State of Queensland (Queensland Corrective Services) v Together Queensland, Industrial Union of Employees [2019] QIRC 138

[1] Queensland Corrective Services (QCS) filed an application Monday 13 May 2019 to suspend protected industrial action being engaged in by staff at the Townsville Correctional Centre (TCC) 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 TCC

[2] The action being taken by Together members at the TCC 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:

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

(1) The commission must, on application by a person mentioned in subsection

(2) suspend or terminate protected industrial action for a proposed bargaining instrument being engaged in, or threatened to be engaged in, if satisfied the industrial action has threatened, is threatening or would threaten -

(a) to endanger the life, personal safety or health, or welfare of the State's population or part of it;

[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] Despite reference to other actions during the hearing, this decision is specifically in relation to the industrial action that is planned for tonight and tomorrow at TCC and is specifically based on the details that have been presented to me this evening.

[5] Does the planned industrial action give rise, or could it cause a situation endangering life, personal safety, welfare and health of the population in question? As has been explored through submissions this evening, the impact of the action must do more than merely inconvenience people, it must expose them to some danger or risk in terms of those aspects.

[6] Based on the affidavit of Peter David Hall, the general manager of TCC, despite the efforts of QCS in obtaining staff from other agencies and the head office of QCS and the availability of Queensland Police Service officers taking overtime shifts to be at the prison, it would appear that the available Custodially Trained Officer numbers will be four in the male and two in the female areas during the night; then five in the male and two in the female area during the day part of the 24 hour stoppage.[1] It is Mr Hall's evidence that this level of staffing is not enough to ensure the safety of the incarcerated population.

Appropriate levels of care and welfare will not be possible for prisoners and staff, which may lead to serious incidents, including suicide, self-harm, major injuries or assault upon staff or multiple concerted indiscipline acts which could place the community at risk. In the circumstances, in my view, it is insufficient and a risk to the welfare of prisoners and staff onsite at TCC to only have five custodially trained staff across both male and female sites at TCC during the period of protected industrial action on 14 May 2019.[2]

[7] Mr Hall outlined specific circumstances of TCC and the complexities of the population. He indicated that given the levels of trained staff he'll have available to him he believes that the site will be moved into an operational staffing mode. This means that staff are deployed across the prison as necessary. However, he identified a range of issues which have arisen during lockdowns at TCC in February and March and 1 May 2019. Mr Hall states that he believes that the risk of a major incident occurring during this next 24 hour period of action is high, and the number of custodially trained staff available will mean that some prisoners will not receive medication and he cites the opioid substitution treatment program, and that the available officers will need to deliver 2,100 meals over the course of the day.

[8] While we've heard examples of what has occurred in other centres during recent industrial action, the site in question here is Townsville, and on 1 May 2019, almost 100 per cent of staff participated in the stop work and there was a very low take-up of overtime shifts. I assume that actions taken to get trained staff on site for the pending action have been taken in response to that experience. Noting that, when there were attempts to get people locally or on extra shifts that there were difficulties with that. I note the actions that have been taken to get people there, despite the actions to mitigate and get trained officers there, safe levels of trained staff cannot be assured. This is despite three days' notice being provided, as is required.

[9] The Fair Work Commission have previously been unpersuaded by generalised predictions about the consequences of actions; however, the evidence before me from General Manager Peter Hall today is not generalised in my view, and is quite specific and outlines the risk a 24 hour action may have given the circumstances today and this evening in terms of the staff he knows are available. Similarly, while the employer must make efforts to mitigate, there comes a point as the action approaches, that it must be decided that efforts have been exhausted. Given the protected action is scheduled to begin at midnight tonight, I consider that efforts have been exhausted. I grant the application for an Order to terminate the 24 hour period of protected industrial action to start this evening.

[10] I want to stress that the experience of QCS in taking steps to provide a contingency on this occasion should serve to inform them that if notice is given of further protected action to be undertaken at this site knowing the things that we now know, further efforts will be required to ensure coverage is in place so that people can exercise their right to take protected action. I want to be very clear because there's been a lot of effort gone to this afternoon by both parties to talk about other centres and previous decisions in recent history. Each case needs to be taken on its merits and we can only decide in relation to the facts before the Commission in relation to the specific action being taken.

[11] The decision before me relates only to this occasion, the draft Order that was put forward with the application will be amended to reflect achievable time frames in order to publish the Order to the Respondent's members.

1. Application for an Order to suspend protected industrial action is granted.

[2] Affidavit of Peter David Hall sworn 13 May 2019. It is also noted that reference to five custodially trained officers was further clarified to the numbers mentioned in the preceding paragraph during oral evidence at hearing, specifically the transcript reference above.