G4S Custodial Services Pty Ltd v Health Services Union of Australia

[2014] FWC 8331

[2014] FWC 8331

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.424—Industrial action

G4S Custodial Services Pty Ltd
v
Health Services Union of Australia
(B2014/1611)

COMMISSIONER GREGORY MELBOURNE, 21 NOVEMBER 2014

Application to suspend or terminate protected industrial action.

[1] This decision deals with an application by G4S Custodial Services Pty Ltd (G4S) under s.424 of the Fair Work Act 2009 (Cth) (the Act) for an order to suspend protected industrial action that has been notified by the Health Services Union of Australia (HACSU) under s.414 of the Act. The employees involved are employed as Security Officers at the Thomas Embling Hospital, which is a forensic mental health hospital operated by the Victorian Institute of Forensic Mental Health (Forensicare).

[2] The employees are covered by the G4S Custodial Services and Health and Community Services Union Thomas Embling Hospital Enterprise Agreement 2011 1. The nominal expiry date of the Agreement is 28 January 2014 and both G4S and HACSU are parties to the Agreement. They have also been involved in a series of negotiations over an extended period regarding a new Agreement.

[3] Written notice of the protected industrial action was given to G4S by HACSU in two separate Notices. The first, dated 13 November 2014, informed G4S that HACSU members employed at the Thomas Embling Hospital intended to take the following forms of protected industrial action.

• Bans on the completion of new visitor registrations.



• Bans on internal and external patrols.



• Bans on the completion of visitor forms at weekends.



• Bans on the completion of the file log entry.

[4] The Notice also indicated these bans were to commence at 6 a.m. on Wednesday, 19 November 2014, and the evidence indicates bans in regard to the performance of these duties have been taking place since that time.

[5] A further notice dated 17 November 2014 from HACSU informed G4S that its members also intended to take the following protected industrial action.

• A ban on operating the sally port entry/exit for 24 hours commencing at 6 a.m. on Tuesday, 25 November 2014.



• A one hour stoppage on the performance of all work commencing at 12 noon on Saturday, 22 November 2014. (However, it is noted that this proposed action is not subject to the present application.)

[6] Further written Notice was also provided by HACSU to G4S on 5 November 2014 to do with action that commenced on 11 November 2014. However, this action is also not subject to the present application.

[7] The application by G4S indicates:

“The basis of the application is that protected industrial action is being threatened, impending or probable and would endanger the life, the personal safety or health, or the welfare, of the population or of part of it namely patients of Thomas Embling Hospital (“TEH”), other employees of G4S and staff at TEH, visitors to TEH and members of the public generally.” 2

[8] Section 424(3) of the Act provides that if an application for an order is made under s.424 the Commission must, as far as practicable, determine the application within 5 days after it is made. Section 424(4) continues to indicate that if the Commission is unable to determine the application within that 5 day period the Commission must, within that period, make an interim order suspending the protected industrial action to which the application relates until the application is determined. That interim order then continues in operation until the application is determined.

[9] The present application was made on 18 November 2014. Having considered the submissions and evidence I am satisfied it is appropriate to determine the application within the 5 day period. Detailed reasons for this decision will be issued shortly.

[10] The relevant part of s.424 provides:

“(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.”

[11] G4S submits, in summary, the action is threatening or will threaten the patients at the Hospital, the staff, and the general public, in particular, local residents. Evidence in support of its application was provided by Ms Vivienne Hunt, the Security Operations Manager for G4S at both the Thomas Embling Hospital and the Wilfred Lopes Centre, and by Mr Michael Evans, the Security and Facilities Maintenance Manager at the Hospital. G4S submits this evidence demonstrates a firm evidentiary basis of support for the application. It continues to submit the impact of the action extends beyond being “an inconvenience,” and instead threatens or will threaten to endanger, in particular, the personal safety and welfare of patients at the hospital, employees, visitors to the hospital, and the general public.

[12] HACSU opposes the application. It provided evidence from Ms Ginny Adams, who is employed as an Organiser by HACSU, and from Mr Santo Muscara, who is employed as a Security Officer by G4S at the Hospital. It submits G4S has had ample time to put in place a range of options in response to the possibility of protected industrial action occurring, and these steps should have been taken. It also submits the impact of the action at this time falls well short of what must be found to exist to require the Commission to make an order under s.424. It submits instead that at this time the impact and effect of the action represents simply an “administrative and practical inconvenience”, and this impact is not sufficient to require the Commission to find that an order under s.424 must be made.

[13] I have considered the submissions and evidence provided in the proceedings. I have also had regard to the relevant authorities that have considered how applications under s.424 should be determined. I am satisfied in response that the action being taken by HACSU members is causing some disruption and inconvenience to the normal operations at the Hospital. However, I am not satisfied that the evidence indicates that the protected industrial action now being engaged in, or impending, is threatening, or will threaten to endanger either the life, the personal safety or health, or the welfare of the population, being in this case either the patients at the hospital, the employees of either the hospital and or the various contractors providing services at the site, visitors to the hospital, or the general public.

[14] The application by G4S is therefore dismissed. Detailed reasons for decision will be published shortly.

COMMISSIONER

Appearances:

Mr Joseph D’Abaco of Counsel and Mr David McLaughlin of Rigby Cooke Lawyers appeared on behalf of the Applicant.

Mr Siobhan Keating of Counsel and Ms Fiona Rothville of Slater and Gordon appeared on behalf of the Respondent.

Hearing details:

2014.

Melbourne:

20 November.

 1   AE890960

 2   Form F37 Application lodged by G4S Custodial Services Pty Ltd on 18 November 2014 at page 3

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