State of Queensland (Queensland Corrective Services) v Together Queensland,... [2019] QIRC 111 | Case summary

[1] Queensland Corrective Services (QCS) filed an application Friday 10 May 2019 to suspend protected industrial action being engaged in by staff at the Lotus Glen Correctional Centre (LGCC) and Wolston Correctional Centre on Monday 13 May 2019. The Order was sought on the basis that the action threatens to endanger the life, personal safety or health or welfare of a part of the state's population. Here, the population consists of offenders incarcerated at and employees engaged at LGCC.

[2] The action being taken by Together members at the LGCC is protected industrial action. To suspend or terminate protected industrial action, s 241(1)(a) of the Industrial Relations Act 2016 (the IR Act) states:

Suspension or termination if life, property, health or welfare is endangered

[3] The only element in contention is if the action has threatened, is threatening or would threaten to endanger the life or personal safety or health or welfare of the part of the state's population mentioned in the application.

[4] Both parties have put before me a number of decided cases about s 421 of the Fair Work Act 2009 (Cth) (FW Act) and its predecessors which set out how s 241(1)(a) of the IR Act may be construed. The section requires that I be satisfied that the action will endanger life, personal safety or health or welfare and, in making that decision, I need to consider the specific facts and information that are put before me. The phrase "would threaten to endanger", based on the cases that have been decided, suggests that - as has been put before us here today - needs to be considered based on "probabilities rather than possibilities".[1] Equally, that the cases would suggest that the phrase "to endanger" means that there needs to be a direct relationship or a relatively high degree of causative impact in producing the danger.[2]

[5] In terms of the danger, I've had evidence before me today of the ongoing and relatively volatile nature of correctional centres and the capacity for things to occur, and I underline and appreciate the evidence that's been put before me regarding the nature of the work and the situations people find themselves in. Having said that, about the volatile nature of correction centres and the endangerment, in relation to that particularly - I am not necessarily of the impression that it follows that industrial action increases the probability of those incidences occurring in an environment where, on the evidence, incidents are often occurring. The email that that we had this afternoon, the evidence of the Commissioner of Queensland Corrective Services (QCS Commissioner Martin), and the evidence of Mr Shaddock - and I use the words from the email - "unexpected incidents can and do occur during lockdowns".[3]

[6] What I haven't specifically heard enough evidence to form a view about today, is that a lockdown caused by industrial action is more likely to lead to incidents than a lockdown caused by another reason or a lockdown put in place for another reason. Which means that the main factor that I heard in the evidence before me regarding danger points to the capacity to respond to incidents that may occur in the lockdown. At this point, I note that in deciding matters under s 421 of the FW Act, the Fair Work Commission (FWC) has had regard to the efforts taken by an employer to mitigate the impact of protected industrial action and the steps they might take in doing so. Further to that, the availability of sufficient mitigating avenues may be a reason for the Commission not to be satisfied of the criteria and the efforts to mitigate will be weighed by the Commission.[4] Consideration of the actions open to an employer to mitigate can be taken into account by the Commission when assessing the impact of the action and, on the evidence before me today, while I believe that there've been significant efforts made to mitigate the impact - and I think that's happened on behalf of both parties, I am of the view that there are a range of avenues still open to the employer to provide contingencies and put in place operational plans over the next two days to further mitigate.

[7] Mr Shaddock and QCS Commissioner Martin both provided evidence that there are further contingencies which would be explored and if possible put in place should the Order not be made today, and the protected industrial action went ahead.

[8] QCS Commissioner Martin indicated that a view had been formed with no staff in place that the operational plans being considered would not be possible to implement. However, I note that when QCS Commissioner Martin was asked about his concerns in relation to that - with the currently known staffing that Ms Edie informed us of would be in place, that we're aware of so far, will be put in place without knowing what will happen before Monday, the Commissioner said while that staffing doesn't remove the risk, it ameliorates it in his assessment. Mr Shaddock indicated in his evidence that it wasn't possible to know what contingencies or action would need to be put in place without some idea of what staff would be in attendance and I accept that, but he also said that efforts to provide a contingency would continue and were continuing and could include redeployment of staff from other centres, albeit, which I acknowledge, having an impact on operations in those centres. While there's not an onus on the employer to establish it's taken every possible step, I think that in terms of this section, the evidence before me needs to indicate what actions have been taken and I'm of the view that there are further contingencies available to the employer in relation to the proposed action for Monday, specifically giving consideration to the employer's stated position of respecting the right of these workers to take protected action and the views expressed in the email about putting contingencies and operational plans in place.

[9] The protected action has been notified some days before it is due to occur, and the QCS Commissioner's communication this afternoon to the workforce indicate that the QCS will need to have contingencies in place to ensure capability to respond to security or critical incidents and that operational plans will be put in place to ensure prisoners remain safe whilst locked down. Given evidence about specific approaches which may be taken by the employer to ensure coverage and contingency. I am not satisfied based on the evidence before me and two days ahead of the planned action, that the action threatened would threaten to endanger the life, personal safety or health or welfare of a part of the state's population, namely: offenders incarcerated at and employees working at the Wolston Correctional Centre and the Lotus Glen Correctional Centre.

[10] In relation to that action that's due to occur in two days' time, I will not tonight be issuing the Order requested. The application for the Order to suspend or terminate the protected industrial action at those two centres on Monday 13 May 2019 is therefore dismissed.

Application for an Order to suspend protected industrial action is dismissed.

State of Queensland (Queensland Corrective Services) v Together Queensland, Industrial Union of Employees [2019] QIRC 111

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