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.

[1] On 10 August 2018, Broadspectrum (Australia) Pty Ltd (Broadspectrum) applied for an order that would suspend protected industrial action being taken by members of the Transport Workers' Union of Australia (TWU) employed within Broadspectrum's Court Security and Custodial Services operations (CS&CS) in Western Australia, for a period of two months.

[2] The basis of the application was that the protected industrial action, had threatened, is threatening or would threaten to endanger the life, or personal safety, health or welfare of the population or part of it.[1] Having heard the matter on 10 August 2018, I was satisfied that this was the case and suspended the protected industrial action in line with the application[2]. Subsequently, on 10 August 2018 I issued an order[3] and decision[4] and expressed that the reasons for my decision would follow. These are my reasons.

[3] Mr William Galloway (Mr Galloway), Broadspectrum's Contract Director for the Broadspectrum Court Security and Custodial Services contract (CS&CS Contract) and Mr Jeff Clegg (Mr Clegg), Broadspectrum's Deputy Director of Justice, provided evidence on behalf of Broadspectrum in the hearing.

[4] Mr Galloway had held the position of Contract Director for some eight months and amongst his various responsibilities had oversight of industrial relations issues.[5] He had previously worked in the justice sector in the United Kingdom for some 15 years, in the areas of prisoner transportation and custodial security.[6] His colleague, Mr Clegg, was responsible for managing courts and services under the CS&CS Contract. Before working at Broadspectrum, Mr Clegg had worked for the Department of Justice - Department of the Attorney General, where he was the Manager of Operations for the Court Security Directorate. Before that he had worked in various management roles within the sector for 16 years.[7]

[5] Having heard from the witnesses of the Broadspectrum and having arrived at agreement with Broadspectrum concerning the progress of negotiations, the TWU chose not to call any witnesses.

[6] The context of this matter is somewhat drawn-out. However, to understand the context of the working environment in which negotiations for the Proposed Agreement are taking place it is necessary to traverse.

History of the Negotiations for the Proposed Agreement

[7] On 12 December 2017, the TWU obtained a majority support determination.[8] An appeal from that decision was abandoned by Broadspectrum in light of the discussions that transpired between the parties and since March 2018 Broadspectrum and the TWU had been negotiating the Broadspectrum WA CS&CS TWU Enterprise Agreement 2018 (Proposed Agreement).

[8] A protected action ballot order[9] was issued on 13 June 2018 and subsequently the TWU made an application on 2 August 2018, to extend the 30-day period. The application to extend was unopposed by Broadspectrum and an order[10] was issued on 6 August 2018.

[9] Counsel for the TWU submitted that on 20 July 2018, there was an order made to stop one form of industrial action in the relevant notice at that time and then a subsequent agreement to withdraw the notice in its entirety occurred.[11]

[10] On 20 July 2018, the parties convened at the Commission and a conference was held in which the parties agreed to the following:

1. Framework Agreement and Settlement Proposal no longer binding on either party;

2. Broadspectrum will present a new proposal to TWU and employees by next Monday 30 July 2018;

3. Broadspectrum will meet with TWU in week beginning Monday 6 August 2018;

4. Broadspectrum will initiate ballot process in the week commencing 13 August 2018;

e) TWU will with withdraw current notices of industrial action to allow step 1-4 to take place. TWU will have liberty to extend industrial action period by 30 days from expiry of current period. Broadspectrum will not oppose an extension.[12]

[11] The Framework Agreement and Settlement Proposal were a framework by which bargaining was to take place and some key points for the terms and conditions that were to be in the Proposed Agreement, respectively.[13]

[12] As had been agreed, the parties met on 7 August 2018 to continue bargaining. Following that meeting and on that same day, the TWU provided Broadspectrum with notice of its intention to organise, and the intention of its members employed under the CS&CS Contract to engage in, protected industrial action (Notice). The Notice referred to the following:

1. An unlimited number of bans on working overtime, commencing 05.00 hours on Monday 13 August 2018 to 04.59 hours on Friday 17 August 2018. That is, during the period referred to above, TWU members intend to not work any overtime for one continuous period of 4 days (Overtime Ban);

2. An unlimited number of bans on the wearing of uniform shirts, commencing at 05.00 hours on Monday 13 August 2018 to 04.59 hours on Friday 17 August 2018. That is during the period referred to above, TWU members intend to not wear uniform shirts for one continuous period of 4 days (Uniform Ban);

3. An unlimited number of bans on the performance of higher duties, commencing at 05.00 hours on Monday 13 August 2018 to 04.59 hours on Friday 17 August 2018. That is, during the period referred to above, TWU members intend to not perform any high duties for one continuous period of 4 days. (Higher Duties Ban) (collectively the Industrial Action).[14]

[13] The CS&CS Contract reduces to writing the contractual arrangement between Broadspectrum and the State Government of Western Australia, Department of Justice, for the provision of security and related services at courts throughout Western Australia, and the custodial management of persons in custody who require transport to and from correctional facilities (for example, to and from courts, hospitals and the like).[15]

[14] The Department of Justice awarded the CS&CS Contract to Broadspectrum in October 2016,[16] and while Broadspectrum provides services under the CS&CS Contract, the Department of Justice retains overall responsibility for such services.[17]

[15] Broadspectrum employees work in 21 of the facilities operated by the Department of Justice across Western Australia. The facilities include courts, vehicle depot/head office and a secure unit within a hospital.[18]

[16] Under the CS&CS Contract, Broadspectrum is responsible for the delivery of court security services at every permanent courthouse in Western Australia.[19] In addition, Broadspectrum is responsible for securely escorting and supervising over approximately 40,000 persons (per annum) in custody to various activities including court hearings and medical appointments.[20] Broadspectrum Care and Custody Officers (also known as Transport Officers) are permitted to work in every correctional facility, police station and hospital in Western Australia.[21] Throughout this decision I will on occasion simply refer to these employees as 'Officers'.

[17] Broadspectrum's duties under the CS&CS Contract for both metropolitan and regional areas include:

1. movement services comprising: inter-prison transfers, court transfers, lock-up clearances, medical escorts and funeral escorts;

2. court security services;

3. court custody services; and

d) hospital sits.[22]

[18] The contract team for Broadspectrum comprises of:

1. 320 Care and Custody Officers who are responsible for safe and secure escorting of persons in custody (the Care and Custody Officers also perform the work of Transport Officers);

2. 21 Care and Security Managers who are the first line managers who the Care and Custody Officers report to;

3. nine Control Centre Officers who are responsible for the coordination and planning of the transport and logistics; and

d) 20 Management and Support Officers which include a Professional Standards team, Human Resources, Finance and Training.[23]

[19] Broadspectrum established a Justice Business Unit (JBU) that commenced providing services under the CS&CS Contract in March 2017.[24] Back in July 2016 Broadspectrum had made an enterprise agreement with relevant JBU employees, which was approved in November 2016.[25] That approval was later quashed on appeal.[26] The matter is presently the subject of an application in the Federal Court for constitutional relief, which was heard in March 2018 and a decision is pending.[27]

Alternative providers of court services and custodial services

[20] Broadspectrum does not have exclusivity regarding the provision of court services and custodial services in Western Australia.[28] At hearing reference was made to the providers 'MSS', 'G4S' and 'Wilson Security'.[29] Mr Galloway provided clarification that MSS provided security services and G4S had 'responsibility for COC and DCB courts in the metropolitan area'.[30] Mr Galloway also gave evidence that Wilson Security provided front of house security for a defined number of courts in the metropolitan area, whereas Broadspectrum Officers were multi-skilled and capable to perform both custody and security tasks.[31] In the ten regional areas where Broadspectrum provides court and custodial service there were no other providers.[32]

[21] While various contractors provide some court and custodial services, Mr Galloway's evidence was that other personnel were qualified to perform certain duties. Prison officers could perform court transfers, funeral escorts and medical escorts subject to them having the appropriate qualification to drive vehicles.[33] Further, inter-prison transfers could be performed by prison officers if they had the appropriate secure vehicle. On the point of secure vehicles it was the case, said Mr Galloway, that Broadspectrum had the fleet of vehicles with only a couple of surplus vehicles in the metropolitan area that he was aware of, and no surplus vehicles being available regionally.[34]

[22] In the regional areas where lock-up clearances[35] form part of the Broadspectrum responsibilities, Mr Galloway said that police officers would be qualified to do this work, but questioned their capacity to do so.[36] Police officers similarly could perform medical escorts, funeral escorts and court transfers.[37]

[23] It was said that there was a requirement of the CS&CS Contract for Care and Custody Officers to wear uniforms at all times when providing services (including during court and all other transfers).[38] That uniform consisted of company issued black boots, company issued black trousers, company issued equipment belt, a two way radio, a company issued white shirt with insignia and when working in front of the judiciary a tie.[39] A company issued jacket, jumper and cap were also available for wear.

[24] Mr Galloway gave evidence that section 1.13 of the CS&CS Contract did not permit non-uniformed Officers to be active.[40] He continued that if the Officers did not wear uniforms by engaging in the Uniform Ban, it would mean that they could not be deployed and this would necessarily result in significant staff shortages.[41]

[25] It was Mr Galloway's view that a failure to wear uniforms was not only a breach of the CS&CS Contract, but that it would also threaten the health and safety of the persons in custody and members of the public because of an inability to properly identify the Officers and distinguish them from other individuals.[42]

[26] However, Counsel for the TWU challenged his interpretation of this section of the CS&CS Contract observing that Schedule 5, in which the section could be found, set out the general service requirements for the performance of the contract.[43] The general service requirements were said to be key performance indicators.[44] Mr Galloway agreed that there were mechanisms under the CS&CS Contract that allowed the Department of Justice to impose penalties for non-performance of those requirements.[45] Further, Mr Galloway agreed that the question could be asked of the Department of Justice to permit the Care and Custody Officers to wear a modified uniform.[46]

[27] The overtime worked by Broadspectrum employees was said to vary between the four main groups of employees depending on the work being performed.[47]

[28] For full-time employees (comprising approximately 270 employees), work performed over 7.6 hours per day was classified as overtime.[48] For part-time employees (comprising approximately 50 employees), work performed over 5 hours per day was classified as overtime.[49]

Recorded incidents with the CS&CS business in 2018

[29] A description of the services under the CS&CS Contract goes some way to describe the work performed by the relevant employees. However, to appreciate how essential the work is and its dangerous nature one only has to turn to the recorded incidents in 2018.

[30] Mr Galloway provided the following evidence that paints a rather sobering picture whilst highlighting the peril faced in performing such work:

34. To demonstrate the high risk work engaged in by BRS in carrying out the CS&CS contract work, since January 2018, there have already been 74 incidents where a duress alarm has been activated. This is while full staffing levels have been maintained. If staffing levels were reduced, it is highly likely that these duress incidents would increase.

35. A duress alarm is where a member of BRS has responded to an activation of an alarm within a court room or public area.

36. The following recorded incidents have occurred since January 2018:

(a) 22 assault incidents encountered by BRS employees including members of the public fighting and staff assaults.

(b) Three attempted (but prevented) escapes. In addition to this, a person involved in an escape at Kalgoorlie court complex in June 2017 is again appearing in court in the week commencing 13 August 2018. In one incident in July 2018, a male person in custody at Joondalup court house attempted to escape from the dock even though he was wearing leg restraints and BRS officers had to use force to keep him in custody.

(c) 67 incidents of behaviours that have resulted in BRS employees removing members of the public who have been fighting and needed to be removed due to risks to safety.

(d) 71 incidents of preventing contraband, weapons and syringes into public buildings. In May 2018, the actions of a BRS employee prevented an individual from entering a court with a cache of weapons which included a tomahawk axe, knives and a bat. In a separate incident in the Family Court building, the actions of a BRS employee recovered a loaded firearm from a member of the public.

(e) 44 medical incidents where BRS employees have been required to administer first aid due to members of the public collapsing from heart attacks, strokes and other ailments.

(f) 104 incidents where BRS employees have had to respond to incidents to prevent persons in custody self-harming.

(g) 35 incidents where use of force was required relating to persons having to be restrained due to threats made predominately within court room environments.

37. With reductions in staffing levels associated with the Industrial Action, there is a significant threat of the above incidents increasing, including significantly increased risk of suicide attempts by persons in custody.[50]

[31] It was not in contention between the parties that industrial action was threatened or 'threatens'.

[32] What was central to Broadspectrum's application was that the threatened Industrial Action threatens to endanger the life, personal safety or health, or the welfare, of part of the population of Australia. In this respect deliberation of the verb 'endanger' requires a degree of informed speculation. Consideration is had to whether the industrial action would threaten to:

5. Cause the danger of, make probable (something untoward).[51]

[33] Broadspectrum therefore gave evidence on what it considered would be the impact of the Industrial Action through the evidence of Mr Galloway and Mr Clegg. The evidence was fairly comprehensive, but the nub of it is traversed.

Transportation Officers (Care and Custody Officers)

[34] Employees who are full-time Transportation Officers (of which there are approximately 80) work regular rostered hours with staggered start times from 6:00am until 8:30am with undefined finish times.[52] Overtime commences after 7.6 hours for these employees.[53]

[35] Mr Galloway said that these Officers are required to arrange the safe and secure transfer of persons in custody from prisons to specified secure and unsecure locations to attend court hearings, medical appointments and funerals.[54]

[36] With regard to the volume of work across the State it was said that there was approximately:

1. 2,500 court transfers per month;

2. 150 total transfers per day. In the metropolitan area, approximately 50% of these total transfers are conducted by 19 vehicles which require a staffing ratio of two officers per vehicle;

3. 170 medical appointments per month; and

d) 50 inter-prison transfers per week.[55]

[37] The inter-prison transfers involve a bus transfer from metropolitan locations to regional centres and it is a requirement that Officers stay overnight, which is classified as overtime.[56]

[38] As part of the CS&CS Contract, Broadspectrum is responsible for the abovementioned transfers. If a person in custody requiring emergency medical treatment is unable to be transported to a necessary appointment, or is delayed in being able to do so it would, according to Mr Galloway, threaten to endanger their life (depending on the severity of the issue) or at the least, their personal health.[57]

[39] Mr Galloway said that where medical appointments for persons in custody are understaffed, it poses a significant risk to the safety of treating medical practitioners, Broadspectrum employees and members of the public due to the significantly increased risk of escape attempts and violent behaviour.[58]

[40] During the period of the threatened Industrial Action, there are presently two scheduled dialysis appointments for persons in custody which are at 7:30pm and 9:50pm. Broadspectrum could not guarantee that transfers for these dialysis appointments could be achieved if the Overtime Ban were engaged in.[59]

[41] Mr Galloway's evidence was that 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 a vehicle with three staff members.[60] Mr Galloway said that there were approximately 40 transfers per week for emergency medical appointments and during the period of threatened Industrial Action there were 20 such transfers scheduled.[61] In Mr Galloway's view the reduction in staffing that would be caused by the Overtime Ban and Uniform Ban would impact on the ability to meet these staffing levels to ensure the safety of the individuals.[62]

[42] Mr Galloway gave evidence that 50% of the 170 scheduled medical appointments were emergency attendees.[63] Mr Clegg's evidence was that if there was a medical emergency in the prison the prison would perform the escort by ambulance and the prison officers would remain with the person until such times as Broadspectrum was in a position to take custody of that person.[64]

[43] Transferring duties extended to transferring persons in custody to funerals. Mr Galloway said that if staffing levels were reduced as a result of the Overtime Ban, funeral escorts may not be facilitated, or if they were, they would be understaffed and increase the risk of escape attempts and violent behaviour.[65] By way of example, Mr Galloway's evidence was that at a recent funeral escort in June 2018, two persons in custody attended and were accompanied by six Officers. During this escort, the Broadspectrum Officers identified, and confiscated, illegal contraband which had been passed to one of the persons in custody during the escort.[66]

[44] Employees who are full-time Care and Custody Officers working at courts have regular hours with a staggered start time of between 7:30am and 9:00am.[67] Overtime hours for these employees commences after 7.6 hours. All of these employees regularly work overtime due to the routine uncertainty of court finish times.[68]

[45] Mr Clegg said that the attendance of Broadspectrum Officers during an accused person's presence at court is vital because it is the only immediate response within the court precinct to prevent physical or verbal conflict between parties, and to protect members of the community in the court precinct.[69]

[46] Mr Clegg who had extensive experience in the industry observed that courts regularly ran past scheduled finish times.[70] He said that when a person in custody appears in a court room they are unrestrained, unlike any other place they are escorted to and from.[71] As such, the security of the court room relies entirely on the Officers to be present in the dock, the court room floor and the front of house.[72]

[47] Mr Galloway expressed that if the Overtime Ban occurred, the majority of these officers would finish work at, or before, 4:00pm.[73] This would result in persons in custody not being transferred back to designated prisons after this time, and Broadspectrum employees not completing necessary paperwork which is a critical component of their roles.[74] This could result in persons being left unsecured within the cell area at courts.[75] According to Mr Galloway this lack of supervision would cause a serious risk to the safety of members of the public within the court proximity, and also to members of the judiciary due to increased risk of escape attempts.[76]

[48] Broadspectrum Care and Custody Officers are responsible for front of house security at court buildings.[77] There would, according to Mr Galloway, be an inability to service this requirement due to the Overtime Ban and the Uniform Ban and that would pose a significant risk to public safety.[78]

[49] Mr Galloway provided an example where a 33 year old female attending Joondalup Court in December 2016 was stabbed by her former partner in circumstances where she attended mediation and there were no Security Officers present in the registry office.[79]

[50] Employees who are part-time Care and Custody Officers (of which there are approximately 50) work regular hours between approximately 8:00am until approximately 1:00pm but regularly work overtime of up to an additional two to three hours per day.[80]

[51] Mr Galloway said that rostering is planned based on the part-time employees working regular rostered overtime therefore the Overtime Ban would result in a short-fall of required employees being present.[81]

[52] Rostering arrangements for Care and Custody Officers working at hospital sits are four days/nights on four days/nights off with 12 hour shifts.[82] Hospital sits are arrangements whereby a person in custody is admitted to any public hospital and requires constant supervision 24 hours per day (with this high level of supervision and security control requiring overtime to be worked).[83] Broadspectrum is responsible for supervising, with a minimum of two Care and Custody Officers, a maximum of five hospital sits at any given time within the metropolitan area and an additional one hospital sit within the regional area.[84]

[53] Frequently these maximum numbers are met.[85] Overtime for these employees commences after 10.85 hours work each day.[86] As such, these employees work regular rostered overtime each shift of 1.15 hours which would be impacted by the Overtime Ban.[87]

[54] Broadspectrum employs a Care and Security Manager (CSM) who is responsible for making decisions on a daily basis relating to the management of persons in custody and the general management of CS&CS services provided at each site.[88] There is an informal 'second in charge' (2IC) at each site and this person performs the CSM role in the CSM's absence. The 2IC ensures the remainder of the staff are directed, tasked appropriately and assumes control for incident management.[89] The criticality of this position for court and inter-prison transfer has been recognised in the negotiations for the Proposed Agreement and is to be included as a recognised position.[90]

[55] It is the CSM or 2IC who enters the cell to respond to a person who is self-harming, requires medical assistance or is threatening the safety of another person in the cell.[91] They will in addition direct the other staff.[92]

[56] Counsel for Broadspectrum said that the Commission's assessment of the consequences that the Industrial Action threatens to visit should be made having regard to 'the realities of modern life'.[93] Counsel further submitted that Broadspectrum had led evidence on the impact of the Industrial Action. That evidence, it said, combined with the practical appreciation of the realities of modern life, exposed beyond generalised prediction the impact that the Industrial Action threatened to visit.

[57] The Uniform Ban would, he said, significantly reduce the number of Officers available to transport and secure persons in custody, resulting in a greater likelihood that they will be improperly or inadequately secured.[94] The Overtime Ban was equally serious given the unpredictability of court and medical timetables and the inevitability that overtime is often necessary to maintain adequate and secure supervision, and transportation of persons in custody. Broadspectrum acknowledged that the Higher Duties Ban, although less significant than that of the Overtime Ban and the Uniform Ban, puts at risk crucial decision making hierarchies, which are essential to the management of incidents.[95]

[58] Broadspectrum submitted that while there might be a dispensation from the uniform rule under the CS&CS Contract by the Department of Justice, and there might be a possibility to engage other Court Officers to do court transfers, medical transfers, and the like, it was the case that none of these things rose beyond the possibility that circumstances might intervene to render the impact in any given situation something less than what section 424 referred to.[96]

[59] Counsel for Broadspectrum continued that the question the Commission had to answer was whether it could be satisfied that there is, as Kaufmann SDP referred to in Ambulance Victoria v LHMU[97], the probability that the protected industrial action will or may or threaten to endanger the health, safety, or wellbeing of the population or part of it. The Commission must be satisfied that the protected industrial action would threaten to endanger, not would endanger.[98]

[60] The TWU submitted that it did not contend that the services that the Officers provided under the CSCS Contract were not essential for the protection and welfare of persons in custody and essential for the welfare and protection of the public.[99]

[61] It was said that there was no doubt and it was agreed that as a general proposition adequate staffing levels in the provision of the services was essential to the welfare of the Officers themselves and the welfare of the persons in custody.[100] With regards to context, it was observed that there were strict guidelines and restrictions governing the delivery of the services precisely for that reason, and the principal purpose of the provision of these services was to prevent the escape of those persons in custody.[101]

[62] The TWU pressed the point that the threatened Industrial Action did not threaten to endanger in the necessary sense, essentially because the risks that do arise could be managed. It was the case said the TWU that the onus was on Broadspectrum to manage contingencies that arise and also to put on evidence that will satisfy the Commission that the probabilities of the endangering conduct coming into effect does represent a probability of that coming into effect.

[63] It would defy common sense, said the TWU, to have Officers not perform their duties if they fell short of the strict uniform requirements.[102] While the result of not wearing the uniform shirt may be a breach of the CS&CS Contract and the result may be the imposition of penalties for non-performance there was nothing in the CS&CS Contract, or the evidence, to suggest that Officers could not perform their duties while wearing a modified form of uniform or part only of the uniform.[103] Put simply, said the TWU, the absence of the shirt does not create sufficient compromise of security in circumstances where the balance of the uniform is still worn.[104]

[64] The TWU submitted that the onus was on Broadspectrum to bring appropriate evidence to support an order being made.[105] That evidence would include efforts that Broadspectrum would make to minimise the adverse effects from the Industrial Action or manage contingencies.[106] In this respect the TWU submitted that the evidence was deficient because while a picture of inconvenience had been painted there was no attempt to identify ways that those impacts could be managed.[107] There was an overarching consideration, said the TWU, that Broadspectrum was providing services under a non-exclusive contract and the responsibility for the security of prisoners remained and would always remain with the principal under the contract.[108]

[65] The argument that followed was that the relevant government Department maintained primary responsibility and had the ability, by various strategies, to fulfil that duty, including by using alternative contractors and by fulfilling the services itself through existing prison officers and Department of Corrective Services' staff, and by accessing Broadspectrum's fleet of vehicles.[109]

[66] In summary, the TWU advanced that the Industrial Action effectively threatened to impact on Broadspectrum's performance of the CS&CS contract but would not impact upon the public, the prisoners or those Officers because there was alternative sources for those same services to be provided.[110] It was pressed by the TWU that Broadspectrum had not properly addressed that interplay particularly.[111]

[67] The dispute centres on the extent to which the material provided establishes that the conduct in question, namely the threatened Industrial Action, would threaten to endanger on the basis of probabilities rather than possibilities, the life, the personal safety or health, or the welfare of the population or part of it.

[68] There is no dispute that the Notice represents a threat to engage in industrial action and the threat had been made through a notice issued consistent with the requirements of the Act. The Industrial Action constitutes industrial action within the meaning attributed to the phrase by s 19 of the Act.

[69] Section 424(3) requires that the Commission determine applications under s 424(1) within five days or, if unable to do so, make an interim order suspending the protected industrial action to which the application relates.[112] An interim order was not issued given the application was determined within five days.

[70] Section 424(1) requires the Commission to order that protected industrial action that is happening, threatened, impending or probable be terminated or suspended if it is satisfied that it has threatened, is threatening or would threaten to endanger the life, personal safety or health, or welfare of part of the population.

[71] In Ambulance Victoria v LHMU[113], Kaufman SDP said that the correct approach in determining whether conduct "threaten[ed] to endanger", was:

...on the basis of probabilities rather than possibilities. It need also be pointed out that I must be satisfied that the protected action would threaten to endanger, not would endanger.

[72] The power given by s 424 of the Act to suspend or terminate protected industrial action and the approach to the exercise of such power was further considered by the Full Bench in National Tertiary Education Union v University of South Australia[114], where it was said that such power is intended to be used in exceptional circumstances and where significant harm is being caused by the action:

Section 424 provides that Fair Work Australia (FWA) must make an order suspending or terminating protected industrial action if it is satisfied that the action threatens to endanger the life, the personal safety, health or welfare of the population or part of the population or to cause significant damage to the Australian economy. The effect of making an order suspending or terminating protected industrial action is to bring to an end the right to take protected industrial action. This is achieved by the removal of the protection or immunity which would otherwise attach to the action. The termination of protected industrial action may also lead to FWA making a workplace determination under Part 2-5 of the Act (see ss.266 and 267).

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 it is intended that these mechanisms be used generally to prevent legitimate protected industrial action in the course of bargaining. [paras 1708-1709]

Whether in a particular case the exceptional circumstances for the making of an order suspending or terminating protected industrial action under s. 424 of the Act have arisen will be a matter to be determined on a consideration of all the circumstances and having regard to the evidence and submissions before FWA.

[73] The Full Bench in National Tertiary Education Industry Union v Monash University[115] clarified that the use of the language 'exceptional circumstances' and 'significant harm' was not intended to establish criteria or tests in substitution for or in addition to those found in the language of s 424. Inevitably, however the circumstances which would satisfy the criterion in s 424(1)(c) are likely to be exceptional in the sense of being atypical and out of the ordinary, and that a threatened endangerment to life, personal safety, health or welfare may well involve the affliction of significant harm.[116]

[74] It is has also been said that the approach to the section has been one where the Commission has taken into account all of the circumstances of the relevant employer's activities when assessing the impact of the protected industrial action.[117] That approach is said to have encompassed looking beyond considering only the impact of the action as notified, should it be taken, and to consider actions which may be open to the employer to mitigate the effect of the proposed industrial action.[118]

[75] When attention is paid to the precise terms of s 424 it is evident that an assessment is required concerning particular forms of third party harm. It is not evident from the words of the section that the assessment requires obligatory consideration of defensive action or steps to mitigate.[119] Further, it was not the case that I was taken to any decision in which it was suggested an employer has some evidentiary onus to establish that it has taken every possible step it can to diminish the impact of the notified action.[120]

[76] If the Commission is satisfied that protected industrial action threatens to endanger life, the personal safety, health or welfare of the population or part of the population or to cause significant damage to the Australian economy, it must make an order suspending or terminating the protected industrial action. Which it chooses is a matter for its discretion.

[77] In Coal & Allied Operations v. CFMEU, Giudice J of the Australian Industrial Relations Commission (with whom Munro J and Larkin C agreed) commented upon the predecessor to s 424 as follows:

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 to the term 'population'. There is grammatical infelicity in the wording of the paragraph. 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.

[78] When considering whether the population or part of it is impacted, it is acknowledged that the impact upon the personal safety, health or welfare of persons in custody will inevitably differ for each particular person. Broadspectrum submitted, correctly in my view, that a case involving network-wide industrial action that has not yet commenced will involve evidence of a general nature not specific to particular persons in custody or classes. The question then to be considered is whether the evidence establishes '...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'.[121]

[79] The services provided by Broadspectrum under the CS&CS Contract are performed in Western Australian metropolitan and regional courts in the front of house, the courtroom, and the dock, in hospitals and other medical facilities, at establishments that provide funeral services and at police stations, prisons and whilst in transit on public roads. Within all of those settings members of the general public and staff working for the Department of Justice, Corrective Services or Health or otherwise for a private business, are present. It is not the case that only an individual is potentially exposed albeit exposure of an individual in and of itself should cause alarm, rather there is a collective. There is part of the population.

[80] That part of the population comprises the general public who require court services and those staff that work at the metropolitan and regional court facilities, which are operated by the Department of Justice and which are worked at by relevant employees of Broadspectrum in Western Australia, the general public who require medical services in Western Australia where the relevant employees of Broadspectrum provide hospital transfers and sits in addition to the personnel who provide services in those facilities, and the prisoners themselves.

Personal safety, health or welfare and a threat to endanger

[81] The phrase 'personal safety or health' refers to a person's physical or mental state. Conduct that puts a person's physical or mental state at risk of material detriment - or that materially hinders or prevents improvement in a person's poor physical or mental state - will qualify as conduct that endangers personal health or safety.[122] Regarding a person's welfare, I agree with Counsel for Broadspectrum who submitted that it extends beyond the health or safety of her or his physical or mental state.

[82] The work that will be the subject of the threatened Industrial Action is inherently protective and the services provided by Broadspectrum are essential. At front of mind is the safety of the persons in custody and those persons, who by reason of circumstance find themselves in proximity to the detained. Perhaps it is not the case that all persons in custody are at risk of committing violent criminal behaviour or for that matter self-harm. But, to deny that there is a risk is naïve and does not reflect the practical reality of the circumstances present. There is a reason for persons in custody being detained and, unless properly managed, such persons present obvious risks to the public at large.

[83] Secure escorts to and from correctional or other facilities, and the maintenance of secured supervision inside or outside of those facilities, are essential to prevent the risk of escape, and the associated risks of physical harm (both to escapees and to those who might cross paths with them). An impact which delays transportation from court or medical appointments may on its face seem an inconvenience particularly where the medical appointment is not such that it addresses a life-threatening illness or injury. Though, where there has been a wait for a listing or appointment, the potential welfare impacts will be both obvious and significant.

[84] Broadspectrum's services under the CS&CS contract are not limited to the provision of secure escorts. Security services are provided in some metropolitan and regional courts in the front of house and court room. To appreciate the 'realities of modern life', I have detailed at length incidents that Broadspectrum employees have encountered in 2018. The reality is one where contraband, syringes and weapons are taken into public institutions, persons frequenting courts engage in violence and threats within court rooms are made.

[85] Mr Clegg and Mr Galloway gave evidence that both the Uniform Ban and the Overtime Ban would culminate in a reduction of employees.[123] The reason, the Uniform Ban would result in the Care and Custody Officers being sent home or not being permitted to work due to what they said was a requirement to wear a uniform under the CS&CS Contract. This would therefore limit the pool of employees available to work overtime. The Overtime Ban would see Care and Custody Officers stop work notwithstanding situations where court schedules, medical appointments, and funerals run over time or have been scheduled outside the ordinary hours of the working day.

[86] On any one working day there would be approximately 250-270 employees rostered to work out of the 320 Care and Custody Officers.[124] It was the evidence of Mr Galloway that approximately 50% of the CS&CS operational workforce were members of the TWU.[125]

[87] Put simply, the TWU said the absence of the company shirt did not create a sufficient compromise of security in circumstances where the balance of the uniform is still worn.[126] The TWU said that it would defy common sense to have Officers not perform their duties if they fell short of the strict uniform requirements.[127] It advanced that not wearing the company uniform may be in breach of the CS&CS Contract and the result may be the imposition of penalties for non-performance, but there was nothing in the CS&CS Contract, or the evidence, to suggest that Officers could not perform their duties while wearing a modified form of uniform or part only of the uniform.[128]

[88] Mr Clegg and Mr Galloway gave evidence that Care and Custody Officers would not be able to work without the uniform shirt and relied upon the terms of the CS&CS Contract, outlined shortly. Counsel for the TWU questioned Mr Galloway whether in the normal course of work an Officer would be sent home if absent the uniform shirt. His reply was 'possibly, yes'.[129]

[89] As mentioned, regard was had to what was referred to as Schedule 5 of the CS&CS Contract that set out the following:

The contractor shall provide Contractor Employees with uniforms that ensure visibility and distinguish them from other uniformed personnel.

(ii) ensure that only those uniforms approved by the Principal are used in the Service delivery;

(iii) ensure that uniforms are worn at all times in the provision of Services;

(iv) ensure that the uniform worn by Contractor Employees in a Court environment is consistent with the presentation of other Court officers, and ensure uniforms are:

(A) of good quality and style;

(B) appropriate to the climatic conditions and work requirements; and

(C) worn as a complete uniform....

[90] Mr Galloway and Mr Clegg expressed that Officers would not be able to attend work absent a uniform.[130] Mr Galloway's evidence was such that 'a failure to wear uniforms is not only a breach of the CS&CS Contract but it also threatens the health and safety of the persons in custody and members of the public because of an inability to properly identify the Care and Custody Officers and distinguish them from other individuals'[131].

[91] The observation of Mr Galloway is a salient one. Expedient identification of a person in authority, namely the Officers, appears not only reasonable but essential given the nature of the work. The uniform signifies to the public, staff working in the institutions and persons in custody that the Officer is sanctioned to conduct searches, ask intrusive questions, step in when altercations or threats arise, restrain and where necessary use force.

[92] This is not a situation where one Officer presents to work without her or his shirt, and adorns a non-descript replacement to avoid being sent home. The situation is one where a collective of Officers will not be wearing their company shirt and it is unknown what will be worn. Counsel for Broadspectrum hazarded a guess of an ACDC tank top and Counsel for TWU suggested a collared shirt given the necessity to wear a tie in some courts.

[93] However, there is no place to be glib here. Were the Officers permitted to attend absent their uniform shirt, I am persuaded that that this would render the situation as one where disorder reined and where confusion inimical in nature would be probable. More than a mere inconvenience,[132] there would be a probable, not possible, threat to endanger the safety of the Care and Custodial Officers, the general public, staff working at the various institutions and the persons in custody.

[94] The CS&CS Contract particularises requirements concerning uniforms to ensure that the Care and Custody Officers are identifiable. This much is clear from the words at point 1.13 of the Schedule. The authority engendered by the uniform worn, is in my view, vital to maintaining order within the institutions referred and as such the CS&CS Contract requires that it be worn as a complete uniform. I am satisfied that the imposition of the Uniform Ban would have the probable impact of reducing the number of Officers available to provide services. I consider it more probable than not that non-compliance with the requirement to wear a complete uniform would result in the Officers being precluded from the workplace.

[95] Counsel for the TWU submitted that Broadspectrum had not done anything with regard to addressing the Uniform Ban.[133] By way of example, it was said that Broadspectrum could notify the Department of Justice of the Industrial Action and in accordance with Exhibit R1 seek the approval of the Department of Justice for the wearing of a modified uniform.[134]

[96] However, Counsel for Broadspectrum said that the question is not whether Broadspectrum has taken appropriate steps to mitigate the consequences of the industrial action,[135] the question is, and is only, what are the consequences of the industrial action.[136] I consider that there is force in this submission. Nevertheless, it remains the case that past decisions of this Commission indicate that an assessment of the circumstances may include traversing defensive action or steps to mitigate. Therefore, I observe the following.

[97] If Broadspectrum were to approach the Department of Justice with a request for a modified uniform there is uncertainty as to what precisely would need to be requested in the circumstances, and whether or not there would be acquiescence to such request. There is clearly an obligation on Broadspectrum to provide services under the CS&CS contract and in doing so to ensure that the uniform worn by its employee is complete.

[98] It was said by the witnesses that both the Uniform Ban and the Overtime Ban would pose a significant risk to public safety. Although Counsel clarified that either form of Industrial Action would result in a reduced number of Officers.

[99] The evidence was such that Overtime Ban would have a significant impact on the transportation of persons in custody to and from court, to emergency medical appointments and to funerals. The volume of transportation undertaken by the Transportation Officers (also Care and Custody Officers) was approximately 2,500 court transfers a month or 150 transfers per day, 170 medical appointments a month and 50 inter-prison transfers per week.[137] While it was acknowledged that there was staggered start times for those shifts worked by Transportation Officers, it was the case that overtime commenced after 7.6 hours.[138]

[100] For Care and Custody Officers working on hospital sits 12 hour shifts were the norm on a four on four off, day and night rotation. Hospital sits require 24 hour supervision that necessitated the working of overtime after 10.85 hours was worked each day.[139]

[101] Care and Custody Officers work at the courts with overtime commencing after having worked 7.6hours.[140] In addition to providing supervision while persons in custody cells, Officers have responsibility for front of house security at court buildings. For part-time Care and Custody Officers there is regular overtime of up to an additional two to three hours a day.[141]

[102] There was no suggestion that the schedules of courts, medical facilities and hospitals were determined by the rosters of Broadspectrum. Rather it was the case that Broadspectrum accommodated the requirements of its client or principal, the Department of Justice.

[103] The TWU submitted that the Department of Justice or Corrective Services has the primary responsibility in this State for the security of persons in custody.[142] It submitted that the relevant Department has the ability by various strategies to fulfil that primary duty, including by using alternative contractors and by fulfilling the services itself through existing prison officers and Department of Corrective Services' staff, and by accessing Broadspectrum's fleet of vehicles.[143] This in turn meant that the situation was one where while there was a limitation on the services Broadspectrum provides it effectively impacted on its performance of the contract, but would not impact upon the public, persons in custody or the Officers. This was because there were alternative sources for those same services to be provided.[144]

[104] In the circumstances of this matter there is artificiality in that argument. The relevant Department has contracted out the work because one assumes it does not in and of itself have the internal capacity to perform the service currently. That is not a far-fetched assertion. To the contrary it is sound given the number of Officers employed and volume of work. There was no evidence before me to suggest otherwise.

[105] It is not evident that the Department or one or more of its contractors, is positioned, or may be positioned, to step in and provide the services equivalent to those that Broadspectrum is currently providing under the CS&CS Contract. This is particularly the case given the nature of Broadspectrum's operations that span across the State of Western Australia noting that in some regional areas no alternative contractors are providing services. While the extent of the work required of Broadspectrum has been traversed by both Mr Galloway and Mr Clegg, it is impossible to know the overtime that will be required to ensure the continuity of a transport, security and supervisory service that is critical to prevent perilous situations.

[106] The TWU submitted that the evidence presented by Broadspectrum was deficient because while a picture of inconvenience had been painted there was no attempt to identify ways that those impacts could be managed and thereafter communicated to the courts.[145] The evidence of Mr Clegg when asked 'Has Broadspectrum given notice to the Department of Justice of the potential for industrial action to be taken next week?' he replied 'Yes'.[146] What the Department of Justice communicates with the courts sits with them. Broadspectrum holds a contract with the Department, not the courts directly. It follows that it is unclear why Counsel considered that defensive steps extended to notification to all courts that in probability would be impacted.

[107] Broadspectrum submitted that it was impracticable for it to roster additional employees or to hire casual employees.[147] Such employees need to be adequately trained, qualified to work in the environments provided and have a permit.[148] Further, it was said that Broadspectrum had already allocated all available and willing employees to be on duty during the period of threatened Industrial Action, but even with those staffing levels, it would be inadequate to meet the levels required to eliminate the threat of endangerment to the safety of persons in custody and members of the community.[149]

[108] In light of the safety critical nature of the custodial and security services provided, the span of the operations across the State covering multiple sites, the multi-skilled status of the relevant employees and the number of relevant employees potentially involved in the threatened Industrial Action, the lack of alternative service providers in some regional areas, the unpredictability of court, police and medical schedules, the volume of work and the obligations under the CS&CS Contract regarding the completeness of the uniform to be worn, I am unconvinced that an evidential onus should be placed on Broadspectrum to establish all possible steps have been taken to diminish the impact of the Industrial Action.

[109] It was contended that the Department of Justice has primary responsibility for the provision of the custodial and security services. Still, in the circumstances of this matter an argument premised on shifting responsibility from the contractor, Broadspectrum, to the principal, namely the Department, to provide services that would otherwise be limited by the threatened Industrial Action, is not compelling when considering defensive steps.

[110] The threatened Industrial Action included a ban on higher duties. Care and Security Managers whilst present at each operational site rely on 2IC to make timely critical decisions in the field. The importance of this role has resulted in its recognition in the Proposed Agreement. The 2IC role ensures that employees are directed and tasked appropriately and there is someone to take control of any incidents that occur. In circumstances where Broadspectrum employees are required to enter a cell to respond to a person who is self-harming, requires medical assistance or is threatening the safety of another person in the cell, it is the 2IC that will make the decision to enter and give direction. The absence of direction, order, planning and critical decision making in the field would in my view threaten to endanger the Broadspectrum employees, persons in custody and service providers in proximity to the incident.

[111] I am satisfied that the Industrial Action would threaten to endanger the personal safety, health and welfare of the part of population. In arriving at this finding I have considered the nature of the circumstances, the objects of the Act and the history of negotiations between the parties. Section 424 of the Act obliges me in light of this finding to make an order either terminating or suspending the Industrial Action.

[112] I have considered the circumstances of the negotiations between the parties to date. In doing so I have taken into account the length of the preceding negotiation which has been relatively short, the steps of the parties to establish a bargaining framework and to agree on terms to be negotiated, the parties revisiting of such framework and the terms to be negotiated, and the agreement between the parties on 20 July 2018 regarding the next steps in the process.

[113] The termination of protected industrial action has been found to be appropriate when:

...in circumstances where negotiations have been going on for so long and various forms of protected industrial action have already been taken, [it seemed to me] that termination rather than suspension was the appropriate course should I be satisfied as to the relevant endangerment.[150]

[114] Where the circumstances dictate, it will at times be appropriate to terminate protected industrial action where suspension will not provide sufficient protection against the risk of significant damage of a particular industry.[151] I do not consider the matter before me to be a case that warrants the termination of the protected industrial given the relative immaturity of the negotiations. The evidence is that the negotiations are ongoing. Counsel for Broadspectrum submitted there is no reason to suspect that the negotiations can't bear fruit. There was no evidence to indicate that this was not the case or that the negotiations had become protracted or an impasse had been reached.

[115] It was submitted that on a narrow reading of s 424 I would suspend only so much of the protected industrial action that has precipitated the threatened adverse effects on life, personal safety or health, or welfare. A broad reading would encompass all protected industrial action. The broader view has been adopted by the Full Bench in NTEU v University of South Australia[152] and in Ambulance Victoria v LHMU.[153] I was satisfied that the protected Industrial Action set out in the Notice should be suspended and that suspension would be for a period of 2 months in light of the history of negotiations to date.

Mr J Snaden, of Counsel at the Victorian Bar, for the Applicant.

Mr M Kelleher, Special Counsel at Clayton Utz, for the Applicant.

Ms R Cosentino, of Counsel at John Toohey Chambers, for the Respondent.

Mr J Cutrali, Industrial Officer at Transport Workers' Union of Australia, for the Respondent.

[2] PR609847 and [2018] FWC 4706.

[4] [2018] FWC 4706.

[5] Witness Statement of Mr William Galloway (Exhibit A2) (Galloway's Statement) [4].

[7] Witness Statement of Mr John Jeffrey Clegg (Exhibit A3) (Clegg's Witness Statement) [6].

[8] Transport Workers' Union of Australia v Broadspectrum (Australia) Pty Ltd [2017] FWC 6492.

[12] Form 37 - Application for an order for suspension or termination of protected industrial action filed on 10 August 218 by Broadspectrum [4.1].

[13] Transport Workers' Union of Australia v Broadspectrum (Australia) Pty Ltd [2018] FWC 3430 [7] - [10].

[15] Outline of the Applicant's Submissions in Support of Suspension of Protected Industrial Action (Applicant's Submissions) [3].

[25] Re Broadspectrum (Australia) Pty Ltd t/a Broadspectrum [2016] FWC 7936; Re Broadspectrum (Australia) Pty Ltd t/a Broadspectrum [2016] FWC 8209.

[26] United Voice v Broadspectrum (Australia) Pty Ltd t/a Broadspectrum [2017] FWCFB 871.

[35] A lock up clearance is when an individual has been arrested in a regional location and they are due to be transported to a prison (Transcript PN79).

[51] [2004] AIRC 749 [64] Kaufman SDP.

[93] Pelican Point Power Ltd v ASU [2010] FWA 8666 [28].

[97] [2009] FWA 44; (2009) 187 IR 119

[114] [2010] FWAFB 1014.

[115] [2013] FWCFB 5982 [20].

[117] Ausgrid; Endeavour Energy; Minister for Industrial Relations (New South Wales) v Communications, Electrical, Electronic, Energy, Information,, Postal, Plumbing and Allied Services Union of Australia; Australian Municipal, Administrative, Clerical and Services Union; Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers' Union [2015] FWC 1600 [51].

[118] Tyco Australia Pty Ltd trading as Wormald v CEPU [2011] FWAFB 1598 [29]-[32]; Ausgrid; Endeavour Energy; Minister for Industrial Relations (New South Wales) v Communications, Electrical, Electronic, Energy, Information,, Postal, Plumbing and Allied Services Union of Australia; Australian Municipal, Administrative, Clerical and Services Union; Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers' Union [2015] FWC 1600 [51].

[119] Pelican Point Power Limited [2010] FWZ 8666.

[120] Ausgrid; Endeavour Energy; Minister for Industrial Relations (New South Wales) v Communications, Electrical, Electronic, Energy, Information,, Postal, Plumbing and Allied Services Union of Australia; Australian Municipal, Administrative, Clerical and Services Union; Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers' Union [2015] FWC 1600 [51].

[121] Coal & Allied Operations v CFMEU (1998) 80IR 14, 33.

[122] VHIA v. ANF (2011) 214 IR 148, 161 (Boulton J, Acton SDP and Lewin C).

[130] Galloway's Statement [16]; Clegg's Statement [19].

[132] University of South Australia v NTEU [2009] FWA 1535 [41]; NTEU v Monash University [2013] FWCFB 5982 [23] - [25]; VHIA v ANF (2011) 214 IR 148, 51; G4S Custodial Services Pty Ltd v HSUA [2014] FWC 8331 [13].

[150] Ambulance Victoria [2009] FWA 44; (2009) 187 IR 119, 126.

[151] Re Minister for Tertiary Education, Skills, Jobs and Workplace Relations (2011) 214 IR 367.

[152] [2010] FWAFB 1014; (2010) 194 IR 30.

[153] [2009] FWA 44; (2009) 187 IR 119.

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