[2011] FWAFB 1598 |
FAIR WORK AUSTRALIA |
DECISION |
Fair Work Act 2009
s.424 - Application to suspend or terminate protected industrial action - endangering life etc.
JUSTICE BOULTON, SENIOR DEPUTY PRESIDENT |
|
Termination or suspension of protected industrial action - whether action endangers life, personal safety or health, or welfare of part of the population - bans affecting work on fire protection systems.
[1] This is an application by Tyco Australia Pty Ltd trading as Wormald (Wormald) for an order terminating or suspending protected industrial action to be taken by its Service Technicians who are members of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU).
[2] The application was pursued under s.424 of the Fair Work Act 2009 (the Act) on the basis that bans by the Service Technicians on out-of-hours call outs and the completion of reports and other paper work have threatened and would threaten to endanger the life, the personal safety or health, or the welfare of part of the population.
[3] The background to the present matter may be briefly set out as follows. Wormald and the CEPU have been engaged in negotiations for an enterprise bargaining agreement covering Service Technicians in the Brisbane, Sunshine Coast and Gold Coast regions since March 2010. In September 2010 a protected action ballot was conducted of CEPU members employed by Wormald and a majority of those members voted in favour of taking protected industrial action. On 23 September and 4 October 2010 the CEPU gave notice that its members intended to take industrial action including a ban for a period of one week on out-of-hours call outs and an indefinite ban on paperwork.
[4] On 11 October 2010 the CEPU gave similar notice of the intention to take protected industrial action. On 14 October Wormald made an application pursuant to s.424 of the Act seeking the termination or suspension of the industrial action on the basis that the ban on call outs would threaten to endanger the life, the personal safety or health, or the welfare of part of the population. The application was heard by Commissioner Spencer who decided to suspend the protected industrial action for a period of six weeks ([2010] FWA 8050). The Commissioner considered that “on the evidence the protected industrial action increases the exposure of the Applicant’s clients to a breach of fire safety” and that the relevant legislative tests pursuant to s.424(1)(c) of the Act had been met. The Commissioner decided to suspend rather than to terminate the industrial action as she considered that the negotiations between the parties were not exhausted or seriously frustrated. An appeal was lodged by the CEPU against the Commissioner’s decision.
[5] Following the expiry of the suspension period on 30 November 2010, the CEPU gave notice to Wormald that the workers would take protected industrial action, including a ban on out-of-hours call outs for a period of one week commencing on 10 December and an indefinite ban on paperwork. The covering letter from the CEPU stated that, “in view of the issues previously raised by your company, the CEPU has provided an extended notice period to ensure you to take the appropriate defensive measures.” On 2 December 2010, Wormald made the present application pursuant to s.424 of the Act for an order to suspend for a period of 12 weeks or to terminate the protected industrial action. The CEPU sought that the application be referred to a Full Bench and be heard together with its appeal against Commissioner Spencer’s decision. An order was made with the consent of the parties on 3 December 2010 that the protected industrial action be suspended pending the determination of the appeal and the present application. On 8 December 2010 the President directed under s.615(1) of the Act that the application be dealt with by a Full Bench.
[6] Both the application and the appeal were referred to this Full Bench. The hearing of the matters was set down for 18 January 2011 but had to be postponed following the severe floods in Brisbane and other parts of Queensland. When the matters came on for hearing, we decided to hear and determine the present application before proceeding to deal with the appeal.
Evidence and Submissions
[7] The evidence relied on by Wormald in support of its application includes the affidavits and oral testimony of Mr Richard Sillett, Wormald’s Service Manager for the Brisbane and Sunshine Coast Regions and an affidavit of Mr David Ross, the General Manager for Wormald Queensland. The evidence mainly relates to the nature of the services provided by Wormald to owners and occupiers of premises in the Brisbane, Sunshine Coast and Gold Coast regions, relevant fire safety legislation and regulations, and the impact that the bans on call outs and paperwork would have on Wormald’s customers.
[8] Wormald employs 57 Service Technicians on the Brisbane, Sunshine Coast and Gold Coast regions. The Service Technicians are divided into three categories: Installation, Testers and Break-down. The break-down Service Technicians respond to call outs. They have the highest skill set as their role entails both diagnostic and repair work on fire protection systems. Wormald employs sixteen break-down technicians in the Brisbane region, six in the Sunshine Coast and seven in the Gold Coast.
[9] In relation to call out services, it was said that Wormald has over 2300 customers in the Brisbane, Sunshine Coast and Gold Coast regions. As part of its obligations, Wormald responds on an emergency footing to any defect or failure that occurs in a fire protection system and seeks to repair the defect or failure within the shortest space of time. The Service Technician who attends the call out will usually have the necessary spare parts, technology and expertise to carry out the repairs and remedy the defect. When this cannot be done, Wormald notifies the client and encourages them to make alternative arrangements for the protection of their premises. These might include extra patrols of the premises by the owner or security guards.
[10] The call outs are generated by requests from Wormald’s customers in two types of situations. Firstly, where the customer has been alerted by the Queensland Fire and Rescue Service (QFRS) that an automatic defect signal has been received and, secondly, where a defect occurs in a fire protection system that does not automatically transmit a signal to the QFRS, after the customer notices the fault. It is a requirement of public regulation that fire alarm and prevention systems be maintained in working order at all times.
[11] It was said that the priority of Wormald in responding to call outs is to return the fire detection or warning device to operation as soon as possible, as there are increased risks associated with undetected fires including delayed emergency response notification and evacuation in premises where the device is inoperative.
[12] It was explained that after hours call outs are those received by Wormald outside standard business hours (7:00am to 5:00pm Monday to Friday) or which cannot be responded to during those hours. In the Brisbane region, there is a roster of six Service Technicians who handle after hours call outs. The break-down Service Technicians are required to hold various licences and accreditations and may have undergone site-specific safety inductions for various sites. It was submitted that these Service Technicians cannot be readily substituted by contractors or others on an episodic basis. This is because very few electrical subcontractors have the combination of skills, experience and accreditation that is required. Further, the use of supervisory level employees or sub-contractors to cover after hours call outs would not be practical because of the risk of fatigue and the unavailability of suitable contractors or their unwillingness due to union pressure to do the work. It was also submitted that it is not practical for Wormald to deploy Service Technicians from other regions to cover this work or to seek to use competitors’ employees to do the call out work during periods of industrial action.
[13] In relation to the ban on paperwork, this applies to reporting on call outs performed both within and outside normal working hours. The requirement of Wormald is that Service Technicians complete records of the work they perform. This requirement is directed towards minimising the risks associated with non-reporting of defective devices and systems and complying with the regulatory requirements of the industry. It was said that, in addition to the ban on paperwork, the majority of Service Technicians were also refusing to verbally communicate the results of work performed and any necessary repairs or other needed actions.
[14] In the course of the proceedings, reference was also made to rectification work performed by Wormald in relation to Alarm Signalling Equipment (ASE) in buildings. The ASE is an important part of the fire protection system, being the device that communicates faults in a fire panel to the QFRS. It was explained that the QFRS is responsible for determining if a defective ASE should be repaired or put “offline.” Where repairs are required, Wormald will receive a call out to complete the work from ADT, which is the entity that contracts directly with the QFRS in relation to this work. It was submitted that the bans on out-of-hours call outs would significantly impact on the capacity of Wormald to provide services in relation to ASE and thus the operation of communication links between fire protection systems in buildings and the QFRS.
[15] It was submitted by Wormald that the ban on call outs would have the effect of prolonging the period during which defects in fire detection and warning devices or systems would be unresolved. This meant there would be greater risks to the occupants of buildings in that the detection of fires, notification to emergency services and evacuation measures might be delayed and other systems such as emergency lighting and security doors may be compromised. It was also submitted that the failure to complete records raises a number of serious safety concerns for Wormald and its customers. This may mean that defects in fire detection and warning systems are not able to be attended to in a timely manner and therefore expose the occupants of buildings to greater risks in the event of a fire. It was said that if the bans are allowed to continue, they would threaten to endanger the life, the personal safety or health, or the welfare of part of the population, namely the occupants of the more than 2000 premises in the Brisbane, Gold Coast and Sunshine Coast areas in which Wormald’s fire detection and warning devices and systems are installed and serviced by call outs, including hospitals, respite and care centres, schools, child care centres, residential complexes, public facilities, retail centres and industrial facilities.
[16] The CEPU opposed the application by Wormald and submitted that FWA must consider all material facts relating to whether the proposed bans relevantly threaten to endanger the health and welfare of part of the population. Material facts in the present matter include those that go to the probability of the alleged consequences, including the ability of Wormald to take defensive measures and the steps which might be taken by occupiers of buildings affected.
[17] The CEPU relied on the affidavits and oral testimony of Mr Craig McKenzie, a break-down Service Technician employed by Wormald and the CEPU delegate, and the affidavits of Ms Kerry Inglis, an industrial officer with the CEPU.
[18] It was put by the CEPU that the Queensland Fire and Rescue Service Act 1990 and the Building Fire Safety Regulation 2008 deal with the obligations of occupiers to have and maintain prescribed fire safety installations. Occupiers are required to engage appropriately qualified persons to undertake the maintenance of such installations. The licensing requirements for such persons are provided for in the Queensland Building Services Authority Act 1991 and the Queensland Building Services Authority Regulation 2003.
[19] The obligations in respect of the maintenance of prescribed fire installations are those of the occupier and this remains the case in the event that a particular contractor is unable, for any reason, to perform necessary maintenance work. In such event, it was said that occupiers might obtain the services of another contractor and/or put in place contingency plans. It was also submitted that there were a range of defensive measures available to Wormald in the event of bans on out-of-hours call outs. These include the use of appropriately skilled managers or the engagement of contractors or competitors to perform the work. In this regard, reference was made to the engagement of two subcontractors by Wormald to assist with the increased workload following the damage to fire protection systems as a result of the recent severe floods. It was also said that Wormald had engaged contractors to perform out-of-hours call out work during the periods of protected industrial action in October 2010. In relation to site inductions for customers’ premises, there is little to suggest that arrangements could not, if necessary, be made for these to be provided to appropriately qualified technicians, especially in the case of an emergency.
[20] The evidence of the CEPU was that the rostering practice of Wormald is to have one breakdown Service Technician rostered on to perform out-of-hours call outs at any given time. Although an additional employee is rostered on as a standby in the event that the workload is too high, it is unusual for the standby technician to be used.
[21] It was submitted by the CEPU that under current arrangements a building may be without an operative fire detection system for some hours up to a period of a week. There is no suggestion that the current arrangements present a relevant threat or endangerment to the public or that Wormald and its customers do not put into place other measures to deal with such situations. In the event of bans on after hours call outs by Service Technicians, Wormald might still be able to provide these services. Even if it was not able to do so, the obligation would be on occupiers to maintain appropriate fire protection systems. In relation to the ban on paperwork, the CEPU submitted that this would not result in critical faults going unreported by Service Technicians as these are verbally reported. It was said that the paper work ban had no material effect on dealing with critical defects as against the usual practice. The effect of the ban is that, although Service Technicians are still completing paperwork required by Wormald it is not being remitted to the office to be processed. The ban does not affect the completion of entries in the log book kept in the fire panel in premises relating to the work undertaken or needed in relation to faults.
[22] In the course on the proceedings, the Full Bench raised questions regarding measures that might be taken by the CEPU and its members to assist in ensuring that critical defects in fire detection and prevention equipment and ASE devices might be attended to during a period of protected industrial action. This arose in part from proposals put by the CEPU to Commissioner Spencer in the proceedings regarding the October bans and the response by Wormald that such measures were not workable solutions.
[23] As explained by Mr Sillett in his affidavit of 3 December 2010, a critical defect is one which is likely to render a fire safety installation inoperable and which is most likely to have a significant adverse impact on the safety of occupants of a building if a fire or hazardous materials emergency happens (see paragraph 35).
[24] In the current proceedings, the CEPU provided the following undertaking to Wormald in respect of protected industrial action:
“The CEPU hereby undertakes that:
1. the CEPU will give ten (10) days notice of any proposed ban on out of hours call outs or overtime by its members in Brisbane, the Gold Coast and/or the Sunshine Coast;
2. in the event of a critical fault occurring at either a Hospital, Nursing Home, Correctional facility or in an “Alarm Signalling Equipment” device (at any location), outside of business hours for which Wormald cannot arrange a suitably qualified technician to attend, the CEPU will arrange for one of its members to attend the call out. In such circumstances the CEPU member will attend the call out in a timely manner after being notified.”
[25] Although it was acknowledged by Wormald that the undertaking was “manifestly different” from previous offers of assistance from the CEPU, it was said that Wormald has serious reservations about the practical effectiveness of the undertaking and its coverage.
Consideration
[26] The power given by s.424 of the Act for FWA to suspend or terminate protected industrial action and the approach to the exercise of the power were considered in the decision of a Full Bench of FWA in National Tertiary Education Union v University of South Australia [2010] FWAFB 1014 as follows:
“[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.”
[27] In the present matter, we have been presented with a voluminous amount of evidence and material including in relation to fire safety legislation and requirements in Queensland, the type of fire detection and prevention equipment installed in premises and the obligations of Wormald in relation to the maintenance of such equipment, the work and qualifications of break-down Service Technicians employed by Wormald and the impact of bans by those employees in relation to after hours call outs and the completion of certain paperwork. This has included evidence regarding measures taken by Wormald to minimise the risks arising from previous protected industrial action taken by its employees and to deal with additional workloads following the recent floods in Queensland. We were also taken to evidence and material which was before Commissioner Spencer in the previous proceedings. In reaching our conclusions we have carefully considered all the evidence and material as well as the submissions of the parties.
[28] There is no doubt that the bans by the CEPU members will cause disruption to Wormald’s operations and will have an effect on Wormald’s clients. However the issue to consider in relation to the application by Wormald to suspend or terminate protected industrial action is whether the action is of such a nature as to threaten to endanger the life, personal safety or health, or the welfare of part of the population within the meaning of s.424 of the Act.
[29] In all the circumstances of the present matter, we are not satisfied that the bans are of such a nature. In this regard we note that the various fire safety regulations impose obligations on the owners and occupiers of buildings in relation to the maintenance of fire detection and prevention equipment. In meeting these obligations, owners use the services of companies like Wormald. However Wormald is not the only provider of such services in the Brisbane, Sunshine Coast and Gold Coast regions. In the event of disruption to Wormald’s operations due to protected industrial action by its Service Technicians, Wormald may be able by other means to maintain critical services to its clients. These measures might include the use of supervisory staff to perform necessary after hours call out work or the engagement of contractors to do such work. In this regard, we note the measures taken by Wormald when bans have been imposed and the recent engagement of contractors to perform similar work following the flooding in Brisbane and other areas. The measures could also include seeking the assistance which the CEPU has undertaken to provide in relation to call outs to attend critical faults occurring at hospitals, nursing homes, correctional facilities or in Alarm Signalling Equipment at any location. Where Wormald is not able to provide after hours call out services to its clients then other companies providing a similar services might be called upon by building owners and occupiers or by ADT.
[30] In any event, we note that Wormald’s call out services are provided in response to requests or notifications by clients. Where Wormald or another provider is not able to respond in a timely fashion, the building owner or occupier concerned will need to put into place their own contingency plans in order to minimise any potential risks associated with defective fire safety or prevention equipment.
[31] It follows that we are not persuaded that the consequences of the protected industrial action would be of such significance as to meet the requirements of s.424 of the Act. In particular, we do not accept that Wormald cannot put into place arrangements that will assist in minimising the risks associated with the bans. Further, we do not consider that the ban on paperwork and the manner in which it has been applied, would mean that the ban would have any impact as to invoke the operation of s.424.
[32] In so deciding, we recognise that there is a legitimate concern in any matter which involves the proper operation and maintenance of fire safety equipment about the need to ensure a high level of protection for the public against hazards of fire. However this does not mean that any disruption to services like those provided by Wormald will be of such significance to warrant orders being made under s.424 of the Act. In the present matter, we consider that many of the submissions made by Wormald regarding the impact of the protected industrial action are exaggerated and that there are a range of effective measures which can and will be taken by Wormald and its customers to minimise any associated risks.
[33] Given the nature of the bans, their likely impact and the availability of measures to ensure the safety and welfare of the community, and in particular the people using the buildings or premises owned or occupied by Wormald’s clients, we are not satisfied that any order should be made pursuant to s.424(1) of the Act. Accordingly, the application is dismissed.
SENIOR DEPUTY PRESIDENT
Appearances:
E. White, of counsel, with C. Massey, for the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia - Electrical, Energy and Services Division - Queensland Divisional Branch.
J. Murdoch, S.C with N. Osborne, for Tyco Australia Pty Limited trading as Wormald.
Hearing details:
2011
Brisbane
March 3 and 4.
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