On 14 December 2023, a notification of industrial dispute pursuant to s 130 of the Industrial Relations Act 1996 (the "Act") was filed in the registry by the notifier (the "Dispute"), Blacktown City Council.
The Dispute sought the Commissioner's assistance in relation to impending industrial action, in the form of work bans to be undertaken by members of the United Services Union, USU, who are employed by the notifier in the area of garbage, sanitary and sullage, other than supervisors (the "Members").
The form of the intended work bans was that the Members, "to a man", would refuse to collect waste on Christmas day unless certain conditions were met.
The Dispute was the subject of a compulsory conference on Friday, 15 December 2023 at which point the parties considered without prejudice, an offer that had been put, and it was taken to a meeting of the Members at 7am on Monday 18 December 2023.
The matter came back before the Commission today at 9am for the purpose of a report back. During the course of the report back, another without prejudice offer was put by the notifier to resolve the Dispute.
The Commission as presently constituted made a recommendation under ss 134(2) of the Act in relation to the offer, which was as follows:
Pursuant to Subsection 134(2) of the Act, noting the perceived requirement to work on Christmas Day under cl 21.A of the Enterprise Agreement and noting the PIN in relation to job and finish, the Commission makes the following recommendation:
"The membership of the USU accept the offer put forward on Friday afternoon by the Council with the addition that should the review of safety and productivity be positive that Council commits to applying that arrangement for Christmas and Boxing Days on a permanent basis.
The revised offer and the recommendation was put to a meeting of the relevant members of the USU at midday, today.
The Dispute came back before the Commission at 2.00pm today, and there were further discussions between the parties, which concluded on or around 2.30pm.
At 2.30, there was a further attempt at conciliating the matter and I quickly formed the view that the Dispute was unable to be settled by further conciliation. Accordingly, I issued a certificate of attempted conciliation pursuant to ss 135(2) of the Act.
The notifying council's, sole witness was Mr Gerard Cobcroft who is the Manager of Community Law Enforcement and Waste.
The evidence of Mr Cobcroft is that sometime in 2020, a practice which was called job and finish came to an end. The effect of the job and finish practise was that employees were able to return home as soon as all of the waste bins had been collected, no matter what time it was and would be paid for the whole of the shift.
At some particular point in time, there was a fatality, which was the subject of an investigation by SafeWork NSW ("Safe Work"). Following that investigation, there was an improvement notice issued by SafeWork dated 5 May 2020, which in effect, brought an end to the practice of job and finish because in SafeWorks opinion, that practice had the potential to lead to a breakdown in the chain of responsibility laws.
Mr Cobcroft explained that the effect of the proposed work ban will be that approximately 27,000 bins will not be collected. Of these, 80% of these bins are 240 litre bins and the other 20% are 140 litre, and they are the general waste bins which most people would understand are the red-lidded bins. Mr Cobcroft further explained that as a result of rostering issues, these bins may well not be able to be collected for some time.
Mr Cobcroft opined that the leaving of the bins on the road and footpath for sometime could well provide a risk to pedestrian and road traffic safety issues.
The respondent union did not call any evidence.
The effect of the submissions of the notifying Council is that the dispute orders should be made, because there is an impact on the provision of services, such that it, in the public interest, the orders should be made.
It was submitted that the reason why the public interest tips in favour of the orders being made is for the matters identified by the evidence of Mr Cobcroft, being the safety of pedestrians, the safety to other members of the public, of traffic, the health and safety concerns in relation to the bins being left out for a particular period of time, being general waste bins.
There was also a submission dealing with the safety of employees, and therefore, the orders should be made.
The notifying Council made the appropriate concession that the extent of the evidence was that the industrial action would only take place on Christmas Day.
The respondent union, submitted that the resolution which was to the effect that, to a man, employees, members of the union would not - to a man, would not work on Christmas Day unless certain conditions, does not constitute industrial action as defined under Schedule 5, the Dictionary to the Act, and therefore, the Commission does not have the jurisdiction to make the orders under s 137 and the directions under 136.
The crux of the submission is that the custom and practice is that employees, and in particular, members of the USU, elect whether they work on public holidays or not, and therefore the election of all of the Members not to work on Christmas Day does not constitute industrial action for the purposes of the Act.
The appropriate principles in considering application of this type where set out by Walton J in the case of Secretary of the Ministry of Health v The New South Wales Nurses and Midwives' Association [2022] NSWSC 1178, at paragraphs [35] to [59].
At paragraph 37, His Honour noted:
The use of the word "may" in sections 136(1) and 137(1) indicate the discretionary nature of the power to make dispute orders. In so doing, the Commission must have regard to the public interest, objects of the Act and the likely effect on the economy of New South Wales: sections 3, 146(2).
[9] At paragraph 41, his Honour cited with approval the observations of Boland J in Bluescope Steel (AIS) Ltd v Australian Workers' Union (NSW) (2005) 138 IR 324:
Dispute orders are rarely made by members of the Commission. Long experience has demonstrated that most matters can be resolved by conciliation and/or arbitration without resorting to the prospect of sanctions. The making of a dispute order is a serious step given the consequences for contravention. Persons against whom a dispute order is made are bound to take it seriously, especially members, officials and employees of organisations who may be putting in jeopardy the very existence of their organisation.
At paragraph 46, his Honour stated:
Thirdly, the effect on the economy of New South Wales is a mandatory relevant consideration under s146(2) of the Act. In Fire & Rescue NSW on behalf of the Department of Premier and Cabinet v Fire Brigade Employees' Union of New South Wales (2013) 235 IR 261] it was identified that there is a need to protect the public interest from the damaging effects of industrial action: at 272 [41] (Boland J, President, Walton, Vice President, and Staff J) In this respect, any negative effect on the economy, disruption to the provision of essential services, health and safety risks, and the broader implications for the public should be considered.
At paragraph 50, his Honour stated:
Fourthly when considering the consequences of industrial action, the Commission is not limited to only considering economic impacts The "public interest" is very broad. For example, the public interest can include the effect on primary and secondary school children and their education: see New South Wales Department of Education v New South Wales Teachers Federation (2010) 194 IR 340; [2010] NSWIRComm 55 at 349 [41] (Staff J).
In dealing with this application for the making of orders by the notifying council I will apply all those principles.
Dealing firstly with the submission of the notifying union that the Commission does not have the jurisdiction because the work bans do not constitute "industrial action". I note that it was a submission that was made without any evidence, and the Commission can not accept the submissions from the bar table that that these are factually correct.
Even if I were to accept that there was evidence supporting that submission, I reject the submission that the bans which form a disruption to the performance of work by members of the USU, would not constitute industrial action.
In particular, I note that it is a ban, limitation or restriction which affects the performance of work and the submission that was made without supportive evidence did not go so far as to say that there has been a practice whereby it is all or nothing, effectively, to a man, as the resolution is coined, that members of the USU either all or do not perform the work.
In the circumstances, I have formed the view that it may be some if not all members, and further, there is no evidence before the Commission that there has ever been an occasion where none of the relevant work has not been performed, in accordance with the alleged custom and practice.
Accordingly, the bans are industrial for the purposes of the Act and the Commission has jurisdiction to deal with the application to make orders and directions under s 136 and 138.
In applying the principles as I have read out, falling from the decision of Walton J and the Nurses and Midwives' Association case, the Commission is minded to exercise its discretion to make orders, but not in the form that has been sought by the notifying council. I am of the view that it is in the public interest for dispute orders to be made,
Factors that I have taken into consideration is the likely impact upon the health, safety and wellbeing of persons being pedestrians walking down footpaths and those driving on roads of the council, traffic within the council when the bins are not collected, and just as much the potential effect of rotting garbage being left out for some time, and bearing in mind the time of year, the contents of those bins, they could well be in the sun, could well be described as being adverse to the members of the public.
The form of the dispute orders are that I am going to ask the parties to go away and see whether they can reach an agreement as to the form of the orders. Now, the draft form of the orders and directions that I direct the parties to consider are as follows:
The Commission makes the following orders under s 137(1)(a) of the Industrial Relations Act 1996
The United Services Union (USU), its officers, employees, agents and its members employed by Blacktown City Council to perform waste services (the "Relevant Members") must immediately cease organising and refrain from taking industrial action in the form of refusal to perform work on Christmas Day;
The USU, its officers, employees, agents and its members must not induce, advice, authorise, support, encourage, direct, aid or abet the relevant members to organise or take industrial action contrary to order one, above.
These orders take effect immediately and remain in force until midnight on 25 December 2023, or until further order of this Commission.
I will pause there for a second, Mr Hassell, you can see what is intended there, if there is further resolutions then there is a capacity to come back to the Commission if it goes beyond Christmas Day.
The Commission makes the following direction, pursuant to s 136(1) of the Industrial Relations Act 1996 New South Wales. The USU must, by no later than 5.30pm on 20 December 2023 convene a meeting of its members to inform them of these orders.
Daniel O'Sullivan
Commissioner
[2]
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Decision last updated: 22 December 2023