Prosegur Australia Pty Limited T/A Prosegur v Transport Workers' Union of Australia and Mr Michael Standish
[2017] FWC 3913
•27 JULY 2017
| [2017] FWC 3913 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.418 - Application for an Order that industrial action by employees or employers stop etc.
Prosegur Australia Pty Limited T/A Prosegur
v
Transport Workers' Union of Australia and Mr Michael Standish
(C2017/4101)
| COMMISSIONER CAMBRIDGE | SYDNEY, 27 JULY 2017 |
Application for an Order that industrial action by employees or employers stop etc.
This matter involves an application made under s. 418 of the Fair Work Act 2009 (the Act), seeking that the Fair Work Commission (the Commission) make an Order that industrial action that is happening, threatened, impending, probable or being organised, is to stop, not occur or not be organised.
Section 418 of the Act is in the following terms:
“418 FWC must order that industrial action by employees or employers stop etc.
(1) If it appears to the FWC that industrial action by one or more employees or employers that is not, or would not be, protected industrial action:
(a) is happening; or
(b) is threatened, impending or probable; or
(c) is being organised;
the FWC must make an order that the industrial action stop, not occur or not be organised (as the case may be) for a period (the stop period) specified in the order.
Note: For interim orders, see section 420.
(2) The FWC may make the order:
(a) on its own initiative; or
(b) on application by either of the following:
(i) a person who is affected (whether directly or indirectly), or who is likely to be affected (whether directly or indirectly), by the industrial action;
(ii) an organisation of which a person referred to in subparagraph (i) is a member.
(3) In making the order, the FWC does not have to specify the particular industrial action.
(4) If the FWC is required to make an order under subsection (1) in relation to industrial action and a protected action ballot authorised the industrial action:
(a) some or all of which has not been taken before the beginning of the stop period specified in the order; or
(b) which has not ended before the beginning of that stop period; or
(c) beyond that stop period;
the FWC may state in the order whether or not the industrial action may be engaged in after the end of that stop period without another protected action ballot.”
The application has been made by Prosegur Australia Pty Limited T/A Prosegur (the employer) and it seeks an Order against the Transport Workers’ Union of Australia (the Union) and members of the Union who are engaged at the employer’s depot located at 29-33 Richard Street, Hindmarsh, South Australia (the relevant employees), including, specifically, a Union delegate at the Hindmarsh depot, Mr Michael Standish (Mr Standish).
The Hearing of this application commenced via urgent notice of listing, at 11:00 am today, 27 July 2017. The matter was identified to involve complexity such that the requirements of s. 596 of the Act were satisfied, and therefore the Parties were granted permission to be represented by lawyers or paid agents. Mr N Stevens, solicitor, appeared for the employer, and Mr E Lawrie, appeared for the Union.
The operations of the employer that are the subject of the application are conducted in the State of South Australia and the Northern Territory. The Hearing was held in Sydney, and it involved video links to Adelaide, Darwin and Perth. The employer provided evidentiary material in support of the application by way of a witness statement of Ms Karen Louise Carnie (Ms Carnie) dated 25 July 2017. Ms Carnie is the employer’s General Manager – QLD/WA/SA/NT, and she gave evidence as a witness upon which she was cross-examined by Mr Lawrie via the video links between Sydney, Adelaide, Darwin and Perth.
The evidence provided by Ms Carnie relevantly established that the Union had organised, and the relevant employees had taken, various forms of protected industrial action since January 2017. The protected industrial action has been taken in connection with enterprise agreement negotiations aimed at replacing the Chubb Security Services Limited, Armoured Vehicles and Flexible Crewing, (South Australian & Northern Territory) Enterprise Agreement, 2013 – 2016 (the Agreement). As part of an escalation in the pattern and nature of the taking of protected industrial action, on 17 July 2017, the Union provided written notification of the commencement of bans and limitations on the servicing of automatic teller machines commencing on 25 July 2017. These bans and limitations were stipulated to be of an indefinite duration.
On 20 July 2017, Ms Carnie received an email from the employer’s Managing Director, Mr Michael Smith, which contained an email dated 19 July 2017, from Mr Standish to Mr Smith (the 19 July email). In summary, the 19 July email included a proposal whereby Mr Standish would make arrangements to engage the services of a contractor to run the employer’s South Australian operation, and thereby allow the employer to remove all South Australian based employees. This proposition was advanced as a basis upon which to resolve the on-going industrial disputation surrounding enterprise agreement negotiations for a replacement to the Agreement.
The employer has asserted, inter alia, that the proposition advanced in the 19 July email offends the common requirements that apply for industrial action to be protected industrial action. Specifically, the employer has contended that the industrial action engaged in after the 19 July email offends subsection 413 (3) of the Act, and the requirement for the bargaining representatives of persons organising or engaging in industrial action to be genuinely trying to reach an agreement. The employer has described the proposition advanced in the 19 July email as demonstrating an ulterior motive and purpose for the taking of industrial action, that being a proposed new business venture for the employer to enter into a labour hire or contracting arrangement with Mr Standish that would result in the employer terminating the employment of the relevant employees.
The Union and Mr Standish were understandably unable to properly prepare a case in opposition to the application in the time available. However, the particular circumstances of this case are somewhat unusual. The evidence provided by the 19 July email appeared to involve activities on the part of one of the persons engaging in industrial action, Mr Standish, which, prima facie, were directly contrary to reaching an agreement. Indeed, the 19 July email relevantly suggested that; “This will allow the company to remove all S.A. employees from the books… thus eliminating the need for an EB…”
In view of this evidence, and the unusual circumstances that have emerged, the prospect for the Commission to make Interim Orders under s. 420 of the Act has logically developed.
Section 420 of the Act is in the following terms:
“420 Interim orders etc.
Application must be determined within 2 days
(1)As far as practicable, the FWC must determine an application for an order under section 418 or 419 within 2 days after the application is made.
Interim orders
(2)If the FWC is unable to determine the application within that period, the FWC must, within that period, make an interim order that the industrial action to which the application relates stop, not occur or not be organised (as the case may be).
(3)However, the FWC must not make the interim order if the FWC is satisfied that it would be contrary to the public interest to do so.
(4)In making the interim order, the FWC does not have to specify the particular industrial action.
(5)An interim order continues in operation until the application is determined.”
The Union made submissions which neither opposed nor consented to the granting of any Interim Orders. The employer made submissions in support of the making of an Interim Order.
The Commission has considered the submissions concerning any Interim Order. The Commission has decided to make an Interim Order pursuant to s. 420 of the Act. The Commission is satisfied that the circumstances as contemplated by subsection 420 (2) of the Act have been established in this instance. Therefore, the Commission is obliged to make an Interim Order unless satisfied that it would be contrary to the public interest to do so (subsection 420 (3)).
The Commission has determined that it would not be contrary to the public interest to make an Interim Order broadly in the terms of the final Order as sought by the employer. The Interim Order [PR594847] shall be issued accordingly, and it shall operate until the application has been determined.
COMMISSIONER
Appearances:
Mr N Stevens of Stevens & Associates Lawyers appeared for Prosegur Australia Pty Limited.
Mr E Lawrie appeared for the Transport Workers’ Union of Australia – SA/NT Branch.
Hearing details:
2017.
Sydney, Adelaide, Darwin and Perth (video hearing):
July, 27.
Printed by authority of the Commonwealth Government Printer
<Price code A, PR594844>
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