1
Fair Work Act 2009
s.424—Industrial action
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, 5 APRIL 2016
Application for an order to suspend or terminate protected industrial action pursuant to
s.424. Interlocutory and procedural decisions; application for an interim order pursuant to
ss.424 and 589(2); jurisdictional objection; whether there should be an expedited hearing;
reasons for decision; adjournment of final hearing.
[1] By way of application to the Fair Work Commission on 1 April 2016 the
Commonwealth of Australia as represented by the Department of Immigration and Border
Protection seeks 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 application relates to protected industrial action within the Department of
Immigration and Border Protection (the Department) and in particular at eight international
airports around Australia. The protected industrial action arises following a protected action
ballot that was declared on 5 June 2015 which approved nine types of industrial action to be
taken by members of the Community and Public Sector Union (CPSU).
[3] At the time of the application protected industrial action has been and continues to be
taken by CPSU members employed by the Department at airports and other locations at which
persons are employed, under the approved categories of protected industrial action in pursuit
of the union’s industrial objectives.
[4] The Commission granted permission for the representation of both parties by a lawyer
for the reason that it was satisfied, pursuant to s.596(2)(a) of the Fair Work Act 2009 (the Act)
that it would enable the matter to be dealt with more efficiently, taking into account the
complexity of the matter. Mr T Howe QC with Mr T Begbie, of counsel, appeared for the
Commonwealth and Mr S Crawshaw SC appeared for the CPSU.
[5] This decision records my reasons for decision given in the course of hearings of the
matter on Saturday, 2 April, Sunday, 3 April, and Monday, 4 April 2016 that;
[2016] FWC 2090
REASONS FOR DECISION
E AUSTRALIA FairWork Commission
[2016] FWC 2090
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1. The Commission has jurisdiction to make an interim order on the subject of the
Commonwealth’s application;
2. That there should be an urgent hearing conducted by the Commission on the question
of whether an interim order should be made;
3. That there should be an interim order; and
4. That an adjournment should be granted to the Respondent for the hearing of the
application for final orders.
[6] The question in the substantive application of whether there should be a suspension of
protected industrial action for a period of three months will be heard by me on Thursday, 7
April and Friday, 8 April 2016.
[7] The provisions of s.424(3) of the Act require that the Commission must, as far as is
practicable, determine the application within five days after it is made. The parties were
content for the final hearing in relation to the Commonwealth’s application to be undertaken
within that timeframe, however the Commonwealth sought that its request for an interim
order be heard and determined prior to a particular date of concern disclosed to the
Commission and referred to from this point as the Date of Concern1.
[8] In relation to the making of an interim order the Commonwealth argued in its
application that the threats posed by continuation of the protected industrial action to the lives,
personal safety, health and welfare of travellers and the Australian community warranted it
being made, because of factors that have occurred over the past few days and because it
anticipates those factors to carry into next week, likely at an increased intensity because of an
increased frequency of incidents of protected industrial action; the increased rates of
participation of Departmental staff in protected industrial action; as well as expected increases
in the number of travellers through nine Major Airports, namely Sydney, Melbourne,
Brisbane, the Gold Coast, Perth, Adelaide, Darwin, Townsville and Cairns (the Major
Airports).
[9] The CPSU did not agree with that analysis or that there was any jurisdiction for the
Commission to make an interim order.
[10] The application made to the Commission asserted that since 15 June 2015 the CPSU
has been engaged in intermittent but sustained periods of protected industrial action. In doing
so the Commonwealth noted that the CPSU agreed that some forms of protected industrial
action should not be taken and principally that which was originally planned for Major
Airports over the Easter weekend, with that agreement to suspend protected industrial action
apparently being in response to the recent Brussels terrorist attacks. In addition the
Commonwealth application notes that, at the time of making the application, the CPSU had
sent 78 notices of intention to take industrial action and “has notified protected industrial
action which includes 2,458 instances of planned industrial action until 12 April 2016
inclusive with 958 of those instances to occur after 1 April 2016”. The Commonwealth
application notes that the CPSU’s notification of protected industrial action includes
notification of a series of rolling stoppages at the Major Airports.
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[11] Because of the way that industrial action has been notified to the Commonwealth, its
application states that “Australia faces a range of threats to its borders, which include threats
to the life, personal safety, health and welfare of travellers and the Australian community. The
industrial action taken to date and planned at airports and seaports across Australia threatens
to endanger the life, personal safety, health, or welfare of the Australian population or a part
of it.”2
Jurisdictional objection – no basis for an interim decision
[12] In the course of the hearing conducted by the Commission on Saturday, 2 April 2016,
Senior Counsel for the CPSU argued as a question of jurisdictional fact that the Commission
had no capacity under s.424 to make an interim decision and consequently there should not be
further proceedings in the matter, other than a final hearing. The following decision was given
by me in transcript dismissing that objection;
“Thank you for that opportunity. I will proceed to read my decision into transcript. It is
argued that a jurisdictional impediment arises under section 424 of the Fair Work Act
that would impede the Commission from proceeding to determine the
Commonwealth’s application on an interim basis. First, it is relevant to note that
section 424(4) provides that an interim order must be made if the Commission is
unable to make an interim order within the period allowed for within section 424(3);
namely, a period of five days after the application is made.
The argument is made that this being a specific provision for the making of an interim
order, that such becomes the only power for the making of an interim order in
connection with the suspension or termination of protected industrial action for reason
of endangerment to life, et cetera. That is, the scheme of sections 424(3) and (4), being
specific provisions, replace the general scheme for the making of an interim order
pursuant to section 598(2). That argument of the specific overriding the general is not
exceeded to by the Commonwealth.
The CPSU argues, first, that section 424(3) itself provides for an expedited hearing
and that the situation in the current case is that by virtue of the parties agreeing on
procedure, they and the Commission are on track to do that. At this time, it is said one
cannot come to a conclusion that the Commission is unable to determine the matter
within the five days.
Secondly, while the CPSU accepts there is a discretionary power for the making of
interim decisions in section 589, it is argued that power is placed in relation to
applications under section 424(4) with a specific power that the Commission make an
interim decision if it is unable to determine the application within that period. I
understand it to be said that until the Commission exhausts that time frame, it has no
discretion to make an interim decision or order on the subject application.
The CPSU extends that argument with submissions that section 424(3) is the operative
section until the evidence is heard, with the mandate on the Commission being to
conduct a final hearing on the matter and not an interim one. It is argued that it is
incompatible with section 424(3) for the Commission to do something else, such as to
make an interim decision.
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For its part, the Commonwealth argues that there was no intention by the legislature,
with the enactments of sections 424(3) and (4), to take away the discretion of the
Commonwealth to make interim decisions under section 589. Instead, one should start
with the view that section 424 confers a wide and plenary power on the Commission
to deal with circumstances that endanger the community. It is further said that section
424(4) is a further reflection of that power, with an obligation on the Commission to
make an interim order in the specific circumstances set out in that subsection.
In considering this jurisdictional question of whether the Commission is constrained
from positively making an interim decision in relation to the Commonwealth’s
application, I have had regard to the provisions of the two sections of the Act and the
submissions provided by the parties. Counsel for the respective parties have not
referred me to previous authority of the Commission in relation to those provisions.
My consideration of the provision leads me to the view that there is no impediment to
the Commission’s jurisdiction to make an interim decision within the five-day period
allowed by section 424(3) for determination of the overall application. In my view, the
sections do not expressly prevent such. Whereas section 424(4) requires the making of
an interim order if the Commission is unable to determine the application within five
days, that section appears to deal with the circumstances where for reasons of evidence
logistics or deliberation, the Commission is unable to finalise its determination of the
matter. It does not appear, read on its own in conjunction with the explanatory
memorandum3, to limit the making of an interim order at an earlier stage if that is what
the Commission were minded to do.
To take the proposition advanced by the CPSU would, in my view, be
counter-intuitive with the scheme of section 424. The section obliges the Commission
to suspend or terminate industrial action if the Commission is satisfied that the
protected industrial action has threatened or is threatening or would threaten to
endanger the life, personal safety or health or welfare of the population or part of it, or
to cause significant damage to the Australian economy or an important part of it.
While I do not say that such arises in this matter, one could well consider situations in
which those points of potential damage required the Commission to act sooner than
five days even though the case itself may well take five days to run. If one took the
construct of the section advanced by the CPSU - and again without linking such
comments to this case - harm may well accrue with nothing able to be done by the
Commission.
I do not consider the section lends itself to that construction. As a result, the CPSU
jurisdictional argument is dismissed and we will proceed to determine whether an
urgent hearing should be convened for the purposes of the making of an interim
decision and order.”4
Whether there should be an urgent hearing
[13] In the absence of consent by the CPSU for there to be an urgent hearing of the making
of interim orders, the Commission was required to determine the subject of whether an urgent
hearing was appropriate. Determination of that matter took into account the evidence of Clive
Murray, Assistant Commissioner, Strategic Border Command for the Australian Border Force
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which, for the purposes of this stage of the proceedings, was not subject to cross-examination.
Mr Murray’s evidence consisted of a significant witness statement with numerous
attachments and his oral examination-in-chief.
[14] The product of that evidence, not at that time tested by the Respondent, included a
focus on the impact of protected industrial action on border security and in particular
movements of passengers and their luggage and effects through airports and, to a much lesser
extent, through maritime passenger terminals.
[15] His evidence highlighted the ongoing threats of organised crime and terrorist activity.
His evidence may be summarised, for the purposes of my decision on the question of whether
there should be a hearing in contemplation of an interim order, as including the following
relevant matters;
Participation of Departmental employees at Major Airports and maritime passenger
terminals in protected industrial action has been increasing significantly, and
especially over the past week;
The incidence of protected industrial action notifications from the CPSU to the
Department has increased substantially and especially in relation to its notification of
rolling one-hour stoppages in the Major Airports;
The incidence of such protected industrial action notifications will be at or near a
peak on the Date of Concern.5 Even so;
“The rolling one hour nature of the stoppages creates uncertainty as to when PIA
will in fact take place. In practice, some hours of a shift are fully or
significantly staffed and some hours of a shift are not.”6
The stoppages on an expected date in the near future “will be more significant than
any experienced to date, or projected, in the period of PIA action scheduled from 22
March to 12 April 2016 inclusive.”7 This is especially so given the proximity of
those dates to school holidays;
Notwithstanding the situation on that expected date, the incidence of protected
industrial action notifications remains high after that date and likely higher than in
previous rounds of protected industrial action in Major Airports;
The difficulties faced by the Department in responding to the notified protected
industrial action include the availability of replacement staff and staff fatigue; and
He expects the foregoing to compromise his organisation’s ability to perform its
functions of risk assessment and mitigation.
[16] The effects of the circumstances described by Mr Murray were put as a heightened
situation of organisational risk. The extent of protected industrial action, the likelihood of an
organisational failure and the absence of control or response measures meant the consequence
of the failure may be significantly greater than if protected industrial action was not in place,
or not in place to the extent that has been notified.
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[17] Counsel for the CPSU submitted that contemplation of an interim order by the
Commission would lead to the duplication of proceedings with the need to first canvass
evidence and submissions in an urgent hearing for an interim order and to then go through the
same or similar process in a hearing for a final order. Given the provisions of s.424(3) and the
discussions at the time between the parties and the Commission about a final hearing, that
duplication would, at least initially, be on Tuesday of this week.
[18] Based upon the material provided to the Commission I am satisfied that it is
appropriate to require an urgent hearing to consider the making of an interim order. The
Commonwealth has, through the material provided to the Commission, to the point of the
conclusion of proceedings on Saturday, 2 April 2016, demonstrated at least an arguable case
that the Department is presently going through a circumstance in which participation levels of
protected industrial action is higher than previously and that it is likely the effects of that
situation may be greater than would otherwise be expected. That material demonstrates a
heightened acuity with the protected industrial action notified for the period including the
Date of Concern.
[19] At this time, and only on the basis of the untested evidence of Mr Murray, it was
apparent to me that the risk of such circumstance may be capable of being avoided through an
interim order of the kind contemplated by the Commonwealth; that the conduct of a hearing in
respect of an interim order would not have any lasting prejudice on the CPSU and that
adequate time would be available for their Counsel to receive such instructions as may be
necessary to defend the prospect of an interim order and to bring forward such evidence as it
may wish to have considered; and that the balance of convenience in the circumstance rests, at
this time with the Commonwealth, for the reason that were there not to be an urgent hearing
an interim or final order could not be made relating to the Date of Concern.
The application for an interim order
[20] In support of its application for an interim order, the Commonwealth relied upon the
evidence given by Mr Murray, both in written and oral form, saying that particular evidence
he gave relating to the incidence of security alerts compellingly indicates the risks that arise
on a weekly basis. It submitted that the true scale and magnitude of the Australian Border
Force’s operations and the risks it regularly and repeatedly deals with demonstrated the need
for ever present vigilance.
[21] The Commonwealth submitted that in relation to the Date of Concern, the exceptional
frequency of protected industrial action on that day, coupled with the expected very high
demand for travel and further related with what would be a diminished capacity on the part of
the Department to adequately mitigate the risks that would almost certainly arise meant that
there was a need for interim relief.
[22] Further, the Commonwealth argued that Mr Murray’s professional risk assessment,
based upon his substantial experience, allowed a finding that his references to the
Department’s diminished capacity and the increased risks which would be faced as a
consequence, was capable of acceptance, as was his evidence that these factors were directly
attributable to the heightened levels of protected industrial action as well as the increased
rates of participation of employees in such action. In all, the Commonwealth submitted that
this evidence compellingly demonstrated that the tests within s.424(1) for the suspension or
termination of protected industrial action had been met, with it being shown that the planned
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protected industrial action would endanger the life, the personal safety or health, or the
welfare of the Australian population.
[23] The CPSU argued against the making of an interim order. While it did not bring
forward separate evidence to that of Mr Murray, it undertook a cross-examination of him and
in the course of the cross-examination highlighted at least the following seven matters that
would indicate against the making of an interim order;
That in the course of the making of the protected action ballot order, and after, the
CPSU had agreed with the Department to certain exemptions to protected industrial
action, numbering 11 in total. Coupled with this, when the Australian Border Force
Commissioner wrote to the CPSU on 30 March 2016 outlining his concerns in
relation to the forthcoming protected industrial action he did not specifically seek an
exemption for any or all of the areas of concern that he expressed. Mr Murray agreed
that since the making of the protected action ballot order that there had been further
exemption requests but that he had not been directly involved in them.
In relation to the prospect that security or other alerts would be missed by the
Australian Border Force because of the protected industrial action, it was the case
that such alerts are not just missed during periods of protected industrial action, but
at other times as well. Mr Murray conceded that at times alerts were missed or not
sufficiently actioned, but that in such cases there would be an integrity review of the
occurrence.
Evidently the Department’s focus in these proceedings is upon the protected
industrial action due to occur on the Date of Concern and that the Department was,
as late as Saturday, 2 April 2016, willing to stand the interim order proceedings aside
if the Department could get agreement from the CPSU to the scheduled protected
industrial action being removed on that day. Mr Murray’s evidence and argument
from Counsel for the Commonwealth indicated that such was the case, but that the
Commonwealth’s willingness in this regard was that it was a without prejudice offer
put forward to the CPSU qualified on the basis that there would be an assurance
from the union that there would be no significant increase in protected industrial
action from the state then being experienced until the Commission’s final
determination on its application. Such assurances had not been given.
The risk factors identified by Mr Murray may come about for reasons other than
protected industrial action. In broad terms at least, such proposition was accepted by
him.
Some of the failures highlighted in Mr Murray’s evidence happened on days there
was no protected industrial action. Mr Murray’s evidence indicated that while that
may be strictly correct, his belief was that anterior events connected with the
incidents had been put in place in knowledge or anticipation of the protected
industrial action.
The Australian Border Force does not have sole responsibility for airport security,
which proposition was agreed to in broad terms by Mr Murray.
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There were more employees involved in protected industrial action in more
locations, in September 2015 and in March 2016. Mr Murray’s evidence in that
regard indicated that such was broadly correct, however he put forward that the
Department is presently in the early days of a period of protected industrial action
which would run through until 12 April 2016. His consideration was that this was
likely to involve more union members withdrawing their labour over a greater period
than had been previously experienced.
[24] The Commission’s consideration in relation to whether or not an interim order should
be granted to the Commonwealth is to be determined in accordance with conventional
principles for the issuing of interim relief.8 It was accepted by both parties that the ordinary
approach taken by the Commission in these matters is to apply principles similar to those
applied by the Courts in applications for interlocutory relief.9 In broad compass that requires
the Commission to consider whether the Applicant has shown there is a serious matter to be
tried “in the sense that if the evidence remains as it is there is a probability that at the trial of
the action the plaintiff will be held entitled to relief”10; whether, and the extent to which, there
is irreparable prejudice to the Applicant, and I consider in the context of the matters requiring
determination in this matter, the Respondent as well; and consideration of the balance of
convenience.
Serious matter to be heard
[25] While it has been held by the Full Bench that the powers in relation to the suspension
or termination of protected industrial action are intended to be used in exceptional
circumstances and where significant harm is being caused by the action,11 the Full Bench has
clarified that an applicant for an order under s.424 is not required to demonstrate exceptional
circumstances;12
“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,
and we do not understand the NTEU v University of South Australia to stand for any
contrary proposition.”13
[26] Consideration of the meaning of “welfare” as that term is used within s.424(1) is to be
accorded its ordinary meaning.14 There needs to be a basis upon which it is reasonable to
conclude on an assessment of matters of fact and degree that the collective welfare is in peril
or danger.15
[27] In considering the impact of protected industrial action on the community, the impact
must be more than merely to cause inconvenience to the persons concerned, it must be such as
to expose them to danger.16 The adverse impact of protected industrial action may well be
aggravated as the action progresses with the aim of decreasing a system’s capacity to
operate.17
[28] There is not an evidentiary onus on an employer to establish it has taken every
possible step it can to diminish the impact of the notified action.18
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[29] I consider that the evidence compellingly leads to the view that there is a serious
matter to be heard and determined by the Commission.
[30] The current notifications by the CPSU for protected industrial action are significant,
providing for rolling one-hour stoppages of work at the Major Airports for many hours of the
day and days of the week between the period 22 March 2016 and 11 April 2016 inclusive.
The evidence shows those notifications are heightened, together with the expected
participation rates of CPSU members in the action, on or around the Date of Concern.19
[31] The evidence given by Mr Murray is that the precise effect of those notifications is
difficult to predict until the stoppage actually occurs, but that the impact of the stoppages will
be serious and significant. The increased incidence of protected industrial action together with
the increasing participation rate of CPSU members in the action, coupled with the already
depleted and fatigued resources he has available combines to create a serious risk situation.
He forecasts that as a consequence there will be, without an interim order, an increased
frequency of missed alerts, with the likely severity of missing such alerts being greater than
would otherwise be the case. Counsel for the Commonwealth argued that the concatenation of
a number of factors discussed in evidence showed there was a diminished capacity on the part
of the Department at this point in time, which represented an increased and unacceptable risk.
It was put that the direct effect of the protected industrial action meant that the risk profile
faced by the Department over the past week had moved from tolerable to intolerable.
Prejudice
[32] The CPSU pointed to significant and irremediable prejudice on its part with the grant
of an interim order. It highlighted that the Commonwealth’s focus with this application was
mainly or purely in relation to protected industrial action scheduled to occur on the Date of
Concern and that such focus sits oddly with the fact that an interim order would extend
beyond that date, with it lasting at least until the Commission made a final decision. An
interim order would extend beyond merely employees within the Major Airports, going to
employees throughout the Department who would, as a consequence of an interim order, lose
their capacity to participate in protected industrial action.
[33] Further, by making an interim order against CPSU in relation to the Date of Concern,
the union submitted it would lose a significant part of its bargaining power. There would be
no way that the union would be able to get back the bargaining power it was trying to assert
on that day, which is a day with unique features given the number of expected travellers. By
making an interim order, the status quo will have been disturbed. Further the union submitted
that the evidence of Mr Murray contained hardly any substantial facts and that it is mainly
opinion, views and speculation.
[34] I accept that the prejudice to which the CPSU points from the making of an interim
order is, in the circumstances, real.
[35] Were an interim order not to be made, there would be prejudice accruing to the
Commonwealth in the form of disruption to the services of the Australian Border Force. The
potential consequences of that disruption are well articulated elsewhere within this decision. I
accept also that the likely prejudice in the event an interim order was not made is, in the
circumstances, real.
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Balance of convenience
[36] In relation to the balance of convenience I am satisfied that it favours the
Commonwealth with me being satisfied there should be a consequential grant of an interim
order suspending protected industrial action.
[37] The risks faced by the Australian Border Force are accepted by me as real and
compelling, at least in respect of the forthcoming short period. The diminished capacity of the
Department to perform the functions expected of the Australian Border Force comes about
because of what would otherwise be the increasing impact of industrial action and the likely
more significant consequences of a failure by the Force to perform its functions. The
diminished capacity can, it appears on the evidence, be ameliorated through the grant of an
interim order in favour of the Commonwealth.
[38] While it is acknowledged and respected that the grant of such interim order will
remove the right of members of the CPSU employed by the Department to undertake
protected industrial action and that such will have the consequential effect of reducing the
capacity of the CPSU to assert the bargaining power it desired, I considered that since a
hearing for final orders, at the time my decision on an interim order was scheduled for
Tuesday, 5 April 2016, such would be, at this time at least, a reduction in bargaining power
for a short time only.
[39] As a further matter, the CPSU argued that delays in the making of the Application by
the Commonwealth ought be a reason for the Commission to decline to exercise its discretion
to grant the application for an interim order, for the reason that “an applicant who intends to
invite the court to hold respondents out of their conventional rights upon a prima facie case
basis should act without delay”.20 I am not satisfied that there has been undue delay on the
part of the Applicant, or that it can be said it did not act without delay.
[40] The notified protected industrial action over Easter was set aside by agreement with
the CPSU on 23 March 2016, with the period of suspension being from 24 March to 28 March
2016.21 The Australian Border Force Commissioner wrote in comprehensive terms to the
CPSU on Wednesday, 30 March 2016 seeking that “minimum staffing levels” set out in a
schedule to the letter be maintained. He proposed the withdrawal of notices of proposed
industrial action, and the provision of an undertaking that minimum required staffing numbers
would be maintained or that agreed changes to the proposed protected industrial action would
ensure no disruption to service continuity.22 He offered to meet to discuss the matter, but
advised that if an “acceptable accommodation” could not be agreed by 12:00 PM on
Wednesday, 30 March 2016, that the Australian Border Force reserved the right to take action
about the matter in a Court or Commission. The Commonwealth’s application was lodged in
the Commission shortly after 5:00 PM on Friday, 1 April 2016.
[41] The evidence leads to the view that endeavours were made by the Commonwealth to
avoid the need for an application to the Commission, and that there was not undue or
unacceptable delay in making this application. In any event, the CPSU was unambiguously on
notice during the past week, and especially since 30 March 2016, that the Commonwealth
objected to the extent of protected industrial action in the coming period and that it reserved
its rights to take action to protect its situation if an acceptable accommodation could not be
agreed. A sophisticated industrial party such as the CPSU could hardly have been surprised
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that the Commonwealth acted on what had been foreshadowed by commencing action in the
Commission.
[42] The question of whether the Commonwealth’s application for final orders succeeds
will be determined in accordance with the tests set out in s.424. Those tests go to whether or
not there is an endangerment to the community from the protected industrial action, with that
consideration going to a broader basis of factors and a longer period of time than the tests
applied in this part of the decision-making process.
[43] Having considered the foregoing matters, I formed the view that it was desirable to
issue an interim order suspending protected industrial action until the Commission’s final
determination of the Commonwealth’s application.
Interim order
[44] Consistent with the foregoing, the Commission issued the following order on Sunday,
3 April 2016;
“[1] The Commonwealth of Australia represented by the Department of Immigration
and Border Protection has made application for an order (referred to as the
Application) relating to protected industrial action being engaged in, threatened,
impending or probable by members of the Community and Public Sector Union who
are employed by the Commonwealth in the Department of Immigration and Border
Protection (the Department) and who will be covered by the proposed Department of
Immigration and Border Protection Enterprise Agreement and who are the subject of
the notices of protected industrial action issued by the CPSU from 9 March 2016
(referred to as the Protected Industrial Action).
[2] The Application seeks that the Fair Work Commission (the Commission) suspend
the Protected Industrial Action for a period of 3 months. The Application further seeks
an interim order of the Commission also suspending the Protected Industrial Action
until the final determination of the Application, the hearing of which is now scheduled
for Tuesday, 5 April 2016.
[3] Being satisfied it is appropriate to do so, the Fair Work Commission now makes an
Interim Order under sections 424 and 589 of the Fair Work Act 2009 suspending the
Protected Industrial Action to which the Commonwealth’s application relates until
further order or final determination of the application (whichever first occurs).
[4] The Secretary of the Department of Immigration and Border Protection and the
Secretary of the Community and Public Sector Union are ordered to take all
reasonable steps to ensure that employees of the Department and members of the
Union engaged in the Protected Industrial Action are made aware of the Commission’s
Interim Order commencing this evening, Sunday 3 April 2016, and at the time of the
commencement of their next rostered shift.
[5] This order is to come into effect from the time it is published, save and except that
the suspension of Protected Industrial Action referred to in paragraph [3] above, is to
take effect from 12:15 AM on Monday, 4 April 2016.”23
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Adjournment of hearing for determination of application for final orders
[45] After the foregoing decisions were issued, on Monday, 4 April 2016 the Respondent
sought and was granted, over the opposition of the Applicant, an adjournment of the hearing
for determination of the Commonwealth’s application for final orders. After a hearing of the
application conducted on 4 April 2016, the following decision was given by me in transcript;
“The application that the union makes, the respondent in this matter, was filed with the
Commission just before 3 pm this afternoon. That application seeks that there be an
adjournment of proceedings for a final hearing that was scheduled for tomorrow, 5
April 2016, commencing at 10 am. The hearing date and directions associated with that
matter were put in place by the Commission late on Sunday, 3 April 2016, and the
transcript of this matter will record the circumstances in which that came about.
The Commission this afternoon was notified that the Commonwealth, being the
applicant in this case, objects to the prospect of there being an adjournment and the
Commonwealth in particular presses that the matter should proceed as already
scheduled. In the exchange that has taken place with counsel this afternoon, amongst
other things, there has been a discussion about issues of procedural fairness and
particularly the factors of this particular case and how they impact on the need for the
Commission to provide procedural fairness to all concerned.
It is relevant in this particular case, I think, to take account of the fact that it is
somewhat unusual that there has been already, before we get to a final hearing, more
or less two full days of hearings which were conducted over the weekend - which
obviously all concerned here are well aware of. That in itself is unusual for these types
of proceedings. That unusual nature is then further developed by the fact that there
was an interim order issued by me last evening.
In looking at the overall matters, I take into account what the respondent has put
forward about its state of preparedness. I take into account that Mr Crawshaw has
indicated his professional judgment is such that his client at least is presently unready
to run its case. He may not have used those words, but that is my understanding of his
submission to the Commission.
Certainly what I understand him to have said is that that state of preparation comes
about for a number of factors, including the ones to which I have already referred; the
fact that the Commission and his parties were tied up together with the applicant for
part of the weekend, but also to some extent the complexity of the matters to which the
CPSU is required to respond, as well as the fact which has been referred to by the
respondent about the access it and its instructors have had to the material upon which
the Commonwealth relies.
In considering whether or not the application should be granted, I take into account
that there is nonetheless a need to bring the matter to a conclusion. Notwithstanding
the fact that there is an interim order in place, there is obviously a need to have a final
determination as quickly as it is possible to do so. There is a public benefit in that
being done and that obviously relates to the factors which Mr Howe has referred to;
the benefit for the Commonwealth as an entirety, but also the benefit to the particular
[2016] FWC 2090
13
clients, if I can put it that way, of the department, being travellers through airports and
the like.
Beyond that there is also, in my view, a desirability to bring the matter to a conclusion
for members of the union in this respect: it is the case that the interim decision and
interim order restrain the members of the union from exercising their bargaining
power, at least through protected industrial action, for a period. There is, I believe, a
desirability in ensuring that that restraint, such as it is, is determined one way or the
other as quickly as it is possible to do so.
I take into account, as well, the legislative policy which is set within the section with
which I am dealing, section 424, and I consider that the policy within that legislation
amply allows the view that the legislature, when it made the particular sections, had in
mind that matters such as this be dealt with promptly and, in any event, within the
period nominated in section 424(3), being a period of five days.
Of course that does not mean there will not be circumstances in which an order can be
made within that period, but I suggest on my reading of the legislation that the policy
appears quite clear that the intention of the legislature was to bring matters such as this
to a conclusion as quickly as possible.
In respect of the potential prejudice that might be given to any party through a
decision in either direction, I consider that the position Mr Howe puts forward that
there is a community interest in the matter being determined quickly, is an important
one; that it is desirable, I think, that all concerned know what might be expected or is
likely in weighing industrial action into the future. Of course prejudice, if the
Commission were to go forward, would also accrue to the CPSU if there were not to
be an alteration to the timetable that had been given and that that prejudice would be
having to answer a case that the union may not be properly prepared for.
Taking all those matters into account and also the authorities on the subject, I consider
that it is appropriate for the Commission to grant an adjournment of a short period. I
do not consider it appropriate to grant a period as long as that which Mr Crawshaw has
put forward. What I do is indicate to all concerned that the Commission is available to
conduct a hearing on the matters on Thursday and Friday of this week.
I consider that in context and as a result of all the factors to which I have referred, that
an adjournment of the hearing until next week, and particularly late next week, would
be too long. As a result of that, I will amend the directions that have so far been given
to vacate the hearing date of tomorrow. I will amend the directions so that the hearing
dates are set for Thursday, 7, and Friday, 8 April 2016.”24
[46] The authorities to which I had regard in making the foregoing decision include
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied
Services Union v Abigroup Contractors Pty Ltd,25 in which the Full Federal Court held in
majority, in the context of an application under s.418 of the Act, that when an adjournment is
sought by a respondent to such matter it will be necessary for the Commission to consider
whether an adjournment is necessary to give the respondent a reasonable opportunity to
present their case, together with other matters relating not only to the adjournment application
itself, but other relevant factors as well, including the circumstances of the industrial action,
[2016] FWC 2090
14
its seriousness, the urgency of the application, the legislative policy and matters of
prejudice.26 That case applied Kioa v West, which held that in applying the principles of
natural justice there was a need to question what needs to be done to act fairly in the
circumstances of the particular case.27 It also applied the requirement that the whole of the
circumstances are of importance; R v Commonwealth Conciliation and Arbitration
Commission and Others; ex parte Angliss Group.28
[47] The Commonwealth referred, in the context to the provision in s.424(3) requiring the
Commission to determine the application “as far as practicable” within 5 days after it is made,
to the matter of R (Nikonovs) v Governor of Brixton Prison & Anor,29 in which, in the context
of a writ for habeas corpus, the High Court of Justice of England and Wales held that whether
something is done “as soon as practicable” is a question of fact. The case held that the term
“practicable” is distinguishable from the “rather more elastic reasonably practicable”.30 The
Commonwealth relied upon the finding to press that the hearing as originally scheduled was,
in fact, practicable. While noting such argument has merit, I prefer the more specific guidance
set out in CEPU v Abigroup, referred to above. While in the context of a s.418 matter, I
consider the reasoning to be applicable in this matter and have applied it here.
[48] Consistent with the foregoing, the Commission will reconvene on Thursday, 7 April
and Friday, 8 April 2016 from 10 AM to hear and determine the Commonwealth application
for final orders to be issued in the matter
[49] Further to this, it is appropriate to record;
That the evidence given so far in this matter, including the oral evidence of Mr
Murray, will be the subject of a Confidentiality Order to be issued by me pursuant to
the provisions of ss.593 and 594 of the Act, and Counsel for both parties have been
directed to provide to the Commission with a suitable draft order to replace an oral
order given in the course of a Mention Hearing conducted by me on Friday, 1 April
2016; and
That Counsel for both parties submitted to me in the Mention Hearing on 4 April
2016 that it will be necessary, for reason of s.424(4), to revoke the Interim Order
made on 3 April 2016 and to replace it with a Mandatory Interim Order made
specifically under that section for reason of the passage of the time period of 5 days
in s.424(3). I accepted those submissions, and directed Counsel to provide me with a
draft order that gives effect to their submissions.
COMMISSIONER
Appearances:
Mr T Howe QC, with Mr T Begbie, of Counsel, (instructed by the Australian Government
Solicitor) for the Commonwealth of Australia
AIR « THE FAIR FAIM WORK O COMMISSION THE SEAL NOISS
[2016] FWC 2090
15
Mr S Crawshaw SC (instructed by Slater and Gordon) for the CPSU
Hearing details:
2016.
Melbourne (video link to Canberra and Sydney):
2, 3, 4 April.
Printed by authority of the Commonwealth Government Printer
Price code C, PR578662
1 Exhibit A2, Witness Statement of Clive Murray, [114].
2 Applicant’s Form F37, Application for an order to suspend or terminate protected industrial action, [7].
3 See Fair Work Bill 2008, Explanatory Memorandum, [1719]–[1722].
4 Excerpt of 2 April 2016 Transcript.
5 Exhibit A2 [114].
6 Ibid [98].
7 Ibid [114].
8 See Communications, Electrical And Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of
Australia v Telstra Corporation (2003), PR933892 at [88]; with reference to Castlemaine Tooheys Ltd v South Australia
(1986) 161 CLR 148, 153, per Mason ACJ.
9 Ibid; see also Maritime Union of Australia, The v Patrick Stevedores Holdings Pty Ltd [2014] FWC 3349 [14]; Alcoa of
Australia Limited v The Australian Workers' Union [2010 FCA 610 [23]–[24].
10 Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148, 153, per Mason ACJ.
11 National Tertiary Education Industry Union v University of South Australia [2010] FWAFB 1014 [8].
12 National Tertiary Education Industry Union v Monash University [2013] FWCFB 5982 [20].
13 Ibid.
14 University of South Australia v National Tertiary Education Industry Union [2009] FWA 1535 [36]–[37]; this aspect not
disturbed on appeal; with reference within the original decision to State of Victoria v HSUA (Print L9810) and Coal &
Allied Operations Pty Ltd (1998) 80 IR 14, 32.
15 Ibid.
16 Victorian Hospitals' Industrial Association v Australian Nursing Federation [2011] FWAFB 8165 [51].
17 Ibid [56].
18 Ausgrid; Endeavour Energy; Minister for Industrial Relations (New South Wales) v CEPU & Ors [2015] FWC 1600 [51].
19 Exhibit A2 [86], [109], [114]; Exhibit A3.
20 State of Victoria v Australian Education Union [2013] FCA 72 [23].
21 Exhibit A2 [89].
22 Exhibit A2 Attachment 5.
23 PR578646.
24 Excerpt of 4 April 2016 Transcript.
25 [2013] FCAFC 148.
26 Ibid [136]–[137], per Katzmann and Rangiah JJ.
27 [1985] HCA 81; (1985) 159 CLR 550, 585, per Mason J.
28 [1969] HCA 10; (1969) CLR 546, 553.
29 [2005] EWHC 2405.
30 Ibid [21].
