G4S Custodial Services Pty Ltd v CPSU, the Community and Public Sector Union

[2014] FWC 5496

[2014] FWC 5496

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.424—Industrial action

G4S Custodial Services Pty Ltd
v
CPSU, the Community and Public Sector Union
(B2014/1216)

COMMISSIONER BISSETT MELBOURNE, 18 AUGUST 2014

Application to suspend or terminate protected industrial action - endangering life.

[1] On 5 August 2014 G4S Custodial Services Pty Ltd (G4S) sought an order pursuant to s.424 of the Fair Work Act 2009 to terminate protected industrial action being taken by CPSU, the Community and Public Sector Union (CPSU).

[2] The application was heard on 6 August 2014 at 5.00pm. At the conclusion of that hearing I advised that I was satisfied that industrial action was being engaged in or was threatened, pending or probable and that I was satisfied that the protected industrial action would endanger the life, the personal safety or health, or the welfare of part of the population. Being satisfied that the jurisdictional basis existed I issued the order sought. In doing so I indicated that I would hand down my reasons for decision at a later date. These are my reasons.

[3] Section 424 of the Act states:

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.

Previous application

[4] On 22 July 2014 G4S made an application to suspend or terminate industrial action being engaged in by the CPSU. That matter was dealt with by Deputy President Smith. Whilst an interim order was made in that matter, by decision dated 1 August 2014 the application was dismissed and the interim order revoked.  1 In his decision the Deputy President indicated that:

As stated earlier it is not the lockdowns per se which give rise to the jurisdiction as this occurs at the initiative of management on a number of occasions during a month. It is the cumulative effect and the randomness of the lockdowns which require consideration. 2

[5] The Deputy President then said he:

cannot yet conclude that the cumulative effect of the industrial action by correctional officers attracts the jurisdictional foundation for an order to be made... For the matter to succeed there would have to be additional evidence of the impact of the cumulative effect of the current industrial action. 3

[6] Following the revocation of the interim order the CPSU gave the required notice under s.414 of the Act to G4S of its intention to take industrial action. The notice of industrial action given by the CPSU included:

• 4 hour stoppages of work commencing at 8.15am on 8 August, 11 August, 12 August, 13 August, 14 August and 15 August 2104;



• Indefinite or periodic bans commencing at 8.15am on 7 August 2014 completion of IMF files and relocation, updating and auditing of IMF files;



• Indefinite or periodic bans commencing at 8.15am on 7 August 2014 on reception processing of prisoners transferring to Port Phillip Prison;



• Indefinite or periodic bans commencing at 8.15am on 7 August 2014 in the form of attaching a notice to emails;



• Indefinite or periodic bans commencing at 8.15am on 7 August 2014 in the form of not complying with G4S restriction on public comment;



• Indefinite or periodic bans commencing at 8.15am on 7 August 2014 collecting and signing for keys or accruements until after formal morning parade;



• Indefinite or periodic bans commencing at 8.15am on 7 August 2014 on attendance for work at Reception being no earlier than two minutes before the rostered time;



• Indefinite or periodic bans commencing at 8.15am on 7 August 2014 in the form of wearing campaign material and/or badges and placing signage on G4S cars, Port Phillip Prison car park, work stations etc. 4

[7] The notice given by the CPSU on 1 August 2014 satisfied me that there was industrial action that was ‘threatened, pending or probable’. (s424(1)(b)).

[8] The second jurisdictional issue to be determined is if the action is or would threaten to ‘endanger the life, the personal safety or health or the welfare’ of part of the population (s.424(1)(c)). In this respect I am satisfied that the prisoners at Port Phillip Prison and at St Augustine’s unit at St Vincent’s Hospital form part of the population. It is their safety, health or welfare to which my attention now turns. In doing so it should not be forgotten that there are other employees in the Prison not involved in taking industrial action. They also form a part of the population. I have had regard to their health safety, and welfare as well.

[9] I am satisfied that there has been a substantial escalation of the industrial action from that considered by the Deputy President when he refused to make the order sought by G4S on 1 August 2014. In particular the proposed stoppages are of four hours duration and will occur each weekday commencing on Friday 8 August 2014.

[10] The prisoners at Port Phillip Prison are affected by any industrial action taken by the CPSU. While it is true that there are a number of management initiated lockdowns each month for training and related purposes the industrial action proposed by the CPSU will result in four hour lock downs each weekday morning for the next six weekdays. These lockdowns will have a significant effect on the prisoner population.

[11] G4S submit, and I accept, that the only action it can take in response to the stoppages by the CPSU is to lock down prisoners in their cells. The planned stoppages are to commence immediately after the morning headcount at which time the prisoners have been locked in their cells for 13 hours. The stoppage means the prisoners will remain locked in their cells for a further four hours, making a total of 17 hours out of 24 during which they are locked down.

[12] I accept the evidence of Mr Ian Thomas, General Manager of Port Phillip Prison (which was not disputed by the CPSU) that, by being subject to a lockdown from 8.15am for four hours, prisoners will be substantially effected as they:

• Will be required to have two meals a day in their cells and not be able to socialise during those meal times as normally occurs;



• Be subject to two head counts by ‘trap count’ (instead of one trap count and two counts outside their cells);



• Have the dispensation of medication, including OSTP, along with medical appointments disrupted;



• Will have limited the amount of time available for visits as fewer visits will be able to be facilitated in the period when prisoners are not locked down;



• Will not be able to participate in paid work that they normally perform from 8.30am-2.30pm adversely affecting the money earned by the prisoners;



• Have scheduled transfers for court appearances or teleconferences with third parties delayed or cancelled. 5

[13] I accept the uncontested evidence of Mr Thomas on the impact of the work bans notified by the CPSU. I also accept Mr Thomas’ hearsay evidence as to the broader effect the ban on facilitating transfers will have not just on prisoners at Port Phillip Prison but on the broader prison system across the state of Victoria.

[14] I am satisfied that the effect of the industrial action will result in frustration, disruption and anger amongst the prisoners. This may result in the prisoners individually or collectively becoming disruptive or aggressive and/or doing such things to cause harm to themselves and to other prisoners, to employees or other people in the prison.

[15] It is never possible to say with absolute certainty what the impact of the industrial action will have. The impact is on other people and how they will react is not known. However, given the level of escalation of the industrial action, the sheer volume and compressed nature of the stoppages and the impacts outlined above I am satisfied that it is highly probable that the industrial action, if allowed to proceed, threatens, or will threaten the life, personal safety or health or the welfare of a part of the population, in particular the prisoner population at Port Phillip Prison.

[16] It is for these reasons I issued the order sought by G4S.

COMMISSIONER

Appearances:

R. Nelson of Counsel with E. Burgio of Maurice Blackburn Lawyers for the Applicant.

J. Forbes of Counsel with D. Oberdan of FCB Workplace Law for the Respondent.

Hearing details:

2014.

Melbourne:

6 August.

 1   [2014] FCC 5171.

 2   [2014] FWC 5171, [21].

 3   [2014] FWC 5171, [23].

 4   See attachment E to application of G4S.

 5   Exhibit G4S1.

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<Price code C, PR554198>