Ventia Australia Pty Ltd v Transport Workers' Union of Australia

[2021] FWC 6030

[2021] FWC 6030

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.424—Industrial action

Ventia Australia Pty Ltd
v
Transport Workers’ Union of Australia
(B2021/934)

COMMISSIONER WILLIAMS PERTH, 11 OCTOBER 2021

Application to suspend or terminate protected industrial action - endangering life etc.

[1] This decision concerns an application made on 29 September 2021 by Ventia Australia Pty Ltd (Ventia or the Applicant) for an order to be made under section 424 of the Fair Work Act 2009 (the Act) that would suspend protected industrial action they had been notified would be taken by members of the Transport Workers’ Union of Australia (TWU) employed within Ventia’s Court Security and Custodial Services operations (CS&CS) in Western Australia.

[2] The hearing was conducted on 30 September 2021. Shortly after the conclusion of the hearing I advised the parties I had decided the impending protected industrial action would be suspended pursuant to section 424 of the Act and issued an Order [PR734461] to that effect. These are the reasons for that decision.

[3] At the hearing evidence for the Applicant was given by Mr William Galloway (Mr Galloway), Ventia’s Contract Director for the Ventia Court Security and Custodial Services contract. The TWU called as witnesses Mr Jason Walters (Mr Walters), TWU Lead Organiser and Ms Patricia Bushby (Ms Bushby) and Ms Karen Lee Andrews (Ms Andrews), both employees of Ventia.

[4] This application was in response to a notice of industrial action sent by the TWU to Ventia on 24 August 2021 which notified that industrial action by members who would be covered by the proposed Ventia WA CS&CS & TWU Enterprise Agreement 2021 (Proposed Agreement) was to be taken. The notice specified that industrial action as follows,

“An unlimited number of bans on the performance of work for 24 hours, commencing at 00.00 hours on Friday 1 October 2021 to 23.59 on Friday 1 October 2021. That is, during the period referred to above, TWU members intend to not perform any work for one continuous period of 24 hours.”

[5] The TWU sent the Applicant a further notice of industrial action on 28 September 2021. The notice specified that industrial action as follows.

“An unlimited number of indefinite bans on working of overtime, commencing at 00.00 hours on Monday 4 October 2021 to 23.59 on Friday 8 October 2021. That is, during the period referred to above, TWU members intend to not perform any overtime work, for one continuous period of five (5) days; and

An unlimited number of indefinite bans on the use of electronic devices in particular, tablets and mobile telephones - in the performance of work duties, commencing at 00.00 hours on Monday 4 October 2021 to 23.59 on Friday 8 October. That is, during the period referred to above, TWU members intend to not use electronic devices while performing work, for one continuous period of five (5) days.”

Factual findings

[6] On 27 October 2018, Ventia was awarded a contract by the State Government of Western Australia, Department of Justice (the CS&CS Contract). The Department of Justice is responsible for all justice related policy and services provided across Western Australia. This includes the management of most court locations and support of corrections facilities, to oversight of sentencing legislation and operating procedures. The Department of Justice retains overall responsibility for the CS&CS Contract.

[7] The facilities which are operated by the Department of Justice and which are worked at by employees of Ventia include 21 operational locations across Western Australia, including court houses, a vehicle depot, head office and a secure unit within Fiona Stanley Hospital.

[8] Under the CS&CS Contract, Ventia is responsible for the delivery of court security services at every permanent courthouse in Western Australia, other than the Central Law Courts and District Court at Perth. In addition, Ventia is responsible for securely escorting and supervising over approximately 45,000 persons per annum in custody to various activities including court hearings, medical appointments, inter-prison transfers, safe persons in custody population management (including management of persons in custody for pre-release and medical appointments), funeral escorts, and hospital sits. Ventia care and custody officers are permitted to work in every correctional facility, police station, and hospital within Western Australia with powers vested by the Court Security and Custodial Services Act 1999 (WA).

[9] The duties performed by Ventia for the Department of Justice under the CS&CS Contract include the following (in both metropolitan and regional areas): Movement services comprising of; inter-prison transfers, court transfers, lock-up clearances, medical escorts, and funeral escorts, court security services, including primary screening checkpoints, court custody services and persons in custody management, and hospital sits.

[10] The contract team for Ventia is comprised of the following: 250 care and custody officers, 20 care and security managers who are the first line managers who the care and custody officers report to, six control centre officers who are responsible for the coordination and planning of the transport and logistics and 20 management and support officers which include a professional standards team, human resources, finance and training.

[11] The employees who are employed in each of the above classifications (aside from management employees) are eligible to be members of the TWU. The Applicant is aware from the results of the Protected Action Ballot Order and subsequent statements which have been made to Mr Galloway by first line managers of recent TWU membership increases within the Applicant’s workforce. Approximately 40% of the operational workforce (which includes the 250 care and custody officers) are currently members of the TWU.

[12] If the industrial action were to occur, Mr Galloway states that it is highly likely that it will result in various risks and issues, including, in summary:

“Persons in custody not getting to Court on time, if at all. Due to the nature of the transport function and not knowing volumes of overnight arrests, Ventia cannot predict the number of persons being required to be transported. Further, it is my understanding that the transport team may comprise a significant number of TWU members (more so than the overall proportion of 40% referred to above), which will reduce the amount of vehicles or routes available. At this time there are at least 15 persons scheduled to appear on 1 October 2021, 5 of which for continued trials for allegations of murder.

The creation of serious potential risk to Ventia employees, persons in custody and members of public due to the fact that Ventia would not be able to search people coming to any of Western Australia’s permanent courthouses (other than the Central Law Court and District Court at Perth) or provide care for persons in custody. The fundamentals of risk management are to deter and this is achieved through resource management. In the instance of primary screening checkpoints, the function is a visible uniformed front of house presence to deter members of public from bringing prohibited items and contraband to courts. Any removal or restriction on the number of officers heightens that risk. This results in an increased threat to public and employee safety. In addition, Ventia's officers providing court security also provide emergency first aid during life threatening situations. If this resource was removed this again adds potential unnecessary threats to life.

Funeral escorts and escorts for life threatening medical appointments (such as oncology or dialysis appointments) not being able to be provided. It is almost impossible to articulate all associated risks or prioritisation of movements. On a daily basis, Ventia transports hundreds of persons in custody through various movements and to essential medical appointments such as chemotherapy, pre-natal care and dialysis which are all scheduled activities. What Ventia cannot plan for is unscheduled activity such as an extremely vulnerable person at risk of self-harm or suicide who requires to be urgently transported to a prison or psychiatric facility which normally requires three officers in non-secure transport. Any action which removes Ventia's ability to swiftly and dynamically deploy all resources available heightens that risk for however many individuals in Ventia's care require such services to be performed.

Increased risk of escapes and assaults of persons in custody.”

[13] The industrial action will have serious ramifications for members of the public, and create significant safety risks for employees, members of the public, and persons in custody.

[14] In relation to the overtime ban specifically, for full-time employees (comprising approximately 200 employees), work performed over 7.6 hours per day is classified as overtime and would be impacted by the overtime ban. For part-time employees (comprising approximately 50 employees), work performed over 5 hours per day is classified as overtime and would be impacted by the overtime ban.

[15] In regard to transportation officers, Mr Galloway states that the current average volume of transportation conducted by Ventia employees across the State is approximately 3575 total movements per month,125 total transfers per day, 170 medical appointments per month, and 50 inter-prison transfers per week. These transfers involve a bus and aircraft, and the industrial action would mean these critical transfers which are scheduled for population management and for persons in custody to attend funerals and medicals could not be completed at all due to the industrial action.

[16] The industrial action would have a significant impact on the transportation of persons in custody to urgent medical appointments. As part of the CS&CS Contract, Ventia is responsible for these transfers. If a person in custody requiring urgent medical treatment is unable to be transported to a necessary appointment, or is delayed in being able to do so as a result of the industrial action, it would threaten to endanger their life (depending on the severity of the issue) or at the least, their personal health.

[17] In addition to this, where medical appointments for persons in custody are understaffed, it poses a significant risk to the safety of treating medical practitioners, Ventia employees and members of the public due to the significantly increased risk of escape attempts and violent behaviour

[18] Any industrial action engaged in by transportation officers would threaten to endanger the life and personal health of persons in custody and members of the public who are within their proximity. By way of example, during the period of the work ban proposed on 1 October 2021, there are currently 9 critical appointments scheduled in metropolitan locations, and 3 critical appointments scheduled in regional locations.

[19] When pregnant females or high-risk persons (such as individuals with risk of suicide or self-harm) are required to be transported, they are required to be transported in an insecure vehicle with three staff members, which can be defined as a crisis care move. If the industrial action is engaged in, this staffing level would be unable to be met which could threaten to endanger the life or safety of these persons. There are currently several transfers for such persons in custody which are schedule for the period of the industrial action. The reduction in staffing that would be caused by the industrial action would impact on the ability to meet these staffing levels to ensure the safety of the individuals.

[20] Ventia is currently unaware as to how many of its approximately 50 transportation officers may engage in the industrial action. However, as not all transportation officers hold all relevant licences, there is a risk that the industrial action may result in no transportation officers being available to drive any of the vehicles.

[21] This would result in reduced number of vehicles being on the road impacting all aspects of service not limited to, a failure to ensure court appearances and medical appointments occur.

[22] Finally, due to urgent unscheduled medical appointments often arising at minimum notice and court hearings often being required in response to serious crimes occurring, which by their nature, cannot be predicted, it is difficult to predict the exact impact that the industrial action may have.

[23] It is critical that court care and custody officers use electronic devices including mobile telephones in order to be contactable in the event of any emergency, to report critical incidents and to advise of any risk changes to persons in custody.

[24] It is critical that custody officers working at hospital sits use electronic devices including mobile telephones in order to be contactable in the event of any emergency, to report critical incidents and to advise of any risk changes to persons including restraint regime changes.

[25] It is critical that transportation officers use electronic devices including mobile telephones in order to be contactable in the event of any emergency (if two-way radios are not functioning), to report critical incidents, to receive tasking and changes to tasking and to advise of any risk changes to person.

[26] If the devices ban were to occur, it is likely to create significant safety risks for employees, members of the public, and persons in custody.

[27] On 22 September 2021, Mr Galloway received a letter from Mr Gary Budge, Deputy Commissioner, Operational Support of the Department of Justice, Corrective Services.

[28] The letter attached a direction issued on 17 September 2021 by the Chief Health Officer under the Public Health Act 2016 (WA).

[29] As noted in the letter, the effect of the direction is that persons working in, or visiting, the designated locations under the direction are required to have had at least one COVID-19 vaccination by 0001 hours from 27 September 2021 and their second COVID-19 vaccination by 27 October 2021.

[30] The direction applies to Ventia staff providing services under the CS&CS Contract at the Perth Watchhouse within the Perth Police Complex based in Northbridge.

[31] Of a staffing cohort of approximately 30 that would normally be on a rotation of volunteer to work at Perth Watchhouse within the Perth Police Complex based in Northbridge, Mr Galloway understands that approximately 15 employees have received two COVID-19 vaccinations, while only a further 9 have received a single COVID-19 vaccination.

[32] The direction has already significantly restrained the ability of Ventia to ensure it is able provide services under the CS&CS Contract at the Perth Watchhouse within the Perth Police Complex based in Northbridge. It is likely that any further restrictions on the capacity to deliver such service due to the industrial action will potentially make it impossible to provide the necessary services at the Perth Watchhouse within the Perth Police Complex based in Northbridge.

[33] Mr Galloway states there are no viable contingencies available to Ventia to manage the industrial action.

[34] Western Australia Police have their own rostered policing requirements to service the community. If their resources were required to cover transfers that Ventia is unable to perform because of the industrial action, and they were available to do so, it would reduce front line police resourcing and increase the risk to community safety associated with this.

[35] The Department of Justice is considering allowing for the following on the 1 October 2021:

•  the Northbridge Magistrates Court to operate on 1 October 2021 to minimise the need to transport overnight arrests to outer metro courts;

•  Court and Tribunal Services are seeking to move some court appearances to video link however complexities such as the requirement for an interpreter exist. Ventia is still required to plan for all in person movements to be required until otherwise notified;

•  Health Services have been asked to avoid making any more bookings on 1 October 2021 and are reviewing the current bookings and rescheduling them where possible. However, Ventia is still required to plan for all in person movements to be required until otherwise notified;

•  Ventia are reviewing booked prisoner numbers and considering their ability to operate these on 1 October 2021 or otherwise conduct movements early;

•  Adult Male Prison and Sentence Management are reviewing currently approved/pending applications and advising potentially affected prisons Ventia may not be able to complete these;

•  Ventia will review numbers in relation to hospital sits in case prisons will be requested to take over sits.

[36] However, even if all the above occurs, the risks detailed above will not all be abated and the risks identified will still be apparent. Further, none of the matters set out above will mitigate against unscheduled activities, including emergencies. In any event, it cannot be guaranteed by the Department of Justice what activities may or may not be reduced, nor can Ventia predict which parts of its operations will be most affected by employee absence due to the industrial action.

[37] There is nothing that can be done to divert employee resources from one area of the Ventia business to address a resourcing shortfall in another area because it would increase the risk of safety issues arising in the area from where resources are taken. For example, within courts, if employees are diverted from court room security to front of house security, it would greatly increase the risk to the safety of members of the public and the judiciary in court rooms due to reduced security.

[38] Ventia sub-contracts part of the CS&CS Contract that relates to court security services to Wilson Security (Wilson). The work performed by Wilson employees relates only to metropolitan court security services (not regional courts) and covers only a confined part of the overall contractual obligations of Ventia.

[39] There are only a small number of Wilson employees rostered to work at each of the respective metropolitan courts. There are also only small portion of the overall court security duties that Wilson employees are permitted to perform because of licencing requirements.

[40] The work that Wilson employees can perform is personal security check point work, gallery security, and roving security. The expected headcount of these officers to perform security services is 60 officers, and current headcount is 36, meaning Ventia officers currently backfill the roles. This was an agreement in place through COVID-19 restrictions with the TWU to prioritise Ventia officers for any overtime.

[41] As such, it is the Ventia employees who are still required to perform critical court security duties.

[42] Ventia also sub-contracts part of the CS&CS Contract that relates to hospital sits. However, Wilson only has 10 hospital sit representatives available that Ventia can engage through Wilson. Again, it is the Ventia employees who are still required to perform the vast majority of hospital sit work. Again, another agreement made with the TWU through COVID-19 restrictions to prioritise overtime for Ventia officers.

[43] Having considered all of the evidence and the submissions I accept Mr Galloway’s evidence that each of the bans in a number of ways across Ventia’s operations threatens the health and safety or welfare of part of the population being prisoners in the care of Ventia’s staff, Ventia’s staff themselves, other persons working within the vicinity of courts and hospitals and members of the public attending courts and hospitals where prisoners escorted by Ventia’s staff are present.

[44] The evidence of Mr Walters was that members of the TWU were willing to take some actions to mitigate the risk that the protected industrial action would threaten to endanger the life, personal safety or health, or the welfare of part of the population.

[45] His evidence was that members would be willing to use their mobile phones in emergency situations.

[46] The TWU’s members would also commit to completing any hospital sits that were happening when the 24-hour bans on performing of work commenced.

[47] Also, any long-distance regional prison transfers that were underway, for example from Broome to Perth, would be completed regardless of the 24-hour ban on performing work or the ban on overtime.

[48] Mr Walter’s evidence also was that during past community lockdowns, required by public health orders made by the West Australian Government due to COVID-19, the courts themselves had taken action such as holding hearings by telephone and teleconference that could equally be taken to mitigate the risks the Applicant asserts will arise from the protected industrial action.

[49] The actions the courts had taken during community lockdowns had significantly reduced the number of prisoner transfers required and had meant the number of in person court proceedings was reduced dramatically.

[50] Mr Walters evidence was that he had spoken to the clerk of courts at the Joondalup court who had told him that, for that location, the approach the court had adopted during the COVID-19 community lockdowns would be applied.

[51] Evidence was also given by Ms Bushby who is a custody officer employed by the Applicant. She has over 14 years’ experience working in a number of the areas covered by the Applicant’s contracts with the Department of Justice. She is currently working in the Fiona Stanley Hospital secure unit where prisoners from various locations, as necessary, are taken for medical treatment.

[52] Her evidence echoed that of Mr Walters, that the steps taken by the courts during the community lockdowns for COVID-19 could be used in the circumstances of the protected industrial action being taken to reduce the risks.

[53] In terms of the operations of courts her evidence was that during the COVID-19 lockdowns the courts generally adjourned bail applications. Violence restraining orders proceeded by telephone or video. Consequently, there was a dramatic reduction in the number of prisoners transfers required.

[54] Her evidence was that mobile phone communications would still be used by the members in an emergency notwithstanding the notified indefinite ban on their use between 4 October 2021 and 8 October 2021.

[55] Her evidence was she also believed the Department of Justice had a contingency plan that would reduce the number of prisoners needing to be transferred to hospital to as few as three prisoners.

[56] The Commission understands this evidence concerns prisoners who have appointments for medical care and does not relate to urgent unscheduled medical events which may necessitate prisoner transfers to hospital.

[57] Under cross examination Ms Bushby agreed that the COVID-19 lockdown, because this was a communitywide lockdown, had restricted the general public’s movements and so members of the public were not attending the courts in person, for example to support persons appearing before the court. During periods when protected industrial action was occurring there would be no such constraint on members of the public attending courts in person for any number of reasons as they normally would.

[58] Ms Bushby agreed that the custody officer job is risky and that they are in the firing line, sometimes they are in between the physical threat, for example from prisoners, and the public or staff in hospitals.

[59] She agreed that part of their job is to protect prisoners from themselves, from each other and from members of the public.

[60] Ms Andrews is also a custody officer employed by the Applicant. She is currently employed at the Joondalup court where she has worked for four years.

[61] Her evidence was that during the Covid 19 community lockdowns there were no prisoners attending at court in person. Proceedings were generally done through what she refers to as an e-portal. Emergency violence restraining orders were dealt with by phone.

[62] Under cross examination her evidence was that where there is any reduction in staffing that increases the concerns and risks for everyone.

The legislation

[63] The relevant section, section 424 of the Act, is set out below.

“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.”

Conclusion

[64] The very nature of the work the employees of the Applicant do and the circumstances in which that work is undertaken satisfies me that the protected industrial action which the TWU has notified the Applicant of would threaten to endanger the life, personal safety or health, or the welfare of part of the population.

[65] If the protected industrial action proceeds it is not just possible this will threaten to endanger the life, personal safety or health, or the welfare of part of the population but rather, because of the work these employees do, it is highly probable this will occur.

[66] The part of the population endangered are prisoners, members of the judiciary, court staff, members of the public in the vicinity of courts, hospital staff and members of the public attending hospitals where prisoners are present and the employees of the Applicant themselves.

[67] The TWU’s arguments against the Commission issuing some form of order under section 424 of the Act are that the Department of Justice or the courts themselves will or should take action similar to their actions in response to community lockdowns that have occurred due to COVID-19. The submission is these actions will remove any risk by significantly reducing prisoner transfers and removing prisoners from being physically present in courts and hospitals and so there will be no risk to others.

[68] The secondary argument is that the TWU’s members have agreed to take a number of steps themselves in some circumstances to reduce any risks created by the protected industrial action they will be taking.

[69] There are a number of difficulties with the TWU’s arguments.

[70] If all of the actions to mitigate the risk of the protected industrial action threatening to endanger the life, personal safety or health, or the welfare of part of the population were taken by the Department of Justice, the courts and the prisons I accept this would significantly mitigate the risks posed by the protected industrial action.

[71] However even if this does occur, I am not satisfied that these actions will totally eliminate the probability that the protected industrial action will threaten to endanger the life, personal safety or health, or the welfare of part of the population.

[72] The actions the TWU say should occur to mitigate the risk of the protected industrial action threatening to endanger the life, personal safety or health, or the welfare of part of the population do not address all of the circumstances where this threat arises which Mr Galloway’s evidence identified. Some examples are unscheduled medical emergency prisoner transfers to hospital and the associated hospital sit and urgent court hearings being held in person due to the extreme seriousness of the charges and/or the circumstances.

[73] Separately, the evidence does not satisfy the Commission that the Department of Justice, the prisons and the courts will all be taking the actions to mitigate risk that the TWU believes they can or should take. However, I do recognise the TWU witnesses have given evidence that at one court, Joondalup, these actions will be taken.

[74] It is also important to recognise that these mitigating actions the TWU relies on are not within the control of the Applicant.

[75] The variations the TWU’s witnesses were proposing to the specified industrial action that has been formally notified to the Applicant, for some particular circumstances, were no doubt made in good faith. However, the absence of any evidence as to whether agreement to these variations is universal amongst the TWU’s membership and how this would work in practice, for example, what is defined as an “emergency” is problematic. The Commission suggests the appropriate approach would have been for the specified types of industrial action to be voted on in the protected action ballot to have included these variations from the outset.

[76] The evidence that TWU members will, in particular circumstances, not fully implement the protected industrial action they have voted to take and have notified the Applicant they will be taking lacks sufficient certainty to satisfy the Commission that this removes all threats to endanger the life, personal safety or health, or the welfare of part of the population.

[77] Ultimately, I am satisfied that that the protected industrial action which the TWU has notified the Applicant of would threaten to endanger the life, personal safety or health, or the welfare of part of the population. Consequently, I will issue an order under section 424 of the Act.

[78] In my view I believe it is appropriate to suspend the protected industrial action and to do so for a period of two months.

[79] An order [PR734461] to that effect, dated 30 September 2021, was issued by the Commission on the afternoon after the hearing of this application.

Appearances:

A Mossop of Counsel for the Applicant.
A Dzieciol for the Respondent.

Hearing details:

2021.
Perth:
September 30.

Printed by authority of the Commonwealth Government Printer

<PR734460>