It is just after midnight, but a hearing room at the Fair Work Commission’s Melbourne office is still brightly lit and filled with people. They are waiting on a decision regarding an urgent section 424 application to suspend industrial action being taken by Emergency Services Telecommunication Authority (ESTA) staff, as part of bargaining over an enterprise agreement. While ESTA’s application was unsuccessful in this instance, the Commission did ultimately play an integral role in resolving the issues in dispute, and helped the parties negotiate a new enterprise agreement.
ESTA receives Victoria’s triple-zero emergency calls and dispatches emergency services in response. Lives depend on this vital service. In July 2013 ESTA claimed that five months of protected industrial action was compromising the safety of the Victorian public. ESTA asked the Commission to suspend the action under section 424 of the Fair Work Act. This section gives the Commission power to suspend or terminate action if it endangers the life, safety, health or welfare of the population.
Unions representing ESTA call takers, dispatchers and team leaders, including United Voice, the United Firefighters’ Union of Australia and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, had implemented protected industrial action as part of negotiations over a new enterprise agreement. The action involved operators using a generic computer login, which meant they could not be easily identified. There was a ban on training, which meant a new computer system could not be deployed, and a ban had been placed on participating in audits and performance reviews.
ESTA claimed these bans were a threat to public health and safety and asked the Commission to issue an order that all action be suspended for 90 days. The unions rejected the claim that public health and safety was at risk. It is essential for all parties involved that section 424 applications are resolved as quickly and efficiently as possible which is why Commission Members regularly schedule these hearings out of hours. In this instance, to avoid unnecessary delay to this matter, or others that were already listed before Commissioner Johns in coming days, it was determined to hear the matter into the night, to ensure a timely decision could be made.
Commissioner Johns found that while the bans might have caused degradation in the quality of ESTA’s service they did not constitute a sufficient threat to safety to overcome the high evidentiary standards required by section 424. In part, this was due to three important undertakings given by the unions:
- data would be collected to permit identification of operators who were not following proper procedures
- training would be permitted to allow the new computer system to be implemented, and
- union members would read bulletins from ESTA.
Following a ten-hour hearing that finished at 12.15 am, the application for the protected action to be suspended or terminated was dismissed.
When he issued his decision Commissioner Johns noted that none of the parties had availed themselves of the Commission’s assistance in relation to their bargaining dispute. Commissioner Johns noted that the parties had been in negotiations for more than 12 months without an outcome having been reached.
Following the suggestion made by Commissioner Johns the unions initiated a bargaining dispute process under section 240 of the Fair Work Act. Over the next six months Commissioner Johns facilitated eight meetings between the parties and programmed directions for the drafting of various versions of a proposed agreement. Using an interest-based bargaining approach Commissioner Johns assisted the parties to reach an agreement.
In late March 2014 the agreement was voted up by 96 per cent of ESTA employees. The application for approval was lodged with the Commission and approved by Commissioner Johns in early April 2014.