G4S Custodial Services Pty Ltd v Transport Workers' Union of Australia
[2012] FWA 7465
•31 AUGUST 2012
[2012] FWA 7465 |
|
REASONS FOR DECISION |
Fair Work Act 2009
s.424—Industrial action
G4S Custodial Services Pty Ltd
v
Transport Workers’ Union of Australia
(B2012/1511)
COMMISSIONER WILLIAMS | PERTH, 31 AUGUST 2012 |
Application to suspend or terminate protected industrial action.
[1] This decision deals with an application made under section 424 of the Fair Work Act 2009 (the Act). The applicant is G4S Custodial Services Pty Ltd who has applied to suspend protected industrial action that is to be taken by their employees on the ground that this will endanger the personal safety, health and welfare of a part of the population.
[2] The protected industrial action that is the subject of this application was to occur on Monday, 27 August 2012. The application was the subject of a hearing held on Friday, 24 August 2012. At the conclusion of the hearing I gave brief oral reasons for my decision and issued an Order [PR528235] suspending the protected industrial action from a period of two weeks.
[3] These are the reasons for that decision.
Background
[4] The applicant is contracted to provide court security and custodial services to the District Court and Central Law Courts buildings in Perth. These buildings house the court rooms and associated facilities that are used by the Western Australian District Court and Magistrates Court.
[5] Approximately 90 to 100 employees of the applicant would normally work each day providing these security and custodial services.
[6] These security personnel provide a full suite of security measures within the precinct of the courts and the courts themselves. The security personnel screen members of the public entering the buildings, patrol the public areas within the buildings, attend within individual court rooms, manage the prisoners in holding cells who are transported to the court precinct from various correctional facilities and accompany prisoners, some witnesses and other persons throughout the building as required.
[7] Approximately 70% of these employees are members of the Transport Workers’ Union of Australia (TWU), the respondent in this matter. These employees have previously, through the provisions of the Act, been granted the right to hold a protected action ballot the outcome of which was that a majority of those who voted agreed to take protected industrial action in support of their negotiations with the applicant employer [PR526416].
[8] As required under the Act, on behalf of their members, the TWU has provided a notification to the applicant (see Exhibit A1) that they will conduct a ban on the performance of all work and duties meaning a total withdrawal of labour for a 24 hour period beginning at 12.01 a.m. on Monday, 27 August 2012.
The legislation
[9] The Act includes a provision at section 424 which empowers Fair Work Australia in limited circumstances to suspend or terminate protected industrial action.
“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;
(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, 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.”
[10] At the hearing of this matter evidence was given for the applicant by Ms McCombe, General Manager of Western Liberty Group, and Ms Marlow, Contract Manager for the applicant. For the TWU evidence was given by Mr Lewis and Ms Davis both employees of the applicant working as security officers within the court precinct.
[11] The evidence is that of the 90 to 100 employees that would normally be working on Monday, 27 August 2012 somewhere between 20 and 40 employees only are likely to attend for normal work. The balance of employees will be participating in the protected industrial action that has been notified.
[12] The applicant argues that the significantly reduced amount of security personnel at the courts on Monday, 27 August 2012 as a result of this protected industrial action would threaten to endanger the personal safety, health or welfare of part of the population, namely persons attending the courts including prisoners, Judges and Magistrates, employees of the Department of the Attorney General of Western Australia, witnesses, jury members, vulnerable children, lawyers and members of the public.
Consideration
[13] The evidence in support of the applicant’s case is that based on the expectation that a majority of the employees will participate in the protected industrial action then this significantly reduced number of security personnel will mean that accused persons or prisoners attending court may not be subject to appropriate observation whilst they wait in the holding cells nor appropriately guarded whilst attending their court appearance and this creates an increased risk that they may harm themselves or others whilst in the court precinct.
[14] In addition the significantly reduced numbers of security personnel means that should there be any outbreak of violence between members of the public, as sometimes occurs, the limited security staff on duty are unlikely to be able to promptly intervene or to intervene at all depending upon the level of violence and as a result the personal safety of all persons within the court precinct is significantly compromised.
[15] Having considered the evidence about the increased risks that result from a reduction in security staff I accept the general proposition that for a given amount of court activity in terms of the number of hearings being held then the less security staff there are on duty the greater the risk there is to those persons within the court precincts personal safety, health and welfare.
[16] The question to be determined by Fair Work Australia is whether the consequences of the reduced security staffing is such that the impending protected industrial action threatens to endanger the personal safety, or health or welfare of those persons attending within the court precinct on Monday, 27 August 2012.
[17] The power given by section 424 of the Act for Fair Work Australia to suspend protected industrial action and the approach to the exercise of this power was considered in the decision of the Full Bench of Fair Work Australia in National Tertiary Education Union v University of South Australia [[2010] FWAFB 1014] as follows:
“[7] Section 424 provides that Fair Work Australia (FWA) must make an order suspending or terminating protected industrial action if it is satisfied that the action threatens to endanger the life, the personal safety, health or welfare of the population or part of the population or to cause significant damage to the Australian economy. The effect of making an order suspending or terminating protected industrial action is to bring to an end the right to take protected industrial action. This is achieved by the removal of the protection or immunity which would otherwise attach to the action. The termination of protected industrial action may also lead to FWA making a workplace determination under Part 2-5 of the Act (see ss.266 and 267).
[8] 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.” [paras. 1708-1709]...
[15] Whether in a particular case the exceptional circumstances for the making of an order suspending or terminating protected industrial action under s.424 of the Act have arisen will be a matter to be determined on a consideration of all the circumstances and having regard to the evidence and submissions before FWA.”
[18] In this matter the TWU’s witnesses gave evidence about the potential for the District and Magistrates Courts to take action to reduce any risk to the personal safety, health or welfare of persons by not proceeding with all the various matters that would normally have been listed for Monday, 27 August 2012. A reduction in the matters heard on Monday, 27 August 2012 would similarly reduce the numbers of people attending the court precinct and potentially allow the limited number of security personnel likely to be working to appropriately manage the risks as would be normal.
[19] The TWU strongly argued that this course of action was open to others to take. This course of action provided an option for the heightened risks to personal safety, health or welfare relied on by the applicant to be mitigated.
[20] There is obviously considerable strength in the TWU’s submission in this regard. As the Full Bench decision above explains the suspension or termination of protected industrial action should only occur in exceptional circumstances. The Tribunal should not unnecessarily interfere with the legitimate taking of protected industrial action by employees. Certainly the inconvenience caused to others by these employees exercising their right to take protected industrial action is not a sufficient basis for such interference.
[21] The evidence in this case is that the Western Australian Department of the Attorney General and so assumedly the individual Judges and Magistrates whom will be presiding over various hearings in the courts are aware that the protected industrial action is going to happen on Monday, 27 August 2012. Indeed the evidence is that there have been some discussions between the staff of the applicant and members of the Department of the Attorney General with regard to contingency plans in light of the impending protected industrial action. There has been discussion about moving some proceedings to courts in other locations and potentially making greater use of video facilities to allow more prisoners to participate in their respective proceedings without needing to attend court in person.
[22] However I was advised during the hearing that there are a significant number of court proceedings to be held on Monday, 27 August 2012.
[23] I accept that whether or not any or all of the proceedings that would normally have been held on Monday, 27 August 2012 go ahead remains solely the decision of the individual Judges and Magistrates. Obviously the applicant has no control over this.
[24] There is no evidence before me as to what other steps the Department of the Attorney General has taken to perhaps source security from elsewhere as an alternative to that provided by the applicant’s employees.
[25] It would seem that there are a range of potential other sources that might be able to be accessed by the Department of the Attorney General such as the police service or prison officers from the various correctional facilities or staff from another contractor. The applicant’s representative from the bar table has indicated they believe that the first two of these options for alternative security resources have been requested by the Department of the Attorney General but this has not been provided for reasons unknown.
[26] As the Full Bench above confirmed the fact that protected industrial action may cause great inconvenience to a part of the population or to a particular institution or organisation is not sufficient for Fair Work Australia to act to interfere with the statutory right of employees to take protected industrial action as part of enterprise bargaining.
[27] In a number of the past cases, where this issue has been considered the circumstances endangering the life, personal safety, health or welfare of part of the population arose because of the likelihood of events occurring which were beyond anyone’s control, such as bushfires or in the health sector persons attending hospital with life threatening illnesses or injuries. In those cases the protected industrial action that would have otherwise prevented staff attending to these events to minimise the consequence of them was suspended or terminated by the Tribunal. 1
[28] In other cases where the events that were likely to occur were controllable or the risks from those events could be significantly reduced by the applicant or other parties taking mitigating action the Tribunal has not interfered with the protected industrial action. Such was
the case in Tyco Australia Pty Limited T/A Wormald v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia Electrical, Energy and Services Division - Queensland Divisional Branch [[2011] FWAFB 1598] were Tyco’s service technicians had placed bans on out of hours callouts and so would not attend to deal with problems with fire detection and prevention equipment installed in the premises of Tyco’s clients. The Full Bench in that case declined to make any order interfering with their industrial action noting at paragraph [30] that:
“...Where Wormald or another provider is not able to respond in a timely fashion, the building owner or occupier concerned will need to put in place their own contingency plans in order to minimise any potential risks associated with defective fire safety or prevention equipment.”
[29] The Full Bench went on at paragraph [32] to recognise that there is a legitimate concern in any matter which involves the proper operation and maintenance of fire safety equipment about the need to ensure a high level of protection for the public against hazards of fire, however ultimately the Full Bench declined to intervene and concluded that amongst other things there were:
“...measures which can and will be taken by Wormald and its customers to minimise any associated risks.”
[30] In this case the events that threaten to endanger the personal safety, or health or welfare of persons is that court hearings are to apparently proceed on Monday, 27 August 2012 largely as usual, in circumstances where normal security protections are significantly compromised because the majority of security staff will not be working.
[31] These events are not ones which are beyond anyone’s control. The various court hearings that will proceed on Monday, 27 August 2012 are going ahead not because they must but because others have decided that they will. There is no evidence as to the state of knowledge about the protected industrial action of those making decisions to proceed with these hearings. It might be assumed that others have decided that the inconvenience and other consequences of not proceeding with the various court listings on Monday, 27 August 2012 outweigh any risks from the reduced security presence. However alternatively it may be that the degree to which the security will be degraded is not specifically known to those deciding to proceed with these court hearings.
[32] It is of concern in this instance that there are a range of actions that could have been taken by others to either reduce the need for security staff, by not proceeding with some hearings, or to provide additional security from other sources but this apparently has not been done. Consequently based on the evidence before me I have no option but to find that the risks posed by this protected industrial action have not been reduced as they could have been. I accept this means that on Monday, 27 August 2012 the risks to the personal health, safety and welfare of those attending the court precinct, which a fully staffed security contingent would normally mitigate will be much greater than usual.
[33] Accordingly I am satisfied that the protected industrial action which is to be taken by the applicant’s employees on Monday, 27 August 2012 would threaten to endanger the personal safety, health or welfare of a part of the population being those persons in attendance at the District Court and the Central Law Courts buildings in Perth.
[34] That being my conclusion I am obliged to make the Order [PR528235] sought in this case to suspend the protected industrial action.
[35] However I have suspended this protected industrial action only for a period of two weeks. Following this period of suspension, subject to the notification provisions of the Act, there is no prohibition on these employees again taking this protected industrial action.
[36] If this does occur and if there was to be another application similar to this one brought before me and if the evidence was that normal listings were to proceed with knowledge of that protected industrial action then I would expect, or if necessary direct, that witness evidence be provided by a suitable person from the Department of the Attorney General as to the actions they are taking to address the heightened risks that result from a reduced security presence at the court buildings. In my view there are significant unanswered questions about these issues on this occasion which perhaps if properly answered may have led to a different outcome.
COMMISSIONER
Appearances:
D McLaughlin, Solicitor for G4S Custodial Services Pty Ltd
A Dzieciol on behalf of the Transport Workers’ Union of Australia
Hearing details:
2012.
Perth:
August 24.
1 [2012] FWA 5890 and [2011] FWAFB 8165.
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