Bankstown Foundry Pty Ltd v Braistina

Industrial Relations Commission (NSW)|2001-08-18|Before: Marks J, Mr P, Mr J

CITATION : Transport Industry - Cash in Transit (State) Interim Award [2001] NSWIRComm 220 The Transport Workers' Union of Australia NSW Branch The Australian Liquor,Hospitality & Miscellaneous Workers' Union of Australia, NSW Mayne Nickless Ltd t/as Armaguard (NSW) Brinks Australia Ltd Chubb Protective Services Ltd PARTIES : Chubb Security Australia Pty Ltd t/as Chubb Protective Services Australian Bankers Association Austalian Security Industry Institute of Security Executives Inc NSW Road Transport Association Minister for Industrial Relations (intervening) The WorkCover Authority of NSW (intervening) FILE NUMBER: IRC 4296, 5506, 5507, 5508 of 2001 CORAM: Marks J CATCHWORDS : Industrial disputes/application for new award - Safe working conditions - Whether interim award should be made - Whether award should contain lesser standard than Occupational Health & Safety Act - Appropriate safety standard to be applied in award - Interim Award made LEGISLATION CITED : Occupational Health & Safety Act 1983 CASES CITED : Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 at 308-9 HEARING DATES: 08/18/2001; 08/23/2001; 09/05/2001; 09/06/2001; 09/11/2001; 09/12/2001 DATE OF JUDGMENT: 09/21/2001

THE TRANSPORT WORKERS' UNION OF AUSTRALIA, NSW BRANCH - Mr A A Hatcher of Counsel, Mr M Kaine, Mr T Sheldon

THE AUSTRALIAN LIQUOR HOSPITALITY & MISCELLANEOUS WORKERS' UNION, NSW BRANCH - Mr P Campise

MAYNE NICKLESS LTD (t/as) ARMAGUARD (NSW) Blake Dawson Waldron Lawyers - Mr K Brotherson

BRINKS AUSTRALIA PTY LTD - Mr S Gates Blake Dawson Waldron Lawyers - Ms H McKenzie

AUSTRALIAN BANKERS' ASSOCIATION Corrs Chambers Westgarth Solicitors - Mr S Price

CHUBB PROTECTIVE SERVICES LTD - Mr McIlroy Clayton Utz Lawyers - Mr M Baroni

LEGAL REPRESENTATIVES: CHUBB SECURITY AUSTRALIA PTY LTD (t/as) CHUBB PROTECTIVE SERVICES Mr R S Warren of Counsel; Mr J De Celis of Employers' First

INSTITUTE OF SECURITY EXECUTIVES INC - Mr B Filewood Tillyard & Callanan Solicitors - Mr M Callanan

AUSTRALIAN SECURITY INDUSTRY - Mr C Delaney

NSW ROAD TRANSPORT ASSOCIATION INC - Mr A Woods

MINISTER FOR INDUSTRIAL RELATIONS (Intervening) Carroll & O'Dea Solicitors - Mr G Phillips

THE WORKCOVER AUTHORITY OF NSW (Intevening) Caroll & O'Dea Solicitors - Mr G Phillips

JUDGMENT: - 7 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: MARKS J Friday 21 September 2001

Matter No 4296 of 2001 TRANSPORT INDUSTRY - CASH IN TRANSIT (STATE) AWARD Application by Transport workers Union of Australia NSW Branch for a new award

Matter No 5506 of 2001 MAYNE LOGISTICS ARMAGUARD v TWU NSW BRANCH Notification under s 130 of the Industrial Relations Act 196 re strike action over award negotiations

Matter No 5507 of 2001 TRANSPORT WORKERS UNION OF AUSTRALIA NSW BRANCH v AUSTRALIAN BANKERS ASSOCIATION & ORS Notification under s 130 of the Industrial Relations Act 196 re downgrading of security.

Matter No 5508 of 2001 BRINKS AUSTRALIA PTY LTD v TRANSPORT WORKERS UNION OF AUSTRALIA, NSW BRANCH Notification under s 130 of the Industrial Relations Act 196 re strike action.

1 These proceedings have their genesis in an application filed in the Commission on 26 June 2001 by the Transport Workers Union of Australia, New South Wales Branch seeking the making of a new award to be known as The Transport Industry - Cash in Transit (State) Award. Those proceedings were originally dealt with by Commissioner Connor but have now been allocated to me. While the award application was being processed there was state wide industrial disputation in the cash in transit industry concerning a number of safety issues. Those matters were allocated to me and were originally stood over for further mention on 15 October next after a timetable had been set to enable the parties to identify the issues and seek to reach some accommodation on the further processing of the matters. These processes were accelerated following an event which occurred on 3 September last, which was the subject of widespread media attention. This caused me to relist all of the matters on 5 September last. I commenced the proceedings on that day by saying, inter alia: "Reports in the media indicate that there is an element within our community which has possession of firearms and which does not value human life. I have gained the impression that there has been an escalation in the use of handguns by these criminal elements which must increase the risk to the safety of employees in the cash in transit industry. I am concerned that the tragic incident which occurred on Monday has accelerated the need to consider the introduction of a regime designed to enhance safe working conditions in this industry. I have called the proceedings on for compulsory conference today with a view to seeking the reaction of all of the parties to the following matters:

Whether consent can be reached on the making of an Interim Award which would be confined to the provisions of working conditions designed to enhance the safety of employees engaged in soft skin operations.

If consensus cannot be reached, whether this Commission should of its own motion make such Interim Award to cover the manner in which work is carried out throughout New South Wales by persons employed by any person or entity engaged for reward in carrying cash or valuable securities other than in an armoured vehicle. Such Interim Award would operate from the earliest possible time and would have a duration of twelve months subject to earlier variation or rescission. It would be intended to apply pending the finalisation of the current proceedings, especially the application made by the union.

The conditions which ought to be properly contained within such an Interim Award including the following matters: a) Monetary limits over the footpath and in total. b) The number of persons in the crew. c) Whether the operation should be covert or overt. d) Whether the employees should or should not wear uniforms. e) Whether the pattern of work should be regular or irregular. f) Whether deliveries to or from financial institutions and other organisations should be included or excluded. g) What safety devices and equipment should be worn by employees. h) What safety devices or equipment should be installed in the vehicles. i) Whether each site should be the subject of a security assessment.

I am conscious that consideration of the above matters will also require logistical considerations in terms of number of available employees and whether existing equipment would need to be modified or added to."

2 I sought submissions from the parties that day on the matters which I had raised. All of the parties other than the WorkCover Authority of NSW and the Minister for Industrial Relations (both of whom had been granted leave to intervene) and the business known as Chubb Protective Services agreed that it would be appropriate to make an interim award and wished to participate in conferences with a view to reaching agreement as to the contents of such an award. Those parties who dissented nevertheless indicated their willingness to participate in discussions, if I formed the view that an interim award ought to be made.

3 Mr Phillips, solicitor for the Minister of Industrial Relations and the WorkCover Authority of NSW submitted, on behalf of the WorkCover Authority "that the character and purpose of an industrial award, setting minimum standards, is entirely different from the statutory regime (under the Occupational Health & Safety Act) to ensure safety in the workplace. An award has a function to set minimum standards and in the context of this dispute, being an interim award, will have a limited life." The submission was concerned to ensure that minimum standards set by the award did not "constitute a yardstick for evidence of compliance with an employer's obligations under the occupational health and safety legislation or otherwise absolve an employer from complying with occupational health and safety obligations and, in particular, the obligations under Pt 2 of the Act and the requirement to perform hazard or risk assessments under the 2001 regulations." Mr Phillips emphasised during the course of oral submissions that the new Occupational Health and Safety Act 2000 which has now come into force was designed to create circumstances where employers were required to make an assessment of risks associated with activities at work and was designed to ensure consultation by employers with employees in this regard. Under Pt 4 of that Act WorkCover may publish industry codes of conduct which may be used in proceedings for an offence to establish a breach. The WorkCover Authority was well advanced in the preparation of such a code, which could be used by employers as a standard to apply throughout the industry.

4 At a later hearing Mr Phillips pointed to the power of the inspectorate to issue prohibition notices. He referred to prohibition notices that had been issued against one employer in the industry on 5 September 2001. The prohibition notices alleged an absence of safe operating procedures because the employer had no documents evidencing risk assessments having been carried out on sites serviced by it, the employer had no documents evidencing hold-up procedures, no procedures for welfare checks and no procedures and instructions for accessing or exiting the premises of clients. A separate prohibition notice was issued with respect to the absence of adequate training provided by that employer in connection with the conducting of risk assessments, hold-up procedures, emergency procedure, radio communications and the manner in which cash in transit work was to be carried out. A further prohibition notice was directed to the lack of adequate safety features installed in the soft skin vehicles including the lack of remote central locking, the lack of duress alarms and vehicle tracking system and the lack of a drop safe. Mr Phillips indicated that it was the intention of the WorkCover Authority of NSW that prohibition notices would be issued to all employers in the cash in transit industry operating non-armoured vehicles who failed to measure up to the standards referred to in these prohibition notices.

5 The stance taken by the WorkCover Authority in the issue of prohibition notices reflects a determination to ensure that this industry which by its very nature operates in a potentially dangerous environment is conducted in as safe a manner as possible. The offences created by the legislation attract high maximum penalties.

6 Chubb Protective Services, for whom Mr Warren of counsel then appeared submitted that it was inappropriate that conditions of employment which were directed to safe working practices be dealt with within the terms of an industrial award. He also submitted that these were matters which should be left to the safety regime established by the Occupational Health and Safety Act.

7 Mr Warren submitted that the effectiveness of the occupational health and safety legislation went beyond the imposition of penalties through the court process. He referred to the presence of the inspectorate whose duty it is to enforce the legislation, and whose activities extend beyond the investigation of alleged breaches after they have occurred.

8 The initial matter to be determined is whether, given the operation of the Occupational Health and Safety Act, it is unnecessary, undesirable or inappropriate for this Commission to make an industrial award, albeit on an interim basis, directed towards safe working conditions in this industry.

9 There was no suggestion that this Commission lacked jurisdiction to make an award covering the particular aspect of safe working conditions. Arguably, any conditions directed to this aspect would not create the same strict standard as is applied by the Occupational Heath and Safety Act. This raises a subsidiary issue namely whether it is appropriate to make an industrial award which creates a lesser standard than that which applies generally throughout New South Wales by reason of this legislation, assuming the appropriateness of doing so as a fundamental matter.

10 I should, however, emphasise before discussing this issue that during the course of a number of compulsory conferences between the parties in which I participated, the approach contended for by Chubb Protective Services and by the WorkCover Authority softened, in that as I apprehended there was no opposition in principle to the making of an interim award provided that the contents of that award were reasonable and appropriate in the circumstances. This allows me to deal with these particular issues more briefly than otherwise would have been the case.

11 There can be no doubt that this Commission has both jurisdiction and power to deal with working conditions in industry, especially those conditions which are directed to the safety of employees. This is despite the concurrent application to the employment relationship of the Occupational Health and Safety Act and, indeed, in many cases other legislative provisions. In addition, the employer's common law duty of care will operate concurrently with any provisions contained within an industrial instrument and with the regime created by occupational health and safety legislation.

12 In my opinion it is appropriate in all the circumstances of these proceedings to make an interim award at this stage dealing with safe working conditions in soft skin operations involving cash in transit for the following reasons:

a. There has been extensive industrial disputation surrounding safety issues in this area. The making of an interim award will take the heat out of the industrial situation and allow the parties to focus on appropriate working conditions without being distracted by operational problems created by industrial disputation.

b. There is currently no specific regime in place with which all employers are bound to conform. The introduction of such a regime will create an even playing field so that competition between participants will be based on matters other than those which will impact on the safety of employees, and arguably, on the safety of the public generally. It is a trite observation that many attacks or potential attacks on employees in this industry will create potentially dangerous situations for members of the public. I was informed during the proceedings that the proliferation of soft skin operations over recent times resulted from initiatives taken by a consortium of banks to provide cheaper cash collection facilities for their customers.

c. Whilst I readily acknowledge the wide-ranging effect of the occupational health and safety legislation, and the proactive and constructive work of the WorkCover Authority, my understanding of the industry is that there are a small number of organisations who are prepared to carry out work without proper and due regard for the safety of those involved. In these circumstances the creation of an industrial award, albeit on an interim basis, will provide another means of disseminating information throughout the community designed to enhance safety awareness.

d. This industry is notoriously potentially dangerous. Some of the difficulties have recently attracted widespread media attention. Soft skin operations were considered by the Honourable Justice Peterson in his report to the Minister handed down on 28 February 1997 in Matter No IRC 1880 of 1995. His Honour said in part: "…. The evidence which has been led in relation to the nature of soft skin operations appears to me to be a ready reckoner of potential robberies. …. This evidence establishes that soft skin operations are very often conducted without adequate or any proper care for the safety of persons carrying out the work. This is particularly so with respect to sub contractors or licensed-type operations where an individual, subcontracting through a family company will perform the work alone and yet often spend the whole of the shift or longer in a continuous collection run with money accumulating as the shift progresses. There are failures to provide backup by way of radio contact, SOPs, and any other form of support. There are payments at levels which are unconscionably low such as $10 per hour flat. There are breaches with respect to firearms provision and generally a totally unsatisfactory picture of the industry. All of these features do not, of course, attach to all operators. Some of the larger operators are in many respects exemplary in their approach although that may not be said of all." (at 338-9). His Honour made a number of recommendations concerning soft skin operations. To my knowledge those recommendations have not as yet found their way into any regime, whether legislative or otherwise, and certainly any regime which can be enforced at law other than by way of prosecution for breach under the Occupational Health and Safety Act. I propose to include all of the recommendations of Peterson J within the interim award so as to give them force and effect specifically punishable for breach. In making these observations I should not be seen to be downplaying the role of the WorkCover Authority, to which I have previously referred. However I am conscious that the size of the inspectorate possessed by that Authority does not enable concerted investigations to be carried out covering the whole industry which might in turn give rise to the issue of prohibition notices and prosecutions.

e. Put another way, an industrial dispute having arisen, this Commission is obliged to deal with it unless there are compelling circumstances which would dictate that the Commission decline to exercise its jurisdiction or its powers. No such compelling reasons have been adduced by any party to the proceedings including interveners.

13 This then leads to a consideration as to whether the interim award should contain working conditions which create a lesser standard than those which would apply under the Occupational Health and Safety Act. I should state at the outset it could never be the intention of this Commission to detract from the strict liability which applies by reason of the provisions of that legislation. Lest there be any doubt, the intention in making an interim award is to create a regime which will operate concurrently with the Occupational Health and Safety Act but which could not and will not detract from the obligations imposed on employers and others by the provisions of that Act as they apply to this industry.

14 The Occupational Health and Safety Act creates a statutory regime which imposes in New South Wales an absolute obligation on employers in terms of the health, safety and welfare of employees at work (and in other circumstances, which, for present purposes, are irrelevant.) A breach of the obligation so created will expose an employer to a criminal prosecution with a maximum penalty in excess of $500,000 for a first offence. The maximum penalty increases to more than $800,000 for subsequent offences. There are certain limited defences available to employers. The trigger for liability by way of exposure to prosecution is the creation of a risk to the health, safety or welfare of employees at work. It is the risk of injury which is inherent in every breach. The statute creates, as I have said, criminal offences. Because they are absolute offences questions of mens rea and the like do not arise. The legislature has seen fit to impose this regime on all employers in New South Wales, including particularly government instrumentalities and agencies whether or not manifestations of the Crown. Given this far-reaching regime which imposes absolute standards within the framework of a criminal code, is it appropriate that the same standards should be adopted in determining an industrial dispute of this kind?

15 In my view it is not appropriate for an industrial tribunal to adopt such a regime. Criminal codes are intended to reflect standards imposed by the state involving sanctions for non-compliance. Those sanctions are enforced through state institutions. Industrial instruments are designed to regulate the activities and conduct of employers and employees in those capacities. The regime created through industrial instruments (whether or not to resolve specific industrial disputes or having wider application) is designed to reflect contemporary community values and standards applying to the performance of work by employees for employers. It is not unusual for a number of regimes to apply to different facets of the same relationship or indeed the same parts of a relationship. For example employment relationships intersect with health and safety legislation, a plethora of taxation legislation and a diverse range of legislation including environmental laws, the use of motor vehicles and the like.

16 Under the common law all employers are obliged to take reasonable care for the safety of their employees in all of the circumstances of the employment. Whether or not this duty is expressed as one founded in negligence or as an implied term in every contract of employment, breach will give rise to a claim for damages, modified by accident compensation legislation applying from time to time. The standard by which employers are judged in connection with any alleged breach of this duty is an objective one to be determined by the hypothetical reasonable standard man or woman, that is, the ordinary, reasonable, careful and prudent member of the community reflecting contemporary community attitudes. Is this a more appropriate standard to adopt in connection with the resolution of this dispute?

17 The common law duty of care imposed on employers centres around the ascertainment of whether there is a risk of injury to employees which is reasonably foreseeable and, if so, whether there are means reasonably available to the employer to avoid that risk. Whether or not the standard of care "will be found to be satisfied is always a question of fact to be determined in the light of the circumstances of each case. It is unhelpful to attempt to arrive at conclusions about what changing standards of reasonable care require merely by comparing the decisions in different cases because no two cases can provide true comparability in circumstances .…being a question of fact, it is undoubtedly true .…. that what reasonable care required will vary with the advent of new methods and machines and with changing ideas of justice and increasing concern with safety in the community. This must be so because in every case the tribunal of fact .…. must determine that whether or not in the circumstances of the particular case the employer failed to take those precautions which an employer acting reasonably would be expected to take. What is considered to be reasonable in the circumstances of the case must be influenced by current community standards. In so far as legislative requirements touching industrial safety have become more demanding upon employers, this must have its impact on community expectations of the reasonably prudent employer." (Mason, Wilson and Dawson JJ in the High Court of Australia in Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 at 308-9).

18 There is however one important caveat which must be taken into account when considering whether the common law duty of care is an appropriate standard to be applied. At common law the employer's duty of care is owed personally to each and every employee. Thus the employer is required to take into account the individual idiosyncrasies, characteristics and traits of each employee which are known or ought reasonably to be known to the employer.

19 I do not consider that it would be appropriate in the context of these proceedings to have regard to the circumstances of each and every employee. Obviously different employees will react in different ways to circumstances which are threatening or perceived to be threatening.

20 I approach the problem on the basis that in general terms the employees in this industry are aware that they work in a potentially threatening environment. Apart from this departure from the standards set by the common law duty of care, it seems appropriate to apply the general test. This involves asking whether there is a risk of injury which is reasonably foreseeable and whether there are means reasonably available to remove that risk, having regard to the hypothetical standard employee.

21 All of the decided cases dealing with prosecutions for breach of occupational health and safety legislation or claims for damages based on a breach of an employer's common law duty of care involve an ex post facto examination of what occurred, mostly with the benefit of hind-sight. The circumstances in which this Commission is asked to determine these dispute proceedings involve the exercise of a degree of foresight aided by the experience of past events.

22 In ascertaining whether there is a risk of injury for the purpose of applying the common law duty of care, the courts will ignore risks which are fanciful or far-fetched. However what is fanciful or far-fetched may invoke notions which are of themselves open to debate. Here, the risk of injury relates directly to the risk of hostile confrontation and an evaluation of the means most likely to be employed in doing so. A prime difficulty involves establishing a profile of the likely perpetrators of such behaviour. They must range from drug-affected miscreants acting alone and in an ad hoc manner to highly organised gangs who carry out their activities with great forethought and meticulous planning. There is a vast range of likely perpetrators in between the extremes. Some will value human life more than others; many, seemingly, will have access to firearms; some will disregard concerns for their likely detection. Some act on inside knowledge and information; some take a guess about the chances of securing a worthwhile haul and others will carefully evaluate all circumstances before commencing their criminal activities. All are prepared to break the law and whilst all will act abnormally some will also act irrationally. While the risks can be seen clearly, the manner in which those risks translate into actual occurrences will be largely unpredictable. This conclusion must lead to a conservative approach.

23 There are a number of measures which can and ought to be taken. Almost all parties agreed that they were reasonable and ought to be included. The only real controversy at the end of the day related to carry limits. Those who pushed for low limits were motivated solely by safety. Those who pushed for higher limits were motivated at least in part by commercial considerations and the practicalities involved in attending to the needs of businesses, both large and small. I shall return to this aspect later. It seems to me that there are no means of establishing with any scientific certainty what the carry limits should be. I have not been provided with any empirical data about the incidents of assaults and threatened assaults on employees engaged in soft skin operations, nor any such data with respect to armoured vehicle operations. I am prepared to proceed for present purposes on the basis of reports in the media which establish that there is a distinct criminal element operating within New South Wales, that that criminal activity seems to be escalating, that our prison population is increasing and that there is an increasing recourse to firearms no doubt due to increasing access to firearms.

24 In addition to carry limits there were a number of other matters which required specific attention, they include:

a. There will be logistical problems in regional areas, especially those which are not currently serviced by armoured vehicle operators. In some circumstances it may not be possible to operate soft skin vehicles with two persons without creating substantial additional cost for customers. It would be counter-productive to force small business operators to carry their own cash to the bank rather than use the services of an operator with expertise.

b. Some operators have acknowledged expertise and professionalism in the manner in which their businesses are conducted. It was suggested in these circumstances that they be entitled to seek exemption from certain conditions.

c. The interim award will become a public document and it is not in the interests of employers in the industry to have matters such as carry limits publicised. A mechanism needed to be created to preclude this occurring. 25 I wish to acknowledge the cooperative, constructive and pragmatic assistance of all of the parties to the proceedings including the intervener, the WorkCover Authority of NSW. All parties made a significant contribution by way of expert opinion and information and I include for this purpose contributions made by a number of union delegates who attended the proceedings. Whilst the employers and employer associations approached the task with a spirit of constructive compromise, as did many of the delegates, I should comment that some delegates have expressed disappointment that an interim award will be made which will allow soft skin operations under certain circumstances and which will make provision for carry limits in excess of those which they thought were reasonable. This is a view which is not shared by all representatives of the unions who attended the proceedings and who acknowledged that the advances which have been won quickly and efficiently by means of these proceedings far outweigh the fact that some union delegates have not won every concession which they had sought.

26 It is now necessary to deal with the question of carry limits. I was assisted by a good deal of expert information given to me in the course of the proceedings. The proceedings were conducted in private and it is not appropriate that I deal in any detail with some of the information given. In addition, there are obvious commercial and security factors in play which militate against the disclosure of some of that information.

27 As I have already indicated I doubt whether on any scientific basis it is possible to draw any line in the sand and say that this represents the perfect cash limit to apply in each and every situation. So much was readily acknowledge by the participants in the proceedings. Because the parties were unable to reach agreement in this area it has been necessary for me to make a determination for the purpose of the interim award. In doing so I have regard to the following:

a. The industry is inherently unsafe. It exists because it is not safe for members of the community to carry even small amounts of cash in public.

b. I have sought to strike a balance between the competing views and opinions expressed by the participants in the proceedings.

c. I have determined to fix different cash limits to soft skin operations by reference to geographical areas and by reference to whether the work is to be carried out overtly or covertly and depending upon the number of employees used. I have endeavoured to take into account commercial and logistical considerations which in the case of certain areas, and in the case of small business make it desirable in the public interest for cash carrying services to be provided at a reasonable and appropriate cost. In doing so, I disregard the activities of a number of large financial institutions who have sought to drive down the cost of cash carrying services by jointly requiring the work to be the subject of a tender process, knowing that much of the work would have to be carried out by way of soft skin operations in order to meet the cost reduction programme of those financial institutions. This is on the basis of information provided to me during the course of the proceedings. This is one area where regulation of the activity of large corporate entities is necessary to ensure that the safety of employees is not sacrificed for the purpose of enhancing the bottom line profit of large financial institutions. I should add in this regard that the Australian Bankers' Association was advised of the compulsory conference which I conducted on 5 September. That organisation appeared, but advised the Commission that it had no interest in the proceedings.

d. The interim award creates for the first time in this industry a comprehensive regime applying to the circumstances in which work is to be performed. For example, there is a requirement imposed on every employer to carry out a security assessment of the work which is directed to a number of issues. There are requirements to consult with employees about the assessment and there are requirements imposed on employees to bring matters of concern to the attention of employers. There are also detailed requirements for the creation of safe operating procedures directed to a number of specified matters and a requirement that work be performed in accordance with those procedures. Employees are to be given access to and advised about these procedures. In addition there are certain items which must be made available to employees and there are a number of safety features which must be installed in and available to be used in connection with every vehicle. The regime thus created will, of itself, significantly enhance safety in this industry. Because all employers will now be required to comply with all of these provisions I feel more comfortable in accommodating some of the commercial and logistical reasons advanced by some parties in creating cash limits which are a little higher than those contended for by other parties. I should make it clear, however, that the cash limits imposed are significantly lower than those which have been the subject of comment in the media arising out of recent events and that these lower cash limits when combined with all of the other matters contained within the proposed interim award should act as a significant deterrent to those criminal elements within the community who might otherwise have thought that this is an area which should be the focus of attention. Indeed, I would hope that the reverse is now true.

28 At the time of fixing cash limits, Mr Brotherson made submissions on behalf of the Armaguard business to the effect that higher cash limits should apply to that business. In support of these submissions Mr Brotherson highlighted the competency and expertise associated with the conduct of the business, about which there was general agreement from the TWU Armaguard senior delegates. It was said that Armaguard operated under current limits which were higher than those which it was contemplated would be fixed in this interim award and that those higher limits were the subject of an enterprise award made by this Commission. On these bases it was appropriate that those limits should be continued.

29 Notwithstanding the commitment by Armaguard to the safety of its employees and safe operating procedures there unfortunately had been a number of incidents. It was said that the circumstances in which those incidents occurred did not detract from the overall thrust of the submissions put.

30 The union response had as its philosophical basis the intent by the Commission to create a level playing field so that employers operating in this industry would compete on service, but not necessarily on price in circumstances which adversely impacted upon safety. In addition, it was submitted that the union would not have continued to consent to the current limits set in the enterprise award, which had now expired, because those limits were inconsistent with the industrial campaign which it had mounted for over twelve months designed to reduce limits and thereby contribute towards the enhancement of safety.

31 The submissions covered additional matters of detail, which I need not set out for present purposes. Suffice to say that on balance I am persuaded by the union argument that it is preferable to create a level playing field at the time that the interim award is made and allow Armaguard and any other employer to make application to have the cash limits set in the award varied as it applies to it. In reaching this conclusion I acknowledge the difficulty which is thereby created for the Armaguard operation in that it will not be able to currently plan the commercial basis on which it conducts its operation by reference to limits which are higher than those contained in the interim award. Unfortunately this is another example of the difficulties which have been encountered by all parties to these proceedings in connection with the making of an interim award. Nevertheless these difficulties do not persuade me to come to any alternative conclusion than that which I have already expressed.

32 The details of the cash limits which I have set will, of course, be made available to each of the parties to the award including the interveners. There are provisions in the interim award which prohibit the dissemination of this information except for good business reasons and there are provisions which prohibit access being gained to this information other than by persons with a genuine business need to acquire that information. Lest there be any doubt it is the intention of the relevant provisions of the industrial award that the publication of cash limits which apply under it will be prohibited and that this prohibition extends in particular to the media.

33 It is also necessary that I make some further observations abut the contents of the interim award. There is a detailed provision under the heading "Chain of Responsibility" which is intended to ensure that where work is sub-contracted it will be possible to identify the ultimate employer of employees who are ultimately employed to perform work the subject of the award.

34 Because the commencement of the interim award provisions will require in the case of some employers a significant change in the way in which their businesses are conducted including extensive modifications to vehicles used for cash in transit activities, I have provided for a two months phasing in period. I should emphasise also that the award is intended as an interim award. Whilst I have provided for the maximum duration allowable under the Act, namely twelve months, I would hope that the substantive underlying proceedings will have been completed within this time. It is the intention of the Commission and the parties and the interveners to progress the substantive proceedings as quickly as possible. This may involve the making of variations to the interim award as the substantive proceedings progress. In this vein I should also acknowledge that although the interim award is made with the consent of all parties save for carry limits, this process is without prejudice to the rights of any party and the interveners to argue during the course of the substantive proceedings for any contrary provision which is desired to be put.

35 I anticipate that the proceedings in the future will be conducted under Matter No IRC 4296 of 2001 being the application filed by the Transport Workers Union of Australia, NSW Branch for the making of a new Transport Industry - Cash in Transit (State) Award. I note the agreement of the applicant union without demur from any other parties or interveners for the Australian Liquor Hospitality and Miscellaneous Workers Union, NSW Branch to be joined in as a party to the proceedings. I formally dispense with the requirement for any documentation to be filed in connection with this application. That union is a party to the new interim award.

36 In all the circumstances it seems appropriate to conclude the three dispute notification matters with which the Commission has been dealing which relate to industrial action. They are Matter Nos IRC 5506, 5507 and 5508 of 2001. I should add that the Commission expects that any difficulties with respect to the interim award will be dealt with under the relevant dispute procedures. Any difficulties with respect to the substantive proceedings may be dealt with under a general liberty to apply which I hereby grant. In these circumstances there should be no need for the imposition of any restrictions, limitations, bans or prohibitions on the carrying out of work by any employee in this industry, certainly while any proceedings are current before this Commission. The substantive proceedings are currently stood over to 2pm on 15 October next. On this occasion I would ask the parties to be ready to discuss the timetabling of the further hearing of the proceedings and the most efficient means of conducting them. It would be helpful if the parties could have held discussions between themselves prior to this date. I will of course on that occasion deal with any other matters which the parties require to be considered.

37 I hereby make the Cash Transportation (Non-Armoured Vehicles) Interim Award in terms of the document which is annexed to this decision, save for Schedule 2 which is not reproduced in full.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (71 paragraphs)

Parties

Cases Cited (1)