Application by Commonwealth of Australia (represented by the Department of Immigration and Border Protection) - [2016] FWC 2526

1

Fair Work Act 2009 
s.424 - Application to suspend or terminate protected industrial action - endangering life etc.

Commonwealth of Australia (represented by the Department of 

Immigration and Border Protection)

v

CPSU, the Community and Public Sector Union
(B2016/421)

COMMISSIONER WILSON MELBOURNE, 27 APRIL 2016

Application for an order to suspend or terminate protected industrial action pursuant to 
s.424; whether interim orders should be made final.

[1] This decision is further to Reasons for Decision issued by me on 5 April 2016 
concerning an application made to the Fair Work Commission on 1 April 2016 by the 
Commonwealth of Australia as represented by the Department of Immigration and Border 
Protection.1 That application sought orders from the Commission that would suspend 
protected industrial action (PIA) for a period of three months and, while the substantive 
application is being determined, an interim order of the Commission that would suspend the 
protected industrial action pending the Commission’s determination of the substantive matter.

[2] The Reasons for Decision issued on 5 April 2016 related to a decision originally 
issued on 3 April 2016 in which an interim order was made suspending the relevant protected 
industrial action.

[3] This decision is concerned with whether the interim order should now be replaced 
with a final one. It relies upon the material submitted in evidence at all stages of the 
proceedings, including that provided to the Commission prior to the decision to make an 
interim order.

[4] Section 424 of the Fair Work Act 2009 (the Act) provides as follows:

424 FWC must suspend or terminate protected industrial action—endangering life etc.

Suspension or termination of protected industrial action 

(1) The FWC must make an order suspending or terminating protected industrial 
action for a proposed enterprise agreement that: 

(a) is being engaged in; or 

[2016] FWC 2526

DECISION


E AUSTRALIA FairWork Commission




 



[2016] FWC 2526

2

(b) is threatened, impending or probable; 

if the FWC 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) The FWC 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, the FWC must, as far as 
practicable, determine the application within 5 days after it is made. 

Interim orders 

(4) If the FWC is unable to determine the application within that period, the FWC 
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.”

[5] Whether an order should be made under s.424 will be a matter to be determined upon 
a consideration of all the circumstances and having regard to the evidence and submissions 
before the Commission.

Background








[2016] FWC 2526

3

[6] The Australian Border Force (ABF) is described as being the frontline operational 
agency within the Australian Government Department of Immigration and Border Protection 
(DIBP), with its mission being to protect Australia’s border and manage the movement of 
people and goods across it. This decision refers interchangeably to the Commonwealth, the 
DIBP and the ABF as the applicant in the proceedings. The ABF comprises more than 13,000 
employees and operates on a large scale. The evidence of Clive Murray, the ABF’s Assistant 
Commissioner, Strategic Border Command, included the following about the scale and nature 
of the ABF’s operations;

“7. The DIBP manages very large flows of passengers, revenue and cargo. For example, 
during 2014 - 2015, the DIBP, in an average week (i) cleared around 650,000 
international travellers (ii) collected more than $300 million in revenue (iii) inspected 
more than 38,000 air cargo consignments and 1 million mail items and (iv) detected or 
seized more than 600 drug imports and other prohibited items.

8. In order to manage this level of movement of people and goods across the border, 
the DIBP:

(a) conducts risk assessments of people and goods arriving into and out of 
Australia every day; and

(b) responds to risks identified (either by the DIBP itself or as notified by other 
agencies) through intervention activities.

9. DIBP operations involve considerable complexities, cooperation with external 
agencies and partners (domestic and international), sophisticated technology and, 
critically, employees with specialist skills for identified roles.”2

[7] There are nine international airports, namely Sydney, Melbourne, Brisbane, Perth, 
Darwin, Cairns, Adelaide, Townsville and Coolangatta (the Major Airports). The ABF 
processes the bulk of international travellers through those airports, as well as a limited 
number through cruise ship terminals. It is also responsible for clearance of cargo and 
international mail through Australia’s air and sea ports.

[8] Bargaining within the DIBP and the ABF has been progressing for a considerable 
period. A Notice of Employee Representational Rights was issued by the DIBP on 16 June 
2014.3 At that time the ABF had not been formed and was a separate agency, with the 
predecessor agency having issued its Notice of Employee Representational Rights on 18 
September 2014.4 In March 2015, and prior to the integration of the predecessor agency into 
DIBP, both agencies reissued their notices indicating a desire to work to a single agreement 
covering both agencies. The CPSU evidence records that since the decision was taken for 
there to be single agreement there have been at least 23 bargaining meetings; however only 5 
of those meetings have been since October 2015.5

[9] A protected action ballot order was issued by Commissioner McKenna on 8 May 
20156 with certain undertakings having been given by the CPSU as to the application of 
certain proposed questions to particular groups of employees and also as to the periods of 
notice to be given for the taking of protected industrial action, in both cases should the 
questions be carried upon the ballot. In due course the ballot was carried by a considerable 








[2016] FWC 2526

4

margin on each proposed question with more than 3500 employees voting in favour of each 
question. Relevant to this matter is that questions 8 and 9 both carried, with the questions 
being in the following terms;

“Question 8 – An unlimited number of stoppages of work for periods of up to and 
including 1 hour?

Question 9 – An unlimited number of stoppages of work for periods of more than 1 
hour and up to and including 24 hours?”7

[10] Protected industrial action pursuant to the ballot has been notified to the DIBP on 
several occasions. Without it being a complete register of all the industrial action that has 
been taken by its members employed by the DIBP, the CPSU’s evidence indicates that there 
have been notifications of protected industrial action on at least the following occasions;8

 Between 15 and 30 September 2015;

 Between about 3 November and 16 November 2015;

 Between 7 and 18 December 2015;

 Between 13 July 2015 on 7 August 2015;

 Four hour duration work stoppages in June 2015 and a national stoppage on 1 July 
2015 for a period of two hours;

 3 August 2015, four hour stoppages in all states and territories at various times;

 15 September 2015, four hour stoppage of members in the DIBP in the Australian 
Capital Territory;

 Between 16 and 30 September 2015. stoppages of work for an average of two hours 
in duration per stoppage across all DIBP workplaces including airports;

 9 November 2015, 24 hour stoppage of CPSU members in the DIBP in all states 
and territories;

 Between December 2015 and January 2016 stoppages of 2 to 4 hours duration of 
ABF marine unit employees whilst in port.

[11] Mr Murray’s evidence about the scale of the protected industrial action includes his 
observation that it has evolved over several rounds, having escalated from partial work bans 
on relatively short stoppages to stoppages where action may be taken every hour on the hour. 
He says that the stoppages have escalated to apply more broadly across the DIBP and that the 
combination of those factors creates greater uncertainty for the Department over a longer 
period. While the DIBP has been able to manage the effects of the industrial action to this 
point, including by using replacement employees, in his view “the nature of the industrial 
action has evolved such that it has become much more difficult to deploy available, suitable 
resources to meet operational requirements”.9








[2016] FWC 2526

5

[12] As referred to in the foregoing, Mr Murray’s evidence is that the industrial action has 
evolved and in particular has escalated from partial work bans or short stoppages to stoppages 
of a more sustained nature. The focus of his evidence and the concern of the Department were 
very squarely upon the impact of the protected industrial action as notified since early March 
2016 in the Major Airports and scheduled to continue, on the face of the notification material, 
to 12 April 2016. Protected industrial action was notified as potentially occurring on these 
dates10;

 Tuesday, 22 March 2016 – four airports;

 Wednesday, 23 March 2016 (later suspended by the CPSU following the Brussels 
terrorism attacks) – six airports;

 Thursday, 24 March 2016 (later suspended by the CPSU following the Brussels 
terrorism attacks) – nine airports;

 Friday, 25 March 2016 (later suspended by the CPSU following the Brussels 
terrorism attacks) – eight airports;

 Sunday, 27 March 2016 (later suspended by the CPSU following the Brussels 
terrorism attacks) – nine airports;

 Monday, 28 March 2016 (later suspended by the CPSU following the Brussels 
terrorism attacks) – three airports, but only for one hour of the day;

 Tuesday, 29 March 2016 - nine airports;

 Wednesday, 30 March 2016 – seven airports, with one of those only for one hour of 
the day;

 Thursday, 31 March 2016 – nine airports, but with two of those only for one hour of 
the day;

 Friday, 1 April 2016 – seven airports;

 Saturday, 2 April 2016 – five airports, with one of those only for 15 minutes of the 
day;

 Sunday, 3 April 2016 – seven airports, with two of those only for one hour of the 
day;

 Monday, 4 April 2016 – nine airports;

 Tuesday, 5 April 2016 – six airports, with one of those only for 15 minutes of the 
day;

 Wednesday, 6 April 2016 – five airports;

 Thursday, 7 April 2016 – eight airports, with one of those only for one hour of the 
day;








[2016] FWC 2526

6

 Friday, 8 April 2016 – six airports, with one of those only for one hour of the day, 
and one other for 15 minutes of the day;

 Saturday, 9 April 2016 – eight airports, with one of those only for one hour of the 
day;

 Sunday, 10 April 2016 – four airports, with one of those only for 15 minutes of the 
day;

 Monday, 11 April 2016 – seven airports, with two of those only for one hour of the 
day;

 Tuesday, 12 April 2016 – seven airports.

[13] The suspensions of the protected industrial action by the CPSU following the Brussels 
terrorism attacks included this advice by Rupert Evans, CPSU Deputy National President and 
Team Leader, Border Protection and International Affairs;

“After considering the implications of the appalling terrorist attacks overnight in 
Brussels and the Prime Minister's intervention this morning, and after consultation 
with your senior elected DIBP representatives, the CPSU has made the difficult 
decision to postpone our 24-hour strike tomorrow and rolling stoppages over the Easter 
Weekend.

In making this decision, the CPSU has expressed sympathy with the victims of the 
Brussels attacks and acknowledged heightened concern from travellers.

This has been a difficult decision, but with our strike coming just 24 hours after a 
major terrorist incident in an airport departure hall, there is enormous community 
interest in our strike, concern about airport security and a potential loss of the 
community's support for our members' action were we to go ahead.

We know, you know and even the PM acknowledged that our industrial action does 
not endanger people's security. Nothing has changed in the facts of that today.

The Prime Minister called on the CPSU to call off strike action this morning, saying 
“We strongly encourage them to rethink their call for industrial action and stay at work 
and pursue their complaints, their disagreements with the government through other 
means.”

As you know, the whole point IS OUR MEMBERS DON'T HAVE ANY OTHER 
MEANS – the Department can't negotiate a decent outcome and the Government won't 
talk.”11

[14] The characteristic of the protected industrial action as notified was for there to be 
stoppages of up to one hour at a time at nominated Major Airports, and in most cases at most 
of them. However, the provisions of the notification meant that the protected industrial action 
might occur in any or all of nominated consecutive hours. The protected industrial action 








[2016] FWC 2526

7

notifications allowed stoppages anywhere in the nominated airports, with the exception of 
functions exempted from industrial action.

[15] A notification from Mr Evans to the Secretary of the DIBP pertaining to one of the 
days, on which airports were notified as affected, includes the following;

“Dear Secretary Pezzullo

Notice of industrial action in B2015/491 by CPSU members

In accordance with the requirements of s 414 of the Fair Work Act 2009 (Cth), the 
Community and Public Sector Union (CPSU) provides written notice that CPSU 
members employed by the Commonwealth in the Department of Immigration and 
Border Protection (DIBP) intend to take the following protected industrial action on 
[date].

All CPSU members in the International Terminal of [location]:

1. a stoppage of work starting at 00:00 hours local time and ending at 00:15 hours 
local time.
2. a stoppage of work starting at 05:00 hours local time and ending at 06:00 hours 
local time.
3. a stoppage of work starting at 06:00 hours local time and ending at 07:00 hours 
local time.
4. a stoppage of work starting at 07:00 hours local time and ending at 08:00 hours 
local time.
5. a stoppage of work starting at 08:00 hours local time and ending at 09:00 hours 
local time.
6. a stoppage of work starting at 09:00 hours local time and ending at 10:00 hours 
local time.
7. a stoppage of work starting at 10:00 hours local time and ending at 11:00 hours 
local time.
8. a stoppage of work starting at 11:00 hours local time and ending at 12:00 hours 
local time.
9. a stoppage of work starting at 12:00 hours local time and ending at 13:00 hours 
local time.
10. a stoppage of work starting at 16:00 hours local time and ending at 17:00 hours 
local time.
11. a stoppage of work starting at 17:00 hours local time and en ding at 18:00 hours 
local time.
12. a stoppage of work starting at 18:00 hours local time and ending at 19:00 hours 
local time.
13. a stoppage of work starting at 19:00 hours local time and ending at 20:00 hours 
local time.
14. a stoppage of work starting at 20:00 hours local time and ending at 21:00 hours 
local time.
15. a stoppage of work starting at 21:00 hours local time and ending at 22:00 hours 
local time.

…”12








[2016] FWC 2526

8

[16] The same correspondence separately notified a potential total of 120 hours of 
industrial action on the one day in 8 airports (106 hours in total) and one other locality (14 
hours in total). The ABF summary sheet tendered to the Commission shows that for the day in 
question, protected industrial action may impact on 6 airports for up to 16 hours of the day; 1 
airport for up to 8 hours; 1 airport for up to 1 hour; and 1 airport would be unaffected.13

[17] Another of the notifications relates to a day on which 7 airports may be affected. That 
notice reads, in part;

“Dear Secretary Pezzullo

Notice of industrial action in B2015/491 by CPSU members

In accordance with the requirements of s 414 of the Fair Work Act 2009 (Cth), the 
Community and Public Sector Union (CPSU) provides written notice that CPSU 
members employed by the Commonwealth in the Department of Immigration and 
Border Protection (DIBP) intend to take the following protected industrial action on 
[date – different to that referred to above].

…

All CPSU members in the International Terminal of [location – different to that 
referred to above]:

17. a stoppage of work starting at 04:00 hours local time and ending at 05:00 hours 
local time
18. a stoppage of work starting at 05:00 hours local time and ending at 06:00 hours 
local time.
19. a stoppage of work starting at 06:00 hours local time and ending at 07:00 hours 
local time.
20. a stoppage of work starting at 07:00 hours local time and ending at 08:00 hours 
local time.
21. a stoppage of work starting at 08:00 hours local time and ending at 09:00 hours 
local time.
22. a stoppage of work starting at 09:00 hours local time and ending at 10:00 hours 
local time.
23. a stoppage of work starting at 10:00 hours local time and ending at 11:00 hours 
local time.
24. a stoppage of work starting at 11:00 hours local time and ending at 12:00 hours 
local time.
25. a stoppage of work starting at 16:00 hours local time and ending at 17:00 hours 
local time.
26. a stoppage of work starting at 17:00 hours local time and ending at 18:00 hours 
local time.
27. a stoppage of work starting at 18:00 hours local time and ending at 19:00 hours 
local time.
28. a stoppage of work starting at 19:00 hours local time and ending at 20:00 hours 
local time.








[2016] FWC 2526

9

29. a stoppage of work starting at 20:00 hours local time and ending at 21:00 hours 
local time.
30. a stoppage of work starting at 21:00 hours local time and ending at 22:00 hours 
local time.
31. a stoppage of work starting at 22:00 hours local time and ending at 23:00 hours 
local time.
32. a stoppage of work starting at 23:00 hours local time and ending at 24:00 hours 
local time.

…”14

[18] The same correspondence separately notified a potential total of 82 hours of industrial 
action in 7 airports on the one day. The ABF summary sheet tendered to the Commission 
shows that for the day in question, protected industrial action may impact on 5 airports for up 
to 16 hours of the day; 2 airports for up to 1 hour; and 2 airports would be unaffected.

[19] The notified protected industrial action was significant, both as it took place before the 
interim order was issued by the Commission and as was notified for the remaining days of the 
2016 protected industrial action period. Typically the notified protected industrial action 
could take place anywhere in an airport for up to 8 hours in the morning and the same in the 
afternoon and evening.

[20] However, the notifications did not mean that the protected industrial action would take 
place at those times in those airports, merely that it may. Whether industrial action took place; 
when it took place; and how prevalent it might be throughout the airport would be up to the 
CPSU members concerned.15

[21] The ABF operations at international airports are significant and, no doubt, complex 
operations. Passengers arriving for departing flights to foreign destinations must be processed; 
passengers arriving on flights from other destinations must also be processed. Further, 
passengers arriving from foreign destinations must have their luggage and other effects 
cleared. There may be a necessity for passengers to be referred to more than one ABF staff 
member.16

[22] Because of the nature of international travel, criminal and other undesirable activity 
may take place. Risk assessment and risk control are constant activities for international 
airports. The ABF assesses risks, no doubt, in many ways. Its staff are very diligent in those 
activities and assess risks not only through their own observations, but through intelligence 
received from other organisations. Risk assessment may require tracking certain known 
persons of interest or may require implementation of procedures in respect of persons 
exhibiting a certain demeanour or other attributes. The ABF submitted the organisation’s 
work and functions and risks it faced required it to operate with ever present vigilance.

[23] The evidence clearly shows that the ABF staff available in international airports cover 
many functions. Together, they encompass many skill sets and functions, providing a 
cohesive service to passengers and thereby to the community.

[24] The characteristics of the notified protected industrial action not only had the effect of 
withdrawing labour in certain parts of the airports for an amount of time, but its nature led to 








[2016] FWC 2526

10

the further effect of reducing the ABF’s ability to undertake its functions as effectively and 
efficiently at an airport as would otherwise be the case.

[25] That reduction in service standards or degradation could be offset by the ABF with 
deployment of replacement staff, which it called “surge staff”. The purpose of the surge staff 
was to augment deficiencies in capacity across key areas of the ABF’s operation.17 That is, to 
have a back-up workforce capability that could provide a scaled-up response to a range of 
eventualities; for example, to deal with short-term increases in passenger demand as well as to 
deal with protected industrial action. Surge staff are experienced ABF employees, centrally 
based, who could be expected to work in a variety of functions at an airport; however the 
evidence is that they may not be able to work in all functions.18

[26] The ABF submitted that the scale of protected industrial action, coupled with its 
frequency and duration, presented it with difficulties. Surge staff could not be everywhere 
and, like every other employee, experienced fatigue or exhaustion when required to work for 
long successive periods. The rolling one hour nature of the current stoppages means that some 
hours of a shift may be fully or significantly staffed, but others may not. The ABF considers 
this makes the efficient and effective deployment of surge staff “extremely difficult”.19

[27] The combination of these factors, together with its forward staffing forecasts, cause 
the ABF to consider its available workforce in each airport to be lower than the minimum 
required levels. The further combination of these factors with the ABF’s forecast of passenger 
flow through international airports, and especially as a result of the school holidays occurring 
in most states and territories around the time, led to the ABF considering its organisational 
risk to be intolerable.

[28] The ABF’s evidence is that the weekly passenger flows through the Major Airports is 
around 650,000. A small proportion of that number may have criminal or terrorist intent. The 
function of the ABF is to process the total number of passengers having regard to its risk 
assessments. If staff are depleted or affected by fatigue, it becomes difficult to undertake 
passenger processing to the required standard. Potential risks might be missed, or 
inadequately tracked, or airport congestion – referred to as compression and compaction –
may occur which has its own risk factors, including contributing, in conjunction with reduced 
staffing, to the degradation of border security measures.20 Equipped with knowledge of 
probable wide-scale protected industrial action, people with criminal or terrorist intent may be 
opportunistic in their endeavours and may deliberately aim to move through a particular 
airport if they anticipate less scrutiny than would otherwise be the case.

[29] The ABF thus expected that with sustained high passenger flows and with lower than 
the minimum required staff, the potential for missing a criminal or terrorist activity, or that 
something not be subject to sufficient completion (referred to as a “Missed Alert”), would be 
significantly higher than usual. It did not say there are no Missed Alerts at times when there is 
no protected industrial action, but that the numbers of such misses are low and when they 
occur they are rigorously dealt with through the agency’s integrity review processes.

[30] The ABF also relied for its argument about risks on the likelihood and consequences 
of passenger congestion. A congested airport terminal would potentially both make it more 
difficult to be vigilant, as well as to perhaps have greater consequences should there be a 
serious event.








[2016] FWC 2526

11

[31] The evidence of Mr Murray to which I have regard includes the following;

In relation to the ABF’s operations;

 The DIBP manages very large flows of passengers, revenue and cargo, with those 
flows of people and commodities increasing significantly in recent years. The 
ABF’s detection of illicit movements of drugs and firearms is significant.21

 A description in some detail as to the work performed by ABF employees at 
airports and the significance of certain functions within the airports to the 
organisation’s ability to assess and control risks. His evidence gave details of the 
nature of alerts received and their sources and volume.22 It also took the 
Commission to the different groups of employees that might be found at airports 
and those working away from the physical border and provided an opinion about 
the impact of operating with staff numbers below the minimum required numbers.23

In relation to the ABF’s assessment of risk;

 The ABF conducts risk assessments of people and goods arriving into and out of 
Australia every day and responds to risks identified whether through its own 
activities or as notified by others.24 Its operations involve considerable complexity 
and cooperation with external agencies and partners domestically and 
internationally and it engages employees with specialist skills for identified roles.25

 His evidence canvassed threats to Australia stemming from international security as 
well as organised crime, providing evidence about the impact of such activities, 
drawing upon his experience in policing and with the ABF.26 Within the context of 
certain identified examples of detections within the week prior to the settlement of 
his witness statement, Mr Murray offered an opinion about the consequences of 
Missed Alerts.27

On the effects of the protected industrial action;

 Mr Murray offers the opinion that the current industrial action has reduced available 
numbers of employees with specialist skills which is “increasingly compromising 
the DIBP’s ability to assess and respond” to the risks identified and assessed. He 
considers that the current industrial action “is now creating greater disruption and 
uncertainty across critical functions” including its ability “to effectively deploy 
additional surge staff and meet operational requirements”.28 His evidence was also 
that there has been a high rate of participation rates by DIBP employees in various 
rounds of industrial action in 2015.29

 The rolling one-hour nature of the stoppages creates uncertainty as to when 
protected industrial action will take place. He put forward that in practice “some 
hours of a shift are fully or significantly staffed and some hours of a shift are not. 
This means that efficient and effective deployment of surge staff is extremely 
difficult.”30

 There are some complexities associated with the use of surge staff, including that in 
some instances such employees are the only ones who can replace others, and in 








[2016] FWC 2526

12

other instances the surge staff do not have the skills and capabilities to be used in 
those functions. There is a limit on the time that the available surge staff can 
perform duties because of the maximum duration of shifts and the requirement for 
rest periods; this in itself may contribute towards a shortfall in staff.31

 His evidence gave examples of what he considered to be the practical effect of staff 
shortages caused by protected industrial action.32

 His evidence also indicated estimated staffing shortfalls that might arise from 
protected industrial action.33 The shortfalls were identified numerically in a table of 
staff in several categories at each of the Major Airports. He connected those 
estimated shortfalls with his opinion about the impact.34

[32] A large part of the ABF’s case for its view that its risk profile had moved to an 
unacceptable point, as articulated through Mr Murray’s evidence, was that the number of staff 
it would have available to it would be fewer than the minimum acceptable level. The ABF 
evidence included an assessment comparing its minimum needs with the staff available to it; 
both from regular staff rosters and the availability of surge staff, as well as taking into account 
its assessment of the numbers of staff who would not be available because they would likely 
participate in the industrial action. Such forecasts were criticised by the CPSU, but were not 
shown to be inherently or substantially wrong.

[33] At least in respect of the proposition on staffing shortfall, the CPSU argues the 
Commission ought not to accept the ABF’s evidence about its estimates about staffing 
shortfall. They are imprecise and to the extent they rely upon the evidence of Mr Murray, it is 
said he repeats without attribution the data of others, without explaining the assumptions 
made in preparation of the data; and, to the extent he is put forward as an expert witness, is 
not an expert about the matters he asserts, for reason of having been with the ABF only since 
August 2015, and because his evidence does not set forth the basis of his expert opinions, 
which would ordinarily be required for the acceptance of his evidence as expert.

[34] The CPSU argues that in contrast the evidence of its witnesses shows there is not a 
staff shortfall, or if there is one, its impact on risk assessment may be remedied by slowing 
passenger movements down and maintaining an otherwise rigorous scrutiny of passengers, 
thereby ensuring no alerts are missed.

[35] In the context of the matters requiring determination, I am prepared to accept Mr 
Murray’s evidence. He is in a leadership role within the ABF and is sufficiently 
knowledgeable about the scale of protected industrial action being experienced, and its impact 
on the ABF’s resourcing, for his evidence to be capable of acceptance. His experience in his 
present role, together with his significant law enforcement experience prior to joining the 
ABF, relevant as it is to some of the matters about which he gave evidence, enables his 
evidence to be viewed both as credible and authoritative.

[36] Giving evidence that protected industrial action depletes available staff resources in a 
particular way or to a particular extent is plainly evidence available to him as a senior 
manager within the ABF. To the extent that, as a senior manager, he is required to rely upon 
data prepared by others for the formation of his views, it is not remarkable in the context of 
matters dealt with by the Fair Work Commission and does not reduce his capacity to give that 
evidence in a manner which is capable of acceptance. Giving evidence that protected 








[2016] FWC 2526

13

industrial action degrades the services and functions of the ABF, thereby increasing its risk 
profile, is the exercise of a professional judgement that, upon the basis of his extensive law-
enforcement background, is open to him and one that is open for the Commission to accept.

[37] That is not to say that Mr Murray’s evidence is to be accepted by the Commission 
without question or demur, or that the evidence of other witnesses could not lead to a 
preference for their evidence and its persuasive effect. The matters that must be addressed by 
the Commission in consideration of an order under s.424 are to do with whether or not 
protected industrial action has threatened, is threatening, or would threaten to endanger the 
life, personal safety or health, or the welfare, of the population or of part of it. Evidence on 
those matters may plainly be drawn from many sources, including evidence that may compete 
directly with the opinions proffered by Mr Murray. The task of the Commission is to resolve 
the matter in a way that involves a measure of subjectivity or value judgment; Coal and Allied 
Operations Pty Ltd v AIRC.35 The evidence of others may well resolve that task in favour of 
those who argue that there is no such threat.

[38] The Commonwealth spent significant time in its cross examination of the two CPSU 
witnesses who were ABF employees, Susan Jones and Michael Suijdendorp. The 
Commonwealth endeavoured to have them accept that their expertise and experience was 
nowhere near that of Mr Murray’s, concomitant with the view that such opinions as they may 
offer were not to be accepted by the Commission, especially on the subject of the impact of 
protected industrial action upon the ABF’s risk profile.

[39] Such propositions, if accepted, are an invitation to the Commission for the adoption of 
an incorrect principle.

[40] The correct principle to be followed in this matter is whether there is evidence of the 
harmful effects of the protected industrial action; not of whether an applicant’s senior 
leadership are well-qualified and experienced and its staff not.

[41] Resolution of the question before the Commission is instead a matter of evidence, not 
of organisational hierarchy or resume experience, and it is not inconceivable a relatively 
lower classified employee, but one with exposure to national leadership within their union, 
could give persuasive and cogent evidence about the impact of protected industrial action and 
especially how it impacted upon the ABF’s risk profile. That such did not occur in this case is 
not a question of the CPSU witnesses’ status within the organisation or their comparative 
work and life experience, but rather the extent to which they were able to coherently link the 
design and delivery of the protected industrial action with the overall work either of a given 
airport or all of the Major Airports, and in turn the impact that such work had on the ABF’s 
overall risk profile.

[42] Ms Jones’ evidence included the following matters;

In relation to the ABF’s operations;

 With reference to the possibility that the ABF might choose to emphasise either its 
law enforcement activities or the facilitation of passenger and cargo movements, 
she has seen the Department’s focus shift, on more than one occasion, between law 
enforcement and facilitation, and that “management have chosen to respond in 
instances of PIA36, in a way that facilitates movement of people and goods rather 








[2016] FWC 2526

14

than focusing on law enforcement”.37 In relation to potential Missed Alerts, it was 
Ms Jones’ opinion that a missed intervention could occur at any time for any 
number of reasons.38 She also gave evidence that investigation work in an airport is 
not affected by protected industrial action.39

In relation to the ABF’s assessment of risk;

 In response to Mr Murray’s view that the overall effect of the current and planned 
PIA presents an unacceptable threat,40 Ms Jones disagrees, giving evidence that “the 
major threats are transnational and organised crime and terrorism. These risks are 
omnipresent, particularly with respect to terrorism, most of which appears to be 
home grown in recent incidents.”41 Further, Ms Jones’ opinion is that there wasn’t 
“any particularly great ingenuity” displayed in the Paris and Belgian terrorist 
attacks, putting the view that “these are standard tactics that have been employed by 
terrorists, the world over, for many years”.42

 While agreeing she was “poorly placed” to disagree with Mr Murray's assessment 
of the level of risk to the community, she maintained her opinion that “[t]here is no 
more risk now than there has been at other times in the past.”43

 In connection with the evidence given by Mr Murray about the need for risk 
assessment and the impact upon it by protected industrial action, Ms Jones refers to 
the deleterious effects of the ABF seeking a downgrade in staff classifications and 
the disbanding of certain teams.44

 While her witness statement contradicted Mr Murray’s evidence in relation to his 
overall risk assessment, she agreed in oral evidence to withdraw the final sentence 
of the following;

“I disagree with Mr Murray’s overall assessment that PIA is creating risks to 
safety etc. In my opinion, the risk would be created because management will 
choose to prioritise facilitating speedier access through the airport, in order to 
create the appearance that PIA is having no effect. They appear to want to 
choose this outcome, ahead of security concerns.”45

On the effects of the protected industrial action;

 Responding to Mr Murray’s statement that the DIBP has been unable to maintain 
requisite staffing, Ms Jones stated that “union members have advised me that they 
have witnessed greater than ordinary numbers of staff at airports, while PIA took 
place.” She makes the point that certain threat assessments are undertaken by a unit 
which is exempt from taking protected industrial action.46 Ms Jones also disputes 
Mr Murray’s evidence about there being a declining available number of surge 
staff, saying that she has been advised, without specifying by whom, that Sydney 
airport had access to a number of staff available for deployment greater than that 
contemplated in Mr Murray’s evidence.47

 While the ABF may not be able to identify in advance which block of notified 
protected industrial action is going to be taken, they have the ability to deploy staff 
to manage the period that is. Although Ms Jones gave evidence that the ABF plan 








[2016] FWC 2526

15

for and do “instantly substitute a workforce in all sorts of critical areas of 
international airports”48, she conceded that the architecture of the protected 
industrial action would likely put significant pressure on the ABF in identifying and 
responding to risks at all Major Airports, with the risks increasing with the rate of 
participation in action.49 However, she did not agree that the multiple occurrences 
of protected industrial action would add to the pressures imposed on the ABF.50

 Ms Jones’ opinion is that there is not an unacceptable risk to life, personal safety, 
health and welfare of travellers and the community arising from the protected 
industrial action. Instead “there is no more risk now than there has been at other 
times in the past”. She argues that “increased risk occurs whenever technology or 
systems fail and when management decide to not conduct Real Time Assessments 
(which they do for a variety of reasons). This also occurs when PIA is not 
occurring.”51

 Finally, in relation to Mr Murray’s opinion about the impact of operating with staff 
numbers below the minimum required numbers, Ms Jones’ evidence is that the 
subject matter has not been raised in that way previously, notwithstanding that 
protected industrial action has been engaged in for some time.52 Ms Jones also gives 
evidence that if there are insufficient staff to process alerts both cargo and 
passengers can simply be held,53 giving the opinion that “it is possible to action all 
alerts, if it is accepted that there may be a delay in passenger processing”.54

[43] Although Ms Jones has worked for the ABF and its predecessor organisation for 
almost 15 years and has an understanding of the functions of the organisation and how it 
works, her evidence was significantly from the perspective of the position she holds as a 
CPSU section secretary. Where opinions were offered, they were generalised, without much 
elaboration or seeming foundation. Her experience as an employee of the organisation is 
somewhat limited, at least in the range of positions held or functions undertaken, and when 
she endeavoured to provide a perspective of how protected industrial action may impact on 
the work of the ABF, she faced some difficulties. She was not able to provide a 
comprehensive analysis of how protected industrial action may or may not impact upon the 
organisation as a whole and, for that reason, her evidence must be regarded both as 
incomplete on the subject of the impact of protected industrial action upon the ABF’s risk 
profile, as well as being far more speculative when opinions on the subject were offered by 
her.

[44] While I accept she honestly and earnestly believes the impact of protected industrial 
action either within a particular airport or all of the Major Airports may not be an undue 
burden upon the ABF, or that its effects may be offset by the ABF, her evidence did not 
persuasively explain how she came to that opinion, and did not sufficiently address her 
assessment of the ABF’s risk.

[45] In overall context, I therefore do not prefer Ms Jones’ evidence to that of Mr Murray’s 
on the question of the impact of protected industrial action, or the risks faced by the ABF 
from it and how they may be offset.

[46] Mr Suijdendorp has been employed by the ABF and its predecessor agencies for over 
18 years. However his evidence is substantially that of someone experienced only in the 








[2016] FWC 2526

16

airport in which he is presently employed and necessarily his evidence requires viewing 
through that frame. His evidence includes, particularly as to factors of congestion, that;

“There are mitigation strategies available to the department. One such strategy would be 
to process passengers more slowly, but completely, and as per normal procedure. This 
is not the response approach which is currently being taken by the ABF in all 
scenarios.”55

[47] Mr Suijdendorp’s evidence also endeavoured to deal with Mr Murray’s observations 
about there being an unacceptable and increasing risk to the travelling community. About this, 
Mr Suijdendorp gives evidence that;

“The personal safety, health and welfare of travellers has more traditionally been the 
remit of the Australian Federal Police and airline security. There is always some risk to 
the Australian community. My opinion is that there are enough mitigation strategies 
currently available to the department, to keep the risk below an unacceptable level. I 
mean this in terms of the mitigation strategies which are currently in use, and with 
respect to mitigation strategies which are available but not currently in use.”56

[48] Other matters on which Mr Suijdendorp gave evidence included the following;

In relation to strategies available to the ABF to deal with industrial action;

 He puts forward that the ABF has not utilised an option available to it, which was to 
train additional staff in the areas in which it needs replacement staff, given that it 
had “adequate time to prepare”.57

 He also puts forward the view that the exemptions to protected industrial action 
undertaken by the CPSU at the time of making the protected action ballot order are 
adequate to address the risks in a wide range of locations.58

On the effects of the protected industrial action;

 His evidence also puts forward the proposition that at least some of the risks 
referred to by Mr Murray would be dealt with by other agencies or officers of the 
ABF not participating in industrial action.59 He has seen no evidence of 
opportunistic behaviour that would take advantage of protected industrial action.60

From time to time, the ABF prioritises the work to be done, or functions to which 
staff are assigned.61 Mr Suijdendorp’s witness statement also relies on the 
proposition of slowing passenger movements down, providing the opinion in 
relation to certain risk assessment matters, that all of the functions “could be 
performed fully if passenger processing were processed more slowly with the less 
trained staff”.62 He does not consider that slowing passengers down would create 
risks;

“In my opinion, passenger congestion does not, of itself contribute to the 
degradation of border security measures. Passenger congestion is normal at 
various times in airports and in my experience I have never observed it to be 
seen as a concern in terms of security.”63








[2016] FWC 2526

17

 He considers that other functions have not been impacted by the industrial action, or 
that, in a particular case, “there have always been some level of “surge” staff 
available to perform this role and in some cases more staff are available than 
usual”.64 It is his opinion, informed by unnamed others;

“... that one of the reasons that some staff are no longer volunteering for surge 
activities, is because they were treated badly by the DIBP in previous rounds. 
An example of this treatment is surge staff being flown into [one airport from 
another place] arriving at 2300hrs and being expected to work a 12 hour shift 
from Midnight. DIBP could easily make commitments to these people about 
hours of work and better treatment to encourage them to volunteer”.65

 It is his opinion that;

“... given the exclusions from PIA and the department’s capacity to surge staff 
to affected areas, the threat to Australia’s borders is being managed adequately, 
without unacceptable risk”.66

[49] I consider Mr Suijdendorp’s evidence on these and other matters, in which he offered 
a different opinion to that of Mr Murray, to be well-intentioned, but ultimately too general and 
insufficiently connected to the factors identified in Mr Murray’s evidence for it to be 
preferred to Mr Murray’s. Processing passengers more slowly, but completely, may well be 
plausible, however Mr Suijdendorp did not see congestion to be a security risk67, and 
appeared not to have an insight into the risk factors which may then arise. He did not 
sufficiently or cogently elaborate upon the alternative mitigation strategies available but not 
currently in use.

[50] In overall context, I therefore do not prefer Mr Suijdendorp’s evidence to that of Mr 
Murray’s on the question of the impact of protected industrial action, or the risks faced by the 
ABF from it and how they may be offset.

[51] Mr Evans is the CPSU’s Deputy National President and has overall operational 
responsibility for members employed in the DIBP, and has had that responsibility since 
March 2013 and has represented employees in the Department’s predecessors since 2002. His 
evidence is that he has had “extensive experience with the operations of, and issues arising in, 
the ABF and DIBP”.68 His evidence on matters relating to those requiring determination in 
this application and to which I have had regard includes the following;

In relation to strategies available to the ABF to deal with industrial action;

 The Department has put in place several measures in response to the industrial
action, including additional staff deployment; changes to practice and procedure 
and the use of casual workers.69

 In more recent periods of protected industrial action, attempts to cover absences 
with redeployed staff have been less successful, partly because;

“In the most recent round of industrial action the Department directed 
employees from other work areas like container examination, detector dog 
units, and air cargo. However, the Department knows that our density in these 








[2016] FWC 2526

18

areas is greater and therefore employees are more likely to observe the 
industrial action which has been notified. This is what has been occurring. The 
CPSU has been given no explanation by Mr. Murray why the original process 
for dealing with the industrial action (i.e. Canberra staff) has been altered.”70

 Surge staffing in some areas of the airport operations actually matched the ordinary 
staffing levels in periods outside protected industrial action.71

On the effects of the protected industrial action;

 The CPSU has exempted the majority of persons that the DIBP has requested them 
to from taking protected industrial action72, including exemptions to certain work 
for grounds particularised in his statement; including for compassionate, health and 
safety, and national security reasons.73

 The CPSU have agreed to provide more than the required minimum notice periods 
of protected industrial action, and that such “provides the DIBP with ample time to 
prepare and respond to our industrial action”.74

[52] Mr Evans’ evidence also did not persuasively address the matter of how the design and 
delivery of the protected industrial action impacted upon the ABF’s risk profile. Instead of 
persuasively answering the propositions proposed by the Commonwealth, including that the 
protected industrial action was either in an altogether different and more impactful form than 
earlier rounds, or that its design and delivery would dangerously affect the ABF’s risk profile, 
many of his answers to questions put to him were little more than generalised submissions.

[53] By the time he came to give his evidence, the Commission had issued an interim 
order, being satisfied there was a sufficiently arguable case that the protected industrial action 
has threatened, is threatening, or would threaten to endanger the life, the personal safety or 
health, or the welfare, of the population or of part of it. While it could reasonably be expected 
that, of the three CPSU witnesses, Mr Evans would give evidence comprehensively 
contradicting Mr Murray’s risk analysis, for the reason not only of his national union role but 
also his experience, gained both inside and outside of the context of bargaining in the 
DIBP,75, including operational experience in the areas of law enforcement, national security 
and border operations76 such did not persuasively occur.

[54] In overall context, I therefore do not prefer Mr Evans’ evidence to that of Mr Murray’s 
on the question of the impact of protected industrial action, or the risks faced by the ABF 
from it and how they may be offset.

[55] I therefore prefer and accept Mr Murray’s evidence to that of the CPSU’s witnesses.

[56] Acceptance of this evidence in turn leads to findings, which I make, that the effects of 
the protected industrial action could not be entirely offset by the deployment of surge staff 
and that the ABF was faced with having fewer available employees than the minimum 
acceptable levels because of the effects of the protected industrial action, including its scale 
and duration. Further, it was not an answer to the protected industrial action to merely slow 
the processing of passengers, because to do so brought with it its own risk factors. It is also 
the case that, because of the protected industrial action, the overall risk profile of the ABF had 
moved to an unacceptable level.








[2016] FWC 2526

19

[57] Viewed in total, the evidence leads to a finding that, to the time that the Commission 
issued its interim order on Sunday, 3 April 2016, the protected industrial action then notified 
and being undertaken was threatening and would continue to endanger the life, personal 
safety or health or welfare of the population or part of it.

[58] An interim order of the Commission pursuant to the provisions of s.424 and 589 of the 
Act suspending the protected industrial action was issued by the Commission on 3 April 
2016. That order was replaced by a further order on 6 April 2016 giving effect to the 
provisions of s.424(4) of the Act, which required a mandated interim order to be made for the 
reason that the Commission was unable to determine the substantive application within five 
days after it was made.

[59] There has therefore been no permissible protected industrial action since the original 
interim order was given on the evening of 3 April 2016. Further, the evidence shows that the 
latest date for which notice had been given by the CPSU for the taking of protected industrial 
action was 12 April 2016, which date is obviously in the past.

[60] Therefore, having made the requisite threshold findings under s.424(1) of the Act, the 
question arises about the appropriate order to be made at this time.

[61] In this regard, the Commonwealth does not seek the termination of protected industrial 
action, noting that it has not conducted its case on that basis,77 and instead presses a 
suspension of the protected action for the time period set out within its original application, 
which is for a period of three months.

[62] For its part, the CPSU argues that in the event the Commission is satisfied a final order 
should be made, any suspension should be of very limited duration.78 In this regard it notes 
the following factors should be taken account of by the Commission in its decision;

“61. The school holiday period finishes on 24 April 2016. Even if the Commission 
dismissed the application immediately after the submissions on 13 April 2016, as a 
result of the provisions of s 430 of the FW Act, which requires a fresh notification, and 
the terms of the PAB79 agreed undertakings, which requires 7 clear working (ie non 
weekend – see s 12 of the FW Act) days notice, the CPSU could not commence 
protected industrial action before 25 April 2016.

62. Moreover this case is different from the cases where bargaining has been of a 
relatively short nature and suspension is made for a long period of time in order that 
substantial bargaining can take place in the hope that an agreement can be reached. In 
this case substantial bargaining has already taken place. Progress in negotiations has 
only occurred when prompted by protected industrial action. Any lengthy period of 
suspension will allow the applicant to refuse to bargain in a meaningful way.

63. Moreover the general approach to the statutory test discussed above is also 
applicable to s 427 of the FW Act. In specifying the period of any suspension, the 
Commission should be conscious of the disadvantage to the respondent’s members of 
not being able to take protected industrial action and to legitimately apply pressure on 
the applicant during any period of suspension.”80 (references omitted)








[2016] FWC 2526

20

[63] The CPSU also argued that the suspension of the protected industrial action within the 
DIBP would have the effect of suspending it for CPSU members employed throughout the 
Department and not just those employed within the ABF or the Major Airports.

[64] The evidence before the Commission, and which I have accepted, is that the protected 
industrial action as notified and taken was very significant, bearing in mind that it was 
suspended for five days after the Brussels terrorism attacks, and then terminated within a 
week of it being resumed.

[65] The protected industrial action had its serious effects because the ABF had the 
required advance notification of when and where industrial action might take place, but not 
much more. While it satisfies the legislated requirements, the uncertainty surrounding what 
will occur, and when and where, creates a very large risk for the ABF. It might have a little 
industrial action, or none at all, or the absence of every union member for every hour notified 
in every airport. The proposition advanced by the CPSU that the legally required notification 
has been given to the ABF is no answer to the escalated risks now identified by the ABF.

[66] For very large parts of each working day in the majority of the Major Airports, the 
ABF might be faced with significant industrial action. The evidence is that it was faced with 
this eventuality, and with rising participation rates. Its capacity to deploy staff to plug the 
gaps that would be left by the industrial action was necessarily on the assumption either that 
all staff would not be present for the whole time or, if it was not to follow a comprehensive 
replacement strategy and instead to deploy only partial replacements, to take the risk that its 
replacement staff might happen to be in the right place at the right time. This was not a 
circumstance in which an entire service was to be closed with the consequential implication 
that passengers or flights simply had to be turned away.

[67] The evidence compellingly illustrates a highly sophisticated plan for industrial action 
in which staff may be withdrawn at many locations, for many hours of the day. A 
consideration for when there were to be walk-offs was the level of impact it would have at 
that time.81 It also compellingly shows that the intention of the action was to wear down the 
capacity of the ABF to avoid the action through deployment of surge staff, for reason of the 
action being sustained for an ongoing period. Without question, the evidence shows the 
protected industrial action to have had a suffocating effect. The capacity of the ABF to 
undertake its core functions was seriously affected.

[68] The evidence also shows that the CPSU’s insight as to the effect of the protected 
industrial action is limited. It simply does not concede that the industrial action has the 
consequences that the Commonwealth contended or that has been found.

[69] The CPSU is correct to draw the Commission’s attention to the point it makes, 
referred to above, to the effect that an ongoing suspension will disadvantage its members in 
the exercise of their bargaining power and that, in its view at least, progress in negotiations to 
date has only been prompted by industrial action. Even so, such proposition does not 
persuasively draw the Commission to the proposition either that an ongoing suspension is 
unnecessary for reason that the April school holidays are nearly passed, and that the current 
notifications of protected industrial action have all passed, or that any suspension should only 
be for a very limited duration.








[2016] FWC 2526

21

[70] I consider the evidence of a deterioration in the ABF’s risk profile to be serious and 
compelling. I consider that it outweighs the disadvantage to employees that a further 
suspension might bring. I also consider that it outweighs the disadvantage of suspension 
because it would require suspension of protected industrial action for CPSU members 
employed throughout the DIBP and not just those employed within the ABF or Major 
Airports.

[71] In assessing applications for suspension or termination of industrial action, the 
Commission must be satisfied of an appropriate evidential basis for the making of an order.82

[72] In the Full Bench matter that set this proposition, dealing with protected industrial 
action in the Victorian public health system including public sector acute, aged care 
community health facilities, the Full Bench considered that the evidence showing the 
protected industrial action had adversely affected the quality and timeliness of treatment that 
could be provided to patients and that its likely cumulative effect was to decrease over time 
the capacity of the system, was sufficient to satisfy the appropriate evidential basis to make an 
order.

[73] In making its findings, the Full Bench had regard not only to the impact of protected 
industrial action on patients and the like, with that impact being to endanger their safety 
health or welfare, but also to the aggravation that continuation of the protected industrial 
action might cause.83 In another matter, NTEU v Monash University84, the Full Bench found 
that endangerment need not be to physical harm, or its probability, but to the probability of 
the deleterious impact of the industrial action on students’ welfare because of a ban on 
reporting examination results. This was for the reason that there was a probability of students 
losing, because of the action, the opportunity to sit supplementary examinations85, which may 
then threaten students’ mental health.86

[74] In deciding matters under s.424, the Commission has also had regard to the efforts 
taken by an employer to mitigate the impact of protected industrial action, or the steps they 
might take to mitigate. The Commission has found that the availability of sufficient mitigating 
avenues is reason for it not to be satisfied of the legislative criteria needed to make an order. 
In relation to the disruption of train services in Melbourne, the Commission was unpersuaded 
by “generalised predictions” about the consequences of protected industrial action or whether 
the other “many things” that could have been done in mitigation by either the applicant 
employer, or the travelling public.87

[75] In another matter, even though a significant number of people’s welfare may have 
been impacted on by protected industrial action disrupting Melbourne’s tram service and that 
the Applicant’s mitigation efforts were to be applauded, more could have been done in the 
way of mitigation.88 Further, the alternatives available to passengers led to the Commission’s 
consideration there was “a tenuous basis” for a finding under s.424(1) and that to make an 
order would be founded “on the basis of a generalised prediction as to the likely consequences 
of the action”.89

[76] The Commission has also taken into account as a relevant factor, in relation to 
findings under s.424, that there was an extended time period for the giving of protected 
industrial action above the minimum period of three working days prescribed in s.414(2) of 
the Act.90








[2016] FWC 2526

22

[77] I am satisfied that in this matter the widespread nature of the notified protected 
industrial action, coupled with heightened employee participation and a deteriorating capacity 
of the ABF to mitigate its effects aggravates the risks faced by the ABF in performing its 
functions. I am satisfied as a result that ABF will have difficulty in properly discharging its 
functions with a continuation of protected industrial action.

[78] I am satisfied that the design of protected industrial action makes it difficult for the 
ABF to take actions in mitigation and that the design deliberately and systematically reduces 
the ABF’s mitigation capacity the longer the action continues. In a singular or short burst of 
protected industrial action those features themselves increase the risk that the ABF may miss 
something to which further attention should be given. The longer the duration of the periods 
of protected industrial action the more that risk is aggravated. The evidence shows difficulties 
emerge with obtaining replacement staff to mitigate the efforts of the continuing protected 
industrial action.

[79] It becomes foreseeable that criminal or terrorist opportunistic behaviours become more 
likely as a result, since systemic weaknesses can be more easily identified and exploited. The 
evidence shows this risk is not merely foreseeable, but that such behaviour more than likely 
occurred within the recent period of protected industrial action.

[80] The likelihood of further undesirable opportunistic behaviour in turn increases the risk 
of potentially severe adverse consequences if the ABF at a particular airport makes an 
operational decision choosing between the proper and expected scrutiny of arriving and 
departing passengers on the one hand and facilitation of smooth passenger flows on the other. 
If it decides to emphasise the proper scrutiny of passengers, in the way advocated by the 
CPSU witnesses, that choice brings with it the attendant risks from congestion. If an emphasis 
is given to facilitating passenger flows, it risks missing something that should be given greater 
scrutiny, the consequences of which may well range from serious to catastrophic.

[81] In combination these factors lead the Commission to being satisfied that the protected 
industrial action has threatened, is threatening, or would threaten to endanger the life, 
personal safety or health, or the welfare, of the population or of part of it.

[82] The powers to make an order under s.424 were said by the Full Bench in NTEU v 
University of South Australia to be intended to be used in exceptional circumstances and 
where significant harm is being caused by the action.91 However, the later Full Bench in 
Monash University v NTEU92 clarified the legislative test in this way;

“[20] In NTEU v University of South Australia we do not consider that the Full Bench, 
by its use of the expressions “exceptional circumstances” and “significant harm” in the 
passages quoted in the Decision, was intending to establish criteria or tests in 
substitution for or in addition to those found in the language of s.424(1) itself. Rather 
the Full Bench used those expressions only to characterise the legislative intention that 
could be gleaned from the Explanatory Memorandum to the Fair Work Bill 2008. It is 
no doubt the case that the circumstances which would satisfy the criterion in 
s.424(1)(c) are likely to be exceptional in the sense of being atypical and out of the 
ordinary, and that a threatened endangerment to life, personal safety, health or welfare 
under the subsection may well involve the affliction of significant harm. However, that 
does not mean that in determining any particular case, expressions of that nature not to 
be found in the actual language of the statute should be determinative of the outcome, 








[2016] FWC 2526

23

and we do not understand the NTEU v University of South Australia to stand for any 
contrary proposition.

[21] In determining the matter on the basis that the threatened endangerment to health 
and welfare was not “sufficiently large to attract the description ‘significant’”, his 
Honour applied an incorrect, exteriorly derived test. It is not mere semantical 
nitpicking to find error on the basis of his Honour’s use of the word “significant” in 
this way; his Honour’s own reasoning makes it transparent that his application of the 
standard of “significant harm”, which he regarded himself as bound to do by NTEU v
University of South Australia, altered the outcome of the case.”93

[83] The latter of the above paragraphs went to that part of the decision at first instance in 
which Vice President Lawler had found the current nature of the bans was not sufficient to be 
significant because of the way in which exemptions were then operating;

“[61] Given the way in which the exemptions regime is now operating and the way in 
which it will likely operate in the future, I do not consider that the present and 
continuing threats of endangerment to health or welfare of the remaining group of 
students to be sufficiently large to attract the description “significant”. The exemptions 
regime, notwithstanding its minor continuing defects, is adequate in a practical, real-
world sense to abate the threat of endangerment on account of the Results Ban to a 
level that falls below the threshold required by s.424(1).”94

[84] In Monash University v NTEU, the Full Bench upheld the University’s appeal and 
ordered the suspension of protected industrial action in the form of the “results ban” referred 
to above for a period of two weeks from the day after it announced its decision on the appeal. 
It also declined to agree to the duration of the suspension sought by the University which was 
eight weeks.95 It did so within the context of an undertaking from the NTEU that there would, 
beyond the suspension, be no withholding of results referable to the then current round of 
assessments. The undertakings were the basis on which the Full Bench determined a 
suspension of two weeks was appropriate.96

[85] The Full Bench also contemplated a termination order, saying that it “initially 
considered” one, but did not pursue it because of the parties’ strong preference for a 
suspension of the protected industrial action.97

[86] The Full Bench also considered, but did not resolve, a question of an order being made 
in respect of protected industrial action without a future endangerment, which was a question 
raised in the course of the cross-appeal by the NTEU;

“[59] The Decision does raise a novel question as to whether s.424(1) requires the 
making of an order in respect of protected industrial action which at some time in the 
past has threatened to endanger the life, personal safety, health or welfare of part of the 
population but no longer does so. Prima facie, we think it unlikely that it was the 
intention of the legislature that s.424(1) would require or permit the making of orders 
which, at the time of their  making, are known to have no substantive operative effect.

[60] However, that question will remain one for another day, because we consider 
that the NTEU’s appeal lacks sufficient utility to justify the grant of permission to 
appeal. As earlier stated the Order was purely nominal in nature and expired some 








[2016] FWC 2526

24

weeks ago now. Its only practical effect was that, by virtue of s.430, the NTEU was 
required to issue a new notice of protected industrial action. The issue of the stay order 
had the practical effect of making this statutory requirement inapplicable pending the 
hearing of the appeals, and in any event we were informed that the NTEU had, out of 
more abundant caution, promptly issued a new notice. The order we have made 
prospectively suspending the Results Ban has rendered these past events irrelevant. No 
identifiable practical purpose can be served by us determining the NTEU’s appeal.”98

[87] While declining to make a finding on the matter on that occasion, a similar but not 
identical question was considered and determined by the Full Bench in NTEU v University of 
South Australia;

“[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”.”99








[2016] FWC 2526

25

[88] While I note the commentary of the Full Bench in Monash University v NTEU about 
the question they pose, the subject has not been determined.

[89] In Victorian Hospitals' Industrial Association v Australian Nursing Federation
protected industrial action was suspended by the Full Bench for a period of 90 days.100 The 
action suspended included bans that were stated to “remain in place until a new agreement is 
reached”, but with specified exemptions and regard to matters of safety.101 In suspending the 
industrial action, the Full Bench noted the ANF’s views of the impact of the action;

“[45] The ANF submitted that the protected industrial action was not such that there 
is or has been any endangerment to the health, welfare or safety of any person. It was 
said that the industrial action being taken has been refined since previous disputes in 
Victoria and that the ANF has very carefully crafted the nature of the industrial action 
to ensure that there is no endangerment in the relevant sense to anyone. In this regard it 
was said that there is a speedy and efficient way to resolve any issues that may arise. It 
was also submitted that cancellation of elective surgery and extended stays in 
emergency are things which happen throughout the State every year and, although they 
might be undesirable or cause inconvenience, they do not endanger people.”102

[90] When it decided the matter, the Full Bench considered, but disregarded, the prospect 
of termination of the protected industrial action. Its decision on the subject stated this;

“[58] In all the circumstances, we are satisfied on the basis of the evidence that the 
protected industrial action being engaged in by the ANF and its members is 
threatening or would threaten to endanger the personal safety or health, or the welfare, 
of people in need of public health care services in Victoria. Accordingly an order 
should be made under s.424 of the Act.

[59] The VHIA and the Victorian Government sought an order terminating the 
protected industrial action. The ANF and the HSU submitted that an order for the
suspension of the industrial action would be more appropriate in the circumstances. 
Either order would bring to an end the right to take protected industrial action. A 
termination order may lead to FWA making a workplace determination under Division 
3 of Part 2-5 of the Act. A suspension order may allow protected industrial action to 
be resumed after the period of suspension, subject to relevant notice requirements 
being observed (see ss.429-430).

[60] In considering whether a termination order or a suspension order should be 
made we have had particular regard to the stage reached in the negotiations between 
the parties and to the recently commenced conciliation processes. We note that the 
negotiations between the parties for the new agreement only commenced in mid-
September 2011 and that the s.240 dispute resolution processes before a member of 
FWA began on 8 November.  Although there will undoubtedly be a range of difficult 
issues to be addressed by the parties, we consider that the negotiations are still at a 
relatively early stage. We have therefore sought to provide a basis for the parties to 
continue with the negotiations in a way which is consistent with the bargaining 
scheme of the Act but without the continued damaging effects of the industrial action. 
An order suspending the protected industrial action for a period of 90 days will bring 
to an end the protected industrial action and will allow the discussions and 
negotiations between the parties to proceed, with the assistance of FWA. It will also 








[2016] FWC 2526

26

allow the parties to focus their efforts on seeking to resolve the differences between 
them as to the new agreement rather than dealing with the problems associated with 
the bans and other industrial action. Further, it will provide an opportunity for the 
ANF to consider ways of giving effect to its stated intention of ensuring that any 
protected industrial action taken in the course of bargaining does not endanger 
anyone’s safety, health or welfare.  The VHIA also sought that any suspension of the 
protected industrial action be for at least three months.

[61] For all the above reasons we decided to make the order under s.424 of the Act 
suspending for a period of 90 days the protected industrial action being taken by the 
ANF and its members.”103

[91] Neither party in this matter sought the termination of protected industrial action, with 
the Commonwealth’s submission being that it had not conducted its case on the basis that 
termination would be preferable to suspension.104

[92] The question turns to what should now be done by the Commission in response to its 
findings above. On the basis of the evidence before me, and the summarised evidence set out 
in the matters referred to above, I consider the seriousness of the endangerment of the 
population presented in this matter to be objectively far greater than as set out in Monash and 
University of South Australia and at least comparable with that set out in VHIA.

[93] My concern with confining the order for suspension only to protected industrial action 
for which current notices have been given is that within seven working days of the expiry of 
the suspension of the protected industrial action, notice could be given for the reinstatement of 
action with the same effect as that which I have suspended.

[94] Respectfully, that does not afford a level of protection that might be expected from an 
order under s.424, the tests for which have been traversed above. The legislative tests within 
s.424 include that the industrial action “is threatened, impending or probable” coupled with 
the need for the Commission to be satisfied that the protected industrial action “has 
threatened, is threatening, or would threaten” the population or part of it.

[95] The evidence before me shows cogently that there is a probability of industrial action 
in the future and that the endangerment found by me will likely be a feature of that future 
industrial action. The CPSU has not backed away from the industrial action it designed and 
implemented. Its witnesses confirmed the purpose of protected industrial action and that it 
assisted their cause with Mr Evans saying that improvements in the bargaining policy and the 
Department’s offer were attributable to the protected industrial action.105 Each of the CPSU 
witnesses believed the industrial action designed and delivered could be worked around by the 
ABF and that it did not endanger the population. Neither did the CPSU give any undertakings 
about future protected industrial action or that they would in any way restrict the forms of 
future protected industrial action.

[96] When the ABF went to the CPSU shortly before these proceedings were commenced 
and sought modifications to the protected industrial action then occurring, no agreement was 
reached.

[97] Within that context, the proposition that s.424(1) allows only the termination of 
notified protected industrial action would shift the Commission’s consideration of an 








[2016] FWC 2526

27

application under this section generally, and inexorably in this case, to termination of the 
protected industrial action. This is because by definition termination of protected industrial 
action deals with all future industrial action whether notified or not.

[98] However, because the parties have not sought termination of the evidence on the basis 
that such was proposed I do not make such an order.

[99] I am satisfied in the circumstances that it is appropriate for the Commission to make 
an order suspending the protected industrial action for the period sought by the Applicant. For
that reason, the most recent interim order of the Commission will be revoked and replaced 
with one requiring the suspension of protected industrial action for 90 days from the date of 
the original interim order.

COMMISSIONER

Appearances:

Mr T Howe QC, with Mr T Begbie, of Counsel, (instructed by the Australian Government 
Solicitor) for the Commonwealth of Australia

Mr S Crawshaw SC (instructed by Slater and Gordon) for the CPSU

Hearing details:

2016.
Melbourne (video link to Canberra and Sydney):
2, 3 and 4 April.

Melbourne:
7, 8 and 13 April

Printed by authority of the Commonwealth Government Printer
Price code C, PR579315

                                               
1 [2016] FWC 2090.
2 Exhibit A2, Witness Statement of Clive Murray, [7]–[9].
3 Exhibit R3, Witness Statement of Rupert Evans, [11].
4 Ibid [12].
5 Ibid [15].
6 PR567171.
7 Ibid.
8 Exhibit R3 [49]–[64].


AIR « THE FAIR FAIM WORK O COMMISSION THE SEAL NOISS




 



[2016] FWC 2526

28

                                                                                                                                                  
9 Exhibit A2 [78]–[79].
10 Exhibit A3, Schematic Bundle of Documents.
11 Exhibit A2 tab 11.
12 Ibid tab 9.
13 Exhibit A3.
14 Exhibit A2 tab 9.
15 Transcript PN 1169; 1406–1408.
16 Exhibit A2 [60].
17 Transcript PN 344.
18 Exhibit A2 [10], [99].
19 Ibid [98]–[101].
20 Ibid [111].
21 Ibid [7], [32].
22 Ibid [37]-[59].
23 Ibid [60]-[65].
24 Ibid [8].
25 Ibid [9].
26 Ibid [17]-[20].
27 Ibid [21].
28 Ibid [10]; see also [78]-[79].
29 Ibid [97].
30 Ibid [98].
31 Ibid [99]-[102].
32 Ibid [103]-[107].
33 Ibid [108]-[109].
34 Ibid [111]-[113].
35 (2000) 203 CLR 194, 208 per Gleeson CJ, Gaudron and Hayne JJ.
36 Protected Industrial Action.
37 Exhibit R1, Witness Statement of Susan Jones, [10].
38 Ibid [11].
39 Transcript PN 1073.
40 Exhibit A2 [23].
41 Exhibit R1 [12].
42 Ibid [14].
43 Transcript PN 1109–1111.
44 Exhibit R1 [13]-[14].
45 Ibid [26]; Transcript PN 1241.
46 Exhibit R1 [8], [20].
47 Ibid [20].
48 Transcript PN 1097–1098.
49 Ibid PN 1100.
50 Ibid PN 1103–1105.
51 Exhibit R1 [9].
52 Ibid [15].
53 Ibid [16].
54 Ibid [21].
55 Exhibit R2, Witness Statement of Michael Suijdendorp, [11].








[2016] FWC 2526

29

                                                                                                                                                  
56 Ibid [13].
57 Ibid [12].
58 Ibid [14].
59 Ibid [16]–[17], [20], [22]–[23], [30], [37].
60 Ibid [18].
61 Ibid [19].
62 Ibid [35].
63 Ibid [52].
64 Ibid [40], see also [42]-[45].  
65 Ibid [46].
66 Ibid [53].
67 Transcript PN 1756.
68 Exhibit R3 [9].
69 Ibid [65]-[66].
70 Ibid [82]; as amended in oral evidence; see Transcript PN 1868.
71 Ibid [83].
72 Ibid [69].
73 Ibid [31]-[46].
74 Ibid [70].
75 Ibid [3]-[9].
76 Transcript PN 1903–1906.
77 Exhibit A10, Final Outline of Submissions of the Commonwealth, 12 April 2016, [36].
78 Exhibit R6, Final Outline of Submissions of the CPSU, 12 April 2016, [64].
79 Protected Action Ballot.
80 Ibid [61]-[63].
81 Transcript PN 1478–1479.
82 Victorian Hospitals' Industrial Association v Australian Nursing Federation [2011] FWAFB 8165 [49].
83 Ibid [56].
84 [2013] FWCFB 5982.
85 Ibid [47].
86 Ibid [40]-[41].
87 Re Metro Trains Melbourne Pty Ltd [2015] 6037 [28]–[29].
88 Re KDR Victoria Pty Ltd T/A Yarra Trams [2015] FWC 6282 [37].
89 Ibid [40].
90 Re Metro Trains Melbourne Pty Ltd [2015] 6037 [30].
91 (2010) 194 IR 30 [8].
92 [2013] FWCFB 5982.
93 Ibid [20]–[21].
94 [2013] FWC 5124 [61].
95 [2013] FWCFB 5982 [10].
96 Ibid [56].
97 Ibid [55].
98 Ibid [59]–[60].
99 [2010] FWAFB 1014 [10]-[13].
100 [2011] FWAFB 8165 [61].
101 Ibid [6]–[8].
102 Ibid [45].








[2016] FWC 2526

30

                                                                                                                                                  
103 Ibid [58]–[61].
104 Exhibit A10 [36].
105 Exhibit R3 [18].

Cases cited by this decision: