Transit Australia Pty Ltd T/A Marlin Coast Sunbus v Transport Workers' Union of Australia

[2017] FWC 3085

[2017] FWC 3085

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.425 - Application to suspend protected industrial action, cooling off

Transit Australia Pty Ltd T/A Marlin Coast Sunbus
v
Transport Workers' Union of Australia
(B2017/462)

COMMISSIONER SPENCER BRISBANE, 13 JUNE 2017

Application for an Order to suspend protected industrial action – application refused.

INTRODUCTION

[1] An application pursuant to s.425 of the Fair Work Act 2009 (the Act) was made by Transit Australia Pty Ltd T/A Marlin Coast Sunbus (the Applicant) for an Order that the Transport Workers' Union of Australia (the Respondent) suspend for 30 days, protected industrial action that was notified to commence on 6 and 7 June 2017. The matter was heard early in the morning of 6 June 2017 in Brisbane. At the conclusion of the Hearing, a decision was delivered ex tempore dismissing the application. The reasons for that decision are set out below.

RELEVANT PROVISIONS

[2] Pursuant to s.425 of the Act:

“425 FWC must suspend protected industrial action--cooling off

(1) The FWC must make an order suspending protected industrial action for a proposed enterprise agreement that is being engaged in if the FWC is satisfied that the suspension is appropriate taking into account the following matters:

(a) whether the suspension would be beneficial to the bargaining representatives for the agreement because it would assist in resolving the matters at issue;

(b) the duration of the protected industrial action;

(c) whether the suspension would be contrary to the public interest or inconsistent with the objects of this Act;

(d) any other matters that the FWC considers relevant.

(2) The FWC may make the order only on application by:

(a) a bargaining representative for the agreement; or

(b) a person prescribed by the regulations.”

BACKGROUND

[3] On 2 June 2017, the Applicant filed an application in substantially similar terms and a hearing for that application was convened on 5 June 2017. The TWU however, sought to raise a jurisdictional prerequisite to the making of an Order, that the industrial action must be being “engaged in” could not be satisfied. This prerequisite was not met at that time. Accordingly, the application was withdrawn and a further application was filed on 5 June 2017. The industrial action commenced at 5:00 am on 6 June 2017 and a hearing was convened at 7:00 am the same day.

[4] The Applicant and the Respondent have been engaged in negotiating a new enterprise agreement. In September 2016, following a protected action ballot, members of the Respondent engaged in various forms of protected industrial action. 1 On 1 June 2017, the Applicant advised the Respondent that it intended to put the proposed enterprise agreement to a vote by its employees.

[5] The Applicant sought to have the protected industrial action suspended to allow the vote to occur. The Applicant submitted that it had made clear it had ceased negotiations of the new enterprise agreement. 2 Mr John Calabro, Chief Operations Officer of the Applicant, in his evidence stated:

“2. The Respondent has been negotiating an enterprise agreement with its workforce since 9 December 2015…

…

14. During the negotiations as outlined in paragraph 2 above the TWU has initiated protected action on many occasions…

15. If the protected action takes place over 6 and 7 June it will be the 13th day in which the passengers in Cairns who enjoy our services will be substantially inconvenienced.

16. I anticipate during the two day strike that at least 57 drivers will participate in the protected action leaving some 21 drivers to assist us try to provide reduced services to the Cairns area.” 3

[6] Mr Russell Vieritz, Organiser of the Respondent, in his statement provided:

“7. I do not understand what matters can be resolved when the Applicant is submitting an agreement to a vote and cannot change the text of the proposed agreement during the lead up to a vote.

…

9. Even if the protected industrial action notified for 6 and 7 June 2017 were cancelled, it would not allow the planning of anywhere enough bargaining meetings to deal with the mass of outstanding issues with the Respondent…

…

11. Members of the Respondent employed by the Applicant are highly frustrated because they feel their wage rates and general conditions are amongst the lowest in the industry and the only opportunity they have to do something about it is use their rights under the Act when bargaining for an agreement.” 4

CONSIDERATION

[7] In the case of Oliveri Transport Services Pty Ltd v Transport Workers’ Union of Australia, Commissioner Cambridge considered the requirements of s.425(1) of the Act: 5

“[20] In respect to paragraph (a) of subsection 425 (1) of the Act, the evidence and submissions provided has not convinced me that it would be beneficial to the bargaining representatives in assisting to resolve the matters at issue if the suspension of the industrial action was provided. Essentially the evidence that was provided did not establish exactly how the suspension of the industrial action would operate to assist the resolution of the enterprise bargaining negotiations.

[21] In terms of paragraph (b) of subsection 425 (1) of the Act, the duration of the protected industrial action is, on this occasion, reasonably limited. Therefore the duration of the protected industrial action does not provide any compelling factor in support of granting the suspension.

[22] There is some basis to support the proposition that the public interest may be served by suspension of the protected industrial action, as is relevant to paragraph (c) of subsection 425(1) of the Act. It would seem however that support for this proposition is largely contingent upon a public interest test confined to some potential inconvenience for the travelling public in parts of Western Sydney as opposed to the broader concept of public interest.

[23] Although I have considerable sympathy for the undesirable impacts that the industrial action may have, particularly for those who utilise and rely upon public transport, there has been adequate notification of the industrial action such that the employer and other relevant agencies should have been able to implement contingency arrangements to minimize or even avoid any inconvenience. In any event, I believe that the public interest considerations mentioned in paragraph (c) of subsection 425(1) of the Act are directed to the more general concept of public interest as opposed to the interests of a particular public group. Consequently, there are more general competing questions of public interest.

[24] In respect to that aspect of paragraph (c) of subsection 425 (1) of the Act which relates to any inconsistency with the objects of the Act, it is relevant to note that object 3 (f) of the Act seems to provide the only mention of industrial action. In that respect, the objects appear to be confined to providing “...clear rules governing industrial action”. There is no specific object relating to avoiding or minimising protected industrial action. The legislative regime has been constructed with a clear intention to facilitate the taking of protected industrial action. Consequently, it would appear that the suspension of the protected industrial action by way of an Order under s.425 would in this instance, be likely to be inconsistent with the objects of the Act.

[25] In addition, there is a clearly established approach to the tests that need to be met to enable the granting of an Order under either s.424 or s.425. In this regard it is relevant to refer to the following passages from the Full Bench Decision in National Tertiary Education Industry Union v University of South Australia [2010] FWAFB 1014 (NTEIU):

“[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]” (Emphasis added)” 6

[8] Relevant to the consideration of the suspension of protected industrial action; are the following observations of the objects of the Act, made in Linfox Australia Pty Ltd v National Union of Workers: 7

“[13] The scheme of the Act provides for protected industrial action. That provision is an important part of the scheme for collective bargaining which is promoted by the objects in Sections 3(a), (c), (e) and (f) of the FW Act but most centrally by the object in Section 3(f). There are a number of limited circumstances in which protected industrial action may be suspended or terminated. Mostly they relate to circumstances where the bargaining is not consistent with “good faith bargaining obligations and clear rules governing industrial action” or where the industrial action is endangering the welfare of the participants or others. Suspension under Section 425 of the FW Act is different; it is about “cooling off” as is clearly identified in the heading. This is reinforced by the matters that the legislation says that I must specifically take into account namely the duration of the protected industrial action and whether it would be beneficial to the bargaining representatives because it would assist in resolving the matters at issue. This is of course to be balanced against the public interest and the objects of the act which generally favour the right to protected industrial action. Of course in particular circumstances there might be particular public interest considerations which also favour the suspension of industrial action. However, where those circumstances relate to endangerment to the community or failure to bargain in good faith or in accordance with the rules for industrial action then other sections of the legislation are relevant. I must also consider other matters I consider relevant.” 8

[9] Section 425 of the Act provides a limited discretion to the Commission to Order the suspension of protected industrial action, subject to the requirements of that section.

[10] I adopt the reasoning, as set out by Cambridge C in Oliveri, 9 in relation to considering section 425 and the suspension of protected industrial action. The industrial action, in the current circumstances is for a limited period of two days. Whilst I have some sympathy for the impact of the industrial action on the Cairns community that use the Applicant’s bus services, the public interest test in regard to this protected industrial action is not confined to the inconvenience of the travelling public in parts of the Cairns community, as opposed to the broader concept of public interest.10

[11] The legislative scheme facilitates the taking of protected industrial action with the provision of proper notice, to allow the employer to undertake the relevant arrangements to minimise the inconvenience and or notify the travelling public.

[12] In the current circumstances, on the evidence that the employer has prepared an education pack containing the proposed enterprise agreement to be distributed to employees, in order to enable the vote to occur, an Order suspending the protected industrial action would not assist in resolving the matter. A “cooling off” period would not be beneficial to the bargaining representatives for the Agreement, given the employer has stated they do not intend to continue to bargain, prior to the proposed Agreement, being put to vote.

[13] Accordingly, the nature of the bargaining between the parties and the relevant circumstances of the negotiations has been taken into account. The duration of the protected industrial action is limited and, whilst it will have an impact, it is not considered to be contrary to the overall public interest or inconsistent with the objects of the Act.

[14] In addition, it is not considered that an Order for the suspension of protected industrial action would be beneficial (in the circumstances of the negotiations between the parties) to the bargaining representatives for the Agreement, given the employer has indicated it has ceased bargaining prior to the vote, a suspension or cooling off period, would not assist in resolving the matters at issue.

CONCLUSION

[15] Accordingly, as per the ex tempore decision given on transcript on the morning of 6 June 2017, the above reasons are provided in support of the decision to dismiss the application for an Order to suspend the protected industrial action.

COMMISSIONER

Appearances:

Mr I MacDonald from the Australian Public Transport Industrial Association for the Applicant

Mr J Calabro for the Applicant

Mr L Norris for the Respondent

Hearing details:

2017

Brisbane

June 6

 1 Applicant’s Form F37 – Application for an order for suspension or termination of protected industrial action dated 5 June 2017 at 5.1; Statement of Mr John Calabro (undated) at [2].

 2 Statement of John Calabro (undated) at [3].

 3   Ibid at [2], [14] – [16].

 4   Statement of Mr Russell Vieritz dated 5 June 2017 at [7], [9], [11].

 5   [2013] FWC 2187.

 6   Ibid at [20] – [26].

 7   [2014] FWC 529.

 8 Ibid at [13].

 9   [2013] FWC 2187.

 10 Ibid at [22].

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