[2011] FWA 3410 |
|
DECISION |
Fair Work Act 2009
s.424 - Application to suspend or terminate protected industrial action - endangering life etc.
Transit Australia Pty Ltd
v
Transport Workers' Union of Australia
(B2011/2900)
COMMISSIONER ASBURY |
BRISBANE, 31 MAY 2011 |
Application for an order to suspend or terminate protected industrial action - Consideration of the terms threatening to endanger the life etc. of the population or part of it - Finding that industrial action will cause inconvenience to the travelling public - More than inconvenience required - Argument that drivers’ welfare relevant consideration - Insufficient evidence to find that drivers intimidated in relation to taking industrial action - Loss of income to drivers choosing to take industrial action not a relevant consideration - Public transport not an essential service - application dismissed.
Background
[1] On 25 May 2011 I refused an application by Transit Australia Pty Ltd T/A Sunshine Coast Sunbus (Transit), under s.424 of the Fair Work Act 2009 (the Act), to suspend or terminate protected industrial action, notified by the Transport Workers Union of Australia (TWU). I delivered brief oral reasons for the decision to refuse the application and indicated that I would publish those reasons, edited as appropriate, together with some elaboration of particular points.
Hearing
[2] Transit made the application on 23 May 2011. The particulars set out in the application indicate that it is directed to threatened, impending or probable industrial action, in the form of a 24 hour stoppage of work from 4.15 am on Friday 27 May 2011 to 4.14 am Saturday 28 May 2011. The application states that Transit seeks an interim order under s.424(3) until the application can be determined.
[3] On the morning of Tuesday 24 May 2011, I caused notices to be issued to the parties listing the application for Mention at 4.30 pm on that date, and for hearing on Wednesday 25 May 2011 at 5.30 pm. Directions were issued requiring the parties to file and serve any evidentiary material upon which the parties intended to rely by 10.00 am on Wednesday 25 May 2011. At the Mention of 24 May 2010, I made it clear that it was my intention to determine the application at the hearing on 25 May 2010.
[4] The matter was listed for hearing and determination within that time frame, on the basis that an application for an order under s.424 must, as far as practicable, be determined within five days after it is made: s.424(3). The industrial action subject to the order had been notified for 27 May 2011, and it was practicable for FWA to determine the application in the time frame indicated.
[5] In my view an application for an interim order cannot be made under s.424(3). An application for an order suspending or terminating industrial action is made under s.424(2)(b). That section provides that where an application is made, it is an application for an order. The question of whether an interim order will be made under s.424(3) only arises when FWA is unable to determine an application under s.424(2)(b) within the required time frame in s.424(3). In the present case, the application was able to be dealt with within the required time frame and accordingly, the requirement for an interim order to be issued pending determination of the application, did not arise. I have dealt with this application for an order on the basis that it sought an order for a period of 30 days.
[6] Transit filed witness statements for Ms Melissa Manley, Group Human Resources Manager and Training Manager and Mr Ian McDonald, National Industrial Relations Manager of the Australian Public Transport Association, who also represented Transit in these proceedings. The TWU filed affidavits of Mr William McMurray, a bus driver employed by Transit and a member of the TWU involved in the negotiations for the enterprise agreement and Mr Peter Biagini, Branch Secretary of the TWU.
Legislation
Section 424 of the FW Act is in the following terms:
424 FWA must suspend or terminate protected industrial action—endangering life etc.
Suspension or termination of protected industrial action
(1) FWA must make an order suspending or terminating protected industrial action for a proposed enterprise agreement that:
(a) is being engaged in; or
(b) is threatened, impending or probable;
if FWA is satisfied that the protected industrial action has threatened, is threatening, or would threaten:
(c) to endanger the life, the personal safety or health, or the welfare, of the population or of part of it; or
(d) to cause significant damage to the Australian economy or an important part of it.
(2) FWA may make the order:
(a) on its own initiative; or
(b) on application by any of the following:
(i) a bargaining representative for the agreement;
(ii) the Minister;
(iia) if the industrial action is being engaged in, or is threatened, impending or probable, in a State that is a referring State as defined in section 30B or 30L—the Minister of the State who has responsibility for workplace relations matters in the State;
(iib) if the industrial action is being engaged in, or is threatened, impending or probable, in a Territory—the Minister of the Territory who has responsibility for workplace relations matters in the Territory;
(iii) a person prescribed by the regulations.
Application must be determined within 5 days
(3) If an application for an order under this section is made, FWA must, as far as practicable, determine the application within 5 days after it is made.
Interim orders
(4) If FWA is unable to determine the application within that period, FWA must, within that period, make an interim order suspending the protected industrial action to which the application relates until the application is determined.
(5) An interim order continues in operation until the application is determined.
[7] In National Tertiary Education Union v University of South Australia 1 a Full Bench of FWA considered the power in s.424 to suspend or terminate industrial action that is protected, and set out the approach to be adopted in such cases, in the following terms:
“[7] Section 424 provides that Fair Work Australia (FWA) must make an order suspending or terminating protected industrial action if it is satisfied that the action threatens to endanger the life, the personal safety, health or welfare of the population or part of the population or to cause significant damage to the Australian economy. The effect of making an order suspending or terminating protected industrial action is to bring to an end the right to take protected industrial action. This is achieved by the removal of the protection or immunity which would otherwise attach to the action. The termination of protected industrial action may also lead to FWA making a workplace determination under Part 2-5 of the Act (see ss.266 and 267).
[8] Within the scheme of the Act, the powers in relation to the suspension or termination of protected industrial action are intended to be used in exceptional circumstances and where significant harm is being caused by the action. This is clear from the Explanatory Memorandum to the Fair Work Bill 2008:
“The Bill recognises that employees have a right to take protected industrial action during bargaining. These measures recognise that, while protected industrial action is legitimate during bargaining for an enterprise agreement, there may be cases where the impact of that action on the parties or on third parties is so severe that it is in the public interest, or even potentially the interests of those engaging in the action, that the industrial action cease — at least temporarily.
It is not intended that these mechanisms be capable of being triggered where the industrial action is merely causing an inconvenience. Nor is it intended that these mechanisms be used generally to prevent legitimate protected industrial action in the course of bargaining.” [paras. 1708-1709]
[15] Whether in a particular case the exceptional circumstances for the making of an order suspending or terminating protected industrial action under s.424 of the Act have arisen will be a matter to be determined on a consideration of all the circumstances and having regard to the evidence and submissions before FWA. Although we might not have reached the same conclusion as the Senior Deputy President in the circumstances of the present case, we are of the view that the decision taken did not involve a misconstruction of the effect of s.424 in relation to the scope of the order suspending the protected industrial action.” 2
[8] The terms “threatened, is threatening, or would threaten...to endanger the life, the personal safety or health, or the welfare of the population or part of it...” have also been considered in a number of decisions. Essentially it has been established that those terms are given their ordinary meaning and in some cases definitions found in various dictionaries have been adopted, as follows:
Threaten - constitute a threat to, be likely to injure, be a source or harm or danger; 3
Threat - a declaration of an intention to inflict pain, injury to be a menace or source of danger. 4
Health - the general condition of the body or mind with reference to soundness or vigour. 5
Welfare - the state of faring well, well-being. 6
[9] Relevantly it has also been held that the word “welfare” is not read ejusdem generis with the preceding words “life...personal safety or health” and that the term “population” refers to the total number or the body of the inhabitants of Australia. Similarly, the term “part of the population” has a more collective meaning than individuals. Further, the use of the term “threatening...to endanger” with respect to the welfare of the population imports a requirement for there to be a danger or peril to welfare. As a Full Bench of the AIRC said in Coal & Allied Operations Pty Ltd v Construction, Forestry Mining and Energy Union 7 in relation to very similar provisions in the Workplace Relations Act 1996:
“Danger to the life, or to the personal safety or health, of “a part of the population”, instead of to individuals, appears a cumbersome form of expression. But that awkwardness is no barrier to giving the reference to the part of the population its more collective meaning when it is found in the expression ‘welfare of the population’. Moreover, despite the generality of the concept ‘welfare of the population’ the phrase ‘is threatening to endanger’ imports a requirement for there to be a danger or peril to welfare. There needs to be a basis upon which it is reasonable to conclude, on an assessment of matters of fact and degree, that the collective welfare is in peril or danger.” 8
The Application
[10] The application is made on grounds including that the industrial action is threatening or would threaten to endanger the life, the personal safety or health or welfare of the population or part thereof. Transit relies on s.424(1)(b) and s.424(1)(c) of the FW Act. The relevant employees are employed at depots located at Caloundra and Marcoola on the Sunshine Coast.
[11] Transit operates route services pursuant to a contact with the Queensland Government known as Translink. Employees are covered by an instrument known as the Sunshine Coast Union Collective Agreement, which has a nominal expiry date of 30 June 2010. Negotiations for a new enterprise agreement commenced on 7 May 2010. Those negotiations have been protracted. On 1 November 2010, FWA granted an application for a protected action ballot order. Protected industrial action has occurred for varying periods on some five occasions.
[12] Applications have been made by both parties seeking FWA to deal with matters in dispute. Those applications have been the subject of a number of conferences before another member of the Tribunal.
Evidence and submissions
[13] The grounds in support of the order being made are set out in the application, as amended by letter dated 24 May 2011, include:
[14] In relation to the requirements of s.424(1)(b) it is not disputed that industrial action is threatened, impending or probable. The TWU has notified the Company pursuant to s.414 of the FW Act that industrial action will commence at 4.15 am on Friday 27 May 2011 and continue for a period of 24 hours.
[15] In relation to s.424(1)(c) it is contended that FWA should take into account the effect of the industrial action on:
[16] The submission of Transit in relation to the effect of the industrial action on customers is that public transport is an essential service, and to deprive the public, including school children, of access to public transport may expose the public to safety issues as school children seek alternative ways to travel to school, and the public seeks to travel during the night hours.
[17] Evidence to support this contention was provided by Ms Manley as follows:
[18] Ms Manley agreed under cross-examination that on each occasion when there has been industrial action, Transit has locked down its depot and not offered any bus services. This was done on the basis of the Company’s view that running no service was safer for the Sunshine Coast community than running a disrupted service. When employees took industrial action for four hours, from 4.15 am to 8.15 am on Tuesday 25 January 2011, Transit locked down its depot for a period of 24 hours from the commencement of that industrial action. Ms Manley said that there was still an overtime ban in place after employees returned to work, and it was uncertain whether there would be sufficient employees to undertake required services. Ms Manley was unable to say how much overtime is usually worked on Tuesdays.
[19] Ms Manley agreed that Transit does not have a contract to provide dedicated school bus services, and that school students have another service available to them. Ms Manley said that some 4000 school students use Transit services on any given day, on the basis of data captured by the Company in its ticketing machine. Ms Manley rejected the proposition that the ticketing system captures students as part of a general classification of concession tickets, but agreed that she did not have first-hand knowledge how many school students travelled on them. Ms Manley said that it would be logistically difficult for that number of school students to use the alternative bus service.
[20] Ms Manley agreed that Transit could inform its customers of any cancelled services due to industrial action. Ms Manley also agreed that her evidence that previous industrial action had a disastrous effect on the community was based on the record of telephone complaints. 10
[21] In relation to the impact of the industrial action on members of the public, Ms Manley tendered a District Crime Report for the Queensland Police Service’s statistical regions and districts during the 2009/10 financial year, 11 said to indicate that crime rates on the Sunshine Coast are abnormally high. Ms Manley also gave evidence that Transit buses carry security guards on Friday night services because of risks associated with passengers who are affected by drugs or alcohol. Ms Manley said that the effect of the industrial action will be that these risks will now flow on to the streets of the Sunshine Coast as patrons will be unable to catch normal services to their homes.
[22] Under cross examination Ms Manley agreed that the Queensland Police Service had not provided any evidence or given information that there were adverse consequences from previous industrial action, arising from persons affected by alcohol or drugs finding alternative means of transportation or being on the streets of the Sunshine Coast, as a result of Transit not providing bus services.
[23] In relation to the impact of the industrial action on drivers employed by Transit, Ms Manley said that previous industrial action had resulted in drivers losing $202,117.00 in wages and the proposed industrial action on 27 and 28 May 2011 would result in further lost wages of $21,298.00. This loss, according to Ms Manley, would be detrimental to the welfare of drivers and their families. Ms Manley also said that the Transit workforce is divided and is being coerced into taking industrial action. In support of this contention, two documents were appended to Ms Manley’s witness statement. The first document is an anonymous notice posted on a workplace notice board, in which the author is critical of and questions the wisdom of taking industrial action. 12 The second notice is a document prepared by Mr McMurray, which is critical of the wages offer made by Transit and the negativity of some of his workmates to the TWU campaign.13
[24] Further, Ms Manley appended to her witness statement a TWU notice setting out a Transit wages offer in relation to a proposed agreement. The notice states that there are some issues with the offer and that the TWU will support members if they choose to “fight on” or work with the Company to finalise an agreement to be put to a ballot if members choose to accept the Company offer. 14 Also appended to Ms Manley’s witness statement is a letter from the TWU dated 18 April 2011 indicating that employees from Transit’s depots including those subject of the present proceedings, have voted to reject the wages offer. The letter goes on to advise that a large number of drivers have been unable to attend the meetings, and asks that all drivers be required to attend a single yard meeting at a depot in their area, to afford each employee the opportunity to make an informed decision about whether to accept or reject the wages offer.15
[25] Mr McMurray said that in his time working for Transit he has worked on every service operated by the Company. Transit does not provide dedicated services for school runs. There is another company providing services to all schools on the Sunshine Coast other than some private schools which run their own services. Some school children will use services provided by Transit rather than the other company, particularly when they wish to go to a location such as the beach or a shopping centre after school. All children would catch the other service if they wished to travel directly to school or home, as that service is designed to drop children as close as possible to their homes.
[26] According to Mr McMurray, there are other alternatives to bus services such as retirement villages which run their own courtesy buses, and trains. On other occasions when industrial action was taken the public utilised other means of transport such as driving their own vehicles and carpooling. When driving buses after periods of industrial action, Mr McMurray received very little in the way of negative feedback from the public in relation to the industrial action. During the periods when industrial action took place in December 2010, Transit notified patrons by putting flyers up at bus stops, advertising in the local newspaper and causing announcements to be made on the radio. This was very effective.
[27] Under cross-examination, Mr McMurray maintained that between 250 and 400 school students use Transit bus services each day, and that this was based on his observations. Mr McMurray said that most children who get on a Transit bus do not use a pass and Transit’s ticketing system would simply count them as passengers. Transit buses carry 54 persons seated, and 4000 school children a day being carried by Transit would amount to 70 buses full of school children each day. Mr McMurray said that there was no way that Transit carried that number of school students daily.
[28] Mr McMurray rejected the proposition that his notice was intended to harass and bully fellow employees into voting against the agreement in the upcoming ballot. Mr McMurray also said that he has been the victim of inebriated passengers on at least 40 occasions, but maintained that such incidents could occur at any time of the day.
Conclusions
[29] I am satisfied that industrial action for the proposed enterprise agreement between Transit and its employees is threatened, impending or probable and that the requirements of s.424(1)(b) have been met.
[30] However, I am unable to accept that Transit has established that the industrial action is threatening or would threaten to endanger the life, the personal safety or health or the welfare of the population or a part of it.
[31] On the basis of the evidence before me, customers of Transit have access alternative bus services. School children in particular, have an alternative bus service that is dedicated to undertaking school runs. With respect to the numbers of students carried, I accept the evidence of Mr McMurray, who has direct knowledge on this point. Further, I am of the view that the impact of the industrial action will be further minimised by the fact that Transit will have an opportunity to provide information to the travelling public.
[32] The evidence establishes that the travelling public will be inconvenienced by the industrial action. However, it is well established in the case law that more than inconvenience is required before the power to suspend or terminate protected industrial action on the grounds in s.424(1)(c) would be exercised by the Tribunal. There is also a requirement to balance inconvenience to the travelling public against the rights of drivers to take protected industrial action to support or advance their claims.
[33] I am unable to accept that the industrial action will have any impact on crime statistics relevant to the Sunshine Coast, so that there is additional threat to the life, the personal safety or welfare of the population or a part of it, above that which exists in any event, regardless of whether industrial action takes place. Those who pursue the consumption of drugs and alcohol will doubtless continue to do so. Wherever such persons are, they will pose a risk to public health, safety and welfare, regardless of whether the proposed industrial action subject of these proceedings takes place or not.
[34] If I accepted that the welfare of those drivers who take industrial action is relevant to the considerations under s.424(1)(c), then there is no evidence upon which I could be reasonably satisfied that there has been harassment or intimidation of drivers with respect to taking industrial action. What the evidence establishes is vigorous bargaining and strongly held views on both sides about their respective positions.
[35] I am also unable to accept that the loss of wages to drivers who choose to take protected industrial action, is a relevant consideration under s.424(1)(c) of the Act with respect to the welfare of those drivers. It is also the case that the application does not raise the ground in s.424(1)(d).
[36] I accept that public transport is an important service and that the public depends upon it. However, I am of the view that public transport is not an essential service as was the case with the service in Ambulance Victoria v LHMWU 16. In that case, Senior Deputy President Kaufman was satisfied that industrial action, and the delays in response times for ambulances that would result, could mean the difference between life and death. Clearly, that case is not analogous to the present case, where the worst case scenario will involve inconvenience to the public. As previously stated, while that is regrettable, it must be balanced with the rights of employees to take protected industrial action.
[37] It is not a relevant consideration in deciding whether to make an order on the grounds in s.424(1)(c) that Transit has exercised a right to enter into an agreement with the Australian Electoral Office to conduct a postal ballot for an enterprise agreement to be completed by 10 June 2011. This matter may have been relevant to the duration of an order to suspend industrial action, in the event that the requirements in s.424(1)(c) were met, and such an order was made.
[38] In the present case, none of the requirements of s.424(1)(c) have been met. Accordingly, the application is dismissed and an order to that effect will issue with this decision.
COMMISSIONER
Appearances:
Mr I. MacDonald on behalf of Transit Australia Pty Ltd.
Mr A. Carter on behalf of the Transport Workers Union of Australia.
Hearing details:
2011.
Brisbane:
May 24; 25.
2 ibid at [7] - [15] See also Tyco Australia Pty Ltd T/A Wormald v Communications, Eletrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia - Electrical, Energy and Services Division - Queensland Divisional Branch [2011] FWAFB 1598 at [26] where this approach was endorsed.
3 Ambulance Victoria v Liquor Hospitality and Miscellaneous Union [2009] FWA] 44 at [29] and [30] per Kaufman SDP; University of South Australia v National Tertiary Education Industry Union [2009] FWA 1535 at [32] per O’Callaghan SDP.
4 Note 3.
5 University of South Australia v National Tertiary Education Industry Union [2009] FWA 1535 at [35] per O’Callaghan SDP.
6 State of Victoria v HSUA Australian Industrial Relations Commission Print L9810.
7 (1998) 80 IR 14.
8 ibid at 33.
9 Exhibit 4.
10 Exhibit 4.
11 Exhibit 3.
12 Exhibit 2 Annexure A.
13 Exhibit 2 Annexure B.
14 Exhibit 1 Annexure A.
15 Exhibit 1 Annexure B.
16 [2009] FWA] 44
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