TWU v Chubb Security Services [2001] NSWIRComm 248 | Case summary

FILE NUMBER: IRC 3302 of 2001 CORAM: Wright J President; Walton J Vice-President; Patterson C Appeal - Leave to appeal - Industrial dispute - Dispute orders - Validity - Power to make dispute orders under s 137(1) of the Industrial Relations Act 1996 - No issue of contravention - All issues in dispute relevantly resolved - Practical utility - No public interest consideration - Leave to appeal refused as to major dispute order made - Subsidiary order quashed as beyond power - Essential that dispute orders be in clear terms and in terms readily understood and capable of being obeyed by those against whom they are made. CATCHWORDS : Industrial dispute - Dispute orders - Validity - Power to make dispute orders under s 137(1) of the Industrial Relations Act 1996 - Leave to appeal refused as to major dispute order made - Subsidiary order quashed as beyond power - Essential that dispute orders be in clear terms and in terms readily understood and capable of being obeyed by those against whom they are made. LEGISLATION CITED : Industrial Relations Act 1996 s 137(1)

1 The present proceedings concern an application by the Transport Workers' Union of Australia, New South Wales Branch, for leave to appeal and, subject to leave being granted, an appeal from a decision of Peterson J of 27 April 2001 (see TWU v Chubb Security Services [2001] NSWIRComm 84), in which his Honour made dispute orders against the union for the period from the date of the decision until 22 June 2001. 2 The crucial findings and conclusions of his Honour which led to the dispute orders being made were: 23. The position in the present matter is that there has been a history of intermittent industrial action, interrupted by periods of peace, one period of which resulted from the TWU's undertaking to the Commission. There is no undertaking offered as to the future save that to which I have already referred but which I accept has not prevented industrial action hitherto, namely on 9 April. The immediate future is a period of importance given the introduction of the trial of two-man soft-skin operation. The directions by Marks J take into account the relevant needs of the parties during the course of that trial. It is obviously necessary that the trial be undertaken without the interference of industrial action, whether by strike, ban or limitation. While the form of undertaking sought by Chubb on 20 April went too far, in my view, by seeking a commitment to the successful introduction of two-man soft-skins, I am troubled by the absence of any substitute form of undertaking being offered. Once it is accepted that the trialling of two-man soft-skins is to be undertaken, as it is here, it only remains for the trial to be conducted in a suitably stable industrial environment. 24. There is obviously a strong public interest in ensuring that the work undertaken by members of the TWU employed by Chubb occurs without disruption. The industry is a service industry which supplies what is in a real sense an essential service to the community. I consider in the circumstances of the case that the Commission is justified in granting dispute orders which would ensure that the forthcoming trials occur in the context of industrial stability. I therefore determine that it is appropriate to grant dispute orders. 3 The orders made by his Honour were in the terms sought by the respondent to the appeal and were as follows: 1. The Transport Workers' Union, New South Wales Branch ("TWU"), and its officers, employees, members and agents, refrain from imposing any bans, limitations or restrictions in the performance of work at or in relation to the premises of Chubb Security Services Ltd ("Chubb") the Premises being: (a) Newcastle, 17 Ayrshire Crescent, Sandgate; (b) Smithfield, 14 Long Street, Smithfield; (c) Lane Cove, 702 Mowbray Road, Lane Cove West; (d) Wollongong, 110 Gipps Street, Wollongong. 2. The TWU and its officers, employees and agents, shall take all necessary steps to ensure the continuation of work by their members employed at or in relation to the Premises of Chubb in accordance in their contracts of employment and the lawful instructions of Chubb. 3. For the purpose of service in accordance with the Industrial Relations Commission Rules 1996, without limitation to other means of services, these orders may be served on the TWU, its officers, employees and members: (a) by facsimile to the registered office of the TWU; or (b) by handing a copy of these orders to an officer or employee of the TWU. 4 The appellant was permitted to put its submissions as to both leave to appeal and the substantive appeal in a related way, which showed that the major grounds of the attack on his Honour's decision and the basis for granting leave to appeal could be summarised by reference to the first four questions of law set out in the notice of appeal in this way: 1. Whether a dispute order can or should be made in the absence of any finding that industrial action is either occurring, impending or threatened. 2. Whether the mere failure to give an undertaking that there shall be no industrial action in the future is a basis upon which a dispute order can or should be made. 3. Whether Order 2 made by Peterson J is an order that can be made under section 137(1) of the Act. 4. Whether Order 2 is oppressive and uncertain in its effect. 5 These matters are linked to the reasons why the appellant contends that leave to appeal should be granted by the reference in the notice of appeal to items under the heading "Reasons why leave to appeal should be granted" in the following terms: 1. The appeal raises the important questions of law identified in paragraph F above which required determination in the public interest. 2. The nature of the power to grant dispute orders and the basis upon which dispute orders may be granted has not been the subject of comprehensive consideration by a Full Bench of the Commission. Reference may also be made to ground 14 of the grounds of appeal, although to some extent, it overlaps with the third question of law. That ground is in the following terms: His Honour erred in making Order 2, that order being oppressive and uncertain in its terms and not an order able to be made under section 137(1) of the [Industrial Relations Act]. 6 It was common ground between the parties that there was no issue of contravention of the dispute orders and that all issues in dispute between them relevant to the making of the orders had been resolved. The Full Bench in those circumstances does not consider that there is any practical utility and, thus, no public interest consideration or requirement which would lead to the granting of leave to appeal as to Order 1. 7 Order 2 is in a different situation because of the issues raised as to the power to make the order and related issues of uncertainty. This was not a matter, because of the circumstances of the proceedings before his Honour, which was addressed by his Honour in great detail. 8 The only power available to make that order was s 137(1)(a), which provides: Section 137 Kinds of dispute orders (1) The Commission may make the following kinds of dispute orders when dealing with industrial disputes in industrial proceedings: (a) the Commission may order a person to cease or refrain from taking industrial action. 9 Senior counsel for the respondent sought to justify the order essentially on these bases: (1) Order 2 was an order of the kind contemplated by the opening words of s 137, which words are to be read with, so far as is relevant to the present proceedings, the power conferred by paragraph (a) of s 137(1). (2) It was an order made ancillary to and/or in aid of Order 1. 10 We do not consider there was power to make order number 2, nor could it be justified as being an order of the kind specified in the grant of power provided by paragraph (a). Further, the order, when construed, could not be said to be an order ancillary to or in aid of order 1, particularly having regard to the fact that order 1 was an order to refrain from taking industrial action. Accordingly, there was no power to make the order and it should be set aside. 11 As earlier observed, his Honour adopted the form of orders provided by the respondent. It is essential that orders made under s 137 be in clear terms and in terms readily understood and capable of being obeyed by those against whom they are made. These orders could not be so described. 12 We accordingly make the following orders in determination of appeal: 1. Leave to appeal is granted as to order 2 made by Peterson J on 27 April 2001 and leave is otherwise refused. 2. Order 2 made by his Honour is quashed. 3. The appeal is otherwise dismissed.

TWU v Chubb Security Services

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Judgment (11 paragraphs)

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