[2012] FWA 1298 |
|
REASONS FOR DECISION |
Fair Work Act 2009
s.424 - Application to suspend or terminate protected industrial action - endangering life etc.
APA Group Pty Ltd
v
Transport Workers' Union of Australia
(B2012/528)
COMMISSIONER HAMPTON |
ADELAIDE, 21 FEBRUARY 2012 |
Protected industrial action - application for orders to suspend - whether action endangers life, personal safety or health, or welfare of part of the population - whether additional notice should be granted for subsequent notified action - application granted in part.
INTRODUCTION AND BACKGROUND
[1] This is an application by APA Group Pty Ltd (APA or the employer) seeking that Fair Work Australia make orders in relation to certain industrial action that has been subject to a notification to be undertaken by members of the Transport Workers’ Union of Australia (the TWU or the Union).
[2] APA operates the natural gas networks that provide gas to commercial and domestic consumers in the Adelaide metropolitan area and beyond. The employees concerned with the application are engaged to provide maintenance and other services on that network. This relevantly includes the provision of emergency repair and related services associated with leaks and other hazards in the gas network.
[3] The application was made pursuant to s.424(1) of the Fair Work Act 2009 (the Act) and contended that the protected industrial action would threaten the life, personal safety or health, or welfare of part of the population and as a result, the industrial action should be suspended for a period. Further, the employer sought pursuant to s.427(3) of the Act that Fair Work Australia require additional notice to be given for any subsequent protected action.
[4] The TWU had notified protected industrial action in the form of a two hour stop work meeting of its members during the morning of 15 February 2012.
[5] APA contended in part that the TWU had not agreed to what was said to be the normal emergency arrangements and this meant that there was inadequate coverage in the event of leaks or major incidents. This in turn would lead to risks of explosions and other consequences for the community.
[6] The TWU contended in part that the notice of the protected industrial action was provided in accordance with the Act and was sufficient for APA to have organised alternative emergency coverage. In any event, the union had proposed undertakings to APA that would mitigate the effects of any alleged lack of coverage. The union opposed both the suspension of the industrial action and the proposal that additional notice be provided in the future.
[7] The matter was heard and determined on the afternoon and evening of Tuesday 14 February 2012 and an order suspending the protected industrial action for a nominated period was issued. 1 I declined the application as it related to the provision of extended notice for subsequent protected industrial action. I advised that I would subsequently issue reasons for that decision, which I now do.
THE CONTENTIONS OF APA
[8] Mr Portway, the Human Resources Manager, Networks SA represented APA and substantially relied upon the comprehensive contentions outlined in the application.
[9] APA contended that the natural gas network that it operates includes a series of pipe networks that were largely underground and in most cases located in close proximity to the population of South Australia. Given the flammable and hazardous nature of natural gas, it was contended that leaks due to damage or obstruction from the pipe networks had to be attended to expeditiously. Further, it was contended that APA was obliged to meet certain response times under the provisions of the Gas Act 1997 (SA).
[10] The employer also contended that the duties of its employees included the shutting down of affected areas, repairing leaks and taking actions to prevent or mitigate further leaks. This was sometimes done in conjunction with the fire brigade.
[11] In that context, APA contended that it had in place emergency response arrangements that were crewed by its TWU workforce on a 24 hour 7 day per week basis. I note that on weekends the emergency response arrangements are crewed from external contractors.
[12] APA was notified of the relevant protected industrial action for Wednesday 15 February 2012 and it now understood that the planned action would involve all of the employees who were employed to undertake work in relation to the gas network, including those who would in other circumstances form part of the emergency response arrangements. This meant that there would be no employees to attend to the pipe networks in the case of emergencies or to attend at the APA’s control centres in case of emergencies.
[13] APA contended that it approached the Secretary of the local TWU branch seeking dispensation in line with what it considered to be the normal arrangements to apply during disputation. This arrangement was said to be in line with clause 14.4 of the present enterprise agreement 2 and would mean, if applied, that the parties would agree the necessary staffing to remain working to protect the safety of the employees, consumers, the general public and the network infrastructure.
[14] In the absence of an immediate response, APA again contacted the TWU and was advised that the disputes procedure was not relevant to protected industrial action and no dispensation would be provided. In that light, it immediately approached its normal contractors and sought that suitably qualified staff be made available. As at the time of the hearing, only a very small number of contactor staff had been confirmed. Of the minimum required four immediate responders, only two had been secured. In relation to the two minimum required field teams, only one contractor team of two persons had been located and this was insufficient. Further, it was said that there was some other maintenance work necessary to maintain the system regulators and no resource had been located to undertake that work during the stoppage.
[15] APA did not object to the protected industrial action in general terms but contended that in the circumstances there was a real and unacceptable threat so as to endanger the life, the personal safety or health or welfare of the population of South Australia, or part of it.
[16] In terms of the undertaking from the TWU to provide access to members to respond in certain circumstances, this was said by APA to not be satisfactory as this would involve the need for staff to respond from the stop work meeting, come to head office and then be dispatched. This would add response times and was said to be insufficient particularly given the risks and hazards involved.
[17] In that light, APA sought that Fair Work Australia suspend the protected industrial action for a period of seven days. This would permit it to arrange suitable alternative coverage from contractors.
[18] APA also sought that it be given seven days notice (in lieu of the statutory period of three days) in the event of future protected action. It contended that this was necessary in order for it to approach relevant contractors and put in place reasonable alternatives to the emergency coverage that would otherwise be provided by the TWU members.
[19] APA led evidence from Mr Robin Gray, Network Operations Manager. I accept his evidence.
THE CONTENTIONS OF THE TWU
[20] Mr Burns, national legal officer, represented the TWU and opposed both elements of the application.
[21] The TWU contended that the industrial action as notified was protected industrial action and that the relevant notice had been provided. In that light, the members of the union were entitled to take the notified action and in effect, this was consistent with the scheme of the Act.
[22] The union also contended that the requirements of s.424 of the Act were substantial and that Fair Work Australia should not interfere with the taking of protected industrial action other than in exceptional circumstances, which did not apply here.
[23] The TWU contended that APA had access to contractors to provide sufficient emergency coverage and that the employer had failed to expeditiously put those arrangements in place. In particular, it was notified of the industrial action on Thursday 8 February 2012 and had not commenced calling contractors until the following Monday. This notice was given in accordance with the statutory requirements and was said to have provided sufficient time to deal with the consequences. In that context, the TWU also pointed out that APA did not oppose the protected action ballot application. I also note that APA also did not apparently seek additional notice of proposed protected action at that time. 3
[24] In that light, the TWU should not be penalised by the inaction of the employer. In any event, the union contended that it had proposed an undertaking that included, amongst other elements, the following:
[25] It was also noted that the employees would commence work at 7.30am and if emergency work arose in the period before the scheduled stop work meeting at 8.30am, employees would attend to those emergencies.
[26] In relation to the emergency cover under the disputes procedure, the TWU contended that this did not apply in these circumstances and APA should have known that the union would take the industrial action as notified.
[27] The TWU also contended that even if a suspension was granted, which it opposed, there was no justification for an extension to the notice period for any subsequent industrial action. APA should now clearly understand that it needed to have (contractor based) emergency arrangements in place and was on notice to that effect.
[28] The TWU led evidence from Mr Matthew Spring, SA organiser for the union. I accept his evidence.
THE IMMEDIATE STATUTORY PARAMETERS
[29] Section 424 of the Act relevantly provides as follows:
“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.”
[30] Section 427 of the Act also provides as follows:
“427 FWA must specify the period of suspension
Application of this section
(1) This section applies if FWA is required or permitted by this Division to make an order suspending protected industrial action.
Suspension period
(2) FWA must specify, in the order, the period for which the protected industrial action is suspended.
Notice period
(3) FWA may specify, in the order, a longer period of notice of up to 7 working days for the purposes of paragraph 430(2)(b) if FWA is satisfied that there are exceptional circumstances justifying that longer period of notice.”
CONSIDERATION
[31] APA is a relevant bargaining representative and entitled to bring this application in accordance with s.424(2)(b)(i) of the Act. There is no contest that the industrial action had been notified in accordance with the Act 5 and given that it was authorised by a protected action ballot process6, it would have been protected industrial action for all present purposes.
[32] There is also no contest that the industrial action was threatened or probable so as to satisfy the requirements of s.424(1)(b) of the Act.
[33] The operation of s.424, at least in relation to ss.(1)(c), is now relatively well established by various Full Bench authorities.
[34] In National Tertiary Education Industry Union v University of South Australia 7 the following findings were made:
“[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]
[9] The provisions in the Act for the suspension or termination of protected industrial action are in certain respects similar to the scheme in the Workplace Relations Act 1996 (the WR Act) providing for the suspension and termination of bargaining periods. Under that legislation, the power given to the Australian Industrial Relations Commission was to terminate a bargaining period with the result that all industrial action being taken in support of claims would become unprotected.
[10] In the present case, it was submitted by the NTEU that the power in s.424 of the Act is significantly different from that relating to the termination of bargaining periods under the WR Act. It was said that the power in s.424 is a much more confined and precise power which is directed at the prevention of particular forms of third party harm. It is therefore only industrial action which causes the requisite harm that may be terminated or suspended by FWA under s.424 of the Act.
[11] We do not agree with this construction of the power in s.424. The use of the words “suspension” and “termination” of protected industrial action in the section may be contrasted with the power given to FWA in s.418 in relation to the making of orders to “stop” industrial action. The suspension of protected industrial action is to be construed as a suspension of the protection or immunity which attaches to the industrial action under the Act provided it is authorised in a protected action ballot etc. (see s.409). A reference in s.424 to the making of an order “suspending or terminating protected industrial action for a proposed enterprise agreement” would therefore seem to apply to protected industrial action which was authorised by the ballot, and not to the particular industrial action which is being taken as part of what might be a series of actions authorised by the ballot and which is having the requisite harmful effect.
[12] This reading of s.424 would accord with the wider scheme of the Act and, in particular, with the provisions which apply to the making of workplace determinations where an order has been made terminating protected industrial action (see s.266). It would be inconsistent with that scheme if further protected industrial action was able to be taken even though the jurisdiction for the making of an arbitrated determination was in train (see Ambulance Victoria v LHMU [2009] FWA 44, Kaufman SDP). There is no valid reason for adopting a fundamentally different interpretation of s.424 in respect of the power to suspend protected industrial action than is applied in relation to the termination power.
[13] In any event, we note that even if an order made under s.424 was confined to part only of the authorised industrial action, the effect of the order would be to render other industrial action unprotected. The common requirements that apply for industrial action to be protected industrial action are set out in Subdivision B of Division 2 of Part 3-3 of the Act. In particular, s.413(7)(a) provides that industrial action will not be protected industrial action for a proposed enterprise agreement if there is in operation “an order under Division 6 of this Part suspending or terminating industrial action in relation to the agreement”.
[35] The Full Bench in Victorian Hospitals’ Industrial Association v Australian Nursing Federation 8 directly stated the task in the following terms:
“[48] The main issue for consideration in this matter concerns the impact that the protected industrial action being taken and threatened by the ANF and its members is having or is likely to have on the Victorian public health system and the users of the system. Subsection 424(1) requires that FWA must make an order suspending or terminating the protected industrial action that is being engaged in, or is threatened, impending or probable if we are satisfied that it has threatened, is threatening or would threaten to endanger the personal safety or health, or the welfare, of part of the population.
[49] It is clear that there must be an appropriate evidential basis to found such a satisfaction. As the High Court said in Coal and Allied Operations Pty Ltd v AIRC in considering somewhat similar provisions in the Workplace Relations Act 1996:
“... the nature of the threat as to which a decision-maker must be satisfied under s 170MW(3) of the Act involves a measure of subjectivity or value judgment... [A] decision under s 170MW(3)(b) that industrial action is ‘threatening... to cause significant damage to the Australian economy or an important part of it’... is not simply a matter of impression or value judgment... the decision-maker must have some basis for his or her satisfaction over and above generalised predictions as to the likely consequences of the industrial action in question”.
... ...
[51] We were taken in the proceedings to previous decisions of FWA and its predecessors regarding the meaning of the terms in s.424(1), including the references to “welfare” of the population and the concept of endangerment. These are commonly used words and expressions which are widely understood in the community and which should be given their ordinary meaning. 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.”
[36] Accordingly, s.424(1) of the Act relevantly provides that Fair Work Australia must make an order suspending or terminating relevant protected industrial action if it is satisfied that the action threatens to endanger the life, the personal safety or health or the welfare of the population or part of the population. Whether an order should be made under s.424 will be a matter to be determined based upon a consideration of all the circumstances and having regard to the evidence and submissions before the Tribunal.
[37] Further, the statutory scheme is such that the orders preventing protected industrial action are not be issued lightly and the satisfaction contemplated by s.424 is that the threat must be material or substantial, and certainly beyond mere inconvenience, and founded upon a proper basis.
[38] In addition, where s.424 operates to require Fair Work Australia to suspend (or terminate) the protected action, all of the relevant protected industrial action must be suspended not merely those elements that have given rise to the threat.
[39] In this matter I was satisfied that the circumstances were such that the requirements of s.424(1)(c) had been met. Based upon the evidence and materials before the Tribunal it was apparent that the nature and context of the work was such that some reasonable and guaranteed emergency response facility was required at all times. This arises from the nature of the work that is undertaken by APA and its employees, and the inherent risks that arise from gas leaks and other related potential occurrences. These must be attended to within reasonable response times as a matter of public safety and welfare. Not having emergency response resources actually in the field creates additional delays in response times, and may also lead to inadequate resources being available in the case of a significant event.
[40] There are approximately 60 employees of APA relevant to this application. It is likely that all, or almost all, of the APA employees who are qualified to undertake work on the pipe networks would have been involved in the protected industrial action.
[41] The necessary emergency response cover did not necessarily have to include the employees who were to be subject to the industrial action as it was also demonstrated that contractors already covered weekends and given sufficient notice, it was probable that they could also be used to provide sufficient weekday coverage, at least for short periods.
[42] In this case, whilst the statutory notice period was provided, APA had a reasonable belief that the normal emergency coverage would be provided and they took measures to confirm that belief. This arises given the traditional practices that have been applied in this workplace as reflected in clause 24.4 of the present enterprise agreement applying to the parties. Although this provision does not apply to protected industrial action and no dispensation was outlined in the action as notified, I do accept the evidence of Mr Gray regarding the employer’s expectations and the actions it then took in that regard. This includes the fact that it has already cancelled non-emergency work where possible in order to focus whatever emergency resources it has available.
[43] In the absence of an initial response from the TWU and then the indication that its members would not provided the anticipated emergency cover, APA took reasonable measures to put alternative arrangements in place. This produced insufficient safe coverage given the lack of qualified contractor availability. The evidence also confirms that there is almost no alternative coverage available from APA employees outside of the TWU membership.
[44] I have considered both the nature and impact of the undertaking provided by the TWU. I accept that undertaking on face value and I do not doubt the bond fides of the union or the members in that regard. However, it is also evident to me that the emergency cover that is usually in place is in itself a compromise. When this is combined with the increased lead times and other uncertainties associated with the proposed system of calling employees from the stop work meeting in certain circumstances, I considered that there remained a material threat to the community created by the absence of guaranteed and adequate emergency response resource already committed to work at the time in question.
[45] This arises given all of the circumstances associated with the work in question and the notified industrial action. The stop work meeting was scheduled for a two hour period and there was an undertaking that members would leave the meeting, which was to be held near to the head office of the employer, in the event of a Category 1 notification. However, the normal and reasonable emergency response arrangements would need to comprise a combination of both emergency responders and field crew who were already at work and in most cases, in the field. This reduces travel time given the expanse of the metropolitan area and would guarantee at least some level of emergency cover.
[46] Where this absence of coverage was created by the inaction of the employer without a reasonable explanation, I would consider that it would be very difficult for the employer to demonstrate that a material or substantial threat actually existed. This would mean that an order pursuant to s.424 could not be made. In this case, the actions of the employer, albeit perhaps naive, are explicable and I am satisfied that the present circumstances are such that a relevant demonstrable threat to the community exists.
[47] In that light, I was required by the Act to consider the suspension, or termination, of the notified protected industrial action. APA sought that it be suspended and given the nature of the findings as to the threat and the alternatives open to the employer, only suspension was appropriate. I considered that suspension for three days, which would then lead into the weekend, was appropriate. This was the period specified in the order I issued on 14 February 2012 in line with the requirements of s.427(2) of the Act.
[48] There is power under s.427(3) of the Act to order a longer period of notice for any subsequent protected action if Fair Work Australia is satisfied that exceptional circumstances justify a longer period. I did not consider that such was appropriate. APA now understands that it is unlikely that emergency cover will be offered during any notified (stop work) industrial action and although it may be inconvenient to have alternative contactor coverage on standby, the circumstances as now existing are not exceptional or such as to warrant additional protected action notice.
CONCLUSIONS
[49] There are particular considerations arising from the nature of the natural gas networks and the work of the employees, and the other circumstances evident here that are exceptional and enliven the requirements of s.424(1)(c) of the Act. I was satisfied that the protected industrial action was threatened and probable and in the circumstances was such that it threatened to endanger the life, the personal safety or health or the welfare of the population or part of the population. I was therefore obliged by s.424 of the Act to either suspend or terminate the protected action. Suspension for a limited period was appropriate and an order was made to suspend the protected industrial action for a period of three days.
[50] Based upon the evidence before Fair Work Australia, it was not appropriate to require additional notice for any subsequent protected industrial action given the circumstances now evident.
COMMISSIONER
Appearances:
D Portway with P Sawer and R Gray for APA Group Pty Ltd.
M Burns with T Walton and M Spring for the Transport Workers’ Union of Australia.
Hearing details:
2012
Adelaide
February 14
2 Clause 14.4 Make Safe of the APA Network South Australia Agreement 2008 provides certain minimum staffing arrangements are to be agreed in the event of disputation in order to maintain the safety of the plant, personnel and the public.
3 Section 443(5) of the Act enables Fair Work Australia to specify a longer period than 3 working days when making a protected action ballot order.
4 Class 1 incidents would include the nature of events leading to the need for emergency call-outs.
5 The notice was provided in accordance with s.414(2) of the Act.
6 PR518944, Bartel DP, 10 January 2012 authorised the ballot pursuant to s.437 of the Act.
7 NTEIU v University of South Australia [2010] FWAFB 1014, 14 April 2010 per Boulton J, Ives DP and Gay C.
8 [2011] FWAFB 8165 15 December 2011, per Boulton J, Acton SDP and Lewin C. See also Tyco Australia Pty Limited T/A Wormald v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia- Electrical, Energy and Services Division - Queensland Divisional Branch [2011] FWAFB 1598, 24 March 2011, per Boulton J, Ives DP and Gooley C.
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