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 - whether the industrial action has threatened, is threating, or would threaten to relevantly endanger - evidence does not presently support that contention - application dismissed - observations made about future bargaining and potential impact of industrial action.

• [1] This matter concerns an application by Serco Australia Pty Limited T/A Serco (Serco) under s.424 of the Fair Work Act 2009 (Cth) (Act) for an order for the suspension of protected industrial action (PIA) being taken by members of the United Workers' Union (UWU).

• [2] Serco and UWU are presently negotiating an enterprise agreement to apply to Corrections Officers at the Adelaide Remand Centre (ARC). The ARC is a metropolitan facility that accommodates male maximum security remand prisoners. Serco manages and operates the ARC, providing prisoner management services pursuant to the terms of a contract for services with the South Australian Government.

• [3] The application was made on 15 May 2024 in the immediate context of 4 consecutive 24-hour stoppages of work being undertaken by members of UWU. Further, UWU had notified of an additional single-day 24-hour stoppage of work on 21 May 2024. Some earlier PIA had also been notified and taken by UWU members.

• [4] The application was made on the basis that the action notified by the UWU has or will threaten to endanger the life, personal safety or health, or the welfare of part of the population. That is, the employees, prisoners and the public associated with the ARC. The application seeks that the industrial action be suspended for a period of 3 months.

• [5] The application was heard at relatively short notice on 16 May 2024. Having considered the evidence and submissions in the context of the various statutory requirements, on 17 May 2024 I advised the parties that I had declined to grant the present application and order sought. The reasons for that conclusion are set out below.

• [6] The Act relevantly provides as follows:

"424 FWC must suspend or terminate protected industrial action - endangering life etc.

Suspension or termination of protected industrial action

(1) The FWC must make an order suspending or terminating protected industrial action for a proposed enterprise agreement that:

if the FWC is satisfied that the protected industrial action has threatened, is threatening, or would threaten:

(c) to endanger the life, the personal safety or health, or the welfare, of the population or of part of it; or

(d) to cause significant damage to the Australian economy or an important part of it.

(iia) if the industrial action is being engaged in, or is threatened, impending or probable, in a State that is a referring State as defined in section 30B or 30L - the Minister of the State who has responsibility for workplace relations matters in the State;

(iib) if the industrial action is being engaged in, or is threatened, impending or probable, in a Territory - the Minister of the Territory who has responsibility for workplace relations matters in the Territory;

(3) If an application for an order under this section is made, the FWC must, as far as practicable, determine the application within 5 days after it is made.

(4) If the FWC is unable to determine the application within that period, the FWC must, within that period, make an interim order suspending the protected industrial action to which the application relates until the application is determined.

(5) An interim order continues in operation until the application is determined."

• [7] Section 427 of the Act also provides as follows:

(1) This section applies if the FWC is required or permitted by this Division to make an order suspending protected industrial action.

(2) The FWC must specify, in the order, the period for which the protected industrial action is suspended.

(3) The FWC may specify, in the order, a longer period of notice of up to 7 working days for the purposes of paragraph 430(2)(b) if the FWC is satisfied that there are exceptional circumstances justifying that longer period of notice.

• [8] It is not in contest, and I accept, that:

• Serco is a bargaining representative for the proposed enterprise agreement and there is a valid application before the Commission.

• The UWU has notified and taken PIA within the meaning of the Act.

• The industrial action subject to the notices given by the UWU was being taken or threatened or probable so as to satisfy the requirements of s.424(1)(b) of the Act.

• [9] The key issue here is whether the PIA that is being taken, threatened, impending or probable has threatened, is threating, or would threaten to endanger the life, the personal safety or health, or the welfare of the relevant part of the population. I accept for present purposes that the employees and contractors of Serco working at the ARC, the prisoners at the ARC, and the community associated with the ARC are a relevant part of the population.

• [10] The operation of s.424 of the Act has been considered in various Full Bench authorities.

• [11] Early on in the life of the present Act, the Full Bench in National Tertiary Education Industry Union v University of South Australia[1] stated:

"[7] 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).

[8] Within the scheme of the Act, the powers in relation to the suspension or termination of protected industrial action are intended to be used in exceptional circumstances and where significant harm is being caused by the action. This is clear from the Explanatory Memorandum to the Fair Work Bill 2008:

"The Bill recognises that employees have a right to take protected industrial action during bargaining. These measures recognise that, while protected industrial action is legitimate during bargaining for an enterprise agreement, there may be cases where the impact of that action on the parties or on third parties is so severe that it is in the public interest, or even potentially the interests of those engaging in the action, that the industrial action cease - at least temporarily.

It is not intended that these mechanisms be capable of being triggered where the industrial action is merely causing an inconvenience. Nor is it intended that these mechanisms be used generally to prevent legitimate protected industrial action in the course of bargaining" [paras. 1708-1709].

[9] The provisions in the Act for the suspension or termination of protected industrial action are in certain respects similar to the scheme in the Workplace Relations Act 1996 (the WR Act) providing for the suspension and termination of bargaining periods. Under that legislation, the power given to the Australian Industrial Relations Commission was to terminate a bargaining period with the result that all industrial action being taken in support of claims would become unprotected.

[10] In the present case, it was submitted by the NTEU that the power in s.424 of the Act is significantly different from that relating to the termination of bargaining periods under the WR Act. It was said that the power in s.424 is a much more confined and precise power which is directed at the prevention of particular forms of third party harm. It is therefore only industrial action which causes the requisite harm that may be terminated or suspended by FWA under s.424 of the Act.

[11] We do not agree with this construction of the power in s.424. The use of the words "suspension" and "termination" of protected industrial action in the section may be contrasted with the power given to FWA in s.418 in relation to the making of orders to "stop" industrial action. The suspension of protected industrial action is to be construed as a suspension of the protection or immunity which attaches to the industrial action under the Act provided it is authorised in a protected action ballot etc. (see s.409). A reference in s.424 to the making of an order "suspending or terminating protected industrial action for a proposed enterprise agreement" would therefore seem to apply to protected industrial action which was authorised by the ballot, and not to the particular industrial action which is being taken as part of what might be a series of actions authorised by the ballot and which is having the requisite harmful effect.

[12] This reading of s.424 would accord with the wider scheme of the Act and, in particular, with the provisions which apply to the making of workplace determinations where an order has been made terminating protected industrial action (see s.266). It would be inconsistent with that scheme if further protected industrial action was able to be taken even though the jurisdiction for the making of an arbitrated determination was in train (see Ambulance Victoria v LHMU [2009] FWA 44, Kaufman SDP). There is no valid reason for adopting a fundamentally different interpretation of s.424 in respect of the power to suspend protected industrial action than is applied in relation to the termination power.

[13] In any event, we note that even if an order made under s.424 was confined to part only of the authorised industrial action, the effect of the order would be to render the other industrial action unprotected. The common requirements that apply for industrial action to be protected industrial action are set out in Subdivision B of Division 2 of Part 3-3 of the Act. In particular, s.413(7)(a) provides that industrial action will not be protected industrial action for a proposed enterprise agreement if there is in operation "an order under Division 6 of this Part suspending or terminating industrial action in relation to the agreement".

• [12] I do not understand that the Full Bench in National Tertiary Education Industry Union v University of South Australia requires that the Commission find the existence of exceptional circumstances to make an order under s.424. Rather, that given the scheme of the Act, circumstances where the statutory prerequisites have been met are likely to be exceptional and not the norm of bargaining with PIA involved. Indeed, a later Full Bench has confirmed that s.424(1) is to be applied according to its actual language and that externally derived tests or notions are not appropriate [2]

• [13] Later, the Full Bench in Victorian Hospitals' Industrial Association v Australian Nursing Federation[3] directly stated the task in the following terms:

"[48] The main issue for consideration in this matter concerns the impact that the protected industrial action being taken and threatened by the ANF and its members is having or is likely to have on the Victorian public health system and the users of the system. Subsection 424(1) requires that FWA must make an order suspending or terminating the protected industrial action that is being engaged in, or is threatened, impending or probable if we are satisfied that it has threatened, is threatening or would threaten to endanger the personal safety or health, or the welfare, of part of the population."

[49] It is clear that there must be an appropriate evidential basis to found such a satisfaction. As the High Court said in Coal and Allied Operations Pty Ltd v AIRC in considering somewhat similar provisions in the Workplace Relations Act 1996:

"... the nature of the threat as to which a decision-maker must be satisfied under s 170MW(3) of the Act involves a measure of subjectivity or value judgment... [A] decision under s 170MW(3)(b) that industrial action is 'threatening... to cause significant damage to the Australian economy or an important part of it'... is not simply a matter of impression or value judgment... the decision-maker must have some basis for his or her satisfaction over and above generalised predictions as to the likely consequences of the industrial action in question".

[51] We were taken in the proceedings to previous decisions of FWA and its predecessors regarding the meaning of the terms in s.424(1), including the references to "welfare" of the population and the concept of endangerment. These are commonly used words and expressions which are widely understood in the community and which should be given their ordinary meaning. 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 - may qualify as conduct that endangers personal health or safety. Although the conduct might not be of such a serious nature as to amount to an endangerment to "life", it might nevertheless be such as to constitute a significant risk to "personal safety or health". Conduct that delays or puts off the efficient supply of public health services has the capacity to impact adversely upon the welfare of at least some of the persons who require those services. The impact of the conduct must, however, be more than merely to cause inconvenience to the persons concerned - it must be such as to expose them to danger."

• [14] Accordingly, and stated in general terms, s.424(1)(c) of the Act relevantly provides that the Commission must make an order suspending or terminating relevant protected industrial action if it is satisfied that the action threatens to endanger the life, the personal safety or health, or the welfare of the population or part of the population. Whether an order should be made under s.424 will be a matter to be determined based upon a consideration of all the circumstances and having regard to the evidence and submissions before the Commission.

• [15] Further, the statutory scheme is such that the orders preventing protected industrial action are not to be issued lightly and the satisfaction contemplated by s.424 is that the threat must be material, and certainly beyond mere inconvenience, and founded upon a proper basis.

• [16] The Commission has previously[4] accepted that measures reasonably available to an employer to mitigate the impact of PIA, are a relevant consideration.

• [17] The terms "threaten" (and similar), "health" and "welfare" are to be given their ordinary meanings. The term welfare is not limited to situations where life, personal safety or health is endangered.[5]

• [18] The appropriate test under s.424(1) is not whether the protected industrial action 'would' endanger, but rather whether it would 'threaten' to endanger.[6]

• [19] Conduct that puts a person's physical or mental state at risk of material detriment, or that materially hinders or prevents improvements in a person's poor physical or mental state, may qualify as conduct that endangers personal health or safety.[7]

• [20] Even if conduct is not serious enough to endanger life, it might constitute a relevant risk to personal safety or health.[8]

• [21] Serco contended that the impact of the notified PIA is both significant and compounding. This, it says, includes the availability of a pool of Corrections Officers that might be called in during the current and upcoming period of protected industrial action and that this materially compromises Serco's ability to safely manage the ARC.

• [22] Serco also contended that the reduction in the number of available Corrections Officers at the ARC has led to (and is anticipated to continue to lead to) reduced prisoner "time out of cell" (i.e., by way of rolling prisoner lockdowns) and reduced access to services offered to prisoners at the ARC on a more frequent or regular basis. This includes services such as food delivery. This, it contended, has a significant impact on the health, safety and welfare of prisoners, and is a risk to the health and safety of those with whom they engage (including staff, contractors, other stakeholders and members of the public). These impacts and risks naturally increase the longer the lockdowns extend.

• [23] Serco submitted that the prison environment is often volatile, and incidents such as assaults, riots and self- harm are not uncommon. Reduced out of cell time for prisoners is likely to increase that volatility and risk. That is, almost all prison cells at the ARC have two prisoners allocated per cell. Corrections Officer shortages would adversely and significantly limit Serco's ability to properly observe prisoner conduct in their cells, including the conduct of any new prisoners entering the ARC. This, it contends, has the potential to lead to an increased risk of serious assault between "cell mates", as well as adverse impacts on psychological wellbeing.

• [24] Serco also relied upon the potential for a prisoner-related event at the ARC (e.g. a riot, medical disturbance, self- harm incident, assault (including "prisoner on prisoner" and "prisoner on staff" assault)) as a further real danger in the context of a reduced workforce of Corrections Officers.

• [25] Serco contended that the requirements of s 424(1) of the Act are satisfied. That is:

• The notified action meets the definition of "industrial action" in s 19 of the Act. It is also protected action, by reason of its authorisation by way of a protected action ballot order (PABO).

• The notified action is threatened, impending or probable, or being organised.

• The notified action is threatening or would threaten to endanger the life, the personal safety or health, or the welfare of the population or part of it.

• [26] Further, if the Commission agrees that the requirements of s 424(1) are satisfied, it must make an order suspending or terminating the notified action. The Commission retains a discretion whether to order termination or suspension. Serco did not press for termination; rather, it sought that the Commission suspend the protected industrial action for a period of 3 months to allow further bargaining to take place.

• [27] Serco relied upon the affidavit[9] and oral evidence of Brett McMerrin, Director of Operations.

• [28] The UWU opposed the application and contends that the PIA in issue has not and will not endanger the life, personal safety or health, or welfare of the population, and therefore should not be suspended or terminated.

• [29] The UWU accepted that the effect of the action is to reduce the Corrections Officer staff available to Serco. However, it contended that a substantial proportion of the Corrections Officer staff remain available to work, approximately 50% of the staff in Serco's case. Further, it contends that Serco employs significantly more corrections officer staff than are required for any particular shift. Accordingly, by deploying the available staff Serco is able, largely, to staff each shift adequately. That it may be required to ask staff to work overtime, and may be required to pay overtime rates to some staff, in order to adequately staff each shift, is not a consideration relevant to s 424 of the Act.

• [30] The UWU also submitted that Serco employs a number of managers who are trained in, and can undertake, the duties of Corrections Officers, and further, has deployed a number of its Corrections Officer staff from New South Wales and Western Australia to the facility.

• [31] As a result, the UWU contended that Serco has been able to fully and/or adequately staff the facility during the periods of PIA and should be able to do so into the future, and that the evidence supports that contention.

• [32] Further, UWU submitted that to the extent that on any particular day shift, or for any period of a particular day shift, Serco is unable to adequately staff the facility, it is able to operate a system of "rolling unlocking" during which cohorts of prisoners are sequentially and separately released from the cells for prolonged periods of time. In that respect, UWU also contends that Serco has regularly operated a system of rolling unlocking where it has been unable for other reasons to adequately staff shifts. Necessarily, it says, Serco must be satisfied that the operation of a system of rolling unlocking does not endanger the safety or health or welfare of prisoners or staff. That is, even if the effect of the industrial action is to preclude Serco from being able to adequately staff a particular shift, which is disputed, the employer here can operate its system of rolling unlocking and in that way avoid the risk of endangering prisoners or staff.

• [33] UWU submitted that the consequences of the PIA posited by Serco in its application, albeit only generally identified, assume that it cannot adequately staff the facility, and that to the extent that it cannot adequately staff the facility it is unable to operate its system of rolling unlocking. The evidence does not sustain those assumptions. Therefore, the risk of those postulated consequences occurring is low.

• [34] Further, UWU contended that recently when the earlier PIA was undertaken, Serco maintained publicly that there was no compromise to safety and security by virtue of that industrial action, and that the facility was operating as usual or as normal during the course of that industrial action. In addition, the State Government was reported as stating that it had been advised by Serco that the stoppage created no risk to safety or security. Serco has not identified why the circumstances of the current industrial action give rise to a relevant danger where the relevantly identical industrial action did not cause any such danger two weeks ago.

• [35] The UWU rely upon the fact that on 24 April 2024 Serco wrote to it asking that the Union provide cooperation about meeting minimum staffing levels. Mr Roberts spoke with Cheryl Clay, General Manager of Serco on 26 April, with a view to providing the requested assurance. Ms Clay advised that Serco needed a certain level of staffing. Mr Roberts advised that he thought that Serco had sufficient numbers to meet its requirements, but that Ms Clay should let the respondent know what she needed. There has been no further request regarding any staffing requirement. UWU contended that the communication between Mr Roberts and Ms Clay, and the absence of any further request in respect of staffing levels, is inconsistent with the proposition that the industrial action is causing relevant endangerment.

• [36] Finally, as at the date of the hearing the present series of rolling stoppages of work has now been taking place for two and a half days. UWU contended that there are no credible reports of any prisoner or member of staff facing any significant health or safety risk as a result of the industrial action. Further, it submitted that there is no credible report of any escalation in adverse prisoner behaviour in consequence of the industrial action.

• [37] UWU contended that Serco is unable to satisfy the Commission that there is a sufficient risk of danger to prisoners or staff to engage s 424(1).

• [38] In the alternative, and without conceding the above, UWU contended that if any suspension was contemplated, it should be no longer than 7 to 14 days in length.

• [39] UWU relied upon the witness statements and oral evidence of the following:

• • Darren Roberts[10], UWU Organiser;
• • Ben Barber[11], Corrections Officer, ARC; and
• • Aaron Farmilo[12], Corrections Officer, ARC.

• [40] I have based my findings on the evidence before the Commission. This includes the evidence of Mr McMerrin who has a national (Australia and New Zealand) role for Serco. I consider his evidence was given fairly and openly. However, his evidence did not engage directly with some of the historical and present operational details of the ARC and relied upon others in certain respects. As to his general observations about the potential impact of prisoner lockdowns, whilst not an independent expert, his broad experience was relevant in that regard, including to the concessions made under cross-examination.

• [41] I have also relied upon the evidence of Mr Roberts, which was not contested, and that of Mr Barber and Mr Farmilo. In particular, the oral evidence of Mr Barber was objective and clear.

• [42] Where any of the witnesses expressed statements in their evidence about matters that are properly for the Commission to determine, I have treated that "evidence" as submissions.

• [43] The ARC is the primary admission site for metropolitan male prisoners awaiting sentencing or other Court dates in South Australia. It has capacity to hold up to 310 prisoners, and at the time of the hearing housed 277 prisoners on remand. These prisoners have been charged with various offences, including those involving serious violence and drugs.

• [44] Approximately 5 - 10% of the prisoner cohort are newly admitted to the ARC on a daily basis. Accordingly, the risk profile of the ARC changes daily depending upon the types of prisoners being admitted to the facility. This requires appropriate numbers of Corrections Officers, and other staff and operational measures, to ensure that persons at the ARC are kept safe.

• [45] Serco employs approximately 120 staff at the ARC, 89 of whom are employed as Corrections Officers. It is the Corrections Officers that are primarily responsible for the provision of prison management services at the ARC.

• [46] In general terms, a full complement of Corrections Officers for each shift is 33 during the day shift and 7 on the night shift. Different staffing applies on weekends where the full staff compliment is 28 day and 7 night shift staff. Generally, prisoners are locked in their cells at the ARC between 5.00pm and 8.30am the next day. Prisoners may also be locked in to enable staff to have meals in the middle of (day) shifts.

• [47] Prisoners on remand at the ARC may also experience a range of complications in presentation, including drug and alcohol withdrawal, unstable mental health, separation from family and country; and needing access to phones and workers to make contact with their families and friends and outside agencies and to manage their personal affairs, including financial affairs and living arrangements.

• [48] Corrections Officers play a central role in managing and responding to such complications, as a key component of their role requires them to be "on the floor" and frequently observing and interacting with prisoners. Corrections Officers also facilitate a range of other services at the ARC, including prisoner hospital visits and Court attendances.

• [49] Serco and the UWU are presently bargaining for an enterprise agreement to replace the Serco South Australian Correctional Officers Enterprise Agreement 2022 (Proposed Agreement). Bargaining commenced on 30 June 2023, when Serco issued a Notice of Employee Representational Rights, and the Proposed Agreement is intended to cover Corrections Officers employed by Serco at the ARC.

• [50] UWU is a Bargaining Representative for the Corrections Officers. Since issuing the NERR, 12 bargaining meetings occurred up to January 2025, when the Proposed Agreement was put to a vote of employees by Serco, however, it was not accepted by the majority of employees. Bargaining has continued.

• [51] On 4 April 2024, UWU made an application for a PABO. The PABO[13] was made on 5 April 2024. The results of the Protected Action Ballot were declared on 19 April 2024, with each of the proposed protected action ballot questions having been approved by a majority of voters. The question endorsed by the ballot included an unlimited number of stoppages of work between one and 24 hours duration. This is the action relied upon in this matter. The ballot questions also included various potentially significant bans and work limitations that have not been presently notified or relied upon for present purposes.

• [52] By notices dated 8 May 2024, 9 May 2024, 10 May 2024, 13 May 2024 and 15 May 2024, the UWU notified Serco that its members employed as Corrections Officers at the ARC intended to take protected industrial action. The action was to take the form of consecutive 24-hour stoppages, the first of which commenced at 6:00 am on 14 May 2024, and the last of which was to commence at 6:00 am on 17 May 2024. The action stated in the last notice was for an additional 24-hour stoppage on 21 May 2024 (collectively Notified Action).

• [53] The notified action impacts on the availability of around 50 percent of the normally available Corrections Officer resources.

• [54] Corrections Officers previously took protected industrial action in the form of a 24-hour stoppage on 29 April 2024 and 6 May 2024. During these particular periods of industrial action, prisoners at the ARC were subjected to a restricted regime of limited time out of their cell. That is, they were placed into "lockdown" for a longer period than normal. On 19 April 2024, in response to staff shortages and in order to mitigate the risks associated with same, the ARC implemented a 19-hour lockdown.

• [55] The practice of rolling lockdowns or rolling unlocking, where the prisoners are released from their cells in smaller batches, thus reducing the time out of the cells, has been used extensively by Serco at the ARC. When the ARC is "short-staffed" for whatever reason, the centre may adopt this practice. The evidence is that these rolling lockdowns or unlocks have been regular and common over the last 2 years. Further, whilst not ideal, I find that Serco has accepted that of themselves, the rolling lockdowns/unlocks are not generally unsafe. This was confirmed in the evidence of Mr McMerrin, subject to appropriate caveats, and by the conduct and public statements of the employer.

• [56] There is little direct evidence about the impact of these earlier lockdowns or the consequential change in risks at the ARC. However, I accept that these rolling lockdowns are undesirable and may have consequences. I will return to this aspect, and the foreseeable impact of lockdowns more generally. I will also deal with the evidence about the steps taken by Serco to staff the ARC during the subsequent notified action and the claimed consequences of the PIA as part of my consideration of the application below.

• [57] The key issue is whether the PIA that is occurring or is threatened, impending or probable has threatened, is threating, or would threaten to endanger the life, the personal safety or health or the welfare of the relevant part of the population.

• [58] The PIA that is immediately relevant and relied upon by Serco is the presently notified PIA - the 4 day stoppage and the single day stoppage notified for 21 May 2024. The earlier notified PIA is also important. I observe that there is a prospect that any of the other forms of PIA endorsed in the PABO could be notified and taken, including more full day stoppages. Further action is feasible; however, the precise form, detail and timing of any such action is not known or predictable.

• [59] Given the environment and circumstances of the ARC, PIA that meaningfully impacts on the actual numbers of Corrections Officers or other suitably qualified and trained resources that can ultimately be available to work at the Centre is capable of creating the relevant threat to health safety or welfare.

• [60] Although the initial single day stoppages and potentially other circumstances did apparently impact Corrections Officer numbers to the point that rolling prisoner lockdowns were implemented, Serco have had a full complement of Corrections Officers during the more recent stoppages, including the 3 consecutive days leading up to the hearing. This has been achieved as a result of the number of staff attending work despite the notified PIA, the use of Corrections Officers from other facilities operated by Serco - including from other States, overtime being worked by some of the officers attending for duty, and a number of UWU members attending work. In that regard, I observe that Serco sought some guaranteed minimum staffing from UWU and in the context of an earlier indication that sufficient Corrections Officers would be working, an offer was made by the UWU to discuss further. This was not taken up by management.

• [61] The evidence before the Commission does not support a finding that the PIA taken to date has threated or is presently threatening the personal safety or health or the welfare of the relevant part of the population. The mitigation strategies adopted by Serco and the other circumstances outlined above have ensured that full staffing, let alone sufficient staffing, has been available at the ARC. The other claimed risks arising from the PIA to date are also not supported by cogent evidence. The question becomes whether the future threatened, impending or probable PIA, given the context and the nature of the mitigation options apparently available to Serco, would relevantly threaten.

• [62] I have observed that Serco have applied rolling prisoner lockdowns on many other occasions, including during Covid and at other times where staffing has been less than optimal (unrelated to any PIA) and as stated earlier the evidence is that Serco broadly accepts that it has operated the ARC safely at those time. However, I accept that rolling prisoner lockdowns (or rolling unlocks) are undesirable and if applied for significant periods could lead to the nature of some of the consequences claimed by Serco. This potential, and the other associated risks arising from the nature of the ARC, are all generally related to the need for adequate staffing levels.

• [63] In that regard, whilst each application of this kind must be assessed in its own context and evidence, I would observe that there is a stark difference between the overall circumstances, including the extent and nature of any potential lockdowns, in this case as compared to those dealt with by the Commission in G4S Custodial Services Pty Ltd,[14] where an order was made. That case does however, correctly in my view, demonstrate that significant lockdowns in an institution such as a prison or the ARC, may produce the relevant endangerment, depending upon all of the circumstances.

• [64] What then, based upon the evidence here, is the probable consequence of the future threatened, impending or probable PIA for present purposes? This case was conducted by Serco relying upon the PIA notified by the UWU at the time of the hearing, including the additional stoppage planned for 21 May 2024. I also do not consider that the additional notified PIA, even when considered in context of the cumulative PIA, presently produces the relevant threat.

• [65] In reaching the above conclusions, I have also considered whether:

• The overtime being worked could become unsustainable from a health and welfare perspective and some of the officers may also reasonably decline such additional work;

• There may be some reasonable limits on the capacity to safely draw upon other staff resources including those from the other sites operated by Serco; and

• Overall circumstances at the ARC could change including the willingness of sufficient staff to attend work during the PIA or a significant change in the number or composition of the prisoner population.

• [66] However, the existence of a conceptual threat to safety or health, or welfare, is insufficient, even if it exists as a result of the protected industrial action. The danger must be probable, rather than simply a possible eventuality.[15]

• [67] In this case, although there are some broad statements in the evidence about the extent and impact of the overtime being worked, there is little probative evidence to illustrate how much of the staffing compliment relies upon this overtime or the degree to which any shortfall in resources could not be made up if the extent of available overtime reduced significantly.

• [68] There is also limited probative evidence about the number and circumstances of the officers being drawn from the other sites. Whilst I would accept that there would be some natural limitations - including the impact on the other facilities, there is not a sufficient foundation in the evidence that would presently support a finding that sufficient Corrections Officer numbers are not reasonably available to Serco.

• [69] Further, and in any event, I am not persuaded that the mere possibility of some rolling lockdowns in the future, which is all the evidence before the Commission would support, is sufficient to establish the relevant threat to endanger. There are risks arising from this measure, given the nature of the facility, however for reasons previously stated the present evidence does not support a finding that the relevant PIA threatens to endanger within the meaning of s.424(1)(c) of the Act.

• [70] The other possibilities are largely speculation at this point, at least based upon the threatened, impending or probable PIA. In particular, there is little probative evidence before the Commission to support the notion that there is presently a meaningful risk to the delivery of other services at the ARC, including the provision of food and managing hospital admissions of prisoners.

• [71] As a result, I was not presently persuaded that the PIA that is threatened, impending or probable has threatened, is threating, or would threaten to endanger the life, the personal safety or health, or the welfare of the relevant part of the population.

• [72] As I was not satisfied that the requirements of s.424(1)(c) of the Act had been met, the application was dismissed.

• [73] The parties should carefully note and consider the precise basis of the findings made in this matter. This is not a general endorsement of rolling prisoner lockdowns as a management or response strategy, or for further PIA, particularly of the kind most recently notified and taken. The decision is a reflection of the scheme of the Act, the precise statutory requirements for an order of the kind sought here, and the circumstances of the ARC as revealed in the evidence provided to the Commission.

• [74] I can conceive the possibility that further, more direct, evidence about the circumstances of the ARC and the actual impact of any future concerted and cumulative PIA, or a meaningful change in the present circumstances, may lead to a different outcome. This could include further consecutive full day stoppages or other significant work bans, particularly if notified in conjunction with or immediately after a longer-term stoppage of work, such as the present 4-day PIA. I observe that this prospect was not directly relied upon by Serco as being threatened, impending or probable PIA for present purposes. There is no evidence before the Commission that would have supported that proposition given the notified PIA.[16]

• [75] Further, the evidence reveals that despite some significant progress in the bargaining being made, there remains some outstanding issues between the parties. I would strongly encourage one or both parties to make an application for the Commission's assistance under s.240 of the Act.

M Minucci of counsel, with permission for Serco Australia Pty Limited.

S Blewett of counsel, with permission for the United Workers' Union.

[1] NTEIU v University of South Australia [2010] FWAFB 1014.

[2] See National Tertiary Education Industry Union v Monash University [2013] FWCFB 5982 at [20].

[3] [2011] FWAFB 8165 15. See also Tyco Australia Pty Limited T/A Wormald v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia- Electrical, Energy and Services Division - Queensland Divisional Branch [2011] FWAFB 1598.

[4] See for example Tyco Australia Pty Ltd (t/as Wormald) v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2011] FWAFB 1598 at 29.

[5] State of Victoria - Department of Health and Community Services v Health Services Union of Australia AIRC Print L9810, 3 March 1995 at para. 15.

[6] Ambulance Victoria v Liquor, Hospitality and Miscellaneous Union [2009] FWA 44 at para. 29, [(2009) 187 IR 119].

[7] Victorian Hospitals' Industrial Association v Australian Nursing Federation at para. 51, [(2011) 214 IR 148].

[10] Witness Statement of Mr Roberts, Exhibit 2 (Mr Roberts was not required for cross examination.).

[11] Witness Statement of Mr Barber, Exhibit 3.

[12] Witness Statement of Mr Farmilo, Exhibit 4.

[13] PR773207.

[14] [2014] FWC 5496.

[15] Re: Coal and Allied (1998) 80 IR 14, at 33. See also State of Victoria - Department of Human Services v Health Services Union [2012] FWC 8397 at para. 80, [(2012) 225 IR 306].

[16] Health Services Union v Clinical Laboratories Pty Ltd T/A Healthscope Pathology [2014] FWC 8808 at [41] and CPB Contractors Pty Ltd T/A CPB Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union, Democratic Outcomes Pty Ltd T/A CiVS [2024] FWC 1042 at [32].

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