Fair Work Act 2009_

s.424 - Application to suspend or terminate protected industrial action - endangering life etc.

Application to suspend or terminate protected industrial action - endangering life etc. No different test for essential and like services.

[1] By application dated 22 July 2014, G4S Custodial Services Pty Ltd (G4S) sought an order pursuant to s.424 of the Fair Work Act 2009 (the Act). This section provides:

424 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:

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.

(i) a bargaining representative for the agreement;

(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.

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

[2] The matter was listed the next day and permission to appear was given to Mr J. Forbes, of counsel for G4S Custodial Services Pty Ltd (G4S) and Ms F. Nelson, of counsel for CPSU, the Community and Public Sector Union (CPSU).

[3] The application relates to Port Phillip Prison and industrial action being taken by members of the CPSU in pursuit of an enterprise agreement. The industrial action which was the focus of the application was:

● a ban on Individual Management Files (IMF) being relocated, updated or audited; and

● a ban on the completion of SDO14 statistics. This ban relates to recording time that prisoners spend working for which they are paid.

[4] Evidence was called from Mr I. P. Thomas, the General Manager of Port Phillip Prison and Mr A. Raphael, a Correctional Officer who is the President of the prison sub-branch of the CPSU.

[5] I turn to deal firstly with the evidence of Mr Thomas.

[6] Mr Thomas explained the nature of the prison, being a maximum security prison and the classification of the prison population. Mr Thomas highlighted the importance of routine in a prison which is critical to the good order and function of the prison population. It was the evidence of Mr Thomas that:

Routine is very important to prisoners. The prisoners become accustomed to routines. Their days are planned. They have expectations about how life in prison will proceed each day. Any disturbance to those routines can lead to increased anxiety and tension within the prisoner population. Depending on the nature and extent of the disturbance, this anxiety and tension can lead to a heightened risk of self-harm, and violence within the prison population, which includes violence between prisoners, and acts of violence by prisoners against correctional staff. [Paragraph 19 of Exhibit F1]

[7] Mr Thomas dealt with the daily routine of prisoners including medications, work and visits. Mr Thomas gave evidence that a lockdown can have a range of impacts on scheduled activities as they would be delayed due to the lockdown. His evidence was that work stoppages which led to lockdowns reduce the ability to manage and monitor prisoners. The ability of staff to respond in emergencies during a lockdown due to an industrial stoppage is reduced, particularly given that the correctional staff leave the prison during the industrial action. His evidence was that prisoners become frustrated and aggravated during lockdowns and this doesn't assist the routine of the prison. Lockdowns also impact upon visits, as the prisoners cherish these visits and during lockdowns some visitors may also become hostile and aggressive posing a risk to the health safety and welfare of prison staff.

[8] During cross-examination Mr Thomas advised that the prison is locked down three times each month between the hours of 12.00 noon to 4.00 p.m. for training purposes and once a month for approximately 1 hour for what is called a town hall meeting.

[9] Evidence was then given by Mr Anton Raphael. It was Mr Rachael's evidence that:

● the CPSU issued guidelines for its members to ensure the safety and security of the Prison.

● during the industrial action there is no impact upon prisoners receiving necessary medications.

● the ban on recording times for prisoners at work, meant that only starting and finishing times were known to the prison management.

[10] At the conclusion of the evidence I invited the CPSU to consider suspending the industrial action itself until Commissioner Bissett could deal with the dispute in conference on the following Monday. This was rejected by the CPSU. I make no criticism of this rejection.

[11] Final submissions were made by Ms Nelson and Mr Forbes. During Ms Nelson's submission she drew attention to a recent change in rosters which the CPSU considered to be unsafe and how this action by G4S had impacted upon the bargaining.

[12] Mr Forbes submitted that a lockdown which was a part of industrial action was different in character because it was a unilateral act of one party and the resources of the employer were not available because employees were physically outside the Prison.

"So it's not the lockdown per se which we say is the inconvenience. It's everything that flows from the lockdown. It's the impact of the lockdown on prisoners. It's the disruption to their daily routine. It is the inability of the employer to properly resource the facility. If you like, your Honour, there's a double-barrelled impact of the industrial action. One is it increases risks of adverse events and at the very same time it reduces capacity to respond. So that's why, in our submission, we say that the connection between the industrial action and the endangerment or threat to endanger the health, safety and welfare of prisoners is very direct. [Transcript PN523]

[13] Mr Forbes submitted that a part of the reason why G4S sought a suspension of the industrial action was that the matter had not been to the Commission for conciliation before the action was taken. I note in passing that two conferences have now taken place before Commissioner Bissett.

● If the union lost all bargaining power through a suspension order for the next 30 days, then the likelihood of the parties reaching agreement before Bissett C was negligible.

● The first and second response teams remain inside the Prison so they could respond to any incident.

● There is no interruption to the distribution of medicines.

● These are relatively minor bans and what is left for the union if these bans are not permissible.

● There can be no degree of certainty that the bans will be a threat to endanger life, personal safety or health.

[15] Ms Nelson emphasised that the Commission had to reach the conclusion that the impact of the action must be probable not possible.

[16] At the conclusion of the hearing I made the following announcement:

This is by no means an easy matter. It involves an area of employment where it might be thought that industrial action is anathema to the good order of the prison system and yet the scheme of the legislation does not include essential services or others which might be thought for public interest reasons to fit into that category. The scheme of the Act does facilitate the use of economic power by either the employers or the employees to press their objectives in bargaining, therefore the Commission does not lightly remove those rights. If it were thought that services such as these should not have rights, the parliament would have said so. There is a right and s.424 is a qualifier on those rights. In this matter I am also conscious that the Commission has listed a conciliation conference on this matter.

Prior to adjourning I noted the very difficult industrial environment which exists in bargaining and this has been, it appears, impacted upon by the recent changes to rosters. I am not unfamiliar with this part of the controversy. I am not able to determine the matter within five days as I need to reflect seriously on whether or not the jurisdictional foundation exists and whether to suspend or terminate the protected industrial action. In accordance with s.424(4) I will make an interim order suspending the industrial action so that I can further consider and decide this matter. If anything occurs before Bissett C on Monday which the parties wish to draw to my attention, I invite them to do so. An order will issue with effect from 1800 hours tonight. [Transcript PN590 - 591]

[17] I have now reached my conclusion in this matter.

[18] In essence, G4S argues that the industrial action is creating a cumulative effect of increased stress and risk in the Prison. Lockdowns are not unknown and the employer has them regularly for its purposes and indeed for longer periods. It is hard to distinguish the cumulative effects of the lockdowns. I discount the importance, at this stage, of the bans on IMF's and work records. There is a workaround in place with the IMF's and critical matters will still be recorded. Recording attendances at work can only lead to an overpayment of prisoners if the employer does not guess at the impact. Accurate records are an inconvenience and may impact upon the employer's performance requirements but fall short of the jurisdictional fact necessary to suspend or terminate industrial action.

[19] However the lockdowns do need to be considered.

[20] Senior Deputy President Lacy [in GEO Group Australia P/L and CPSU, the Community and Public Sector Union, Lacy SDP, 26 September 2005 [PR963061] at paragraphs 17 and 18] observed:

"In Coal & Allied Operations v Construction, Forestry, Mining and Energy Union**3** a Full Bench of the Commission considered a number of aspects of the operation and application of s.170MW(3) of the WR Act, including paragraph (a). Giudice J in considering the meaning of the expression the welfare of the population, made the following observation:

The ordinary meaning of the expression "the welfare of the population" is a general invocation of the considerations that go to the well being of the total number or body of the inhabitants of Australia. Any application of the expression to action threatening to endanger the welfare of a "part of" the population must give adequate meaning to the generally inclusive character of the total number or body of the inhabitants inherent in the term "population"… Danger to the life, or to the personal safety or health, of "a part of the population", instead of to individuals, appears a cumbersome form of expression. But that awkwardness is no barrier to giving the reference to a part of the population its more collective meaning when it is found in the expression "welfare of the population". Moreover, despite the generality of the concept "welfare of the population", the phrase "is threatening to endanger" imports a requirement for there to be a danger or peril to welfare. There needs to be a basis upon which it is reasonable to conclude, on an assessment of matters of fact and degree, that the collective welfare is in peril or danger.

The evidence in this matter demonstrates that the CPSU action at Fulham Prison is causing GEO Group management at the prison considerable inconvenience in maintaining its operation. As unpalatable as that may be to the management and GEO Group and its economic wellbeing that is not the relevant part of the population with which I am concerned. It is the prisoner population at Fulham Prison that I must consider. I have no doubt that the prisoners too are suffering a degree of inconvenience. It is more probable than not that the bans have impacted or will impact on the welfare of some at least of the prisoners. It is also possible that it will impact on the welfare of the prison population in its general inclusive character as the body of the inhabitants inherent in the term population. However, I am not satisfied that the evidence, taken in its entirety, establishes a basis upon which I can be satisfied that the industrial action is threatening to endanger the welfare of the prison population. Possible though it may be I cannot say it is more probable than not that it will do so."

[21] As stated earlier it is not the lockdowns per se which give rise to the jurisdiction as this occurs at the initiative of management on a number of occasions during a month. It is the cumulative effect and the randomness of the lockdowns which require consideration. The Court has decided that the reason for providing notice of intended industrial action was so that employers "are at least able to take appropriate defensive action" [Davids Distribution Pty Ltd v National Union of Workers [[1999] FCA 1108]. However, as Mr Forbes pointed out it is very difficult to prepare for industrial action in the prison system given the nature of the system and training of the correctional officers.

[22] It appears that given the legislation which creates a role for industrial action in bargaining as opposed to conciliation and as a last resort arbitration, the industrial action must be focussed on seeking to persuade the other bargainers to a different point of view. This can be contrasted with the foundations of the conciliation and arbitration system where "reason is to displace force" [Justice H. B. Higgins, A New Province for Law and Order, p.2. Reprinted by Dawson of Pall Mall 1968]. It follows that the impact of any industrial action in this area of the economy cannot automatically attract the jurisdictional prerequisite. Essential and similar services, like other sectors of the economy, have the same legislative test.

[23] In the present matter, whilst I respect the views of Mr Thomas, I cannot yet conclude that the cumulative effect of the industrial action by correctional officers attracts the jurisdictional foundation for an order to be made. The efforts of the CPSU and its members to mitigate the impact of the industrial action has not gone unnoticed. For the matter to succeed there would have to be additional evidence of the impact of the cumulative effect of the current industrial action. This is not to suggest that an event need occur as clearly this would be undesirable, but as Senior Deputy President Lacy stated: "possible though it may be I cannot say it is more probable than not that it will do so". At this stage I am not satisfied that the jurisdictional prerequisite exists for me to make the order.

[24] The application is dismissed and the interim order set aside.

J. Forbes of counsel on behalf of G4S Custodial Services Pty Ltd.

R. Nelson of counsel for CPSU, the Community and Public Sector Union.

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