| FWC 7527|
|FAIR WORK COMMISSION|
Fair Work Act 2009
s.418 - Application for an order that industrial action by employees or employers stop etc.
Transit Systems West Services Pty Ltd T/A Transit Systems West Services
Akdeniz Bulent & Others
DEPUTY PRESIDENT BULL
SYDNEY, 12 DECEMBER 2018
S.418 Order to stop industrial action. Limited order issued.
 On the evening of Tuesday 4 December 2018 the Commission, following the completion of a s.418 hearing, issued an Order PR702844 for certain named employees employed at the applicant’s Burwood Bus Depot to stop organising industrial action in the form of taking non-genuine sick or carer’s leave absences. An explanation for the Order issuing was provided on transcript at the time. Below are the reasons for the Commission’s decision to make the Order.
 At 12:34pm on Monday 3 December 2018, an application pursuant to s.418 of the Fair Work Act 2009 (the Act) was made by Transit Systems West Services Pty Ltd (the applicant) for an order to stop industrial action by employees. The application sought an order from the Commission that unprotected industrial action stop, not occur and not be organised. The proposed order was directed at the Rail, Tram and Bus Union NSW (the RTBU) and 70 employees of the applicant whose work is regulated by the State Transit Authority Bus Operations Enterprise Award 2018 (the Award), a copied state instrument. 1
 The Award has not yet passed its nominal expiry date of 31 December 2020.
 The application stated that there was a dispute before the Commission regarding changes to bus service timetables across the broader Sydney Metropolitan Bus Service Region under the Award. 2
 On Monday, 3 December 2018, approximately 70 bus drivers employed by the applicant took personal/carer’s leave, which was said by the applicant to be an extraordinarily high number compared to any other Monday since the applicant commenced operating the Region 6 Bus Service Contract which commenced on 1 July 2018. The application stated that the abnormal level of employee absence constituted covert industrial action that was being supported by the RTBU, which was unlawful.
 Section 420(1) of the Act requires that as far as practicable, an application under s.418 of the Act must be determined within 2 days after it is made. No order for substituted service was sought by the applicant, and as such it was necessary for the Commission to be assured that the named respondents had been served with and were aware of the application and the Commission listing.
 The matter was listed for hearing at 5:00pm the same day, 3 December 2018 however the matter was addressed in a private conference at 4:00pm. At the conclusion of the conference the applicant advised it would not press its application in so far as naming the Union as a respondent. The employer added 4 additional employee respondents to its application.
 The application was subsequently listed for hearing the following day at 2:00 pm on Wednesday 4 December 2018 and continued into the evening. At the hearing, the applicant sought and was granted leave under s.596(2)(a) of the Act to be legally represented. Mr Moir of counsel with Ms Wellard, a solicitor, appeared for the applicant. Mr Diamond appeared for the RTBU and 59 employee respondents, members of the Union. Mr Nyolls from the Transport Workers Union of Australia (TWU) appeared on behalf of 2 employee respondents, members of the TWU. There was no appearance or representation on behalf of any other respondent employee.
 Ms Wellard on behalf of the applicant provided an affidavit 3 in respect to the serving of the notice of listing of the hearing on the named respondents. All respondents were emailed a copy of the listing or provided a copy by hand other than two respondents who could not be contacted.
 Both the RTBU and the TWU advised that they would be seeking to have certain named respondents removed from the application on the basis of various reasons relating to the individuals’ absence from work on Monday, 3 December 2018. The parties were provided with an opportunity to reach agreement on this issue and on resumption of the hearing, the applicant advised that 5 names were to be removed from the named respondents list.
 On the basis of the TWU members being removed from the respondent’s list, the TWU’s participation at the hearing ceased.
 A statement in the form of correspondence which had been sent to the applicant’s legal representatives from a Mr L Kidd, the applicant’s New South Wales General Manager, was tended. 4 Mr Kidd’s correspondence referred to the unexpected level of absenteeism which occurred on Monday 3 December 2018, resulting in 269 bus trips having to be cancelled throughout the day. The cancellation significantly impacted customers who were dependent on the applicant’s services. Despite the applicant’s best efforts many customers faced long waits for services resulting in lateness to work or other appointments. A number of complaints were received from customers and the applicant’s reputation as a reliable service provider was negatively impacted.
 Evidence was given under oath by Mr Mark Peters, the Area Manager for Kingsgrove and Tempe Bus Depots. Mr Peters’ evidence confirmed that absences on 3 December 2018 were exceptionally high compared to the previous daily averages across all depots. Mr Peters’ evidence included extracts of Facebook posts having been made by numerous persons, some of which he could identify as having been made by the applicant’s employees and others which he could not identify. In particular was one Facebook post made on the morning of 3 December by a Mr Paul Nguyen. Mr Nguyen was said to be an employee based at the Leichhardt Depot and his Facebook post stated:
“OMG over 100 bus drivers take stickie today from Leichhardt depot because they don’t like the new work schedule arrangement by Transit System”
 Mr Peters’ evidence 5 was that there were in fact 41 Leichhardt drivers who took a ‘sickie’ on 3 December 2018. The Facebook posts also indicated some employee dissatisfaction with rosters and the terms and conditions for new employees who are not covered by the Award. The Facebook posts also indicated some dissatisfaction with the employees’ union representation.
 In cross examination, Mr Peters’ stated that the sick leave absences for Tuesday 4 December were high but not out of the ordinary.
 Mr Jamie Sinclair, Area Manager for Burwood and Leichhardt Bus Depots attached to his witness statement 6 an email dated 29 November 2018, which he had forwarded to the applicant’s Chief Executive Officer and Mr Kidd conveying a complaint that had been received from a customer who had overheard a conversation between a bus driver and a passenger which referred to drivers being unhappy with new rosters and that there would be industrial action in the form of an increase in absenteeism on Monday, 3 December 2018. Mr Sinclair stated the industrial action in the form of increased absenteeism came to pass as predicted.
 Mr Amarinder Singh, the applicant’s Operations Manager at the Burwood Depot provided a witness statement 7 and gave evidence by telephone. Mr Singh’s witness statement stated that he was notified by his Duty Officer Mr Hanna that some drivers were planning to have a sick day on Wednesday, 5 December 2018 and go on a ‘fishing’ trip. Mr Hanna advised Mr Singh of the name of the driver he believed was organising the ‘fishing trip’. On being advised of the employee’s name Mr Singh contacted the employee who confirmed that 10 -15 drivers were planning a mass sick day on Wednesday, 5 December 2018.8
 Mr Singh stated that the driver advised that he would keep Mr Singh posted regarding any further developments. In Mr Singh’s oral evidence he stated that the driver said that he was not the organiser of the proposed mass sick day.
 Mr Singh did not divulge the name of the driver as he believed the driver would be subject to adverse treatment should his name become known and that Mr Singh had a good relationship with the driver.
 In cross examination, Mr Singh stated he did not think that the planned action would actually go ahead due to the matter being heard in the Commission and that he had not since spoken to the driver who advised him of the planned mass sickie, nor had he taken any action to plan for an increased number of absences on Wednesday 5 December. Mr Singh stated that the Tuesday 4 December absences were not out of the ordinary.
 The applicant submitted that the elevated absences on Monday 3 December was evidence that industrial action was happening and that it was organised and planned by employees due to their employment grievances which had not been resolved leading to the likelihood that employees were capable of undertaking similar action on Wednesday 5 December and at other unknown future dates.
 It was submitted that the industrial action on Monday 3 December was clearly planned and coordinated as it was known about as early as 29 November when a customer overheard a bus driver talking to another customer about the proposed action, as was stated in the evidence of Mr Sinclair.
 It was put further that Mr Singh’s evidence demonstrated that industrial action had occurred and further industrial action was planned for Wednesday 5 December and that an inference could be drawn that the respondent employees were capable of organising and taking more industrial action and on this basis Commission must issue an order to prevent it occurring.
 The RTBU called no evidence and relied on its oral submissions. On behalf of its members listed as respondent employees, the RBTU submitted that if any industrial action had occurred, it had now ceased and the industrial dispute raised by the RTBU in the form of a s.739 application before the Commission had been resolved on the evening of 3 December 2018. The RTBU submitted that it had on the evening of 3 December sent out via Facebook and email, advice to its members that no industrial action was being organised and that it did not condone the taking of industrial action.
 It was also submitted that 74 sick leave absences out of approximately 1,100 employees was not excessive.
 The applicant relied on Australian Workers Union v BlueScope Steel Limited 9 (BlueScope), a 2008 decision of a Full Bench of the Australian Industrial Relations Commission, determined under the Workplace Relations Act 1996. The Full Bench held that:
‘There can be no doubt that the coordinated and collective refusal of employees to volunteer to work their 21st shift was industrial action within the ordinary industrial usage of that expression. A collective refusal to work overtime is a classic example of industrial action in that sense.’ 10
 The Full Bench adopted the approach to the definition of ‘industrial action’ taken in an earlier Full Bench case; the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v The Age Company Limited 11 by stating that context and motive were relevant to determining whether particular conduct amounted to industrial action.12
 The Commission is satisfied that the significantly higher level of absenteeism which occurred on 3 December 2018 was in fact collective and covert industrial action undertaken by certain members of the workforce. Although only a small proportion of the total workforce, the absences were well in excess of normal expectations and inconsistent with the history of absenteeism. This conclusion is supported by the evidence of Mr Peters.
 I am further satisfied, to the extent that it may be relevant, that the industrial action undertaken on 3 December caused significant inconvenience to the applicant’s customers and had an adverse impact on the applicant’s reputation as a reliable service provider.
 Section 418(1) of the Act provides as follows:
“If it appears to the FWC that industrial action by one or more employees or employers that is not, or would not be, protected industrial action:
(a) is happening; or
(b) is threatened, impending or probable; or
(c) is being organised;
the FWC must make an order that the industrial action stop, not occur or not be organised (as the case may be) for a period (the stop period) specified in the order.”
 As can be seen from the words of s.418(1) the Commission is required to make an order of the specified type ‘if it appears to the FWC’ that industrial action that is not or would not be protected industrial action, is happening, or is threatened, impending or probable, or is being organised. The Commission’s perception of the relevant matters requires the formation of an opinion or the reaching of a state of satisfaction. 13 This also involves ‘to a significant degree an evaluative assessment with a degree of subjectivity.’14
 It must be said that the Commission is required to act with some haste in dealing with s.418 applications.15 It will often be the case that parties to a s.418 application will be expected to provide their evidence and/or response to the application within a short time frame with limited opportunity to consider their position and to obtain legal or other advice.16
 This can result in the Commission being faced with evidence of a lesser standard than which might otherwise be expected from parties to a matter where considerable notice of a listing is given, as the best evidence is not always available at short notice. This applies to all parties.
 No respondent represented at the hearing sought an adjournment of proceedings.
 Having considered the evidence put before the Commission it has not been demonstrated to my satisfaction that further industrial action by the listed respondent employees has occurred following 3 December. While absenteeism on Tuesday 4 December 2018 was on the evidence of Mr Peters high, it was not out of the ordinary.
 The fact that I have concluded that industrial action occurred on 3 December 2018 in a covert and collective manner does not, without more evidence being put before the Commission, result in drawing an inference that it is probable or it will occur in the foreseeable future. There will always be employees not attending for work based on genuine reasons unrelated to the taking of industrial action. The Facebook posts which demonstrated some dissatisfaction by drivers with their employment arrangements, was not evidence that future industrial action was being planned and certainly not by the named respondent drivers.
 As far as the RTBU is concerned I am satisfied that they are not organising future industrial action which in any event appears to have been accepted by the applicant in their removal of the RBTU as a respondent in these proceedings.
 I do however accept the evidence of Mr Singh that he was advised by an employee at the Burwood Bus Depot of planned industrial action by 10-15 drivers at the Burwood Bus Depot to be taken on Wednesday 5 December 2018. Burwood Bus Depot has around 110 drivers of whom there are 10 drivers named as respondents to the application on the basis they were absent from work on December 3, 2018.
 Section 418 of the Act states that the Commission must make an order that industrial action not occur if it appears that industrial action by one or more employees that is not, or would not be, protected industrial action is threatened.
 Mr Singh’s evidence is that there existed a threat of unprotected industrial action occurring at the Burwood Bus Depot on Wednesday 5 December 2018, as such an order must issue against the 10 Burwood Bus Depot drivers named in the application.
 Nothing put by the applicant including the Facebook post extracts rises to a level sufficient to satisfy the Commission that the other named employee respondents were about to take or were organising future unprotected industrial action.
 The scope and duration of the Order has been tailored to the Commission’s findings above.
Mr Moir of counsel and Ms Wellard solicitor, on behalf of the Applicant
Mr Diamond on behalf of the Rail Tram and Bus Union NSW and 59 named employee respondents
Mr Nyolls on behalf of Mr Kochesfehani and Mr Goldsbrough
3, 4 December
Printed by authority of the Commonwealth Government Printer
1 See s.768AI of the Act
2 Matter C2018/6765
3 Exhibit thisA1
4 Exhibit A3
5 Exhibit A2
6 Exhibit A4
7 Exhibit A5
8 Witness statement refers incorrectly to Wednesday 4 December
9 (2008) 171 IR 115
10 (2008) 171 IR 115 at 
11 (2004) 133 IR 197
12 (2008) 171 IR 115 at [10-11]
13 See Full Bench decision in Maritime Union of Australia v Patrick Stevedores Holdings Pty Ltd  FWCFB 7736 at 
14 Ibid at 
15 CEPU and CFMEU v Abigroup Contractors Pty Ltd  FWCFB 453 at 
16 Mr Ian McKewin; and others v Lend Lease Project Management & Construction (Australia) Pty Ltd  FWCFB 2568 at