G4S Custodial Services Pty Ltd v Health Services Union of Australia (Vic No. 2 Branch)
[2011] FWA 5902
•1 SEPTEMBER 2011
[2011] FWA 5902 |
|
DECISION |
Fair Work Act 2009
s.424—Industrial action
G4S Custodial Services Pty Ltd
v
Health Services Union of Australia (Vic No. 2 Branch)
(B2011/3321)
COMMISSIONER BISSETT | MELBOURNE, 1 SEPTEMBER 2011 |
Application to suspend industrial action
[1] This is an application by G4S Custodial Services Pty Ltd (G4S) under s.424 of the Fair Work Act 2009 (the Act) for an order to suspend protected industrial action notified by the Health Services Union of Australia (Vic No 2 Branch) (the HSU) under s.414 of the Act to commence on 30 August 2011.
[2] Whilst the initial application to suspend the protected industrial action was made under ss.424, 425, and 426 of the Act the Applicant advised at the hearing that only the application to suspend the protected industrial action pursuant to s.424 of the Act was pursued by the Applicant at this stage.
[3] The application was made on 25 August 2011 and heard on 29 August 2011. An interim order (PR513983) was issued by me pursuant to s.424(4) suspending the protected industrial action on 29 August 2011.
[4] This decision deals with the application proper.
[5] Mr Roach, Director Custodial Services for G4S, appeared as a witness for G4S, Mr Hickleton, a guard at the facility, appeared as a witness for HSU.
Legislation
Section 424 of the Act relevantly provides:
424 FWA must suspend or terminate protected industrial action—endangering life etc.
Suspension or termination of protected industrial action
(1) FWA 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 FWA 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) FWA 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;
(ii)(a) 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;
(ii)(b) 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, FWA must, as far as practicable, determine the application within 5 days after it is made.
Interim orders
(4) If FWA is unable to determine the application within that period, FWA 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.
Background
[6] The HSU applied for and was granted an application for a protected action ballot order on 15 July 2011. On 9 August 2011 the HSU notified G4S of the intention to take industrial action commencing 16 August 2011. By agreement with G4S that industrial action was postponed to enable the parties to attempt to resolve the issues in dispute.
[7] Further negotiations occurred around this time.
[8] On 24 August 2011 HSU gave notice of intention to take protected industrial action under s.414(1) of the Act commencing from the first shift on 30 August 2011. The action notified was:
a. Bans on the completion of vehicle log books;
b. Bans on the registration of new users;
c. Bans on perimeter patrols;
d. Bans on internal patrols;
e. Bans on internal escorts;
f. Bans on overtime.
[9] It is the protected industrial action in this notice that G4S seeks to have suspended for a period of four weeks to enable negotiations to continue.
[10] G4S is contracted by Forensicare to provide security services to the Thomas Embling Hospital (TEH). The facility and the work undertaken by G4S is conveniently set out in the witness statement of Mr Roach:
The TEH is a secure hospital and accommodates patients under the Mental Health Act 1986 (Victoria). It is a 116 bed secure forensic mental health hospital and is purpose designed and built to provide advanced clinical treatment and programs to patients from the criminal justice system who have either been transferred from the prison system or ordered by the courts to be detained for psychiatric assessment and/or care and treatment. The hospital has seven accommodation units covering Acute and Continuing Care.
The delivery of forensic mental health services is a specialised area that must address the special needs of mentally ill offenders, the justice sector and the community, while providing effective assessment, treatment and management of forensic patients in appropriately secure settings.
...
Amongst the patients accommodated at the TEH are convicted prisoners who have been certified as mentally ill and transferred from prison to the TEH as secure patients under the provisions of the Mental Health Act. The hospital accommodates voluntary and involuntary patients.
...
G4S is also contractually obligated to ensure that at all times its staff identify and exercise all necessary precautions for the health and safety of all persons, including Forensicare’s personnel and members of the public who may be affected by the services performed by G4S in carrying out its obligations.
More particularly the services that must be provided by G4S to Forensicare include:
(a) Managing the entry into and exit from both the secure and low security areas of the TEH for patients; staff; visitors (professional, family or others); speciality patient service providers and contracted service providers. This will include a search process where the aim is to prevent the entry of contraband items into the TEH. All persons, vehicles, items and goods entering and exiting the TEH are subjected to an appropriate level of search. Any prohibited item or contraband will be reported by G4S staff.
(b) Managing the entry to or exit from the TEH in accordance with policies and procedures and being alert to visitors who are banned or who may warrant special searching prior to entry to minimise the risk of contraband items entering the TEH.
(c) Managing and providing reports on the operation of the security systems and infrastructure that supports the TEH, namely but not limited to:
i. Perimeter detection systems;
ii. Duress alarm systems
iii. Closed circuit television system
iv. Emergency warning and intercom system
v. Metal detection systems
vi. Iris biometric security system, including new registrations
(d) Advising Forensicare of alarms or incidents activated through the security system and providing assistance to such matters as and when directed by Forensicare.
(e) Proving general security and monitoring of the TEH. This includes monitoring the CCTV cameras within the TEH. It also includes monitoring the state of the perimeter wall and the general security in the area immediately surrounding the perimeter (sic) wall. G4S is required to do random vehicular patrols (irregular but to average at least one per hour during hours of darkness) of the external perimeter at night, and hourly foot patrols of the car park during the day, as well as other patrols as may be required by Forensicare.
(f) Provision of escorting duties for certain patients from the TEH. G4S under direction from Forensicare may be required to restrain patients including double cuffing. All G4S staff working at the TEH are trained in the use of flexicuffs and mechanical restraints.
As part of its contractual obligations to Forensicare, G4S must provide an onsite Operations Manager rostered Monday to Friday five days per week. G4S must also provide a staffing complement to ensure a minimum coverage of no less than four security officers, excluding the Operations Manager and between 8am and 3:30 pm Monday to Friday there are to be no less than five security officers, excluding the Operations Manager.
G4S is obligated to have staff and roster patterns that promote continuity and consistency and to use its best endeavours to ensure that there is minimal change in staff performing the services at the TEH to promote effective and appropriate professional relationships between them and others at the TEH, including staff, patients and visitors.
Due to the secure nature of the facility, and the issues arising from the client group (being the patients) Forensicare may veto staff appointments that G4S proposes to make at its discretion and may request a change of personnel and G4S must comply with such a direction and arrange for the replacement of the employee concerned. 1
[11] Employees working for G4S at TEH are subject to specialised training to allow them to work at the facility.
[12] G4S guards at TEH are stationed at the front gate and at reception of the facility. They have no role with respect to patients, regardless of the means by which the patients are held at the facility.
[13] As I understand it the TEH facility is equipped with a biometric system that enables visitors and staff to have their iris scanned on entry to and exit from the facility. The system has a photograph attached to the iris scan data for identification purposes. Scanning on exiting the facility ensures that only those permitted to leave do so. Reference in this decision to the iris scan is a reference to this system.
Findings
[14] There is a need to make a decision in relation to an application under s.424 of the Act as expeditiously as possible. To not do so may deprive a bargaining representative who is otherwise complying with all requirements of the Act recourse to legitimate industrial action.
In reaching my decision I have considered all of the evidence and submissions before me in the proceedings.
[15] In National Tertiary Education Union v University of South Australia 2 a Full Bench of FWA found that:
Within the scheme of the Act, the powers in relation to the suspension or termination of protected industrial action are intended to be used in exceptional circumstances and where significant harm is being caused by the action. This is clear from the Explanatory Memorandum to the Fair Work Bill 2008:
“The Bill recognises that employees have a right to take protected industrial action during bargaining. These measures recognise that, while protected industrial action is legitimate during bargaining for an enterprise agreement, there may be cases where the impact of that action on the parties or on third parties is so severe that it is in the public interest, or even potentially the interests of those engaging in the action, that the industrial action cease — at least temporarily.
It is not intended that these mechanisms be capable of being triggered where the industrial action is merely causing an inconvenience. Nor is it intended that these mechanisms be used generally to prevent legitimate protected industrial action in the course of bargaining.” [PN 1708-1709] 3
[emphasis added]
[16] I concur with this view. A suspension of industrial action should not be granted merely because of some inconvenience the action may cause to the employer. Such an inconvenience may include the need to put in place alternative arrangements to ameliorate the effect of any action taken or may be some economic effect of the action but this, of itself, is not grounds for granting an application to suspend industrial action, particularly where the application is made because the action is alleged to threaten to endanger the life, personal safety or health, or the welfare of the population or a part of it.
[17] In Ambulance Victoria v Liquor, Hospitality and Miscellaneous Union 4 Kaufman SDP, after considering a decision in F & Others v National Crime Commission5 determined that the approach to such an application should be ‘on the basis of probabilities rather than possibilities’ and also that he ‘must be satisfied that the protected action would threaten to endanger, not endanger.’6 That is, in determining if the protected action would threaten to endanger life etc it must be on the basis of the probability of the action doing so, not the mere possibility.
[18] This approach was adopted by Spencer C in Tyco Australia Pty Ltd t/a Wormald v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia 7 and it is the approach I have adopted in this matter.
[19] It is therefore necessary to consider if the bans proposed by the HSU will, in probability, threaten to endanger the life, the personal safety or health, or welfare of a part of the population (there being no claim the action would threaten to endanger the population at large). The proposed industrial action is:
a. Bans on the completion of vehicle log books;
b. Bans on the registration of new users;
c. Bans on perimeter patrols;
d. Bans on internal patrols;
e. Bans on internal escorts;
f. Bans on overtime.
[20] In considering the probable effect of these bans I note that is no notification of bans with respect to responding to emergencies, managing entry and egress from the site (save the registration on the iris scanning system), managing the security management system, participating in alarm and incident response, ensuring to the extent possible that contraband does not enter the site, ensuring persons exiting the site are authorised to do so and so on. Nor are there bans proposed that would affect the monitoring of CCTV or other operating security systems. 8
Vehicle log books
[21] Entry for vehicles into the TEH facility is through the sallyport (a secure gateway) where the vehicle is logged and visually inspected, the driver processed through the iris scan and the vehicle escorted (if entering) as required. Mr Roach, in his evidence, suggested that the ban on vehicle log books was a ban on logging vehicles as they enter at the sallyport although he agreed that the sallyport log can be distinguished from the vehicle log books. The evidence of Mr Hickleton is that the logging and checking procedure at the Sallyport is known as the sallyport log and the vehicle log books that are to be subject to the ban are the vehicle log books used to record who has taken a car out and the kilometres travelled. I accept the evidence of Mr Hickleton that the ban on completion of vehicle log books is not a reference to the sallyport log and that each is separately recognised.
[22] I do not consider that there is a probability that bans on completion of the vehicle log books will threaten to endanger the life, the personal safety or health, or welfare of a part of the population.
Registration of new users
[23] The ban on registration of new users refers to a ban on processing applications for new entrants to the site. Established visitors to the facility include family and friends of patients, contractors, visiting medical staff etc. Such visitors are subject to the iris scan system. On arrival at the facility a visitor is iris scanned by security staff and checked against the related photograph in the system. The same process applies on exit. The level of security for entry and exit from the facility reflects the nature of the patients held there and the need to ensure that it is only visitors and staff who leave the facility. The iris scan ensures this is the case.
[24] A first time visitor to the site is required to complete appropriate forms and provide 100 points of identification to Forensicare administration staff. The completed information is then provided to security staff who complete the iris scan and photographic identification for storage on the system.
[25] Mr Roach gave evidence that he is aware of the alternative system to the iris scan to identify visitors who are not registered in the iris scan system. He says that this system compromises the technology and safety of the facility. Mr Roach gave evidence that there are approximately 1-2 new users per week at the facility. I note Mr Roach’s evidence that a ban on registering new users may result in an increase in contraband entering the premises. It is, however, not clear why this would be the case. There is no evidence of a ban on the security screening of visitors as they arrive such that the contraband will more readily enter the facility.
[26] The evidence of Mr Hickleton however is that if there is no biometric data on a visitor it is at the discretion of the Forensicare security manager (not a G4S employee) if the visitor should be allowed access, with a coloured wristband to identify the person as a visitor. An individual allowed access in this way is still required to fill in a form and provide 100 points of identification. The form, along with the 100 points of identification (eg passport, drivers license etc), is held at security. When the person leaves the facility their identification papers are returned to them. Details of such entrances are kept in the daily log by security guards.
[27] Whilst I appreciate that there is a need for appropriate security arrangements for entry and exit from the facility the evidence is clear that there exists and is utilised an alternative to the iris scan system for entry and exit purposes. If all entry was of such critical importance that entry without the iris scan might result in a threat to endanger the life, or personal safety or health, of individuals, and if the security staff were the only personal authorised to allow entrance to the facility, this ban may legitimately raise the probability of the requisite threat. As it stands non-G4S security staff authorise entry. Under the ban G4S security staff will still check and retain identification documentation and check the wrist band is in place on exit (there is no ban proposed on this) thus ensuring only staff and visitors leave the facility. As such, whilst the ban raises possibilities, it does not give rise to the probability of the requisite threat of the intended industrial action.
Perimeter patrols
[28] Mr Roach gave evidence that a ban on perimeter patrols will endanger the personal safety of patients, staff and visitors to TEH and the public. His evidence is that without the external perimeter patrols contraband may be introduced into the facility by being thrown over the fence. The introduction of such contraband in the form of drugs in the hands of patients could present a significant risk. Further he says that the external patrols are important as a deterrent factor. Mr Roach agreed the perimeter would still be monitored by CCTV.
[29] External patrols are conducted at night by car with the guards not leaving the car.
[30] Mr Hickelton’s evidence is that while the external patrols are important, he believed that the risk of endangering the safety of others by banning the patrol was low.
[31] There is no evidence that a lack of security patrols on the external perimeter may lead to escape by patients from the facility.
[32] Mr Hickleton gave evidence that in his 10 years at TEH he is aware of only one item being thrown over the outside perimeter fence.
[33] The external perimeter is patrolled constantly via CCTV maintained by security guards and there is no ban on the monitoring of the CCTV.
[34] I am not convinced that a ban on the perimeter patrol will, in all probability, threaten to endanger the life, the personal safety or health, or welfare of part of the population.
Internal patrols
[35] Mr Hickleton gave evidence that the internal patrols are conducted at night on foot. These patrols would hopefully pick up any contraband that had been thrown over the external perimeter wall. Mr Hickelton’s evidence is that, in his 10 years at the facility, he has never found such contraband and is only aware of a tennis ball having been found.
[36] Mr Roach’s evidence is that the ban will endanger the personal safety of visitors, staff and other members of the public.
[37] I am not convinced that this ban will threaten to endanger the life, the personal safety or health, or welfare of a part of the population.
Internal escorts
[38] The evidence of Mr Roach is that internal escorts are not required to be conducted by G4S security staff and that the majority of internal escorts are in fact conducted by other staff of the facility.
[39] The evidence of Mr Hickleton is that internal escort may be conducted by security staff but that contractors who require escort are escorted by maintenance staff and that other TEH or Forensicare staff may provide an escort where required. Mr Hickleton also gave evidence that where there is a security issue with a visitor the security guard will ring Forensicare staff who will come and escort the visitor. Further, the security guards do not have anything to do with the patients. Mr Hickleton stated that if there was an emergency the guards would respond to such as normally occurs.
[40] Given the wide range of personal who are able to conduct an internal escort and that security staff do not engage with or restrain patients I am not of the view that this ban would result in the requisite threat.
[41] I am not convinced that this ban will threaten to endanger the life, the personal safety or health, or welfare of a part of the population.
Overtime
[42] No evidence was given of the probable effect of the bans on overtime. I note the evidence of Mr Hickleton that this ban does not include the two hours of regularly rostered overtime necessary to meet the roster requirements.
[43] I therefore find on the evidence that such a ban will not threaten to endanger the life, the personal safety or health of a part of the population.
Conclusion
[44] The evidence of the effect of the bans both individually and collectively to threaten to endanger life, personal safety etc of a part of the population was very limited. I appreciate the commitments G4S have entered into with respect to the contract they have with Forensicare, and that they may have to put in place contingency plans should the bans proceed. I also appreciate the inconvenience the bans may cause. Much evidence was to this effect. This is not, however, the criteria that I must consider with respect to this application. In this respect the evidence is lacking.
[45] On the basis of the evidence before me I cannot conclude that bans notified in the s.414 notice of intent to take industrial action by the HSU will threaten to endanger the life, the personal safety or health or the welfare of the population or part of it.
[46] Whilst I appreciate that the facility at which it is intended to take industrial does house dangerous people and that those people can present a risk to members of the public or staff of the facility I do not consider the proposed industrial action alters the risk that already exists at the facility such that I should grant the application.
[47] The application by G4S is therefore dismissed.
[48] The interim order (PR513983) will cease to apply as at the end of the final shift commencing on the date of this decision.
COMMISSIONER
Appearances:
Mr A McNab - of Counsel, for G4S Custodial Services Pty Ltd
Ms. L. Svendson - of Health Services Union of Australia (Vic No. 2 Branch)
Hearing details:
2011
Melbourne
29 August
1 Exhibit A1, paragraphs 10-11,13, 15-19.
2 [2010] FWAFB 1014.
3 [2010] FWAFB 1014, [8].
4 [2009] FWA 44.
5 [1998] FCA 393.
6 [2009] FWA 44, [29]
7 [2010] FWA 8050.
8 These functions are set out in the witness statement of Mr Roach. See Exhibit A1, paragraph 29-30.
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