Parks Victoria v Australian Municipal, Administrative, Clerical and Services Union
[2012] FWA 5890
•11 JULY 2012
[2012] FWA 5890 |
|
DECISION |
Fair Work Act 2009
s.424—Application to suspend or terminate protected industrial action—endangering life etc.
Parks Victoria
v
Australian Municipal, Administrative, Clerical and Services Union; CPSU, the Community and Public Sector Union; The Australian Workers’ Union
(B2012/1096)
DEPUTY PRESIDENT SMITH | MELBOURNE, 11 JULY 2012 |
Termination of protected industrial action.
INTRODUCTION
[1] By application dated 6 July 2012, Parks Victoria (Parks) sought, pursuant to s.424 of the Fair Work Act 2009 (the Act) to terminate protected industrial action being undertaken by members of the CPSU, the Community and Public Sector Union (CPSU); Australian Municipal, Administrative, Clerical and Services Union (ASU); and The Australian Workers’ Union (AWU)
[2] The matter was heard on Wednesday, 11 July 2012 and Parks was represented by Mr F. Parry SC with Mr M. Follett of Counsel. The CPSU was represented by Mr M. Price, the ASU was represented by Ms M. Jackson the AWU was represented by Mr L. Buntman.
BACKGROUND
[3] The Parks Victoria Agreement 2008 [AC328236] (the agreement) is the industrial instrument covering the employees who are the subject of this application. Since June 2011 the parties began the process of seeking to renegotiate that agreement. The nominal expiry date of the agreement was 31 May 2011.
[4] The Tribunal was invited by the parties to assist the negotiations at various times in 2012. Whilst negotiations continued, it appeared that an impasse had been reached.
[5] Since December 2011 staff, who are members of the various unions, began to take protected industrial action. On 8 June 2012 the CPSU, ASU and AWU applied for further protected action ballot orders in which approval was sought for a range of bans but in particular:
- • in the case of the CPSU and AWU, industrial action in the form of indefinite or periodic bans on participating in any emergency response; and
• in the case of the ASU, industrial action in the form of indefinite or periodic bans and pre/present/post emergency response. 1
[6] On 5 July the ASU, CPSU and AWU notified Parks that they intended to take protected industrial action including the emergency response bans. Parks is a support agency for other lead agencies for emergency response. Parks supports the Department of Sustainability and Environment; Victoria Police and the Victorian State Emergency Service. It was the evidence of Mr D. Parkes that examples of emergency response situations include, search and rescue, bushfire suppression and flood response. Particular evidence was given by Mr Parkes in relation to search and rescue, including in the Grampians region.
[7] The evidence of Mr A. Graystone highlighted other response activities including; oil and chemical pollution, hazardous and non-hazardous waterway pollution and wildlife incidents.
JURISDICTION
[8] Before consideration can be given to whether or not to suspend or terminate industrial action it must be established that the prerequisites for the exercise of jurisdiction exist. In this matter, Parks submits that the prerequisites have been satisfied. The CPSU, ASU and AWU elected not to put any submissions other than to submit that the Tribunal must be satisfied before any order can be made and that if an order was made it should be a termination rather than a suspension.
[9] It is trite to observe that the Tribunal should satisfy itself that jurisdiction exists. [Coal & Allied Operations Pty Ltd v AIRC (2001) 203 CLR 194]
[10] Section 424 of the Act 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;
(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.
[11] In this matter, Parks rely upon s.424(1)(c) of the Act. [Coal & Allied Operations v CFMEU (1998) 80 IR 14; State of Victoria v HSUA (Print L9810); Metropolitan Ambulance Service v LHMU(Print PR950276)]
[12] Whilst there are no examples of the ban taking effect, Parks argue the jurisdiction of the Tribunal is enlivened if the ban is threatened, impending or probable. There is no doubt that this is true. Indeed during the dispute with the CPSU and Victoria the following observation was made:
- If the circumstances described in s.424 of the Act are threatened, impending or probably, it may not be necessary for that action to actually occur before the jurisdiction under s.424 of the Act can be invoked. If, indeed, conciliation is at an end between the parties, and the consequences of them exercising their bargaining strengths would have a significant impact, in terms of s.424 of the Act, they can put a common submission to Fair Work Australia to that effect. No time would be lost; no wages would be forfeited; workplace relationships would not deteriorate; conflict impacting upon the public would be avoided and reasoned argument could be the alternative approach. 2
[14] In this matter I am satisfied that protected industrial action is threatened, impending and probable. I am also satisfied that the nature of this action, which is to refuse to participate in any emergency response, threatens to endanger the life, the personal safety or health, or the welfare, of the population or of part of it.
[15] I have reached this conclusion having regard to:
• the duration of the bargaining;
• my assessment that bargaining has reached an impasse;
• the nature of the proposed protected industrial action; and
• the impact of that action, if implemented, on a person or persons who may be in need of an emergency response.
[16] I will issue an order terminating the protected industrial action from 5.00 p.m. tonight. In doing so I am confident that the unions will take all required action to cease industrial action and have normal work resume. The order is attached.
DEPUTY PRESIDENT
Appearances:
F. Parry of Senior Counsel with M. Follett of Counsel on behalf of Parks Victoria.
M. Price for the CPSU, the Community and Public Sector Union.
M. Jackson for the Australian Municipal, Administrative, Clerical and Services Union.
L. Buntman for The Australian Workers’ Union.
Hearing details:
2012.
Melbourne:
July, 11.
1 Statement of James Gallacher at paragraph 22.
2 [2011] FWA 9245—attachment 3 at paragraph 12.
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