Under the Fair Work Act 2009 (Cth) (FW Act), employees are entitled to take protected industrial action in circumstances where they are bargaining for a new enterprise agreement.
The action can take many forms – from striking and “go slows”, to changes in the clothes that employees wear.
In circumstances where that statement, impact or disruption has the potential to pose a threat to the life, health, safety or welfare of others, the Fair Work Commission (FWC) has the power to intervene and make an order to suspend or terminate the industrial action. Such an order was recently made by the FWC in Broadspectrum (Australia) Pty Ltd v Transport Workers’ Union of Australia [2018] FWC 4930.
In this case, the Transport Workers’ Union (TWU) had issued a notice of its intention to organise its members to engage in protected industrial action. The notice specified that Broadspectrum employees would, for a period of four days, be refusing to wear the shirt component of their uniform, work overtime and perform higher duties.
Broadspectrum responded by applying, under s 424(1)(c) of the FW Act, for orders that the protected industrial action be suspended on the basis that the proposed actions would “threaten to endanger the life, the personal safety or health, or the welfare, of the population or part of it”.
Broadspectrum’s arguments
In support of its application, Broadspectrum relied heavily on the nature of the work performed by its employees. As a contractor to the State Government of Western Australia for the provision of security services at various facilities including courts and secure units in hospitals, those employees were ‘Officers’ responsible for, among other things:
Due to the important and dangerous nature of this work, Broadspectrum submitted that there would be various consequences of the industrial action that would constitute a “threat”, of the kind contemplated by s 424(1)(c).
Broadspectrum argued that if employees were to attend work without full uniform, persons in custody and the public would not be able to identify Officers and would lose confidence in their authority. This would be significant due to the intrusive nature of their job, which often requires them to conduct searches, ask intrusive questions, prevent altercations, restrain persons, and use necessary force against persons. For this reason, Broadspectrum stated that employees out of uniform would be sent home, resulting in fewer Officers on duty who would be ready and able to respond to emergency situations.
Broadspectrum also argued that a ban on overtime would result in fewer Officers being on duty after 4.00pm. Due to the unpredictability of court timetables, this would mean that persons in custody might not be safely transferred back to prisons, persons could be left unsecured within the cell area at courts, and an increase in attempted escapes would be likely.
Finally, on the issue of a ban on employees performing higher duties, Broadspectrum submitted that this would put “at risk crucial decision-making hierarchies, which are essential to the management of incidents”.
Overall, Broadspectrum submitted that with reductions in staffing levels, there would be a significantly increased threat of dangerous and life-threatening incidents and that they would consequently be unable to ensure the safety of individuals.
TWU arguments
The TWU conceded that staffing levels were essential to the safety of Officers, persons in custody, and the general public. However, it argued that the risks posed by low staff levels could be managed and minimised. Specifically, the TWU submitted that Officers could be replaced by casual workers who have experience in similar professions and that the absence of a uniform shirt (when the balance of the uniform is still worn) would not create a sufficient compromise of security.
FWC decision
In regards to the uniform ban, the FWC was satisfied that, as the uniform created a sense of authority and was vital to maintaining order within the workplace, Broadspectrum would be required to send ununiformed Officers home. It was agreed that the probable result of the ban would be a reduction in staff.
In relation to the ban on overtime, the FWC acknowledged the role of Broadspectrum in carrying out the requirement of its principal – the State Government of Western Australia. Moreover, it rejected the TWU’s argument that casual workers would be a sufficient replacement, as there are significant training, qualification and environmental requirements of an Officer.
On the issue of the performance of higher duties, the FWC concluded that “the absence of direction, order, planning and critical decision-making in the field would in my view threaten to endanger the Broadspectrum employees, persons in custody and service providers in proximity to the incident.” The FWC was therefore satisfied that it should suspend the protected industrial action.
Lessons for employers
There are a wide range of actions that can form industrial action and employers should consider how those forms of industrial action might impact on their operations. For example, in this decision the forms of industrial action that threatened the life, safety, health or welfare of others were bans on one item of uniform, overtime and performing higher duties.
Where an employer receives a notice of proposed protected industrial action and is concerned that the industrial action could threaten the life, safety, health or welfare of the population, the employer may apply to the FWC for orders to suspend or terminate the industrial action.
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