Fair Work Act 2009
s.424 - Application to suspend or terminate protected industrial action - endangering life etc.

State of NSW, NSW Trains and Sydney Trains
v
Australian Rail, Tram and Bus Industry Union and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(B2022/641, B2022/642, B2022/643)

Application to suspend or terminate protected industrial action - endangering life etc – economic impact of industrial action – application for interim orders dismissed.

[1] On 4 July 2022, at 1:17pm the Minister for Finance and Acting Minister for Employee Relations (the State of New South Wales), Sydney Trains, and NSW Trains (the Applicants), made applications pursuant to s.424 of the Fair Work Act 2009 (Cth) (the Act) (the Applications) for orders to terminate protected industrial action that was being taken, or was proposed to be taken, by the Australian Rail Tram and Bus Industry Union and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Unions).

[2] Subsection 424(3) requires the Fair Work Commission (the Commission) to, as far as practicable, determine the applications within five days after the day they have been made.

[3] A Directions Hearing was convened on the afternoon of 4 July 2022, at which it was determined that the final hearing of the Applications would commence at 10:00am on 7 July 2022.

[4] The Applicants sought additionally to be heard in relation to the issuing of interim orders for the identified protected industrial action to be terminated, or in the alternative suspended, until the determination of the substantive matter.

[5] The matter as to interim orders was heard by the Commission as currently constituted on 5 July 2022.

Applicants’ submissions

[6] The Applicants relied on an interlocutory basis on the statements of George Peters, Grant Burton, Hugh Lawson, Heath Mulholland and Joann Wilkie. The Applicants submitted that their existed a statutory power to grant interim relief pursuant to sections 424 and 589(2) of the Act. Those sections are as follows:

Section 424: FWC must suspend or terminate protected industrial action-endangering life etc.

Suspension or termination of protected industrial action

(1) The FWC must make an order suspending or terminating protectedindustrial action for a proposed enterprise agreement that:

(a) is being engaged in; or

(b) is threatened, impending or probable;

if the FWC 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) The FWC 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, the FWC must, as far as practicable, determine the application within 5 days after it is made.

Interim orders

(4) If the FWC is unable to determine the application within that period, the FWC 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.

Section 589: Procedural and interim decisions

(1) The FWC may make decisions as to how, when and where a matter is to be dealt with.

(2) The FWC may make an interim decision in relation to a matter before it.

(3) The FWC may make a decision under this section:

(a) on its own initiative; or

(b) on application.

(4) This section does not limit the FWC's power to make decisions.

[7] The Applicants referred to the decision in Application by Commonwealth of Australia (represented by the Department of Immigration and Border Protection) v CPSU [2016] FWC 2090 (Commonwealth), and submitted that, as with other jurisdictions where interlocutory relief is sought, the Commission must consider whether there:

(a) a serious matter to be head; and

(b) the balance of convenience is in favour of granting the interim order.

[8] Regarding serious matter to be heard, the Applicants noted:

(4) “On 1 May 2021, the Sydney Trains Enterprise Agreement 2018 and the NSW Trains Enterprise Agreement 2018 nominally expired. These enterprise agreements apply to the employing entities, Sydney Trains and NSW Trains, and members of the Australian Rail, Tram and Bus Industry Union (RTBU), the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and the Australian Manufacturing Workers’ Union (AMWU).

(5) Since in or around February 2021, the aforementioned parties have been negotiating for proposed new enterprise agreements.

(6) On 8 August 2021, in support of its claims for the proposed enterprise agreements, the RTBU obtained orders from the FWC to conduct a protected action ballot, which was subsequently endorsed by its members. On 24 January 2022, the RTBU obtained further such orders from the FWC.

(7) Similarly, on 20 September 2021, in support of its claims for the proposed enterprise agreements, the CEPU obtained orders from the FWC to conduct a protected action ballot, which was subsequently endorsed by its members.

(8) To that end, since in or around September 2021, the RTBU and CEPU have threatened, and engaged in, protected industrial action.

(9) As noted in the Applications, the current notifications by the RTBU and CEPU relate to imminent protected industrial actions which will have a significant adverse impact on the NSW economy and actions which threaten to endanger the safety, health and wellbeing of users of Sydney Trains and/or NSW Trains. This includes, among other things:

(a) actions directed to preventing and/or impeding the construction of the new Sydney Metro lines. To date, such actions have resulted in costs associated with cancellations, claims by third party contractors, lost or unproductive work hours, plant, and ongoing commitments that cannot be recovered, and delay amounting to approximately $54 million.5 If these actions continue, the projected additional costs range between $250 million to $1.5 billion, depending on when such actions cease;

(b) actions directed to banning the use of A Sets, B Sets, Oscars and Millennium trains on the network. The direct impact of these bans is to reduce the number of trains operating by around 70%, with consequential economic losses of between $68 million to $120 million;

(c) actions directed to bans on transpositions which impedes Sydney Trains’ and NSW Trains’ capacity to adapt its services, particularly with the current severe weather; and

(d) actions directed to bans on cleaning hazardous waste meaning there will be no cleaning of liquids, urine, vomit, drug or hazardous waste from trains, train platforms, lifts, escalators or other areas, thereby endangering the personal safety, health or welfare of commuters; and

(10) On the material before the FWC, it is apparent “on the basis of probabilities rather than possibilities”, that the protected industrial action, the subject of the Applications, has 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 for the purposes of s.424(1)(c). As noted by the Full Bench of the FWC in Victoria Hospitals’ Industrial Association v Australian Nursing Federation:

“Conduct that puts a person’s physical or mental state at risk of material detriment - or that materially hinders or prevents improvement in a person’s poor physical or mental state - may qualify as conduct that endangers personal health or safety. Although the conduct might not be of such a serious nature as to amount to an endangerment to “life”, it might nevertheless be such as to constitute a significant risk to “personal safety or health”. Conduct that delays or puts off the efficient supply of public health services has the capacity to impact adversely upon the welfare of at least some of the persons who require those services. The impact of the conduct must, however, be more than merely to cause inconvenience to the persons concerned - it must be such as to expose them to danger””

[9] Regarding balance of convenience, the Applicants submitted that the interim relief sought targeted specific protected industrial actions to be undertaken by the Unions until the substantive proceedings are heard and determined on 7 July 2022.

The Unions’ submissions

[10] In response to the application for interim orders, the Unions submitted that the Commission could not make the orders sought. That is because:

(1) Section 424(5) does not arise as the matter is listed for final hearing on 7 July 2022 and the Commission could not be satisfied that it could not deal with the matter by Friday 8 July 2022.

(2) Section 589(2) does not provide a general power to provide orders resembling an interlocutory injunction. Instead, the Commission is constrained by the statutory section which otherwise empowers it to make orders. 1

[11] Insofar as the Applicants dealt with the existence of a prima facie case, and the balance of convenience favouring the making of the orders sought, the Unions strenuously contested the existence of either.

Consideration

[12] I note that in Commonwealth interim orders were made in that matter and the issue of the use of the power under s.589(2) to make such interim orders was addressed in those proceedings.

[13] Since the decision in Commonwealth, the Full bench of the Commission has considered the exercise of the power under s.589(2) for the issuing of interim orders, albeit in relation to an Anti-Bullying application made under s.789FC of the Act.

[14] In Wills, the Appellant contended that an interim order in an Anti-Bullying matter may be issued on the principles applicable to granting interlocutory relief, being that there is a serious issue to be tried, and the balance of convenience favours the grant of relief sought. The Respondent contended that interim relief may only be granted where the Commission was satisfied of the existence of the matters identified in s.789FF.

[15] The Full Bench observed:

“[33] For the reasons which follow we reject the Appellant’s contention that an interim antibullying order may be issued based only on a prima facie case, or serious question to be determined, and the balance of convenience favouring the interim relief sought. In our view s.789FF allows the Commission to make an anti-bullying order, including an interim order, only if it is ‘satisfied’ that a worker has been bullied at work and that there is a risk that the bullying will continue.

[34] Contrary to the Appellant’s submission we generally agree with the analysis of Deputy President Colman in Mayson. In particular:

•  s.589(2) states that the Commission ‘may make an interim decision in relation to a matter before it.’ It is not an independent source of power to issue interim orders because absent a particular ‘matter before it’, the Commission has no power to do anything at all under s.589(2). To the extent that it might be contended that s.589(2) can be used in respect of any ‘dispute’ that might be referred to the Commission, s.595 makes clear that the Commission may deal with a dispute ‘only if (it) is expressly authorised to do so under or in accordance with another provision of this Act.’ Section 589(2) is not such a provision.

•  The ‘matter’ now before the Commission, for the purpose of s.589(2), is an application made under s.789FC. That application alleges that a worker has been bullied at work. It seeks an order under s.789FF to prevent a worker from being bullied by an individual or group. Any order made in relation to this application will be an order under s.789FF and the relevant requirements of that section must be satisfied.

•  Section 789FF confers jurisdiction on the Commission to make an antibullying order if, and only if, it is satisfied that a worker has been bullied at work, and that there is a risk that the worker will continue to be bullied at work. In order to be satisfied that a worker has been bullied at work, the Commission would first need to make factual findings about what has occurred and assess whether the behaviour of relevant persons may be characterised as falling within the definition of ‘bullied at work’ in s.789FD(1). This would require the Commission to make a finding that the impugned conduct was repeated and also unreasonable, that the conduct was towards a worker, and that it created a risk to health and safety.

•  Section 789FF deals directly and in general terms with the Commission’s powers to make orders in relation to applications made under s.789FC. The Commission may make ‘any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent the worker from being bullied at work.’ Even if s.589(2) did not exist, the Commission could make an interim (temporary) order under s.789FF. But it cannot issue any order at all unless the relevant preconditions are met.

•  A conclusion that an applicant for an anti-bullying order has established an arguable case or serious issue to be determined falls short of the state of satisfaction required by s.789FF. One cannot be satisfied on an arguable basis. One is either satisfied, or not satisfied, that a certain state of affairs exists.

•  Section 589(2), a general provision which must relate to a ‘matter before the Commission’, would then have the effect of disengaging express requirements of the substantive provision and source of power – that the Commission be satisfied of the relevant matters. The applicant’s argument reads s.789FF as requiring the Commission’s satisfaction of these matters, unless an application is made for interim anti-bullying orders. This is not a sensible or coherent interpretation of the relevant provisions.

•  The Commission, unlike a court, has no inherent jurisdiction. It can only do what the Act allows, and it must do what the Act requires.

•  There is nothing to prevent the Commission from issuing interim decisions in an anti-bullying matter, consequent upon having reached the required state of satisfaction as to the matters set out in s.789FF(1). For example, the Commission might be satisfied that a worker has been bullied at work and that there is a risk of continued bullying but require further submissions from the parties as to the final orders; an interim order might be made ‘in the interim’ on the material before the Commission at that time. But what the Commission cannot do is issue an order under s.789FF, without being satisfied that a worker has been subjected to bullying at work, and that there is a risk that the bullying will continue. To make an order in such circumstances would be beyond power.

•  The fact that an anti-bullying order under s.789FF can only be issued once the Commission reaches the requisite state of satisfaction about the relevant matters does not mean that the Commission cannot deal with anti-bullying matters quickly. The Commission may be able to conduct an expedited hearing, swiftly decide whether it is satisfied of the relevant matters in s.789FF and if so whether to issue an order. The Commission might decide to issue an interim (temporary) order, pending further deliberations on the appropriate framing of a final order, which might require further evidence. Or an expedited hearing might lead directly and quickly to the issuing of final orders.”

[16] The Full Bench further observed

“[67] The provisions of the FW Act which authorise the Commission expressly to ‘deal with a dispute’ stand in contradistinction to other provisions of the FW Act which empower the Commission to make various orders (for example an unfair dismissal remedy order of reinstatement or compensation order, a stop unprotected industrial action order, a bargaining order, a protected action ballot order or a stop bullying order), determinations (for example a majority support determination or a workplace determination) or modern awards. None of these provisions engage, in terms, with the language of empowering the Commission to ‘deal with a dispute’. Applications which engage with these provisions will invariably involve a dispute in the sense that there will be a disagreement or argument, but s.595 does not engage with these provisions.

…

[70] Our third and final observation concerns the Appellant’s submission, in the Further Note, that the purpose of interlocutory relief is to protect the subject matter of the proceeding. The Appellant did not refer to any authority for the proposition that a tribunal, as distinct from a court, has an inherent or implied power to grant interlocutory relief in order to preserve the subject matter of the litigation. The Appellant might have referred to a line of decisions of the Industrial Relations Commission of NSW, emanating from the decision of Schmidt J in Hill v Department of Education (NSW), in which it has been held that the NSW Commission has under the Industrial Relations Act 1996 (NSW) (IR Act) the implied power to issue orders restraining an employee from being dismissed pending a full hearing of the matter in circumstances where a prima facie case is demonstrated and the balance of convenience favours the grant of the orders. However, there are a number of features of the statutory scheme governing the NSW Commission.”

[17] I find the analysis of the Full Bench in Wills entirely apposite to the matter at hand. Section 424(4) of the Act specifically outlines the circumstances in which an interim order may be made. The issuing of either interim, or final orders, to terminate protected industrial action involves the Commission being satisfied of the relevant circumstances in subsection (1) of section 424.

[18] The Applications, insofar as they seek the making of interim orders, are dismissed.

[19] The Applications for final orders will be heard at 10:00am on Thursday 7 July 2022.

DEPUTY PRESIDENT

Appearances:

Ms K Nomchong SC and Mr H Pararajasingham, for the Applicants.
Ms L Saunders, for the Respondents.

Hearing details:

2022.
July 5
Sydney.

Printed by authority of the Commonwealth Government Printer

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 1   Wills v Grant & The Government of New South Wales, Sydney trains and Another [2020] FWCFB 4514 (Wills).