Fair Work Act 2009

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

Application for an Order to suspend protected industrial action - relevant legislative tests not met - application dismissed.

[1] This matter involves an application which was advanced under both s.424 and s.425 of the Fair Work Act 2009 (the Act), seeking that the Fair Work Commission (the Commission) make an Order that protected industrial action that has been notified to commence on Saturday, 13 April 2013, and continue on Sunday, 14 April 2013 be suspended or terminated.

[2] The application was made on 19 March 2013, by Oliveri Transport Services Pty Ltd (the employer) and it identified the respondent as the Transport Workers' Union of Australia (the TWU). The application in this matter is connected with an application for a bargaining Order made under section 229 of the Act which was also made on 19 March 2013 by the employer (B2013/66).

[3] Both matters were the subject of initial proceedings before the Commission held on 21 March 2013. During the proceedings held on 21 March the parties advised the Commission that they had reached an agreement which has subsequently been identified to have settled some but not all matters relating to negotiations for an enterprise agreement.

[4] As a consequence of the ongoing dispute between the parties the employer sought to have the applications dealt with further by the Commission. The matters were listed for further proceedings before the Commission on 9 April 2013, at which time the following appearances were recorded:

Mr I MacDonald from the Australian Public Transport Industrial Association (APTIA) appeared for the employer; and

Mr M Gibian, barrister, together with Mr A Guy appeared for the TWU.

[5] The parties agreed to have the applications heard and determined in a Hearing which commenced on 9 April 2013 and required further Hearing on 10 April 2013. During the Hearing the employer called 2 witnesses who gave evidence in support of the applications. The TWU adduced evidence from 2 witnesses in opposition to the applications.

[6] The proceedings to provide for Hearing of the ss.424 and 425 applications have also involved Hearing of the related s.229 application which seeks a bargaining Order. Although such composite Hearing of the applications has not been ideal, the Commission has been provided with evidence and submissions which provide a proper basis upon which to make a determination of the applications.

[7] A separate Decision [PR535571] and Order [PR535572] has been issued in respect to the related matter seeking a bargaining Order.

[8] This Decision is made in respect to the application taken under ss.424 and 425 of the Act. From the outset, the employer's evidence in respect to this application appeared to focus upon an Order that may be obtained under section 425 of the Act. Nevertheless the employer pressed for an Order under either section 424 or 425.

Section 424

[9] The application, in so far as it seeks an Order under section 424, has been considered first. Section 424 is in the following terms:

"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:

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.

(i) a bargaining representative for the agreement;

(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;

(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.

(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."

[10] The application was initially directed at industrial action that was to commence at 12 noon on Friday, 22 March 2013. As a result of the agreement reached between the parties during the proceedings held on 21 March, the industrial action notified for 22 March did not occur.

[11] Subsequently, the TWU has given notice pursuant to s.414 of the Act, that its members engaged by the employer will take protected industrial action involving a series of stoppages of work to commence on Saturday, 13 April 2013, and continue on Sunday, 14 April 2013. In addition, a ban on the performance of overtime on 13 and 14 April 2013 has also been notified. Consequently, the application has now been directed towards the suspension or termination of the protected industrial action notified to occur on Saturday 13 and Sunday 14 April 2013 (the weekend industrial action).

[12] It has become apparent that although the application was made under both s.424 and s.425 of the Act, the evidentiary case advanced by the employer was impacted by the changed nature of the circumstances regarding the weekend industrial action as compared with the industrial action previously notified for a weekday, Friday, 22 March 2013. Essentially it has been more difficult to establish that the weekend industrial action would satisfy subsection 424 (1) (c) of the Act in comparison with the weekday industrial action. There was no suggestion that subsection 424 (1) (d) of the Act had application to the present circumstances.

[13] Upon examination, the evidence presented does not support any finding that could satisfy the terms of subsection 424 (1) (c) of the Act. There was insufficient evidence upon which the Commission could make a finding that either the weekday or weekend industrial action has threatened, is threatening, or would threaten to endanger the life, the personal safety or health, or the welfare, of the population or of part of it.

[14] Consequently, there is no basis for an Order to be made under s.424 of the Act.

Section 425

[15] Further consideration has been required in respect of that part of the application directed towards s.425 of the Act. Section 425 is in the following terms:

"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

[16] The weekend industrial action notified by the TWU represents the second notification of protected industrial action to be taken in pursuit of the bargaining surrounding a new enterprise agreement. The bargaining has involved the identification of competing claims which have been the subject of some documentary exchange and discussions in bargaining meetings.

[17] There was criticism made by the employer that the weekend industrial action notified by the TWU, was in large part prompted by the impending expiration of the 30 day period permitted for authorisation of protected industrial action pursuant to subsection 459 (1) (d) of the Act. This criticism represents more of a complaint about the legislation rather than a factor that would operate to support an Order to suspend protected industrial action pursuant to s.425 of the Act.

[18] Further, the prospect that the TWU might seek an extension of the 30 day period by way of application pursuant to subsection 459 (3) of the Act was discussed by the parties during their meeting held on 4 April. As a result of those discussions, it appeared that the unfortunate deterioration in the bargaining introduced less than favourable circumstances for the pursuit of any extension of the 30 day authorisation period.

[19] I have carefully examined and assessed the evidence and submissions having regard for the factors that are set out in paragraphs (a) to (d) of subsection 425 (1) of the Act.

[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)

[26] Although the Full Bench in NTEIU was dealing with an application confined to s.424 of the Act, the Decision identifies the need to ensure that exceptional circumstances are established as a prerequisite to the making of Orders under the various provisions of the Act relating to the suspension or termination of protected industrial action.

[27] In summary, having carefully considered the various factors to which I am directed by the various provisions of the relevant sections of the Act, I am compelled to conclude that the relevant legislative tests required to establish basis for the making of an Order under either s.424 or s.425 of the Act have not been met. Therefore I am unable to grant the application.

[28] Consequently for the reasons that I have set out above, the application in this matter is dismissed and an Order [PR535570] is issued accordingly.

Mr I MacDonald from the Australian Public Transport Industrial Association (APTIA) appeared for the employer; and

Mr M Gibian, barrister, together with Mr A Guy appeared for the TWU.

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