Tyco Australia Pty Limited T/A Wormald v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
[2010] FWA 8050
•21 OCTOBER 2010
[2010] FWA 8050 |
|
REASONS FOR DECISION |
Fair Work Act 2009
s.424 - Application to suspend or terminate protected industrial action - endangering life etc.
Tyco Australia Pty Limited T/A Wormald
v
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(B2010/3502)
COMMISSIONER SPENCER | BRISBANE, 21 OCTOBER 2010 |
Suspension of protected industrial action.
Decision on transcript
[1] On 18 October 2010, I suspended protected industrial action that was being taken in relation to a proposed enterprise agreement between the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Tyco Australia Pty Limited t/as Wormald. The reasons for the decision were provided in transcript and it was indicated that an edited and expanded version of those reasons would be published.
Introduction
[2] This determination relates to an application made by Tyco Australia Pty Limited t/as Wormald (the Applicant) pursuant to s.424(1)(c) of the Fair Work Act 2009 (Cth) (the Act). The Applicant contended that the protected industrial action should be terminated because it had threatened, is threatening or would threaten ‘to endanger the life, the personal safety or health, or welfare, of the population or part of it’.
[3] The matter was listed for hearing, and Directions were issued for the filing of material. The Applicant was represented at the hearing by Mr Jim Murdoch, Senior Counsel, instructed by Mr Martin Osborne of Norton Rose Solicitors. The Respondent was represented by Mr Charles Massy of Hall Payne Solicitors, instructed by Ms Kerry Inglis of the CEPU.
[4] The protected industrial action that was the subject of the application was specifically a ban on out-of-hours call-outs, for which the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU/the Respondent) had provided notification pursuant to s.414 of the Act. The Applicant in the hearing amended the orders sought to include suspension or termination of all the industrial action. A member of Fair Work Australia (FWA) can exercise powers pursuant to s.586 of the Act to allow for the amendment of applications. This amendment was allowed.
[5] Although not all of the material provided has been referred to in this determination, all of such was considered in making the determination.
Relevant legislation
[6] The relevant legislation, that is s.424, is set out as follows:
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
...
(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;
...
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.
...
[7] The Applicant submitted that the statutory criteria in s.424(1)(a), (b) and (c) were met. If the legislative tests are satisfied, then FWA must make the order terminating or suspending the protected industrial action.
Industrial action
[8] It was agreed that the parties had been negotiating a proposed enterprise agreement since March 2010. It was also agreed that on 22 September 2010, the Australian Electoral Commission declared that a majority of relevant employees had approved at a protected action ballot, the taking of protected industrial action in support of advancing their claims.
[9] On 23 September 2010, the CEPU gave notice that its members intended to take the following industrial action:
- Ban on overtime commencing 12.01 am Wednesday 29 September 2010 for a period of one week;
- Ban on call outs commencing 12.01 am Wednesday 29 September 2010 for a period of one week;
- An indefinite ban on paperwork.” 1
“The nature of the industrial action and the day on which it will start are as follows:
[10] Only the industrial action in relation to bans on out-of-hours call outs was undertaken. On 4 October 2010, the CEPU gave a similar notice pursuant to s.414, and similarly, the bans on call-outs were undertaken. On 11 October 2010, the CEPU provided the same notice of industrial action to be undertaken from 15 October 2010 for one week.
[11] Accordingly, the Applicant stated that industrial action in accordance with s.424(1)(a) was being engaged in. The Applicant described this as a pattern of industrial action, and that further industrial action was impending. The CEPU conceded in their submissions that their members intended to continue to undertake the protected industrial action. 2 Therefore, in accordance with s.424(1)(b), further industrial action was ‘threatened, impending or probable’.
The Evidence
[12] The Application made pursuant to s.424 of the Act sought the termination or suspension of the industrial action. The evidence supported the Applicant’s submissions regarding the nature of the Applicant’s business and obligations in the fire safety industry, as follows:
“Wormald operates a business involving the manufacture, sale, installation, servicing, maintenance, monitoring and repair of fire protection systems. Wormald’s customers comprise a large number (in the thousands) of owners and/or occupiers of substantial premises in the Brisbane, Sunshine Coast and Gold Coast regions, at which members of the public are present - including, hospitals, respite and care centres, schools, child care centres, residential complexes, public facilities, retail centres and industrial facilities.
As part of the obligations that it undertakes to perform for its customers, Wormald responds on an emergency footing to any defect or failure that occurs in a fire protection system and seeks to repair the defect or failure within the shortest space of time. This is what is meant by the expression “call out”. It is a service that Wormald offers on a 24 hour, 7 day per week basis.
This service is not just undertaken for the purpose of satisfying private contractual obligations. It is a requirement of public regulation (Fire and Rescue Service Act 2008 (Qld), Building Fire Safety Regulation 2008 (Qld), Queensland Building Service Authority Regulation 2003 (Qld)) that fire alarm and prevention systems be maintained in working order at all times. Public regulation also governs the accreditation and licensing of the persons who must be engaged to maintain and repair the systems.
Call outs are not infrequent occurrences. In the period 1 April 2010 to 7 October 2010, which covers the quieter period of winter, there were 1538 call outs in the Brisbane region, 944 in the Gold Coast and 289 in the Sunshine Coast (Affidavit of Richard Sillett, paragraph 21).
Call outs are attended to by a specific part of Wormald’s workforce - break down technicians. Such employees are highly skilled as they must diagnose and repair a range of defects within the variety of systems that both Wormald and its competitors supplyies [sic] and installs. These technicians are required to hold an electrical trades licence, an ACA CPA (Ccabling) [sic] registration and accreditations/licences from the Queensland Building Service Authority. Because they must attend the facility where the system is located, the break down technicians must satisfy the specific safety induction and security requirements of the site. The nature of the work and the environment in which it is performed mean that the break down technicians cannot be readily substituted on an episodic basis. In particular, very few electrical sub-contractors in private practice have the combination of skills, experience and accreditation that is required.” 3
[13] The Applicant predominantly submitted that there was a threat to the ‘welfare’ of ‘the part of the population’ residing in or using the premises as set out on their client list (which included more than 2,000 premises in Brisbane, the Gold Coast and Sunshine Coast), 4 in which Wormald’s fire detection and warning systems are installed and serviced by break down technicians on call-outs.
[14] However they also stated that the evidence also met the other categories of s.424(1)(c) of the Act, that is to ‘endanger the life, the personal safety or health’ of ‘part of the population’.
[15] In terms of the effect of threat and endangerment of the industrial action the Applicant set out:
“Although the call outs are undertaken in satisfaction of Wormald’s private contractual obligations - obligations that are founded upon a relatively complex interplay of regulations - there is an incontrovertible precept of common sense lying behind it all. A building should only be deprived of an effective fire prevention detection and warning system for the shortest period of time humanly possible. The longer a building goes without an effective fire detection and warning prevention system in operation, the greater the risk of an undetected fire taking hold. An undetected fire is a fire against which early methods of prevention or suppression (through the activation of sprinkler systems, fire proof and smoke proof doors and partitions) cannot be applied and is thus a fire that in a much more proximate way endangers the personal safety, health and welfare of the occupants of the building.” 5
[16] The Applicant also referred to the Report on the outcomes of the Coronial Inquiry into the Childers Backpackers Hostel Fire to demonstrate the risk of the threat and endangerment of faults in fire detection and suppression systems.
[17] Further, the Applicant referred to the consequences when fire safety maintenance responsive action was not taken or delayed. In this regard, Mr Sillett, Service Manager for the Brisbane and Sunshine Coast regions, in his evidence referred to the Labrador Gardens Facility incident where:
“On Saturday 2 October 2010, during the first period of industrial action, a sub-contractor was engaged in the Gold Coast region to attend an after hours call out at the Blue Care Labrador Gardens aged care facility. The sub-contractor found a fault but was unable to diagnose or repair it. The sub-contractor tested the systems operations to determine if the fire alarm system would operate in an alarm condition, however, in so doing, he inadvertently activated an interconnection to a separate security system. The separate security system controlled, amongst other things, security door locks in the dementia ward of the facility.
The security door locks system was then affected by the power to the system not resetting, which caused critical security and safety issues for the facility and a number of its residents, as patients not were not [sic] restricted in their external access. Labrador Gardens was required to take immediate additional security control measures and their security contractor was required to attend to enable the system to be re-armed.
As a result of the contractor’s inability, in addition to the ensuing chain of events, the fault was not rectified during the after hours call out but had to wait for a Wormald Service Technician to conduct a call out during normal hours the following Monday.
By way of example, if there was a default in the smoke detector system in one of the hospitals that Wormald serviced that was not attended to by a call out and a fire started whilst the system was not operating, the fire would not be detected until a much later time, for example when smoke reached another area of the complex. This would significantly reduce the time available to evacuate the hospital, which is obviously less than ideal for a facility that is already a slow evacuation facility.” 6
[18] Dangers and risks of the type being dealt with cannot be predicted but there is a probable causative link between the delays in response times arising from the protected industrial action and the exposure to a fire.
Respondent’s submissions
[19] The Respondent submitted that the Applicant had not made out their case in the terms of s.424(1)(c). Further the Respondent proposed that to alleviate any concerns arising from the industrial action, the Union could extend the notification period or ensure the Organiser would have technicians to assist in emergency circumstances.
[20] The Respondent also submitted that the Applicant could organise to use competitors’ employees as sub-contractors. The Applicant denied that any of these measures were workable solutions. 7
[21] The Respondent stated that the evidence provided by the Applicant regarding the frequency of call outs or the effects of the bans on out-of-hours call-outs did not provide for a ‘probable’ incident, simply a possibility.
Consideration and conclusion
[22] I rely on and adopt SDP Kaufman’s analysis of the expression ‘threaten or endanger’ in Ambulance Victoria v LHMU 8as set out:
“[28] Both parties referred to F & Others v National Crime Authority, on how the expression "would threaten to endanger" should be interpreted. In that case, O'Loughlin J had to consider the meaning of the expression "might tend to incriminate". At page 110 his Honour said:
According to the New Shorter Oxford English Dictionary, one of the accepted meanings of the word "will" is to be able to, be capable of, doing, have a specified ability, potential or capacity. According to the Macquarie Dictionary would is often used in place of will.
A little further on:
Both may and might are commonly used when referring to a possibility or an opportunity and in that sense they do not impose the same degree of capability as will or would. Something that may or might happen is less likely to occur than something that will or would happen.
Again a little further on:
But if the witness must answer the question unless the answer will or would tend to incriminate, one is elevated from possibilities perhaps into the world of probabilities.
[29] I intend to approach this matter on the basis of probabilities rather than possibilities. It need also be pointed out that I must be satisfied that the protected action would threaten to endanger, not would endanger. The New Shorter Oxford English Dictionary relevantly defines "threaten" as:
Constitute a threat to, be likely to injure, be a source of harm or danger.
[30] Threat is relevantly defined as including:
A declaration of an intention to inflict pain, injury, damage or other punishment in retribution for something done or not done.” 9
[23] And further I rely and adopt his consideration of the term industrial action in paragraphs 44-48 of that same decision. Both of these quotes are relevant in coming to the conclusion that all industrial action should be suspended.
[24] It is considered that on the evidence the protected industrial action increases the exposure of the Applicant’s clients to a breach of fire safety. The legislative tests pursuant to s.424(1)(c) were met. In these circumstances, a member of FWA has discretion to suspend or terminate the industrial action. Accordingly, an order to suspend all of the protected industrial action for a period of six weeks was issued (Order PR502821).
[25] All of the industrial action declared in the Declaration of Results issued on 22 September 2010 that was authorised at a protected action ballot was suspended in accordance with the decision of the Full Bench in National Tertiary Education Industry Union v University of South Australia, 10 which relevantly sets out:
“The use of the words “suspension” and “termination” of protected industrial action in the section may be contrasted with the power given to FWA in s.418 in relation to the making of orders to “stop” industrial action. The suspension of protected industrial action is to be construed as a suspension of the protection or immunity which attaches to the industrial action under the Act provided it is authorised in a protected action ballot etc. (see s.409). A reference in s.424 to the making of an order “suspending or terminating protected industrial action for a proposed enterprise agreement” would therefore seem to apply to protected industrial action which was authorised by the ballot, and not to the particular industrial action which is being taken as part of what might be a series of actions authorised by the ballot and which is having the requisite harmful effect.
This reading of s.424 would accord with the wider scheme of the Act and, in particular, with the provisions which apply to the making of workplace determinations where an order has been made terminating protected industrial action (see s.266). It would be inconsistent with that scheme if further protected industrial action was able to be taken even though the jurisdiction for the making of an arbitrated determination was in train (see Ambulance Victoria v LHMU [2009] FWA 44, Kaufman SDP). There is no valid reason for adopting a fundamentally different interpretation of s.424 in respect of the power to suspend protected industrial action than is applied in relation to the termination power.
In any event, we note that even if an order made under s.424 was confined to part only of the authorised industrial action, the effect of the order would be to render other industrial action unprotected. The common requirements that apply for industrial action to be protected industrial action are set out in Subdivision B of Division 2 of Part 3-3 of the Act. In particular, s.413(7)(a) provides that industrial action will not be protected industrial action for a proposed enterprise agreement if there is in operation “an order under Division 6 of this Part suspending or terminating industrial action in relation to the agreement”.
We are therefore of the view that the approach adopted by the Senior Deputy President, in so far it relates to the making of an order suspending all the industrial action authorised by the protected action ballot, was in accord with the scheme of the Act.” 11
[26] The discretion was exercised to suspend the industrial action as there was limited evidence on the negotiations for the new enterprise agreement. It was not proposed that the negotiations were exhausted or seriously frustrated. Accordingly, termination of the industrial action was not considered to be appropriate in the circumstances. The protected industrial action was suspended for a period of six weeks to allow for the resolution of the remaining issues. The assistance of the tribunal was held out in this regard.
[27] The Order was provided to the parties, operative from 19 October 2010, within the five day time frame specified by the Act.
COMMISSIONER
Appearances:
Mr JM Murdoch, Senior Counsel for the Applicant
Mr C Massy, Solicitor for Hall Payne Solicitors for the Respondent
Hearing details:
Melbourne and Brisbane, by video-link
2010
October 18
1 RS-2 of Exhibit 1, Affidavit of Mr Richard Sillett.
2 Outline of Submissions for the Respondent, paragraph [5].
3 Outline of Submissions of the Applicant, paragraphs [13]-[17].
4 Exhibit 1, Affidavit of Richard Sillett, paragraph [13].
5 Outline of Submissions of the Applicant, paragraph [18].
6 Exhibit 1, Affidavit of Mr Richard Sillett, paragraphs [111]-[114].
7 PN174-184, Transcript of Proceedings.
8 [2009] FWA 44.
9 Ibid [28]-[30].
10 [2010] FWAFB 1014.
11 Ibid, paragraphs [11]-[14].
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