)
Construction, Forestry, Mining and Energy Union (New South Wales Branch) (Third Respondent)
Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch (Fourth Respondent)
Representation: O Fagir of Counsel (Notifier)
J Shaw, Australian Workers' Union (First and Second Respondents)
D Syron, Construction, Forestry, Mining and Energy Union (Third Respondent)
K Presdee, Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (Fourth Respondent)
File Number(s): 2022/00196316
Publication restriction: No
[2]
EX TEMPORE decision
The Commission has before it a notification of an industrial dispute filed by the Transport Secretary pursuant to s 130 of the Industrial Relations Act 1996 ("Act"). In the notification the Transport Secretary sought the Commission's urgent assistance to resolve a dispute that had arisen between Transport for New South Wales ("TfNSW") and the Australian Workers' Union, New South Wales ("AWU"), the Construction, Forestry, Mining and Energy Union (New South Wales Branch) ("CFMEU"), the Electrical Trades Union of Australia, New South Wales branch ("ETU"), and the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch ("AMWU").
The dispute involves a planned strike of those members of the unions who are employed under either the Roads and Maritime Services (Wage and Staff) Award 2019 ("Wages Award") or the Roads and Maritime Services (Traffic Signals Staff) Award 2019 ("Signals Staff Award"). The strike is planned to run for 24 hours commencing at 6.00am tomorrow, 7 July 2022. The Transport Secretary seeks orders from the Commission to prevent that strike from taking place.
In support of his application, the Transport Secretary relied on an affidavit of John Soars, the Director Maintenance & Delivery, Network and Assets for the Regional and Outer Metropolitan Regions in TfNSW. In his affidavit, Mr Soars described, in overview, a history of the negotiations that have occurred between the parties in respect of the Wages Award and the Signals Staff Award. He also summarised what he understood to be the number of employees covered by those awards and their union representation. He outlined what he understood to be the impact of the planned strike, particularly having regard to the recent weather event which has caused flooding within New South Wales.
In his oral testimony, Mr Soars expanded on this evidence. He described the work performed by the relevant employees as being in the nature of the maintenance of the "state road network", which includes maintenance of the major routes in New South Wales as well as bridges, tunnels and ferries. The work involves repair as well as incident response. That incident response might be in respect of a national disaster, it may be to repair road surfaces or infrastructure following weather events, for example slippages, collapses and fallen trees, but also responding to accidents which might include traffic control around an incident, including for example setting up detours. Mr Soars stated that the relevant employees are generally the first to respond to an incident after police and emergency services. He identified that there are 69 depots in New South Wales, some of which are going to be directly impacted by the current weather events. He explained, however, that other depots in the network might also be impacted, as they will be called in to offer support to those areas that are most affected, so as to get them "up and running" in a timelier fashion.
It was apparent to me that while Mr Soars' evidence placed some emphasis on the impact of the recent weather events and flooding, the work that might be involved by the relevant employees is not confined to that.
The AWU and ETU called evidence from Cameron Wright, who is a coordinator for the AWU. Mr Wright gave evidence as to his involvement in the award negotiations to date and expressed his dissatisfaction that during the course of those negotiations the decision maker had not been present, which he saw as a barrier to progress in the negotiations being made. He provided evidence as to a commitment which he said he provided on behalf of the AWU to ensure that during the course of the proposed strike any "genuine emergency situation" would be responded to.
Darren Miller, who is organiser with the ETU, also gave evidence as to commitments which he said had either been provided or would be provided by the ETU to provide what he described as "emergency cover on an on-call basis."
I have considered this evidence and the submissions made by the parties in deciding what, if any, orders ought to be made. In doing that, I have been particularly conscious of the objects of the Act set out in s 3, as well as the requirement in s 146(2) that in the exercise of its functions the Commission have regard to the public interest and, for that purpose, must have regard to the objects of the Act.
I have determined to make dispute orders, largely in the form sought by the Transport Secretary for these reasons. Firstly, the employees to whom the orders will apply are bound by awards that on their terms preclude the taking of the strike which has been proposed. Section 47.6 of the Wages Award provides that:
"Whilst this procedure is continuing, no work stoppage or any other form of work limitation shall occur, or any other form of work limitations will be applied."
Clause 8.1(c)(iv) of the Signals Staff Award provides:
"While these procedures are continuing, no work stoppage or any other form of work limitation shall occur, and the status quo existing prior to the dispute shall remain."
I invited submissions from the parties as to the impact of these provisions in the awards and I received none.
To my mind, it is not consistent with the objects of the Act to decline to make orders, the effect of that would be to allow the parties to disregard the terms of an award which has been made pursuant to the Act. There is a public interest in ensuring that parties comply with this Commission's instruments.
Secondly, I am satisfied that there are safety implications in respect of the planned strike, which again, having regard to the public interest, warrant the Commission's intervention. I am mindful of the commitment which has been given by the AWU to respond to genuine emergency situations. I am not for one moment suggesting that the AWU would knowingly or willingly allow a situation to occur in which members of the public are placed at risk.
What concerns me is that on the evidence it might be said, and I say this without disrespect, that the commitment that has been offered is pitched at a high level and is uncertain in its terms. Mr Fagir of counsel, who appeared for the Transport Secretary this afternoon, put this to Mr Wright in cross‑examination, namely, the proposition that a reasonable person might disagree as to what comprised an "emergency situation". In his submissions, Mr Shaw, who appeared for the AWU, referred on several occasions to a "risk to life". There may well be situations of an emergency nature that would affect the public interest that might not involve a risk to life.
I am also conscious that the situation in New South Wales continues to evolve, and in this regard, Mr Wright stated in his oral testimony that the floodwaters had risen further than had been anticipated when he first started discussing with Mr Soars what commitments the union might give that would allow the planned industrial action to occur.
I am mindful, also, that Mr Miller gave evidence of the commitment offered by the ETU. Other than to say that emergency cover on an on-call basis would be provided, no evidence was led that a commitment beyond that had been conveyed to TfNSW. But I am again left in a situation of being concerned of having any certainty that any delineation or demarcation might be drawn between those employees who might be required to respond to an emergency situation and those who are not.
I am mindful of the submissions made by Mr Syron of the CFMEU and Ms Presdee of the AMWU, that the members of their unions work predominantly on the Sydney Harbour Bridge doing work such as painting, scaffolding and carpentry, and that they might be less involved in the sorts of emergency work in remote areas identified by Mr Soars in his evidence. Significantly, though, Mr Soars gave evidence that workers who may not be so directly involved in emergency response might still be called out to perform appropriate work under the terms of their award. I am not comfortable in excluding either the CFMEU or the AMWU from the orders in a situation where the weather event in Sydney has by no means completely dissipated.
Each of the unions relies significantly on what might be described as the futility of the bargaining process which is presently underway with the Transport Secretary. Mr Shaw, Mr Syron and Ms Presdee all noted the dissatisfaction of the members of their respective unions with the Government's wages policy and the unlikelihood, in their view, of their members being able to achieve a wages outcome which would keep pace with inflation and maintain their real wages, particularly in the current financial circumstances. Each of the unions submitted, to a greater or lesser degree, that the only way to communicate their members' discontent and dissatisfaction to the Government was by withdrawing their labour.
In Industrial Relations Secretary v Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales [2022] NSWIRComm 1042 ("PSA Case"), I made certain observations as to the approach of the Government to bargaining with unions. Mr Shaw, in his submissions, referred me to some of them. I do not resile from any of those observations, but I do note the evidence before me in these proceedings, which is that unlike in that case, some meaningful negotiations have taken place with the unions. Mr Fagir submitted, and I accept, that the process of negotiation is far from exhausted. The conditions which informed the exercise of my discretion in the PSA Case are not as stark in the present circumstances.
I observe further in this regard, that nothing has been led from the ETU to suggest that that union proposes to take industrial action by way of a protest to the wages policy. Rather, the evidence suggests that it would endorse the strike of its members more out of solidarity for the position taken by the AWU.
I wish only to make one or two final observations. One thing that has informed the exercise of my discretion in these proceedings, is that the AWU provided only very late notice of the proposed strike. The evidence suggests that notification was made at 1.59pm on 4 July 2022 in respect of a strike which was intended to commence at 6am on 7 July 2022. Nothing was done, to my knowledge, by the unions to involve the Commission in resolving any dispute that arose, but in any event, such short notice will certainly mitigate against any steps being taken to minimise the safety or other impacts of the proposed strike.
While saying that, I am mindful that Mr Wright gave evidence that in the middle of last week, if not before, he gave a verbal "heads up" to Mr Soars and Mr Hutchinson regarding industrial action, however he was clear in his evidence that he did not provide any detail as to when that action would take place or what form it would take.
That leads to a second observation though, that the Transport Secretary did receive a heads up and should have been ready to receive the notification from the AWU that the industrial action was to take place. Despite receiving that notification on 4 July 2022, the notification was not filed with the registry until approximately 5pm last evening, 5 July 2022. The matter was listed for conciliation before Commissioner Murphy this morning at 10am. It came before me for arbitration in the middle of the afternoon today, the day before the strike is due to occur.
I note these matters not to complain, so much as to send a word of caution. The Commission will move with alacrity to attempt to resolve disputes that are notified to it. However, in recent times, the Crown has shown an increased propensity to delay the notification of disputes until the proverbial eleventh hour. This not only places significant pressure on the Commission and its very finite resources; it carries the very real risk that the Commission will be unable to list the matter for hearing in time to deal with the notification and to make any orders in sufficient time to have any utility.
I raised with the parties during the course of the hearing certain concerns I had as to the form of the orders and directions sought by the Transport Secretary. I do not propose to traverse that ground. The orders and directions I am about to make take into account what the parties put to me in that regard.
[3]
Orders and directions
Pursuant to ss 136(1)(c) and 137(1)(a) of the Industrial Relations Act 1996 the Commission makes the following orders:
1. The Australian Workers' Union, New South Wales ("AWU"), its officers, employees and members employed by the Transport Secretary are ordered to immediately cease organising and refrain from taking industrial action by those employees engaged under the Roads and Maritime Services (Wages Staff) Award 2019 ("Wages Award") at Transport for New South Wales ("TfNSW"), including the planned strike on 7 July 2022.
2. The AWU, its officers, employees, agents and members must not induce, advise, authorise, support, encourage, direct, aid or abet members of the AWU to organise or take industrial action contrary to Order 1.
3. The Construction, Forestry, Mining and Energy Union (New South Wales Branch) ("CFMEU"), its officers, employees and members employed by the Transport Secretary are ordered to immediately cease organising and refrain from taking industrial action by those employees engaged under the Wages Award at TfNSW, including the planned strike on 7 July 2022.
4. The CFMEU, its officers, employees, agents and members must not induce, advise, authorise, support, encourage, direct, aid or abet members of the CFMEU to organise or take industrial action contrary to Order 3.
5. The Electrical Trades Union of Australia, New South Wales Branch ("ETU") its officers, employees and members employed by the Transport Secretary are ordered to immediately cease organising and refrain from taking industrial action by those employees engaged under the Wages Award and the Roads and Maritime Services (Traffic Signals Staff) Award 2019 ("Signals Staff Award") at TfNSW, including the planned strike on 7 July 2022.
6. The ETU, its officers, employees, agents and members must not induce, advise, authorise, support, encourage, direct, aid or abet members of the ETU to organise or take industrial action contrary to Order 5.
7. The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch ("AMWU"), its officers, employees and members employed by the Transport Secretary are ordered to immediately cease organising and refrain from taking industrial action by those employees engaged under the Wages Award at TfNSW, including the planned strike on 7 July 2022.
8. The AMWU, its officers, employees, agents and members must not induce, advise, authorise, support, encourage, direct, aid or abet members of the AMWU to organise or take industrial action contrary to Order 7.
9. These orders take effect immediately and will remain in force until 21 July 2022 or until further order of the Commission.
Pursuant to s 136(1) of the Industrial Relations Act, the Commission makes the following directions:
1. The AWU, CFMEU, ETU and AMWU ("Unions") must by no later than 7.30pm on 6 July 2022:
1. remove any reference to the strike to occur on 7 July 2022 from their respective websites, social media accounts or any documents linked to their respective websites or social media accounts;
2. publish in a prominent position on their respective websites, Facebook and other social media pages, Orders 1, 3, 5 or 7 (as relevant) and a direction to members employed by the Transport Secretary under the Wages Award or the Signals Staff Award that they comply with those orders and not take industrial action on 7 July 2022;
3. send by email and mobile telephone message to all members employed by the Transport Secretary under the Wages Award or the Signals Staff Award, as the case may be, a link to Orders 1, 3, 5 or 7 (as relevant) and a direction to comply with those orders and not take industrial action on 7 July 2022:
4. provide or cause to be provided a copy of Orders 1, 2, 3, 4, 5, 6, 7, 8 and 9 above to Union representatives employed by the Notifier.
1. Each Union must advise the Notifier's legal representative in writing by 9:00pm on 6 July 2022 of the steps taken to comply with Directions 1(a) to (d) above, including the form of communications, and if written, a copy of any communications, and any further steps it intends to take (if any) to comply with Directions 1(a) to (d) in respect of any relevant member who, by that time, has not been notified.
Damian Sloan
Commissioner
[4]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 08 July 2022