Fair Work Act 2009

s.418 - Industrial action

Section 418 application for an order that industrial action by employees or employers stop etc - whether industrial action is happening - whether industrial action is probable

• [1] At 6:29am on Thursday 16 September 2021 Suez Recycling & Recovery Pty Ltd T/A Suez Recycling & Recovery ("Suez") applied for the Fair Work Commission ("FWC") to make orders under s.418 of the Fair Work Act 2009 ("the Act") that industrial action stop, not occur or not be organised.

• [2] At the time Suez made its application employees employed as drivers and runners located at the Lucas Heights depot were still in a "safety meeting". The "safety meeting" had started slightly before the relevant workers' normal commencement time of 4:00am. The meeting was called the day before and Suez received virtually no notice that the meeting would take place.

• [3] Suez claims that participation in the "safety meeting" was in fact industrial action and applied to the FWC for an order that future industrial action not occur. The "safety meeting" concluded at approximately 7:30am and since then the relevant employees have worked as normal.

• [4] Suez's application was heard in the afternoon of Friday 17 September 2021 and at the conclusion of the hearing I determined the matter by dismissing the application. The following are my reasons for doing so.

• [5] The FWC can only makes orders under s.418 if it appears to the FWC that industrial action is happening, threatened, impending, probable or being organised (per s.418(1)).

• [6] The primary difficulty in this matter is that there is no evidence upon which I can be satisfied that further industrial action is happening, threatened, impending, probable or being organised. There is a contest about whether the "safety meeting" on 16 September 2021 was industrial action, but assuming that it was, there is no evidence that there will be any further "safety meeting" in the foreseeable future and there is certainly no suggestion of any other kind of industrial action threatened, impending, probable or being organised. Having reached this conclusion I am therefore compelled to dismiss Suez's application.

• [7] At the hearing on 17 September 2021 Mr Subramanian, Head of HR for Recycling and Recovery, appeared for Suez and Mr Grumley, Legal Officer at the Transport Workers Union ("TWU"), appeared for the relevant employees. Suez did not seek any orders against the TWU.

• [8] At hearing Mr Muttdon gave evidence for Suez. Mr Muttdon is employed as the NSW Collections Manager Residential and South Region. Mr Barber gave evidence for the Respondents. Mr Barber is a member of the Transport Workers Union of Australia, NSW Branch, is the TWU Health & Safety Representative and is a site delegate at the Lucas Heights waste depot.

• [9] Mr Muttdon was told at 5:11pm on Wednesday afternoon (15 September 2021) by Mr Barber that a meeting would be held the next morning at 4:00am. Mr Barber called the meeting because of concern over how Suez was dealing with a workers' compensation claim made by another employee. It is not necessary to recite any of the evidence about the workers' compensation claim, except to say that the worker's claim has not been accepted and that Suez was allowing him to take annual leave as an interim measure until his claim was resolved.

• [10] The relevant workers generally commence their shifts at 4:00am each day and finish at various times between 11:30am and 2:30pm. When Mr Barber gave notice after 5:00pm on Wednesday that a meeting would occur at 4:00am the next morning, in practical terms he gave almost no notice at all.

• [11] On Thursday morning (16 September 2021) the meeting started shortly before 4:00am and concluded at approximately 7:30am. The matters discussed at the meeting were said to be safety related. Mr Barber's evidence was that the only safety matter he was aware of when he decided to call the meeting was the so-called safety matter relating to the workers' compensation issue referred to above. Those present at the meeting also raised other safety-related matters such as "PPE not being supplied - shoes & sunnies", "feedback on no parking & trees overgrowing", "Offsiders not staying on the same truck" and the like.

• [12] Mr Barber's evidence was that he believed that he was entitled to call a meeting in his capacity as the Health & Safety Representative ("HSR") if there was an imminent risk to the safety of workers. He said that he thought the maximum duration of any meeting was 4 hours. Mr Barber also gave evidence in cross-examination that the ordinary way in which industrial matters and safety matters were raised with Suez was by firstly raising matters with supervisors directly, and if necessary escalating matters to Mr Muttdon, and that if Mr Muttdon is not available or if Mr Muttdon's response is not satisfactory, then he was entitled to call a "safety meeting" of up to 4 hours duration. It is possible that Mr Barber's reference to a 4-hour maximum duration is connected to the operation of s.474(1)(a) of the Act.

• [13] Mr Barber was asked in cross-examination to explain what the safety hazard was that caused him to call the meeting, and also what was the imminent risk to the safety of workers. His answers to both questions were substantially the same. Mr Barber said that the imminent risk to safety, as far as he was concerned, was that his colleague was allegedly forced to take annual leave pending approval of his workers' compensation claim and that as a result "workers would be ceasing unsafe work as they needed to know that if they were injured at work and had to take leave there was a risk that the company would pay them holiday pay."

• [14] Mr Barber referred to this alleged imminent risk to his safety (and the safety of his colleagues) to support the proposition advanced by the respondents that the action they took in having their "safety meeting" was within the exemption to the meaning of industrial action in s.19(2)(a) of the Act.

• [15] After the meeting Mr Barber provided a list of safety concerns to Suez and asked for a written response. A written response was provided by Suez later that day.

• [16] Suez is understandably very unhappy about the fact that the meeting was called and that practically no notice was given. Mr Muttdon's evidence was that the action has significant implications for Suez including significant productivity losses and material impacts on stakeholders and the community. Mr Muttdon said that Suez has suffered loss and damage of approximately $10,000 in labour costs alone and is at risk of contractual penalties, reputational damage and economic harm.

• [17] If the action taken was industrial action then it was not protected industrial action as defined in s.408 and s.409. The SUEZ and TWU (Operations) Agreement 2019 applies to the relevant employees and its nominal expiry date is 4 September 2023.

• [18] At the time that Suez lodged its application the "safety meeting" was still occurring. The meeting concluded approximately one hour after the s.418 application was made. There is no evidence that any of the respondents knew about the s.418 application before they finished their meeting. Work has continued as normal since the end of the meeting.

• [19] Suez submits that the proper time for considering whether industrial action "is happening" is the time the application is lodged rather than the time of the hearing. Suez relies on the following passage in Hansen Yuncken Pty Ltd & Hansen Yuncken Pty Ltd & Leighton Contractors Pty Ltd and Another v Davies & Deegan and Others [2013] FWC 7505 ("Hansen Yunken") to support this submission:

"[41] I have considered whether, for the purposes of s.418(1)(a) the relevant time for consideration of whether protected industrial action is happening is the time at which the application is made or a later time. I think it must relate to the time at which the application was made. In this instance, an Interim Order was issued and, I am advised that this order was complied with by the nominated employees. It would be illogical if the mandatory issuing of that Interim Order pursuant to s.420 then altered the considerations required by s.418."

• [20] In Hansen Yunken employees refused to return to work on 10 September 2013 after expressing concern over various safety issues (at [7]). On the same day the employer made an application for orders under s.418 (at [1]). An ex parte hearing took place on 10 September 2013 where matters of service and the identification of the proper respondent employees were resolved (at [2]). On the next day the respondent union appeared at a further hearing and sought an adjournment (at [4]). An adjournment was granted however an interim order was made because of the requirements of s.420(2) of the Act (at [4]). The interim order "provided that industrial action, not continue, be engaged in, organised or encouraged" (at [4]). On 18 September 2013 another adjournment was sought by the respondent union and granted (at [5]) and then a final hearing took place almost one week later on 24 September 2013. By the time of the hearing on 24 September 2013 the interim order had been in place for almost two weeks.

• [21] In this context I agree with SDP O'Callaghan's reasoning in Hansen Yunken that the issuing of the mandatory interim order could not alter the considerations required by s.418. Orders under s.418 might operate for weeks or months depending on the circumstances. If an interim order is made because of the requirements of s.420, and then the relevant industrial action ceases, the operation of the interim order should not then take away the FWC's jurisdiction to make final orders (ie because the action is no longer "happening" because of the interim order).

• [22] However I do not regard the decision in Hansen Yunken as a sound basis for the proposition that the FWC can make orders under s.418 based solely upon the fact that industrial action "is happening" at the precise moment that an application is lodged.

"418 FWC must order that industrial action by employees or employers stop etc.

(1) If it appears to the FWC that industrial action by one or more employees or employers that is not, or would not be, protected industrial action:

the FWC must make an order that the industrial action stop, not occur or not be organised (as the case may be) for a period (the stop period ) specified in the order.

• [24] The words "if it appears to the FWC that ... [then] the FWC must make an order that ..." in s.418(1) require the FWC to form an opinion or reach a state of satisfaction.[1] If a particular opinion is formed concerning any of the jurisdictional prerequisites, the making of an order under s.418(1) does not involve the exercise of a general discretion but rather the discharge of a statutory duty.[2]

• [25] If the FWC is required to make an order under s.418, the power to make an order is not at large.[3] Any order made under s.418(1) must be directed to the purpose of ensuring that the relevant industrial action - that is, the industrial action which appears to the FWC to be occurring, and/or threatened, impending or probable, and/or being organised - stop, not occur and/or not be organised, as the case may be.[4]

• [26] If industrial action was happening at the time the application is lodged, but there is no further industrial action threatened, impending, probable or being organised, then the FWC has no statutory mandate or duty to make orders under s.418. More precisely, the FWC does not have any power to make an order that industrial action "stop, not occur and/or not be organised" because the earlier action has stopped, and there is no identifiable future industrial action that the FWC can order not occur or not be organised.

• [27] Subsections (a) to (c) of s.418(1) are all expressed in the present tense. The FWC must form an opinion about each of the elements contained therein in order to determine whether it is required to discharge its statutory duty to make orders. If industrial action is not happening at the time that the FWC makes its assessment then the only possible opinion the FWC can reach is that industrial action happened previously.

• [28] In Hansen Yunken SDP O'Callaghan was concerned that "uncertainties about the identification of the nominated employees at the time the application was made" meant that His Honour could not be certain that each nominated employee had been taking industrial action at the time that the application was lodged - that is, His Honour did not find on 24 September 2013 that industrial action "is happening". His Honour separately found that further industrial action was probable, although not threatened or impending or being organised, and made orders under s.418 because of his finding that industrial action was probable.[5]

• [29] Despite the fact that Suez's application was lodged before the "safety meeting" concluded, it does not appear to me that industrial action "is happening" for the purposes of s.418(1)(a).

Is Industrial Action threatened, impending or probable?

• [30] There is no suggestion that industrial action is being organised (per s.418(1)(c)), which only leaves consideration of whether industrial action is threatened, impending or probable (per s.418(1)(b)).

• [31] In his filed Statement Mr Muttdon said the following:

"At approximately 7:45am I was informed by Mr O'Connor and Mr Mr Shane Reynolds (Leading Hand) that further similar safety meetings would be held at the Depot over the coming days until the situation was resolved. Any such meeting/s or action would not be authorised or agreed to by [Suez]."

• [32] Mr O'Connor's position is not stated in the evidence, although Mr Barber's evidence suggests he is in some kind of management position.

• [33] In Mr Barber's written statement he said the following in relation to future safety meetings:

"... there is no further safety meetings planned or happening, there is nothing threatened or being organised as a result of the safety meeting that happened this morning.

It was my intentions to attend work tomorrow as normal and I would have done so if I was not required to attend the proceedings that are before the commission.

I look forward to discussing the safety issues that were raised with Suez this morning in the very near future and trust that the parties should be able to resolve those matters."

• [34] At the hearing Mr Muttdon was asked in cross-examination whether any further safety meeting or industrial action is pending, threatened or being organised and he replied "not that I am aware of."

• [35] At the hearing Mr Barber was cross-examined by Suez but was not directly asked whether any further safety meetings were planned or happening. Mr Barber did say that to his knowledge there has not been any safety meetings in the previous 6 months, which I find to be significant.

• [36] I am not able to place much weight on what Mr Muttdon said in his written statement about things he was told by a supervisor and a leading hand. Neither Mr O'Connor nor Mr Reynolds were called by Suez to give evidence about why they told Mr Muttdon that they thought more meetings were planned. Mr Muttdon gave his evidence truthfully and co-operatively and I can comfortably rely on Mr Muttdon's indication under cross examination that he is not aware of any pending, threatened or organised meetings.

• [37] There was no other evidence that went directly to the question of whether any further safety meetings might occur.

• [38] Suez urged me to find that future meetings/industrial action is probable because of the way in which the "safety meeting" was organised and Mr Barber's interpretation of his right to call safety meetings.

• [39] In other matters the FWC has considered previous industrial action when assessing whether future industrial action is probable. Suez relies in this regard on the following passages from Hansen Yunken:

"[34] On the evidence before me, none of the safety issues linked to the stoppages of work on the specified dates in June, July, August and September represent reasonable concerns about imminent serious risks to employee health or safety. In each case, the safety issue should have been considered through the normal consultation process or, in the event that this did not resolve the concern, through the appropriate dispute resolution process. No basis for a stoppage of work has been established to me.

[43] In terms of s.418(1)(b) there is no evidence that unprotected industrial action is threatened or impending. However, the history of unprotected industrial action instances over the last four months clearly demonstrates that unprotected industrial action, linked to safety concerns is probable in the future. This evidence indicates that it is probable that the nominated employees will not comply with the Joint Venture OHS Plan and the legislative approach to Occupational Health, Safety and Welfare which restricts the cessation of work. Further, I am satisfied that the issue which prompted the industrial action on 10September 2013, namely the crane first aid box, together with other normal safety issues which must be expected to arise on a construction site of this magnitude, mean that it is probable that further unprotected industrial action of a character similar to that in the past four months, will occur and will involve the nominated employees."

• [40] I also note that in Orora Packaging Australia Pty Ltd (t/as Orora Bag Solutions) v El-Chami (2020) 292 IR 240, [2020] FWC 224 ("Orora") Commissioner Bissett found that the system of taking sick leave at unprecedented levels during a period of protected industrial action was further (unprotected) industrial action (at [24]). The Commissioner also found that the industrial action "is threatened, impending or probable" because it had been going on for several months and continued after an interim order had been made under s.420, and that "absent any evidence by the Respondents and given the history of absences, a continuation of the action may well occur" (at [31]).

• [41] Suez's submission rises no higher than an assertion that because workers had taken industrial action once that I can find as a matter of fact that it is "probable" they will do it again. The present facts are readily distinguishable from the circumstances described by SDP O'Callaghan in Hansen Yunken and Commissioner Bissett in Orora.

• [42] The meeting that occurred on 16 September 2021 was the first meeting described to be a "safety meeting" for at least a period of 6 months. There is no evidence that the meeting that did occur at least six months ago was of a similar kind to the meeting on 16 September 2021.

• [43] I do accept that virtually no notice was given and that there was no objective imminent risk to safety that might justify such a meeting - which are two factors that point strongly towards the meeting being industrial action in support of a colleagues' workers' compensation claim dressed up as a safety meeting.

• [44] However Mr Muttdon accepted that he is not aware of any likely future action and Mr Barber directly stated in his evidence that no further meetings are planned. There is no reason or evidence to suggest that Mr Barber should not be taken on his word.

• [45] Unlike Hansen Yunken and Orora, there is no basis upon which I can conclude that a further such meeting (that could amount to industrial action) is probable.

• [46] Further, in assessing how "probable" future industrial action might be, I must recognise that there are potentially serious consequences for the individuals to whom s.418 orders apply. As Deputy President Colman summarised in Viva Energy Refining Pty Ltd v Stephen Jones and 82 others [2018] FWC 1542 at [42]:

"The issuing of orders under s.418 is a serious matter, particularly when such orders are made against individuals who may have no or little experience of proceedings of this kind and their implications. Pursuant to s.421 of the Act, a person to whom an order under s.418 applies must not contravene a term of the order. Section 421 is a civil remedy provision. Breach of the provision may expose a person to penalties and injunctions. Furthermore, under s.675 of the Act, if an order of the Commission applies to a person, and the person engages in conduct which contravenes the order, the person commits an offence punishable by imprisonment for up to 12 months."

• [47] Accordingly I had no option but to dismiss Suez's application when determining the matter within the time-frame set by s.420 of the Act.

• [48] Suez's application under s.418 will hopefully set the parties upon a better course to discuss matters such as workers compensation and safety, if only because Mr Barber and the TWU are on notice that they must make good on their evidence and assertions to the FWC that no further meetings are planned.

• [49] In compiling these reasons I have intentionally not determined whether or not the meeting on 16 September 2021 was industrial action. It is not necessary for me to make a finding on this point because such a finding is not material to the outcome of the application. The shortfall in Suez's application was that it could not establish that industrial action is impending, threatened or probable, assuming the earlier action was industrial action.

• [50] The FWC is required to make certain assessments as important preliminary steps to determining whether it has power or duty under s.418 to make an order. However the FWC is not a Court and cannot make legally conclusive findings about whether certain prior conduct is industrial action.[6] If the relevant action is unprotected industrial action then certain consequences follow under s.415 (Immunity) and ss.474-5 (payment for periods of industrial action). Such matters might ultimately be determined in a Court.

[1] Maritime Union of Australia v Patrick Stevedores Holdings Pty Ltd (2013) 237 IR 1, [2013] FWCFB 7736 at [7] and [10].

[2] United Voice v Foster's Australia Limited [2014] FWCFB 4104 at [35].

[3] Esso Australia Pty Ltd v Australian Workers' Union (2016) 245 FCR 39; (2016) 258 IR 396, [2016] FCAFC 72 at [33]- [34].

[4] United Voice v Foster's Australia Limited [2014] FWCFB 4104 at [38].

[5] Hansen Yuncken Pty Ltd & Hansen Yuncken Pty Ltd & Leighton Contractors Pty Ltd and Another vDavies & Deegan and Others [2013] FWC 7505 at [42]- [44] and [47].

[6] Esso Australia Pty Ltd v Australian Workers' Union (2016) 245 FCR 39; (2016) 258 IR 396, [2016] FCAFC 72 at [27].

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