The Geo Group Australia Pty Ltd v United Voice

[2011] FWA 9025

[2011] FWA 9025

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.424—Industrial action

The GEO Group Australia Pty Ltd
v
United Voice
(B2011/4059)

COMMISSIONER HARRISON SYDNEY, 22 DECEMBER 2011

Industrial action - suspension or termination of protected industrial action.

[1] This is an application by The GEO Group Australia Pty Ltd (GEO) pursuant to s.424 of the Fair Work Act 2009 (the Act) for an order to suspend or terminate certain protected industrial action being engaged in or is threatened, impending or probable by members of United Voice (UV).

[2] The application relates to members of UV employed by GEO at the Junee Correctional Centre, NSW and whose work is regulated by the LHMU Junee Correctional Centre - Correctional Officers - 2006 Enterprise Agreement (the Agreement). The order sought relates to “offsite escorts” of inmates attending funerals or planned/ongoing medical visits.

[3] Section 424(1) reads:

(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.

Background

[4] The agreed background to the application is as follows:

• Junee is predominately a medium and minimum security correctional centre for male inmates located 450 kilometres south-west of Sydney and 40 kilometres from Wagga Wagga;



• Junee is also the Remand Centre for the Riverina Region which includes for maximum security inmates. Junee accommodates a range of classifications of inmates, including maximum security inmates on remand;



• The maximum capacity of Junee is 790 inmates. On average, Junee accommodates 770 to 780 inmates. Of these inmates, there are approximately 140 minimum security inmates and on average 80 to 100 Remand Centre inmates. The remainder of inmates are medium security inmates;



• GEO engages over 200 employees at Junee comprising management, operational staff (which includes all custodial staff), administrative staff, offender services staff, health services staff and maintenance staff;



• At Junee, GEO employs approximately 110 full time correctional officers. There are also a number of casual and part time correctional officers who are used to cover leave and exceptional duties as and when required by GEO;



• The correctional officers of GEO at Junee are, or are eligible to be members of UV and are employed under the terms of the Agreement;



• UV is a party to the Agreement;



• The nominal term of the Agreement expired on 31 August 2011;



• Negotiations for a new agreement for correctional officers commenced with the tabling of a log of claims by UV on 28 October 2010, but no agreement has yet been reached;



• There have been formal meetings between GEO and UV (including work place representatives) on a regular basis since 28 October 2010;



• In proceedings in Fair Work Australia before Cambridge C on a separate but related issue (C2011/4306), the parties also undertook conciliation over the proposed new agreement itself on 15 November 2011;



• The issues between the parties for the making of a new agreement have narrowed significantly, but have not been able to be resolved;



• On 25 October 2011, UV applied for a protected action ballot order;



• The application for a ballot order was dealt with by myself and a ballot order was issued on 28 October 2011 (PR516146);



• The ballot was conducted by the Australian Electoral Commission (AEC);



• On 11 November 2011, the AEC declared the ballot with all forms of proposed industrial action being authorised by UV members;



• On Wednesday 30 November 2011, UV gave written notice to GEO of protected industrial action in the form of various “ongoing bans” to commence at 0001 Tuesday 6 December 2011 and also a series of two hour stoppages;



• The “ongoing bans” referred to relevantly include:




(a) an ongoing ban on sending or responding to emails;

(b) an ongoing ban on the completion of case management paperwork; and

(c) an ongoing ban on escorting inmates offsite;

• The “ongoing bans” by correctional officers took effect as notified by UV at 0001 Tuesday 6 December 2011.

[5] The application by GEO was made on 7 December 2011 and listed for hearing on 12 December 2011. The parties conferred in private for most of the day seeking to resolve the matter.

[6] Agreement was reached on the majority of issues between the parties and UV tabled a list of written undertakings. Agreement could not be reached on the issue of “offsite escorts” by correctional officers.

[7] A consent Interim Order (PR517886) was issued by me pursuant to s.424(4) of the Act on 13 December 2011 suspending a ban on escorting inmates offsite until further order.

[8] A hearing of the application resumed on 14 December 2011 and the parties continued to be represented by Mr M Seck of Counsel for GEO and Ms G Potter Butler for UV. Mr B Kidd, Operations Manager of Junee Correctional Centre and Mr J Dentrinos, Correctional Officer and site delegate for UV, both gave evidence by telephone link.

[9] In GEO’s grounds in support it stated:

• The employees participating in the industrial action are required to be trained and certified as correctional officers to the standards set by Correctional Services;



• There are very limited options for GEO to attempt to have this work done by other suitably trained persons;



• GEO’s efforts to secure alternate means to undertake required tasks such offsite escorts are proving unsuccessful;



• GEO measures to minimise the risks represented by these bans are costly, limited and stretching the resources of GEO;



• In accordance with s.424 of the Act, the industrial action is threatening or will threaten to:




(a) endanger the life, personal safety or health, or the welfare of part of the population; and

(b) will cause significant harm to an important part of the Australian economy.

[10] It should be noted that these grounds were advanced before UV gave the series of undertakings to withdraw certain bans and limitations on 12 December.

[11] GEO submitted the key issue in this matter is whether it should retain the prerogative to determine who should be deployed to carry out off site escorts in the best interests of the health, welfare and safety of the persons involved.

“Our submission is that ultimately, because one cannot predict every circumstance and every contingency, and one can’t foreshadow every resourcing difficulty which may arise at any one time. It is a matter for the judgment of GEO as the operator of the private correctional facility, and in light of its legal obligations under both the crime, administration of the sentencing Act and regulations, it’s contractual obligations to the Department of Corrective Services, it’s common law duty of care, it’s obligations under the Occupational Health and Safety Act, amongst other things, to determine what is the appropriate decision to make.” 1

[12] It was argued that the imposition of bans or limitations which required alternative resources to be put in place to ensure the safety of a prison population was not simply a mere inconvenience. The unique nature of a prison required a higher benchmark to apply when considering this application.

[13] Mr Kidd gave evidence that only approximately 10 percent of full time officers were available to ameliorate the impact of the ban. During cross examination he stated that there were additional part time and casual officers employed.

[14] It was said limitations that may arise in covering the work normally done by union members include:

• the number of properly trained non-union staff;



• the limits imposed by rosters, standard operating procedures and fatigue management;



• the capacity to call upon resources from other correctional institutions.

[15] UV submitted that the union was conscious of the need to minimise the impact of industrial action on the inmates whilst applying pressure on GEO to reach an agreement.

[16] It was Mr Dentrinos’s evidence that the purpose of the ban on non-urgent medical and funeral escorts was to put pressure on GEO to bargain and that it would not impact the welfare or security of the inmates or safety of the general public.

[17] Under cross examination Mr Dentrinos stated that despite the ban, safety and security would be the paramount obligation of officers.

“Now, you would understand that ultimately what is paramount is the safety of the inmate and the security of the people in the vicinity. That’s correct, isn’t it?---I would say it’s the safety of the inmate, staff and the public.

Yes. Can I put a scenario to you, Mr Dentrinos? A standard shift, as I understand it, at Junee is 12 hours?---There are 12-hour shifts and eight-hour shifts. They’re the two standards.

Let’s assume that a medical emergency happens at the end of a shift and a union member is directed to escort an inmate offsite?---When you say “the end of a shift”, what do you mean by that?

Let’s say within an hour of the end of the shift?---Okay, yes.

Okay; and the end of the shift arises and the inmate and the correctional officer are at the hospital?---Yes.

Let’s say no-one can actually attend the hospital to replace that correctional officer immediately. On your view of things based on the dispute between the parties, would the correctional officer therefore depart the scenario because there was no-one to replace him?---They would not.

Right; so they would continue until they were relieved?---That’s correct.

Now, let’s say a union member attends and not a non-union member. What would happen in those circumstances, according to your ban?---Well, in the hypothetical you’ve just put out to me I’d say both staff would stay in post until they’re relieved - - -

That’s because - - -?--- - - - and if there’s an issue after that, we would take it up with management at a later time.

That’s because you understand that the paramount obligation is the safety and security of not only the inmate but also the staff members and the people at the hospital?---Yes, I’ve already stated that.” 2

[18] UV submitted that the action being taken does not threaten the life, personal safety or well being of the inmates or the general public. It referred to the Full Bench decision in National Tertiary Education Union and University of South Australia 3 (NTEU) which stated:

“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’. It is submitted that these are not exceptional circumstances nor is there a likelihood of significant harm.”

[19] It further submitted that:

“[D]ue to the undertakings already provided by the members, discreet nature of the bans and the fact that by their very nature they give the Applicant time to manage the impact there is no ‘threat’ in fact, and any disruption can be mitigated through contingency planning.”

[20] I have carefully considered all of the submissions and evidence in reaching my decision.

[21] The scheme of the Act provides a right to employees to take protected industrial action in support of bargaining around claims for an enterprise agreement.

[22] As noted by the Full Bench in NTEU above, the powers pursuant to s.424 are to be used in exceptional circumstances. The Bench went on to refer to the Explanatory Memorandum to the Fair Work Bill 2008 thus:

“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.” 4

[23] GEO referred me to Ambulance Victoria v Liquor, Hospitality and Miscellaneous Union 5 where Kaufman SDP determined that the approach he would take to a s.424 application would be “on the basis of probabilities rather than possibilities”. Other members of the Tribunal have since adopted such an approach. I have also decided to follow this approach.

[24] In considering whether a ban on non-urgent medical and funeral escorts will, in probability, threaten to endanger the life, personal safety or health or the welfare of part of the population. I accept that the “population” in this matter are the inmates, employees and staff of Junee Correctional Centre and members of the community.

Conclusion

[25] The evidence of Mr Dentrinos satisfies me that the Correctional Officers’ overriding commitment to safety and security and their professional ethos, would negate the probability of the ban endangering the life, personal safety, health or welfare of the population. I am not satisfied there is the potential for real and actual harm.

[26] I am fortified in this conclusion because of the responsible undertakings already given by UV and its members to minimise the impact of bans.

[27] Although not specifically addressed during the hearing, I would also have a concern that the making of an order suspending or terminating a part of the authorised industrial action could have the effect of rendering all industrial action unprotected. In this regard I note the comments of the Full Bench in National Tertiary Education Union and University of South Australia 6.

[28] I have further had regard to the position reached in negotiations between the parties. In answer to a question from the Tribunal, Ms Potter Butler stated:

“If I may, Commissioner. We’re at a point of 3.9 [percent], they’re at a point of 3.5 [percent], the only outstanding issue is the money.” 7

[29] On the basis of all the material before me I am not satisfied that the ban on non-urgent medical and funeral escorts will threaten to endanger the life, personal safety or health or the welfare, of the population or of part of it.

[30] The application by GEO is dismissed.

[31] The Interim Order [PR517886] will be revoked as at the end of the final shift of today’s date.

COMMISSIONER

Appearances:

M Seck of Counsel for The GEO Group Australia Pty Ltd

G Potter Butler for United Voice

Hearing details:

2011.
Sydney:
December 12 and 14.

 1   Transcript, PN413

 2   Ibid., PN268-277

 3   [2010] FWAFB 1014

 4   Explanatory Memorandum, Fair Work Bill 2008, PN1708-1709

 5   [2009] FWA 44

 6   [2010] FWAFB 1014, PN10-11

 7   Transcript, PN569

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