Star Track Express Pty Limited and StarTrack Retail Pty Ltd v Transport Workers' Union of Australia

[2021] FWC 5954

[2021] FWC 5954

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.424 - Application to suspend or terminate protected industrial action - endangering life etc.

Star Track Express Pty Limited and StarTrack Retail Pty Ltd
v
Transport Workers' Union of Australia
(B2021/896)

COMMISSIONER CAMBRIDGE SYDNEY, 22 SEPTEMBER 2021

Application for an Order to suspend protected industrial action.

[1] This matter involves an application made under s. 424 of the Fair Work Act 2009 (the Act), seeking that the Fair Work Commission (the Commission) makes an Order suspending or terminating protected industrial action that is being engaged in or is threatened, impending or probable, and which has threatened, is threatening, or would threaten to endanger the life, personal safety or health, or the welfare, of the population or a part of it.

[2] Section 424 of the Act is in the following terms:

“424 FWC must suspend or terminate protected industrial action—endangering life etc.

Suspension or termination of protected industrial action

(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.

(2) The FWC 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, the FWC must, as far as practicable, determine the application within 5 days after it is made.

Interim orders

(4) If the FWC is unable to determine the application within that period, the FWC 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.”

[3] The application was made on Sunday, 19 September 2021, by Ashurst Australia lawyers acting on behalf of Star Track Express Pty Limited and StarTrack Retail Pty Ltd T/A Star Track Express (Star Track or the employer). The application seeks an Order against the Transport Workers' Union of Australia (TWU) and members of the TWU who are employees of Star Track.

[4] The industrial action that is the subject of the application relates to employees of Star Track who are members of the TWU, and for whom the TWU has, on 17 September 2021, given notice of intention to take industrial action pursuant to a Declaration of the Results of a Protected Action Ballot. There was no dispute that the industrial action which is the subject of the notice given by the TWU would satisfy the definition of industrial action as established under the Act. The notice provided by the TWU on 17 September 2021, advised of the intention to commence employee claim action at various sites throughout Australia and in respect of 37 identified stoppages to be taken on Thursday, 23 September 2021.

[5] Further, there was no dispute that the industrial action that was intended to commence on 23 September was industrial action that was authorised in accordance with the Declaration of the results of a Protected Action Ballot. The relevant Protected Action Ballot was conducted in accordance with the Decision and Order of the Commission made on 12 August 2021, in Transport Workers’ Union of Australia v Star Track Express Pty Limited and Star Track Retail Pty Limited[2021] FWC 4885 (PR732644 and PR732648) (the PABO).

[6] The issue of contest in this instance has involved the assertion made by Star Track that particular industrial action which is intended to be taken in accordance with the notice of intention provided by the TWU on 17 September 2021, would threaten to endanger the life, or personal safety or health, or the welfare, of part of the population, being those who are reliant on medical supplies including but not limited to those who are not vaccinated or are partially vaccinated against COVID-19. The threat of endangerment to life, personal safety or health, or welfare, of part of the population relates to industrial action that impacts upon the processing and delivery of COVID-19 vaccines, medical supplies, pathology samples and organs for transplant (critical medical supplies). The critical medical supplies are primarily transported by the “Premium” and “Road Express” business units of Star Track. Both the “Premium” and “Road Express” business units operate and deliver from processing facilities at various locations across Australia.

[7] At the outset of the Hearing, the Commission granted permission pursuant to s. 596 of the Act, for the Parties to be represented by lawyers or paid agents. Shortly after the commencement of the Hearing, the proceedings were adjourned into private conference at the request of the Parties. During the course of the conference proceedings, the Parties attempted to reach agreement upon the identification of specified sites and times at which critical medical supplies were to be transported and for which there would be an exemption provided from the taking of any protected industrial action in order to ensure that the transportation of the critical medical supplies would occur without any delay.

[8] Although particular sites and times were identified as involving the transportation of critical medical supplies, regrettably no agreement could be reached regarding exemptions that should be provided from the taking of protected industrial action in respect to all of the identified sites and times. In these circumstances, the proceedings were resumed in order to facilitate a significantly abridged Hearing of the application which has enabled its determination.

[9] In support of its application, Star Track, who were represented by Mr A Pollock barrister, instructed by Mr S Woodbury solicitor from Ashurst Australia, introduced evidence in the form of a witness statement of Mr James Wayne Dixon who is the General Manager, Networks at Australia Postal Corporation. Star Track is a subsidiary of the Australia Postal Corporation. Further witness statements, firstly of Mr Wayne Mark Josh who is General Manager, Star Track Road Express and secondly of Ms Olivia Rose Mariah McIntosh solicitor of Ashurst Australia, were also introduced as evidence in support of the application.

[10] During the abridged Hearing, the applicant’s witnesses, Mr Dixon and Mr Josh were cross-examined on their evidence by Mr M Gibian Senior Counsel, who appeared for the TWU. The evidence provided in the witness statement of Ms McIntosh was admitted without the requirement for any cross-examination. Evidence from the TWU in opposition to the application was provided by witness statements of Mr Gavin Webb the TWU Chief Legal Officer, and Mr Philip Nicolaou an employee engaged by Star Track as a freight handler at its Minchinbury facilities. The abridged Hearing disposed of the need for the TWU witnesses to be cross-examined.

[11] In summary, the evidence provided by Star Track has sought to establish that the industrial action for which the TWU provided notification on 17 September 2021, would result in delays in the sortation and delivery of the various critical medical supplies. The Premium delivery service was the predominant means by which critical medical supplies are delivered, and to a lesser extent Road Express and Next Flight services also process the transportation of critical medical supplies.

[12] The Premium delivery service utilises automation machines for sortation, and for the sortation machines to operate safely, each chute or station must be adequately staffed. Star Track was unsure of the number of TWU members working in the Premium delivery service who would take the anticipated protected industrial action. However, the sortation machines cannot operate safely unless approximately 90% of the usual workforce are present and able to operate the sortation machines. Consequently, if the number of TWU members participating in the anticipated protected industrial action resulted in staffing numbers of less than 90% of the usual workforce, the sortation machines would not be able to be operated. Manual alternatives were considered to be impractical, and if the sortation machines were shut down for any length of time a backlog of parcels would be created resulting in gridlocks which could delay the delivery of critical medical supplies such as COVID-19 vaccines and associated medical consumables.

[13] The evidence also indicated that similar potential for backlog would arise in respect to the Road Express delivery services which included COVID-19 vaccines dispatched to certain regional and rural locations, together with associated consumables and other medical products. The items delivered through the Road Express services are generally larger and heavier (16kg v 3kg on average) than those transported by the Premium service.

[14] The evidence provided by the TWU referred to the alleged absence of any previous indication from Star Track regarding concern about the delivery of critical medical supplies. In this regard, it was asserted that no such concerns had been raised by Star Track during proceedings which resulted in the Commission issuing the PABO, nor had there been discussion or concern about such matters raised during the extensive negotiations that had taken place for a new enterprise agreement.

[15] Further, evidence was provided of the written commitments that had been provided by the TWU to Star Track which involved an undertaking that it would not knowingly hinder, obstruct or impede the delivery of any critical medical supplies such as COVID-19 vaccines and associated consumables. This undertaking was, according to the evidence provided by the TWU consistent with the approach that the TWU had adopted in respect of various logistic Companies which were engaged in the delivery of critical medical supplies.

[16] The evidence provided by the TWU also challenged the asserted impact that the notified industrial action would have on the overall national rollout of COVID-19 vaccines. In addition, evidence introduced by the TWU sought to establish that various other measures could be taken by Star Track to significantly reduce any impacts that the notified industrial action would have on potential for delay with the delivery of critical medical supplies. In particular, it was asserted that measures such as manual handling, identification and prioritisation, engagement of outside hire workers, and similar steps, could be taken to avoid or reduce the potential for any delay to the delivery of critical medical supplies.

Consideration

[17] In this instance, the application to seek an Order suspending or terminating protected industrial action which was asserted to threaten to endanger the life, personal safety or health, or welfare of a part of the population, was made in respect to a notification of employee claim action that involved a series of either 1 hour, 2 hours, or 24 hours stoppages. Consequently, at its highest, the challenged industrial action involved stoppages of work of a maximum of 24 hours duration. Further, any asserted threat to the endangerment to life, safety, health, or welfare would only arise in respect of discrete parts of the operations that were encompassed by the notification of intention to take protected industrial action. There were a number of areas of the Star Track business operations which would be potentially comprehended by the notified industrial action and which would not result in any potential for disruption to the delivery of critical medical supplies.

[18] Consequently, Star Track has essentially sought to have the entire gamut of the proposed industrial action suspended on the basis that particular discrete aspects of its business operations may be impacted such that critical medical supplies may be delayed. Further, in those particular parts of the business operations that involved delivery of critical medical supplies there was little evidence upon which to establish that any stoppage of work for up to a maximum of 24 hours, would materialize as a threat to the life, safety, health, or welfare of a part of the population, particularly those individuals seeking to have COVID-19 vaccinations. The assessment of whether a delay of perhaps one or two days to the delivery of COVID-19 vaccines established a threat to the life, safety, health, or welfare of a part of the population was manifestly problematic. On any realistic and objective assessment, the level of any such threat would be accurately described as being of very low order.

[19] In the event that a delay with critical medical supplies was identified, there were numerous potential actions that Star Track could take to rectify or ameliorate any deleterious impacts arising from those circumstances. Thus, although some costs may arise for Star Track, any threat to endanger the life, personal safety or health, or welfare of a part of the population, could be further diminished. Further, the TWU has provided undertakings in respect to the avoidance of any potential delays for critical medical supplies. However, unfortunately, it was not clear whether these undertakings would include the prospect of specific exemption(s) from the notified industrial action.

[20] Importantly, the applicant has not been able to satisfy that there is sufficient basis upon which to establish the causal link between the industrial action that was notified on 17 September 2021, and a threat to endanger the life, personal safety or health, or the welfare, of a particular part of the population, particularly those seeking to have COVID-19 vaccinations. It is important to recognise that there is significant stringency attached to the need to establish the causal link between the industrial action and a threat to endanger life, safety, health, or welfare, of a part of the population. This stringency arises from the legislated right enshrined in the provisions of the Act which facilitate the taking of protected industrial action, whether that be employee claim action, employee response action, or employer response action. The Commission should act with significant circumspection indeed hesitation, before removing even temporarily, the right to take protected industrial action.

[21] The evidence in this case has not satisfied the stringent test necessary to establish the causal link between the challenged industrial action and the threat of endangerment to life, safety, health, or welfare, of a part of the population. Further, the evidence has established that the employer could and should, take a variety of defensive, proactive, and rectifying actions which would ameliorate the potential for any threat of endangerment to life, safety, health, or welfare.

[22] Consequently, the Order sought by Star Track must be refused as there is no proper basis to establish, to the requisite level of satisfaction, that the industrial action that is the subject of the application would threaten to endanger the life, personal safety or health, or welfare, of a part of the population.

[23] Accordingly, the application in this matter is dismissed.

COMMISSIONER

Appearances:

Mr A Pollock, Counsel, instructed by Mr S Woodbury, solicitor from Ashurst Australia appeared for Star Track Express Pty Limited & StarTrack Retail Pty Ltd.

Mr M Gibian of Senior Counsel, with Ms L Biviano, appeared for the Transport Workers’ Union of Australia.

Hearing details:

2021.
Sydney:
September, 22 (video hearing).

Printed by authority of the Commonwealth Government Printer

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