABF and is sufficiently knowledgeable about the scale of protected industrial action being experienced, and its impact on the ABF’s resourcing, for his evidence to be capable of acceptance. His experience in his present role, together with his significant law enforcement experience prior to joining the ABF, relevant as it is to some of the matters about which he gave evidence, enables his evidence to be viewed both as credible and authoritative.

[36] Giving evidence that protected industrial action depletes available staff resources in a particular way or to a particular extent is plainly evidence available to him as a senior manager within the ABF. To the extent that, as a senior manager, he is required to rely upon data prepared by others for the formation of his views, it is not remarkable in the context of matters dealt with by the Fair Work Commission and does not reduce his capacity to give that evidence in a manner which is capable of acceptance. Giving evidence that protected industrial action degrades the services and functions of the ABF, thereby increasing its risk profile, is the exercise of a professional judgement that, upon the basis of his extensive law-enforcement background, is open to him and one that is open for the Commission to accept.

[37] That is not to say that Mr Murray’s evidence is to be accepted by the Commission without question or demur, or that the evidence of other witnesses could not lead to a preference for their evidence and its persuasive effect. The matters that must be addressed by the Commission in consideration of an order under s.424 are to do with whether or not protected industrial action has threatened, is threatening, or would threaten to endanger the life, personal safety or health, or the welfare, of the population or of part of it. Evidence on those matters may plainly be drawn from many sources, including evidence that may compete directly with the opinions proffered by Mr Murray. The task of the Commission is to resolve the matter in a way that involves a measure of subjectivity or value judgment; Coal and Allied Operations Pty Ltd v AIRC. 35 The evidence of others may well resolve that task in favour of those who argue that there is no such threat.

[38] The Commonwealth spent significant time in its cross examination of the two CPSU witnesses who were ABF employees, Susan Jones and Michael Suijdendorp. The Commonwealth endeavoured to have them accept that their expertise and experience was nowhere near that of Mr Murray’s, concomitant with the view that such opinions as they may offer were not to be accepted by the Commission, especially on the subject of the impact of protected industrial action upon the ABF’s risk profile.

[39] Such propositions, if accepted, are an invitation to the Commission for the adoption of an incorrect principle.

[40] The correct principle to be followed in this matter is whether there is evidence of the harmful effects of the protected industrial action; not of whether an applicant’s senior leadership are well-qualified and experienced and its staff not.

[41] Resolution of the question before the Commission is instead a matter of evidence, not of organisational hierarchy or resume experience, and it is not inconceivable a relatively lower classified employee, but one with exposure to national leadership within their union, could give persuasive and cogent evidence about the impact of protected industrial action and especially how it impacted upon the ABF’s risk profile. That such did not occur in this case is not a question of the CPSU witnesses’ status within the organisation or their comparative work and life experience, but rather the extent to which they were able to coherently link the design and delivery of the protected industrial action with the overall work either of a given airport or all of the Major Airports, and in turn the impact that such work had on the ABF’s overall risk profile.

[42] Ms Jones’ evidence included the following matters;

In relation to the ABF’s operations;

• With reference to the possibility that the ABF might choose to emphasise either its law enforcement activities or the facilitation of passenger and cargo movements, she has seen the Department’s focus shift, on more than one occasion, between law enforcement and facilitation, and that “management have chosen to respond in instances of PIA 36, in a way that facilitates movement of people and goods rather than focusing on law enforcement”.37 In relation to potential Missed Alerts, it was Ms Jones’ opinion that a missed intervention could occur at any time for any number of reasons.38 She also gave evidence that investigation work in an airport is not affected by protected industrial action.39

In relation to the ABF’s assessment of risk;

• In response to Mr Murray’s view that the overall effect of the current and planned PIA presents an unacceptable threat, 40 Ms Jones disagrees, giving evidence that “the major threats are transnational and organised crime and terrorism. These risks are omnipresent, particularly with respect to terrorism, most of which appears to be home grown in recent incidents.”41 Further, Ms Jones’ opinion is that there wasn’t “any particularly great ingenuity” displayed in the Paris and Belgian terrorist attacks, putting the view that “these are standard tactics that have been employed by terrorists, the world over, for many years”.42



• While agreeing she was “poorly placed” to disagree with Mr Murray's assessment of the level of risk to the community, she maintained her opinion that “[t]here is no more risk now than there has been at other times in the past.” 43



• In connection with the evidence given by Mr Murray about the need for risk assessment and the impact upon it by protected industrial action, Ms Jones refers to the deleterious effects of the ABF seeking a downgrade in staff classifications and the disbanding of certain teams. 44



• While her witness statement contradicted Mr Murray’s evidence in relation to his overall risk assessment, she agreed in oral evidence to withdraw the final sentence of the following;

“I disagree with Mr Murray’s overall assessment that PIA is creating risks to safety etc. In my opinion, the risk would be created because management will choose to prioritise facilitating speedier access through the airport, in order to create the appearance that PIA is having no effect. They appear to want to choose this outcome, ahead of security concerns.” 45

On the effects of the protected industrial action;

• Responding to Mr Murray’s statement that the DIBP has been unable to maintain requisite staffing, Ms Jones stated that “union members have advised me that they have witnessed greater than ordinary numbers of staff at airports, while PIA took place.” She makes the point that certain threat assessments are undertaken by a unit which is exempt from taking protected industrial action. 46 Ms Jones also disputes Mr Murray’s evidence about there being a declining available number of surge staff, saying that she has been advised, without specifying by whom, that Sydney airport had access to a number of staff available for deployment greater than that contemplated in Mr Murray’s evidence.47



• While the ABF may not be able to identify in advance which block of notified protected industrial action is going to be taken, they have the ability to deploy staff to manage the period that is. Although Ms Jones gave evidence that the ABF plan for and do “instantly substitute a workforce in all sorts of critical areas of international airports” 48, she conceded that the architecture of the protected industrial action would likely put significant pressure on the ABF in identifying and responding to risks at all Major Airports, with the risks increasing with the rate of participation in action.49 However, she did not agree that the multiple occurrences of protected industrial action would add to the pressures imposed on the ABF.50



• Ms Jones’ opinion is that there is not an unacceptable risk to life, personal safety, health and welfare of travellers and the community arising from the protected industrial action. Instead “there is no more risk now than there has been at other times in the past”. She argues that “increased risk occurs whenever technology or systems fail and when management decide to not conduct Real Time Assessments (which they do for a variety of reasons). This also occurs when PIA is not occurring.” 51



• Finally, in relation to Mr Murray’s opinion about the impact of operating with staff numbers below the minimum required numbers, Ms Jones’ evidence is that the subject matter has not been raised in that way previously, notwithstanding that protected industrial action has been engaged in for some time. 52 Ms Jones also gives evidence that if there are insufficient staff to process alerts both cargo and passengers can simply be held,53 giving the opinion that “it is possible to action all alerts, if it is accepted that there may be a delay in passenger processing”.54

[43] Although Ms Jones has worked for the ABF and its predecessor organisation for almost 15 years and has an understanding of the functions of the organisation and how it works, her evidence was significantly from the perspective of the position she holds as a CPSU section secretary. Where opinions were offered, they were generalised, without much elaboration or seeming foundation. Her experience as an employee of the organisation is somewhat limited, at least in the range of positions held or functions undertaken, and when she endeavoured to provide a perspective of how protected industrial action may impact on the work of the ABF, she faced some difficulties. She was not able to provide a comprehensive analysis of how protected industrial action may or may not impact upon the organisation as a whole and, for that reason, her evidence must be regarded both as incomplete on the subject of the impact of protected industrial action upon the ABF’s risk profile, as well as being far more speculative when opinions on the subject were offered by her.

[44] While I accept she honestly and earnestly believes the impact of protected industrial action either within a particular airport or all of the Major Airports may not be an undue burden upon the ABF, or that its effects may be offset by the ABF, her evidence did not persuasively explain how she came to that opinion, and did not sufficiently address her assessment of the ABF’s risk.

[45] In overall context, I therefore do not prefer Ms Jones’ evidence to that of Mr Murray’s on the question of the impact of protected industrial action, or the risks faced by the ABF from it and how they may be offset.

[46] Mr Suijdendorp has been employed by the ABF and its predecessor agencies for over 18 years. However his evidence is substantially that of someone experienced only in the airport in which he is presently employed and necessarily his evidence requires viewing through that frame. His evidence includes, particularly as to factors of congestion, that;

“There are mitigation strategies available to the department. One such strategy would be to process passengers more slowly, but completely, and as per normal procedure. This is not the response approach which is currently being taken by the ABF in all scenarios.” 55

[47] Mr Suijdendorp’s evidence also endeavoured to deal with Mr Murray’s observations about there being an unacceptable and increasing risk to the travelling community. About this, Mr Suijdendorp gives evidence that;

“The personal safety, health and welfare of travellers has more traditionally been the remit of the Australian Federal Police and airline security. There is always some risk to the Australian community. My opinion is that there are enough mitigation strategies currently available to the department, to keep the risk below an unacceptable level. I mean this in terms of the mitigation strategies which are currently in use, and with respect to mitigation strategies which are available but not currently in use.” 56

[48] Other matters on which Mr Suijdendorp gave evidence included the following;

In relation to strategies available to the ABF to deal with industrial action;

• He puts forward that the ABF has not utilised an option available to it, which was to train additional staff in the areas in which it needs replacement staff, given that it had “adequate time to prepare”. 57



• He also puts forward the view that the exemptions to protected industrial action undertaken by the CPSU at the time of making the protected action ballot order are adequate to address the risks in a wide range of locations. 58

On the effects of the protected industrial action;

• His evidence also puts forward the proposition that at least some of the risks referred to by Mr Murray would be dealt with by other agencies or officers of the ABF not participating in industrial action. 59 He has seen no evidence of opportunistic behaviour that would take advantage of protected industrial action.60 From time to time, the ABF prioritises the work to be done, or functions to which staff are assigned.61 Mr Suijdendorp’s witness statement also relies on the proposition of slowing passenger movements down, providing the opinion in relation to certain risk assessment matters, that all of the functions “could be performed fully if passenger processing were processed more slowly with the less trained staff”.62 He does not consider that slowing passengers down would create risks;

“In my opinion, passenger congestion does not, of itself contribute to the degradation of border security measures. Passenger congestion is normal at various times in airports and in my experience I have never observed it to be seen as a concern in terms of security.” 63

• He considers that other functions have not been impacted by the industrial action, or that, in a particular case, “there have always been some level of “surge” staff available to perform this role and in some cases more staff are available than usual”. 64 It is his opinion, informed by unnamed others;

“... that one of the reasons that some staff are no longer volunteering for surge activities, is because they were treated badly by the DIBP in previous rounds. An example of this treatment is surge staff being flown into [one airport from another place] arriving at 2300hrs and being expected to work a 12 hour shift from Midnight. DIBP could easily make commitments to these people about hours of work and better treatment to encourage them to volunteer”. 65

• It is his opinion that;

“... given the exclusions from PIA and the department’s capacity to surge staff to affected areas, the threat to Australia’s borders is being managed adequately, without unacceptable risk”. 66

[49] I consider Mr Suijdendorp’s evidence on these and other matters, in which he offered a different opinion to that of Mr Murray, to be well-intentioned, but ultimately too general and insufficiently connected to the factors identified in Mr Murray’s evidence for it to be preferred to Mr Murray’s. Processing passengers more slowly, but completely, may well be plausible, however Mr Suijdendorp did not see congestion to be a security risk 67, and appeared not to have an insight into the risk factors which may then arise. He did not sufficiently or cogently elaborate upon the alternative mitigation strategies available but not currently in use.

[50] In overall context, I therefore do not prefer Mr Suijdendorp’s evidence to that of Mr Murray’s on the question of the impact of protected industrial action, or the risks faced by the ABF from it and how they may be offset.

[51] Mr Evans is the CPSU’s Deputy National President and has overall operational responsibility for members employed in the DIBP, and has had that responsibility since March 2013 and has represented employees in the Department’s predecessors since 2002. His evidence is that he has had “extensive experience with the operations of, and issues arising in, the ABF and DIBP”. 68 His evidence on matters relating to those requiring determination in this application and to which I have had regard includes the following;

In relation to strategies available to the ABF to deal with industrial action;

• The Department has put in place several measures in response to the industrial action, including additional staff deployment; changes to practice and procedure and the use of casual workers. 69



• In more recent periods of protected industrial action, attempts to cover absences with redeployed staff have been less successful, partly because;

“In the most recent round of industrial action the Department directed employees from other work areas like container examination, detector dog units, and air cargo. However, the Department knows that our density in these areas is greater and therefore employees are more likely to observe the industrial action which has been notified. This is what has been occurring. The CPSU has been given no explanation by Mr. Murray why the original process for dealing with the industrial action (i.e. Canberra staff) has been altered.” 70

• Surge staffing in some areas of the airport operations actually matched the ordinary staffing levels in periods outside protected industrial action. 71

On the effects of the protected industrial action;

• The CPSU has exempted the majority of persons that the DIBP has requested them to from taking protected industrial action 72, including exemptions to certain work for grounds particularised in his statement; including for compassionate, health and safety, and national security reasons.73



• The CPSU have agreed to provide more than the required minimum notice periods of protected industrial action, and that such “provides the DIBP with ample time to prepare and respond to our industrial action”. 74

[52] Mr Evans’ evidence also did not persuasively address the matter of how the design and delivery of the protected industrial action impacted upon the ABF’s risk profile. Instead of persuasively answering the propositions proposed by the Commonwealth, including that the protected industrial action was either in an altogether different and more impactful form than earlier rounds, or that its design and delivery would dangerously affect the ABF’s risk profile, many of his answers to questions put to him were little more than generalised submissions.

[53] By the time he came to give his evidence, the Commission had issued an interim order, being satisfied there was a sufficiently arguable case that the protected industrial action has threatened, is threatening, or would threaten to endanger the life, the personal safety or health, or the welfare, of the population or of part of it. While it could reasonably be expected that, of the three CPSU witnesses, Mr Evans would give evidence comprehensively contradicting Mr Murray’s risk analysis, for the reason not only of his national union role but also his experience, gained both inside and outside of the context of bargaining in the DIBP, 75, including operational experience in the areas of law enforcement, national security and border operations76 such did not persuasively occur.

[54] In overall context, I therefore do not prefer Mr Evans’ evidence to that of Mr Murray’s on the question of the impact of protected industrial action, or the risks faced by the ABF from it and how they may be offset.

[55] I therefore prefer and accept Mr Murray’s evidence to that of the CPSU’s witnesses.

[56] Acceptance of this evidence in turn leads to findings, which I make, that the effects of the protected industrial action could not be entirely offset by the deployment of surge staff and that the ABF was faced with having fewer available employees than the minimum acceptable levels because of the effects of the protected industrial action, including its scale and duration. Further, it was not an answer to the protected industrial action to merely slow the processing of passengers, because to do so brought with it its own risk factors. It is also the case that, because of the protected industrial action, the overall risk profile of the ABF had moved to an unacceptable level.

[57] Viewed in total, the evidence leads to a finding that, to the time that the Commission issued its interim order on Sunday, 3 April 2016, the protected industrial action then notified and being undertaken was threatening and would continue to endanger the life, personal safety or health or welfare of the population or part of it.

[58] An interim order of the Commission pursuant to the provisions of s.424 and 589 of the Act suspending the protected industrial action was issued by the Commission on 3 April 2016. That order was replaced by a further order on 6 April 2016 giving effect to the provisions of s.424(4) of the Act, which required a mandated interim order to be made for the reason that the Commission was unable to determine the substantive application within five days after it was made.

[59] There has therefore been no permissible protected industrial action since the original interim order was given on the evening of 3 April 2016. Further, the evidence shows that the latest date for which notice had been given by the CPSU for the taking of protected industrial action was 12 April 2016, which date is obviously in the past.

[60] Therefore, having made the requisite threshold findings under s.424(1) of the Act, the question arises about the appropriate order to be made at this time.

[61] In this regard, the Commonwealth does not seek the termination of protected industrial action, noting that it has not conducted its case on that basis, 77 and instead presses a suspension of the protected action for the time period set out within its original application, which is for a period of three months.

[62] For its part, the CPSU argues that in the event the Commission is satisfied a final order should be made, any suspension should be of very limited duration. 78 In this regard it notes the following factors should be taken account of by the Commission in its decision;

“61. The school holiday period finishes on 24 April 2016. Even if the Commission dismissed the application immediately after the submissions on 13 April 2016, as a result of the provisions of s 430 of the FW Act, which requires a fresh notification, and the terms of the PAB 79 agreed undertakings, which requires 7 clear working (ie non weekend – see s 12 of the FW Act) days notice, the CPSU could not commence protected industrial action before 25 April 2016.

62. Moreover this case is different from the cases where bargaining has been of a relatively short nature and suspension is made for a long period of time in order that substantial bargaining can take place in the hope that an agreement can be reached. In this case substantial bargaining has already taken place. Progress in negotiations has only occurred when prompted by protected industrial action. Any lengthy period of suspension will allow the applicant to refuse to bargain in a meaningful way.

63. Moreover the general approach to the statutory test discussed above is also applicable to s 427 of the FW Act. In specifying the period of any suspension, the Commission should be conscious of the disadvantage to the respondent’s members of not being able to take protected industrial action and to legitimately apply pressure on the applicant during any period of suspension.” 80 (references omitted)

[63] The CPSU also argued that the suspension of the protected industrial action within the DIBP would have the effect of suspending it for CPSU members employed throughout the Department and not just those employed within the ABF or the Major Airports.

[64] The evidence before the Commission, and which I have accepted, is that the protected industrial action as notified and taken was very significant, bearing in mind that it was suspended for five days after the Brussels terrorism attacks, and then terminated within a week of it being resumed.

[65] The protected industrial action had its serious effects because the ABF had the required advance notification of when and where industrial action might take place, but not much more. While it satisfies the legislated requirements, the uncertainty surrounding what will occur, and when and where, creates a very large risk for the ABF. It might have a little industrial action, or none at all, or the absence of every union member for every hour notified in every airport. The proposition advanced by the CPSU that the legally required notification has been given to the ABF is no answer to the escalated risks now identified by the ABF.

[66] For very large parts of each working day in the majority of the Major Airports, the ABF might be faced with significant industrial action. The evidence is that it was faced with this eventuality, and with rising participation rates. Its capacity to deploy staff to plug the gaps that would be left by the industrial action was necessarily on the assumption either that all staff would not be present for the whole time or, if it was not to follow a comprehensive replacement strategy and instead to deploy only partial replacements, to take the risk that its replacement staff might happen to be in the right place at the right time. This was not a circumstance in which an entire service was to be closed with the consequential implication that passengers or flights simply had to be turned away.

[67] The evidence compellingly illustrates a highly sophisticated plan for industrial action in which staff may be withdrawn at many locations, for many hours of the day. A consideration for when there were to be walk-offs was the level of impact it would have at that time. 81 It also compellingly shows that the intention of the action was to wear down the capacity of the ABF to avoid the action through deployment of surge staff, for reason of the action being sustained for an ongoing period. Without question, the evidence shows the protected industrial action to have had a suffocating effect. The capacity of the ABF to undertake its core functions was seriously affected.

[68] The evidence also shows that the CPSU’s insight as to the effect of the protected industrial action is limited. It simply does not concede that the industrial action has the consequences that the Commonwealth contended or that has been found.

[69] The CPSU is correct to draw the Commission’s attention to the point it makes, referred to above, to the effect that an ongoing suspension will disadvantage its members in the exercise of their bargaining power and that, in its view at least, progress in negotiations to date has only been prompted by industrial action. Even so, such proposition does not persuasively draw the Commission to the proposition either that an ongoing suspension is unnecessary for reason that the April school holidays are nearly passed, and that the current notifications of protected industrial action have all passed, or that any suspension should only be for a very limited duration.

[70] I consider the evidence of a deterioration in the ABF’s risk profile to be serious and compelling. I consider that it outweighs the disadvantage to employees that a further suspension might bring. I also consider that it outweighs the disadvantage of suspension because it would require suspension of protected industrial action for CPSU members employed throughout the DIBP and not just those employed within the ABF or Major Airports.

[71] In assessing applications for suspension or termination of industrial action, the Commission must be satisfied of an appropriate evidential basis for the making of an order. 82

[72] In the Full Bench matter that set this proposition, dealing with protected industrial action in the Victorian public health system including public sector acute, aged care community health facilities, the Full Bench considered that the evidence showing the protected industrial action had adversely affected the quality and timeliness of treatment that could be provided to patients and that its likely cumulative effect was to decrease over time the capacity of the system, was sufficient to satisfy the appropriate evidential basis to make an order.

[73] In making its findings, the Full Bench had regard not only to the impact of protected industrial action on patients and the like, with that impact being to endanger their safety health or welfare, but also to the aggravation that continuation of the protected industrial action might cause. 83 In another matter, NTEU v Monash University84, the Full Bench found that endangerment need not be to physical harm, or its probability, but to the probability of the deleterious impact of the industrial action on students’ welfare because of a ban on reporting examination results. This was for the reason that there was a probability of students losing, because of the action, the opportunity to sit supplementary examinations85, which may then threaten students’ mental health.86

[74] In deciding matters under s.424, the Commission has also had regard to the efforts taken by an employer to mitigate the impact of protected industrial action, or the steps they might take to mitigate. The Commission has found that the availability of sufficient mitigating avenues is reason for it not to be satisfied of the legislative criteria needed to make an order. In relation to the disruption of train services in Melbourne, the Commission was unpersuaded by “generalised predictions” about the consequences of protected industrial action or whether the other “many things” that could have been done in mitigation by either the applicant employer, or the travelling public. 87

[75] In another matter, even though a significant number of people’s welfare may have been impacted on by protected industrial action disrupting Melbourne’s tram service and that the Applicant’s mitigation efforts were to be applauded, more could have been done in the way of mitigation. 88 Further, the alternatives available to passengers led to the Commission’s consideration there was “a tenuous basis” for a finding under s.424(1) and that to make an order would be founded “on the basis of a generalised prediction as to the likely consequences of the action”.89

[76] The Commission has also taken into account as a relevant factor, in relation to findings under s.424, that there was an extended time period for the giving of protected industrial action above the minimum period of three working days prescribed in s.414(2) of the Act. 90

[77] I am satisfied that in this matter the widespread nature of the notified protected industrial action, coupled with heightened employee participation and a deteriorating capacity of the ABF to mitigate its effects aggravates the risks faced by the ABF in performing its functions. I am satisfied as a result that ABF will have difficulty in properly discharging its functions with a continuation of protected industrial action.

[78] I am satisfied that the design of protected industrial action makes it difficult for the ABF to take actions in mitigation and that the design deliberately and systematically reduces the ABF’s mitigation capacity the longer the action continues. In a singular or short burst of protected industrial action those features themselves increase the risk that the ABF may miss something to which further attention should be given. The longer the duration of the periods of protected industrial action the more that risk is aggravated. The evidence shows difficulties emerge with obtaining replacement staff to mitigate the efforts of the continuing protected industrial action.

[79] It becomes foreseeable that criminal or terrorist opportunistic behaviours become more likely as a result, since systemic weaknesses can be more easily identified and exploited. The evidence shows this risk is not merely foreseeable, but that such behaviour more than likely occurred within the recent period of protected industrial action.

[80] The likelihood of further undesirable opportunistic behaviour in turn increases the risk of potentially severe adverse consequences if the ABF at a particular airport makes an operational decision choosing between the proper and expected scrutiny of arriving and departing passengers on the one hand and facilitation of smooth passenger flows on the other. If it decides to emphasise the proper scrutiny of passengers, in the way advocated by the CPSU witnesses, that choice brings with it the attendant risks from congestion. If an emphasis is given to facilitating passenger flows, it risks missing something that should be given greater scrutiny, the consequences of which may well range from serious to catastrophic.

[81] In combination these factors lead the Commission to being satisfied that the protected industrial action has threatened, is threatening, or would threaten to endanger the life, personal safety or health, or the welfare, of the population or of part of it.

[82] The powers to make an order under s.424 were said by the Full Bench in NTEU v University of South Australia to be intended to be used in exceptional circumstances and where significant harm is being caused by the action. 91 However, the later Full Bench in Monash University v NTEU92 clarified the legislative test in this way;

“[20] In NTEU v University of South Australia we do not consider that the Full Bench, by its use of the expressions “exceptional circumstances” and “significant harm” in the passages quoted in the Decision, was intending to establish criteria or tests in substitution for or in addition to those found in the language of s.424(1) itself. Rather the Full Bench used those expressions only to characterise the legislative intention that could be gleaned from the Explanatory Memorandum to the Fair Work Bill 2008. It is no doubt the case that the circumstances which would satisfy the criterion in s.424(1)(c) are likely to be exceptional in the sense of being atypical and out of the ordinary, and that a threatened endangerment to life, personal safety, health or welfare under the subsection may well involve the affliction of significant harm. However, that does not mean that in determining any particular case, expressions of that nature not to be found in the actual language of the statute should be determinative of the outcome, and we do not understand the NTEU v University of South Australia to stand for any contrary proposition.

[21] In determining the matter on the basis that the threatened endangerment to health and welfare was not “sufficiently large to attract the description ‘significant’”, his Honour applied an incorrect, exteriorly derived test. It is not mere semantical nitpicking to find error on the basis of his Honour’s use of the word “significant” in this way; his Honour’s own reasoning makes it transparent that his application of the standard of “significant harm”, which he regarded himself as bound to do by NTEU v University of South Australia,altered the outcome of the case.” 93

[83] The latter of the above paragraphs went to that part of the decision at first instance in which Vice President Lawler had found the current nature of the bans was not sufficient to be significant because of the way in which exemptions were then operating;

“[61] Given the way in which the exemptions regime is now operating and the way in which it will likely operate in the future, I do not consider that the present and continuing threats of endangerment to health or welfare of the remaining group of students to be sufficiently large to attract the description “significant”. The exemptions regime, notwithstanding its minor continuing defects, is adequate in a practical, real-world sense to abate the threat of endangerment on account of the Results Ban to a level that falls below the threshold required by s.424(1).” 94

[84] In Monash University v NTEU, the Full Bench upheld the University’s appeal and ordered the suspension of protected industrial action in the form of the “results ban” referred to above for a period of two weeks from the day after it announced its decision on the appeal. It also declined to agree to the duration of the suspension sought by the University which was eight weeks. 95 It did so within the context of an undertaking from the NTEU that there would, beyond the suspension, be no withholding of results referable to the then current round of assessments. The undertakings were the basis on which the Full Bench determined a suspension of two weeks was appropriate.96

[85] The Full Bench also contemplated a termination order, saying that it “initially considered” one, but did not pursue it because of the parties’ strong preference for a suspension of the protected industrial action. 97

[86] The Full Bench also considered, but did not resolve, a question of an order being made in respect of protected industrial action without a future endangerment, which was a question raised in the course of the cross-appeal by the NTEU;

“[59] The Decision does raise a novel question as to whether s.424(1) requires the making of an order in respect of protected industrial action which at some time in the past has threatened to endanger the life, personal safety, health or welfare of part of the population but no longer does so. Prima facie, we think it unlikely that it was the intention of the legislature that s.424(1) would require or permit the making of orders which, at the time of their making, are known to have no substantive operative effect.

[60] However, that question will remain one for another day, because we consider that the NTEU’s appeal lacks sufficient utility to justify the grant of permission to appeal. As earlier stated the Order was purely nominal in nature and expired some weeks ago now. Its only practical effect was that, by virtue of s.430, the NTEU was required to issue a new notice of protected industrial action. The issue of the stay order had the practical effect of making this statutory requirement inapplicable pending the hearing of the appeals, and in any event we were informed that the NTEU had, out of more abundant caution, promptly issued a new notice. The order we have made prospectively suspending the Results Ban has rendered these past events irrelevant. No identifiable practical purpose can be served by us determining the NTEU’s appeal.” 98

[87] While declining to make a finding on the matter on that occasion, a similar but not identical question was considered and determined by the Full Bench in NTEU v University of South Australia;

“[10] In the present case, it was submitted by the NTEU that the power in s.424 of the Act is significantly different from that relating to the termination of bargaining periods under the WR Act. It was said that the power in s.424 is a much more confined and precise power which is directed at the prevention of particular forms of third party harm. It is therefore only industrial action which causes the requisite harm that may be terminated or suspended by FWA under s.424 of the Act.

[11] We do not agree with this construction of the power in s.424. The use of the words “suspension” and “termination” of protected industrial action in the section may be contrasted with the power given to FWA in s.418 in relation to the making of orders to “stop” industrial action. 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 enterprise agreement” would therefore seem to apply to protected industrial action which was authorised by the ballot, and not to the particular industrial action 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.

[12] 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 though the jurisdiction for the making of an arbitrated determination was in train (see Ambulance Victoria v LHMU [2009] FWA 44, Kaufman SDP). 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.

[13] In any event, we note that even if an order made under s.424 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 Subdivision B of Division 2 of Part 3-3 of the Act. In particular, s.413(7)(a) provides 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”.” 99

[88] While I note the commentary of the Full Bench in Monash University v NTEU about the question they pose, the subject has not been determined.

[89] In Victorian Hospitals' Industrial Association v Australian Nursing Federation protected industrial action was suspended by the Full Bench for a period of 90 days. 100 The action suspended included bans that were stated to “remain in place until a new agreement is reached”, but with specified exemptions and regard to matters of safety.101 In suspending the industrial action, the Full Bench noted the ANF’s views of the impact of the action;

“[45] The ANF submitted that the protected industrial action was not such that there is or has been any endangerment to the health, welfare or safety of any person. It was said that the industrial action being taken has been refined since previous disputes in Victoria and that the ANF has very carefully crafted the nature of the industrial action to ensure that there is no endangerment in the relevant sense to anyone. In this regard it was said that there is a speedy and efficient way to resolve any issues that may arise. It was also submitted that cancellation of elective surgery and extended stays in emergency are things which happen throughout the State every year and, although they might be undesirable or cause inconvenience, they do not endanger people.” 102

[90] When it decided the matter, the Full Bench considered, but disregarded, the prospect of termination of the protected industrial action. Its decision on the subject stated this;

“[58] In all the circumstances, we are satisfied on the basis of the evidence that the protected industrial action being engaged in by the ANF and its members is threatening or would threaten to endanger the personal safety or health, or the welfare, of people in need of public health care services in Victoria. Accordingly an order should be made under s.424 of the Act.

[59] The VHIA and the Victorian Government sought an order terminating the protected industrial action. The ANF and the HSU submitted that an order for the suspension of the industrial action would be more appropriate in the circumstances. Either order would bring to an end the right to take protected industrial action. A termination order may lead to FWA making a workplace determination under Division 3 of Part 2-5 of the Act. A suspension order may allow protected industrial action to be resumed after the period of suspension, subject to relevant notice requirements being observed (see ss.429-430).

[60] In considering whether a termination order or a suspension order should be made we have had particular regard to the stage reached in the negotiations between the parties and to the recently commenced conciliation processes. We note that the negotiations between the parties for the new agreement only commenced in mid-September 2011 and that the s.240 dispute resolution processes before a member of FWA began on 8 November. Although there will undoubtedly be a range of difficult issues to be addressed by the parties, we consider that the negotiations are still at a relatively early stage. We have therefore sought to provide a basis for the parties to continue with the negotiations in a way which is consistent with the bargaining scheme of the Act but without the continued damaging effects of the industrial action. An order suspending the protected industrial action for a period of 90 days will bring to an end the protected industrial action and will allow the discussions and negotiations between the parties to proceed, with the assistance of FWA. It will also allow the parties to focus their efforts on seeking to resolve the differences between them as to the new agreement rather than dealing with the problems associated with the bans and other industrial action. Further, it will provide an opportunity for the ANF to consider ways of giving effect to its stated intention of ensuring that any protected industrial action taken in the course of bargaining does not endanger anyone’s safety, health or welfare. The VHIA also sought that any suspension of the protected industrial action be for at least three months.

[61] For all the above reasons we decided to make the order under s.424 of the Act suspending for a period of 90 days the protected industrial action being taken by the ANF and its members.” 103

[91] Neither party in this matter sought the termination of protected industrial action, with the Commonwealth’s submission being that it had not conducted its case on the basis that termination would be preferable to suspension. 104

[92] The question turns to what should now be done by the Commission in response to its findings above. On the basis of the evidence before me, and the summarised evidence set out in the matters referred to above, I consider the seriousness of the endangerment of the population presented in this matter to be objectively far greater than as set out in Monash and University of South Australia and at least comparable with that set out in VHIA.

[93] My concern with confining the order for suspension only to protected industrial action for which current notices have been given is that within seven working days of the expiry of the suspension of the protected industrial action, notice could be given for the reinstatement of action with the same effect as that which I have suspended.

[94] Respectfully, that does not afford a level of protection that might be expected from an order under s.424, the tests for which have been traversed above. The legislative tests within s.424 include that the industrial action “is threatened, impending or probable” coupled with the need for the Commission to be satisfied that the protected industrial action “has threatened, is threatening, or would threaten” the population or part of it.

[95] The evidence before me shows cogently that there is a probability of industrial action in the future and that the endangerment found by me will likely be a feature of that future industrial action. The CPSU has not backed away from the industrial action it designed and implemented. Its witnesses confirmed the purpose of protected industrial action and that it assisted their cause with Mr Evans saying that improvements in the bargaining policy and the Department’s offer were attributable to the protected industrial action. 105 Each of the CPSU witnesses believed the industrial action designed and delivered could be worked around by the ABF and that it did not endanger the population. Neither did the CPSU give any undertakings about future protected industrial action or that they would in any way restrict the forms of future protected industrial action.

[96] When the ABF went to the CPSU shortly before these proceedings were commenced and sought modifications to the protected industrial action then occurring, no agreement was reached.

[97] Within that context, the proposition that s.424(1) allows only the termination of notified protected industrial action would shift the Commission’s consideration of an application under this section generally, and inexorably in this case, to termination of the protected industrial action. This is because by definition termination of protected industrial action deals with all future industrial action whether notified or not.

[98] However, because the parties have not sought termination of the evidence on the basis that such was proposed I do not make such an order.

[99] I am satisfied in the circumstances that it is appropriate for the Commission to make an order suspending the protected industrial action for the period sought by the Applicant. For that reason, the most recent interim order of the Commission will be revoked and replaced with one requiring the suspension of protected industrial action for 90 days from the date of the original interim order.

COMMISSIONER

Appearances:

Mr T Howe QC, with Mr T Begbie, of Counsel, (instructed by the Australian Government Solicitor) for the Commonwealth of Australia

Mr S Crawshaw SC (instructed by Slater and Gordon) for the CPSU

Hearing details:

2016.

Melbourne (video link to Canberra and Sydney):

2, 3 and 4 April.

Melbourne:

7, 8 and 13 April

 1   [2016] FWC 2090.

 2 Exhibit A2, Witness Statement of Clive Murray, [7]–[9].

 3   Exhibit R3, Witness Statement of Rupert Evans, [11].

 4 Ibid [12].

 5 Ibid [15].

 6   PR567171.

 7   Ibid.

 8   Exhibit R3 [49]–[64].

 9   Exhibit A2 [78]–[79].

 10   Exhibit A3, Schematic Bundle of Documents.

 11   Exhibit A2 tab 11.

 12   Ibid tab 9.

 13   Exhibit A3.

 14   Exhibit A2 tab 9.

 15   Transcript PN 1169; 1406–1408.

 16 Exhibit A2 [60].

 17   Transcript PN 344.

 18   Exhibit A2 [10], [99].

 19   Ibid [98]–[101].

 20 Ibid [111].

 21   Ibid [7], [32].

 22   Ibid [37]-[59].

 23   Ibid [60]-[65].

 24 Ibid [8].

 25 Ibid [9].

 26   Ibid [17]-[20].

 27 Ibid [21].

 28   Ibid [10]; see also [78]-[79].

 29 Ibid [97].

 30 Ibid [98].

 31   Ibid [99]-[102].

 32   Ibid [103]-[107].

 33   Ibid [108]-[109].

 34   Ibid [111]-[113].

 35 (2000) 203 CLR 194, 208 per Gleeson CJ, Gaudron and Hayne JJ.

 36   Protected Industrial Action.

 37   Exhibit R1, Witness Statement of Susan Jones, [10].

 38 Ibid [11].

 39   Transcript PN 1073.

 40 Exhibit A2 [23].

 41 Exhibit R1 [12].

 42 Ibid [14].

 43   Transcript PN 1109–1111.

 44   Exhibit R1 [13]-[14].

 45   Ibid [26]; Transcript PN 1241.

 46   Exhibit R1 [8], [20].

 47 Ibid [20].

 48   Transcript PN 1097–1098.

 49   Ibid PN 1100.

 50   Ibid PN 1103–1105.

 51 Exhibit R1 [9].

 52 Ibid [15].

 53 Ibid [16].

 54 Ibid [21].

 55   Exhibit R2, Witness Statement of Michael Suijdendorp, [11].

 56 Ibid [13].

 57 Ibid [12].

 58 Ibid [14].

 59   Ibid [16]–[17], [20], [22]–[23], [30], [37].

 60 Ibid [18].

 61 Ibid [19].

 62 Ibid [35].

 63 Ibid [52].

 64   Ibid [40], see also [42]-[45].

 65 Ibid [46].

 66 Ibid [53].

 67   Transcript PN 1756.

 68 Exhibit R3 [9].

 69   Ibid [65]-[66].

 70   Ibid [82]; as amended in oral evidence; see Transcript PN 1868.

 71 Ibid [83].

 72 Ibid [69].

 73   Ibid [31]-[46].

 74 Ibid [70].

 75   Ibid [3]-[9].

 76   Transcript PN 1903–1906.

 77   Exhibit A10, Final Outline of Submissions of the Commonwealth, 12 April 2016, [36].

 78   Exhibit R6, Final Outline of Submissions of the CPSU, 12 April 2016, [64].

 79   Protected Action Ballot.

 80   Ibid [61]-[63].

 81   Transcript PN 1478–1479.

 82   Victorian Hospitals' Industrial Association v Australian Nursing Federation[2011] FWAFB 8165 [49].

 83 Ibid [56].

 84   [2013] FWCFB 5982.

 85 Ibid [47].

 86   Ibid [40]-[41].

 87   Re Metro Trains Melbourne Pty Ltd [2015] 6037 [28]–[29].

 88   Re KDR Victoria Pty Ltd T/A Yarra Trams[2015] FWC 6282 [37].

 89 Ibid [40].

 90   Re Metro Trains Melbourne Pty Ltd [2015] 6037 [30].

 91 (2010) 194 IR 30 [8].

 92   [2013] FWCFB 5982.

 93   Ibid [20]–[21].

 94   [2013] FWC 5124 [61].

 95   [2013] FWCFB 5982 [10].

 96 Ibid [56].

 97 Ibid [55].

 98   Ibid [59]–[60].

 99   [2010] FWAFB 1014 [10]-[13].

 100   [2011] FWAFB 8165 [61].

 101   Ibid [6]–[8].

 102 Ibid [45].

 103   Ibid [58]–[61].

 104 Exhibit A10 [36].

 105 Exhibit R3 [18].

Printed by authority of the Commonwealth Government Printer

<Price code C, PR579315>