1
Fair Work Act 2009
s.424 - Application to suspend or terminate protected industrial action - endangering life etc.
G4S Custodial Services Pty Ltd
v
CPSU, the Community and Public Sector Union
(B2024/1473)
COMMISSIONER WILSON MELBOURNE, 26 NOVEMBER 2024
Application for an order to suspend or terminate protected industrial action pursuant to s.424
[1] These are my reasons for a decision, advised to the parties on Saturday 16 November
2024, to issue an order suspending protected industrial action at the Port Phillip Prison (PPP)
operated by the Applicant, G4S Custodial Services Pty Ltd (G4S). The suspended protected
industrial action is in relation to bargaining for a proposed agreement replacing the G4S
Custodial Services Pty Ltd (Port Phillip Prison) Correctional Services Workplace Agreement
2021 (the 2021 Agreement) and is being taken or threatened by the Community and Public
Sector Union and its members (CPSU).
INTRODUCTION
[2] An application was made to the Fair Work Commission by G4S on Thursday 14
November 2024 at 6:19 PM seeking an order pursuant to s.424 of the Fair Work Act 2009 (the
FW Act) that would terminate or suspend protected industrial action being taken by members
of the CPSU.
[3] As the protected industrial action was notified to be taken by members of the CPSU on
Monday 18 November 2024, the application was the subject of an urgent hearing before me on
Friday 15 November 2024. At the conclusion of the hearing, I advised I would consider all
relevant material and evidence and advise my decision to the parties on Saturday 16 November
2024. On that day I advised the parties I would grant the application and issue an order with my
reasons for decision to follow.
[4] At the hearing, Mr Leigh Howard of Counsel appeared for G4S and Mr Andrew White
of Counsel appeared for the CPSU, with each party being granted permission by me for
representation by lawyers, pursuant to s.596(2)(a) of the FW Act. Evidence was received on
behalf of G4S Custodial Services from Mr Peter Maa, General Manager of the Port Phillip
Prison and Ms Amanda Smith, the prison’s Offender Services Manager, with the latter’s witness
statement being admitted to the evidence unopposed. Mr Adrian Trait, a CPSU Industrial
Organiser gave evidence on behalf of the union.
[2024] FWC 3254
REASONS FOR DECISION
AUSTRALIA FairWork Commission
[2024] FWC 3254
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[5] The Order issued by me on Saturday 16 November 2024 was in the following terms;
“[1] Pursuant to s.424 of the Fair Work Act 2009 (Cth), the Fair Work Commission
orders that all protected industrial action notified by the Community and Public Sector
Union (CPSU) in relation to bargaining to replace the G4S Custodial Services Pty Ltd
(Port Phillip Prison) Correctional Services Workplace Agreement 2021 (Proposed
Agreement), is suspended for a period of 2 months from the date of this order.
[2] This order binds:
(a) the CPSU; and
(b) all employees of G4S Custodial Services Pty Ltd (G4S) who will be
covered by the Proposed Agreement.
[3] The CPSU is ordered to distribute a copy of this Order to its respective members
who will be covered by the Proposed Agreement, and advise members of the effect of
this Order, by using the most expeditious mean(s) possible, including by electronic
means.
[4] G4S is ordered to distribute a copy of this order to all employees who will be
covered by the Proposed Agreement, and advise them of the effect of this Order, by
using the most expeditious mean(s) possible, including electronic means.
[5] This Order commences at 11:59 PM on Saturday, 16 November 2024.”1
APPLICABLE LEGISLATION
[6] An order for suspension or termination of protected industrial action may be made upon
application by the persons identified in s.424(2), which includes a bargaining representative,
which in this case is G4S. Section 424(1), which deals with the making of an order, 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
(b) is threatened, impending or probable
if the FWC is satisfied that the protected industrial action has threatened, is threatening,
or would threaten:
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(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.”
BACKGROUND
[7] The Port Phillip Prison at Truganina is operated by G4S Custodial Services, with
approximately 554 employees. The prison itself presently houses 660 male prisoners, with a
maximum capacity of 1087 prisoners.
[8] G4S operates the prison on behalf of the Victorian Government, which announced in
June 2024 that it would close by 31 December 2025. Mr Maa, the General Manager says the
closure announcement “has created a level of uncertainty surrounding PPP's ongoing operations
and staffing requirements”.2
[9] Many employees working at the prison are covered by the the 2021 Agreement, the
nominal expiry date of which was 31 December 2023. Bargaining for a replacement agreement
has been slow and lengthy, having started in July 2023. The principal matters not yet agreed
in bargaining are wage rates and redundancy entitlements. An employer proposal for a
replacement agreement was put to employees in a ballot in May 2024 but was not successful.
[10] Bargaining has been the subject of two protected action ballot orders, both of which
were approved by eligible employees. The first order was made on 19 April 2024 and declared
on 13 May 2024, and the second order was made on 20 September 2024 which in turn was
declared on 10 October 2024. Although the orders do not extend the required time for
notification of subsequent protected industrial action (as envisaged by s.443(5)),
correspondence from the CPSU to G4S in May 2024 states that the union intends to provide a
period of notice greater than the minimum three days notice and to instead provide a minimum
of five days’ notice.3 The notification which is the subject of this application was given on 8
November 2024 for protected industrial action to commence on 18 November 2024.4
[11] An application by G4S to suspend protected industrial action stemming from the first
ballot was dismissed by consent and “without adjudication of the merits” by Deputy President
Gostencnik on 11 June 2024, on the basis of undertakings given by the CPSU. The application
and subsequent undertakings were triggered by a notification of protected industrial action on
4 June 2024, which was to take place in the form of a 6 hour stoppage on 13 June 2024 between
2 PM and 8 PM.
[12] The undertakings given by the CPSU in June 2024 are in these terms;
“Undertaking
Adrian Tait, Industrial Organiser, undertakes for and on behalf of the CPSU that:
1. The CPSU will use its best endeavours to procure that sufficient of its
members will continue to work as normal during the stoppage notified for 13
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June 2024 to ensure that there are 30 custodial officers available (plus custodial
officers for bed sits as required) and that these persons have the skills, licensing
and qualifications appropriate for their roles / areas of the prison. "Best
endeavours" includes that the CPSU will, to the extent necessary to ensure
agreed minimum staffing, inform its members of this Undertaking and requiring
those identified pursuant to paragraph 2 below to work during the stoppage.
2. Upon G4S providing the CPSU with the roster for 13 June 2024 which
identifies the staff rostered per area, the CPSU will identify the 30 staff from the
roster plus bedsit staff as required who will work through the stoppage in each
area so as to meet the skills mix and minimum staffing. Minimum staffing for
each area will be in accordance with paragraph 73 of the Statement of Peter Maa
filed in this proceeding save that there will be at least 6 custodial officers made
available to perform external escorts.
3. In the event that any of those identified staff are absent from work on 13 June
2024, then G4S can alert the CPSU to the fact of that absence and the CPSU will
use its best endeavours to provide a replacement.”5
[13] The 8 November 2024 protected industrial action notification is in these terms, notifying
a 12 hour stoppage by the CPSU’s members;
“Notice of intention to take protected industrial action
Pursuant to s 414 of the Fair Work Act 2009 (Cth), the Community and Public Sector
Union (CPSU) hereby gives G4S Custodial Services Pty Ltd (G4S) notice of employee
claim action (Action).
Employees who will engage in the Action
The employees who will engage in the Action are those employees of G4S who will be
covered by the proposed G4S Custodial Services Ply Ltd Enterprise Agreement 2024
and for whom the CPSU is a bargaining representative (Relevant Employees).
Commencement and nature of the Action
1. On 18th November 2024, each Relevant Employee will engage in stoppage
of work for the duration of 12 hours. This stoppage will commence at 7:30am
and last until 7:30pm.
The previously agreed undertaking is agreed to. If insufficient staff are available
as per the undertaking, contact CPSU Organiser/Delegates.
The previously commenced and current running actions will continue”6
[14] Mr Trait estimates that approximately 70% of “the PPP workforce” are members of his
union, meaning that “more than 150 of its staff will not be participating in the stoppage” on 18
November 2024.7
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[15] The size of the CPSU’s membership is significant, as it informs the response actions
available to G4S in the event of a 12 hour stoppage by CPSU members. The union argued that
the size of the non-union workforce is such that G4S is able to put in place measures which
would avoid threatening the endangerment of prisoners or employees. G4S disputes that there
is a sizable non-union workforce available to it in order to manage the effects of the notified
protected industrial action.
[16] G4S argue that the threat of endangerment that would flow from a 12 hour stoppage by
CPSU members is to be evaluated through the context of its operations and its experience,
including with a previous stoppage on 4 June 2024, notified as a 5 ½ hour stoppage but
experienced as 6 hours.
Context
[17] The context of the Port Phillip Prison pointed to by G4S is lengthy, and not disputed by
the CPSU. In short, G4S note that the prison is one of several Victorian prisons housing
maximum security male prisoners having all “been charged with or convicted of serious
criminal offences including murder, other acts of violence including armed robbery and sexual
assaults, drug offences and dishonesty offences”.8 Prisoners are housed across several different
units and provided with different services according to their needs and status.
[18] Ms Smith noted a series of features within the prisoner population;
“14. PPP accommodates some of the most complex and vulnerable prisoners in the
Victorian prison system with the prison population at PPP comprising, on average:
(a) 16% of prisoners identify as First Nations;
(b) 25% of prisoners are on Medication Assisted Treatment for Opioid
Dependence;
(c) 50-60% of prisoners are on remand;
(d) 20% of prisoners are youth;
(e) 10% of prisoners are registered as having an acquired brain injury or
intellectual disability (noting that 25% of all intellectually disabled prisoners
across Victoria are located at PPP);
(f) 50% have a psychiatric rating (that is, a diagnosed mental illness); and
(g) 50% have a medical rating (that is, a diagnosed chronic medical condition).
15. The general health status of members of the prison population at PPP can be
generally classified into three broad categories, namely:
(a) prisoners who are usually well and in good health;
(b) prisoners who are in good health but could easily be triggered by disruption
to their usual routine, sending them into a downwards spiral where their mental
or physical health deteriorates (which we sometimes refer to colloquially as
prisoners who are "worried well"); and
(c) prisoners who have complex health issues and high medical needs.”9
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[19] G4S also note that the groups potentially faced with a threat of endangerment are both
prisoners and employees. Prisoners are faced with extended lockdowns and the potential for
further physical isolation and impact on their health and wellbeing. Prisoners may experience
harm as violence from other prisoners or may harm themselves. Employees who work during
the stoppage are faced with the potential for prisoner violence and other anti-social behaviours.
This may be either because of there being insufficient staffing, or due to staff being
insufficiently trained or experienced to deal with worsened prisoner behaviour as a result of
lockdowns and isolation, with employees then in turn inadvertently escalating the severity of
the circumstances because of their inexperience.
Experience
[20] G4S put forward that its experience with stoppages of work by union members shows
the risk presented by further stoppages, and especially one of 12 hours duration.
[21] In June 2024 several notifications of protected industrial action were given by the
CPSU, including the stoppage on 4 June 2024. Originally notified as a 12 hour stoppage
commencing at 7:30 AM, the CPSU modified its finish time to 1:00 PM, a period of 5 ½ hours,
but with Mr Maa observing that “normal work was in fact disrupted for over 6 hours by the
time participating employees moved through security and attended their posts”.10
[22] The parties dispute the impact of the 4 June 2024 stoppage.
[23] The CPSU put forward, through Mr Trait’s witness statement, that he was informed
immediately after the stoppage by the G4S’ Head of Human Resources “that everything went
really well, aside from a couple of minor incidents”.11
[24] Mr Maa and Ms Smith however put forward a very negative experience of 4 June;
• Two prisoners almost missed their chemotherapy treatment;12
• The discussions that led to the CPSU’s changed notification about the duration of the
stoppage also discussed minimum staffing, with commitments not being delivered upon,
with Mr Maa giving this evidence;
“63. Despite the CPSU effectively guaranteeing the presence of 16 correctional
staff for particular agreed important roles during the 4 June Stoppage, this did
not occur. Only 12 correctional staff attended for work as part of the CPSU's
guarantee that they would provide staff for Control Room, TOG, St Augustine’s
and Bed Sits.
64. A remaining 18 correctional staff who decided on that occasion to not engage
in the work stoppage attended on-site during the period of industrial action,
meaning that there was a total of 30 correctional staff available. This is out of a
normal workforce on day shift of around 200. Approximately 35 employees
called in sick at the last minute. The remainder participated in the stoppage.”13
• Of those who attended for work on 4 June, many were inexperienced, with most having
less than 6 months service with G4S.
[2024] FWC 3254
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• Delays were reported in the conduct of morning welfare checks; the provision of
breakfast; the return of prisoners to cells after court appointments and the like; the
provision of prescribed medicines. G4S also reported delays in issuing radios and keys
to custodial officers; supervision of nurses while seeing prisoners; and a requirement to
use non-custodial staff to assist with certain custodial duties.
[25] One of the attachments to Mr Maa’s witness statement records “notable incidents” in
the 24 hour period on 4 June 2024. He says the following about these matters, pointing to the
unpredictability of the situation;
“70. All of the above occurred in an already volatile environment. By way of example,
on 4 June 2024, there were a total of 16 recorded incidents that occurred, including
medical incidents and self-harm incidents. A number of these incidents occurred during
the work stoppage and could have been much more serious without sufficient staff
available to respond. In particular, I note that there were three medical incidents during
the period of the stoppage where medical response and assessment was required – while
each prisoner involved in these incidents was OK, if similar circumstances arose and
we were unable to respond in a timely manner, the risk to prisoner welfare is clear. …
71. Reflecting on the experience from the 4 June Stoppage, I believe we were extremely
fortunate to avoid any serious incidents, even with 30 correctional staff working.”14
[26] Mr Maa’s evidence includes the stoppage effectively running longer than expected and
that fewer union members attended in response to the undertaking than expected;
“Despite the CPSU effectively guaranteeing the presence of 16 correctional staff for
particular agreed important roles during the 4 June Stoppage, this did not occur. Only
12 correctional staff attended for work as part of the CPSU's guarantee that they would
provide staff for Control Room, TOG, St Augustine’s and Bed Sits.”15
[27] G4S also found, on Mr Maas’s evidence, that it could not rely on the non-unionised
workforce to attend either;
“A remaining 18 correctional staff who decided on that occasion to not engage in the
work stoppage attended on-site during the period of industrial action, meaning that there
was a total of 30 correctional staff available. This is out of a normal workforce on day
shift of around 200. Approximately 35 employees called in sick at the last minute. The
remainder participated in the stoppage. ”16
[28] In relation to the notified 18 November 2024 stoppage, Mr Maa held the view that the
prospect of obtaining a sufficiently sized and experienced workforce is not guaranteed;
“65. G4S has no guarantee or reasonable expectation that the employees who chose to
attend on 4 June will do so for any future stoppage. These people were typically new
employees still in their probationary period. However, I believe that at least some (and
possibly all) are eligible to participate in the stoppage.
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66. As above, of the employees in attendance for work on the morning of the 4 June
Stoppage, many were very inexperienced correctional officers, with most having less
than 6 months of service with G4S. During normal operations, inexperienced
correctional officers are paired with a more senior correctional officer to provide
guidance in relation to the handling of specific incidents in line with specific unit
protocols. This was obviously not able to occur during the 4 June Stoppage due to the
staff shortages. This meant that some inexperienced correctional officers were unsure
of how to respond to certain incidents. For example, one correctional officer was unsure
of how to respond to a prisoner who did not respond when visited at their cell for a
welfare check, and had to radio for further assistance. As a non-responsive prisoner
could be suffering from a medical issue, a 'Code Black' was eventually called to deal
with the incident. A more experienced officer would have called a Code Black
immediately.”17
[29] G4S are concerned that actual staffing on the day may be insufficient, and that the length
of a likely lockdown will propel adverse reactions.
[30] Having received notification of the 18 November stoppage, G4S sought, but did not
obtain an amended undertaking from the CPSU that the union ensure that 42 members be made
available to operate the prison’s day shift. Further consideration by Mr Maa of the needs of
G4S and PPP led him to later amend the minimum number of people needed to safely operate
the 18 November day shift to between 53 and 58 employees.
[31] Both Mr Maa and Ms Smith believe the stoppage will mean prisoners will be subject to
a 36 hour lockdown. Mr Maa’s evidence is that the prison environment is inherently precarious,
managed by a strict daily routine. Even small changes to the routine can “quickly shift the
dynamic in the prison as a whole, and lead to violence and insecurity”.18 The length and timing
of the stoppage would be unprecedented in his time at the prison and would require a lengthy
lockdown with negative effects on prisoners;
“77. As mentioned above, the Proposed Stoppage will require prisoners to be locked
down during the day on 18 November 2024. The effect of this is that prisoners will
spend at least 36 hours continuously locked in their cells. This is because prisoners will
be locked down at approximately 8pm in the evening of 17 November 2024, will not be
unlocked from their cells the following morning for their usual daily activities as a result
of the Proposed Stoppage, and will remain locked in their cells during the evening of 18
November 2024. This is in circumstances where prisoners are already experiencing a
reduction in time outside of their cells each day due to the indefinite early locking and
late unlocking actions previously notified by the 15 October Notice and the 16 October
Notice.
78. Within the corrections sector, it is well known that there are significant negative
effects on prisoners associated with being placed in lock down. This includes impacts
on both the physical and mental health of prisoners (who are already vulnerable to
physical and mental health problems due to a range of factors).”19
[32] When it notified protected industrial action on 18 November, in the form of a 12 hour
stoppage, the CPSU pre-emptively put forward that the “previously agreed undertaking is
[2024] FWC 3254
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agreed to”, being a reference to the undertakings given at the time of the proceedings before
Deputy President Gostencnik. From G4S’ view though, the June undertakings were insufficient
for the 18 November notification, taking into account not only the matters of context and
experience referred to earlier, but also the fact a stoppage the length of 12 hours had not been
experienced before . Mr Maa believes that, based on his experience, the prisoners’ mental health
will suffer “as a result of such a lockdown” with exacerbation “if they think there is a prospect
of similar lockdowns in future”. His witness statement elaborated;
“82. Further, based on my experience, I consider there is a high likelihood that this may
result in physical harm to one or more persons. There will be an increased potential for
prisoner on prisoner and prisoner on custodial officer violence during the lead up as
anxiety levels will be increased. There is an even higher likelihood in my experience of
violence coming out the other end of the lockdown, due to the affect the lockdown will
have on prisoner mood. Further, while I hope this will not occur, it is almost certain that
there will be instances of prisoner self- harm caused by such a lengthy lockdown.
Prisoners may well be motivated to self-harm just to be removed from their cell and
have contact with others during this period.
83. Earlier in my career, in approximately 2006, I was employed at the Metropolitan
Special Program Centre, a maximum security prison in New South Wales, when
prisoners were required to be locked down in their cells for an extended period of 36
hours due to ongoing industrial action. During and in the lead up to that lock down,
there were a number of threats of self-harm made by prisoners. A portion of these threats
manifested into actual self-harm and several prisoners required urgent medical
assistance during the lockdown as a result.
84. I consider the risks presented by the lockdown could be significantly mitigated if
we are able to inform the prison population that they will have at least one hour out of
their cells on 18 November. This will allow them time to socialise, exercise and use the
phones to contact family, friends and/or legal representatives. In my experience, these
opportunities are crucial to ensuring prisoner wellbeing and reducing the risk of harm.
However, G4S will need a guarantee of significant staff numbers to facilitate all sections
of the prison having at least one hour out of their cells.”20
[33] In cross-examination by Mr White, Counsel for the CPSU, Mr Maa accepted that, with
sufficient staffing on the day, prisoners could be allowed time out of their cells and that the
lockdown would be less than 36 continuous hours;
“In order to ensure that all prisoners are able to be provided at least one hour out of their
cells through a staged unlock of the respective accommodation units, G4S has determined
that it will need an additional 12 Corrections staff in order to facilitate this
mitigation?---That's correct.
So that addition 12, that's 12 addition to the 30 that are already promised by the
undertaking. Is that what you meant by that?---That's correct.
So a total of 42 staff. Is that what you said?---Yes.
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What you've got in mind by allowing prisoners to be out of their cell for one hour at a
time through a staged lockdown, is that also known as a rolling lockdown? Have I got
the terminology right?---That's correct.
So the point would be that during that rolling lockdown with that minimum staff of 42,
that prisoners would not be confined to their cells for the full period of any
stand-down. They would be allowed out for at least one hour each day?---At least one
hour, yes.
Could it be more than one hour?---It could be, depending on how operations progress,
and also depending on the number of staffing that we actually get on site during the actual
industrial action.”21
[34] Ms Smith’s evidence goes further on the likely significant impact of an extended
stoppage on prisoners. About 300 prisoners are receiving treatment for opioid dependency, with
about 120 requiring daily methadone treatment. If that treatment is delayed, the prisoner may
experience significantly increased anxiety and/or withdrawal symptoms.22 During a lockdown
self-harm is more likely and she is aware of a suicide in a NSW prison that occurred during a
lockdown due to industrial action. 23 Further;
“30. … In this case, I understand that prisoners would be locked down from Sunday
evening until Tuesday morning, which is substantially longer than what occurred during
the 4 June Stoppage or 7 November Stoppage. Accordingly, the associated risks are
higher. In particular, I am concerned about:
(a) the potential physical and psychological wellbeing impacts of those prisoners
who would normally be able to freely seek assistance from healthcare staff
during their unlocked period during the day;
(b) the ability of correctional and/or other operational staff to actively monitor
the wellbeing of prisoners, whilst they are locked in their cells.
31. The role of correctional staff in the day to day monitoring and engagement with
prisoners whilst they are out of cell is pivotal to the early identification and intervention
with prisoners whose physical or mental health is deteriorating. Whilst arrangements
will be in place for welfare checks, staff will be reliant upon prisoners self-reporting
any health concerns. Typically, in a heightened state or period of low mood, where self-
harm is a risk, it is the staff, rather than the prisoner who escalates their concerns for
health staff assistance.
32. In my experience an extended period of lockdown such as that proposed on 18
November 2024 will have an adverse outcome to the overall physical and mental
wellbeing of all prisoners, due to their inability to readily access fresh air, social
supports, exercise and available services and programs.
33. If the action proceeds such that it is necessary to keep prisoners locked in their cells
for at least 36 hours then I consider it is reasonably likely this will result in physical
harm either as the result of self-harm, prisoner on prisoner harm or prisoner on custodial
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officer harm. While of course I cannot predict the future, this is my professional opinion
having regard to my knowledge of the prisoner population and experience working in
prisons, as well as my health qualifications. Considering that lockdowns of this length
are extremely unusual and may not have been experienced by some of the population
before, I expect that the lockdown will have a significant negative impact on the
prisoners' mental health and general wellbeing. This in turn increases the risk of
physical harm in the future.”24
OPERATION OF SECTION 424
[35] Deputy President Slevin recently summarised the operation of s.424 and the
considerations to be taken into account in Endeavour Energy Network Management v CEPU,
an analysis with which I concur;
“[35] Section 424(1) requires the Commission to consider two things. First, whether
protected industrial action is being engaged in or is threatened, impending or probable.
Second, if it is, whether it is satisfied that the industrial action had threatened, is
threatening or would threaten to have the effects set out in s 424(1)(c) or (d).
[36] A recent Full Bench of the Commission in CEPU v Transgrid [2024] FWCFB 333
(Transgrid) described s. 424(1) as calling for an exercise of discretion in the broad sense
in that the threat as to which the Commission must be satisfied for the purposes of s
424(1)(c) involves a degree of subjectivity or value judgment. The Full Bench went on
to observe that s.424(1) requires the Commission to initially identify whether particular
protected industrial action is being engaged in or is threatened, impending or probable.
If so, the Commission must then determine if it is satisfied that the particular protected
industrial action has threatened, is threatening or would threaten to have consequences
of the type set out in s 424(1)(c) or (d).
[37] Subsection 424(1) requires that the Commission must make an order suspending
or terminating the protected industrial action that is being engaged in, or is threatened,
impending or probable if satisfied that it has threatened, is threatening or would threaten
to endanger the personal safety or health, or the welfare, of part of the population. As
the Full Bench in Victorian Hospitals' Industrial Association v Australian Nursing
Federation [2011] FWAFB 8165 (ANF) said:
[49] It is clear that there must be an appropriate evidential basis to found such a
satisfaction. As the High Court said in Coal and Allied Operations Pty Ltd v
AIRC in considering somewhat similar provisions in the Workplace Relations
Act 1996:
“... the nature of the threat as to which a decision-maker must be satisfied
under s 170MW(3) of the Act involves a measure of subjectivity or value
judgment... [A] decision under s 170MW(3)(b) that industrial action is
‘threatening... to cause significant damage to the Australian economy or
an important part of it’... is not simply a matter of impression or value
judgment... the decision-maker must have some basis for his or her
https://www.fwc.gov.au/documents/decisionssigned/pdf/2024fwcfb333.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2011fwafb8165.htm
[2024] FWC 3254
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satisfaction over and above generalised predictions as to the likely
consequences of the industrial action in question”.
[38] As to endangerment, the Full Bench in ANF said:
[51] We were taken in the proceedings to previous decisions of FWA and its
predecessors regarding the meaning of the terms in s.424(1), including the
references to “welfare” of the population and the concept of endangerment.
These are commonly used words and expressions which are widely understood
in the community, and which should be given their ordinary meaning. Conduct
that puts a person’s physical or mental state at risk of material detriment – or
that materially hinders or prevents improvement in a person’s poor physical or
mental state – may qualify as conduct that endangers personal health or safety.
Although the conduct might not be of such a serious nature as to amount to an
endangerment to “life”, it might nevertheless be such as to constitute a
significant risk to “personal safety or health”. Conduct that delays or puts off the
efficient supply of public health services has the capacity to impact adversely
upon the welfare of at least some of the persons who require those services. The
impact of the conduct must, however, be more than merely to cause
inconvenience to the persons concerned – it must be such as to expose them to
danger.
[39] In Re Svitzer Australia Pty Limited [2022] FWCFB 213 the Full Bench said:
[29] The terms “endanger” and “welfare” used in s 424(1)(c) are not defined in
the FW Act, however they bear their ordinary meaning, and it is a matter for the
Commission, in each case before it, to determine whether or not it is satisfied
that industrial action is threatening to endanger the welfare of the population, or
a part of it.”25 (endnotes omitted)
CONSIDERATION
[36] Suspension or termination of protected industrial action requires the Commission to be
satisfied of the matters in s.424(1) and, particularly relevant to this matter, that the protected
industrial action has threatened, is threatening or would threaten to endanger the life, the
personal safety or health of the welfare of the population or a part of it.
[37] Mr Howard, Counsel for G4S, advocated that the disposition of its application involved
four issues;
“(a) Issue 1: Is protected industrial action threatened, pending or probable?
(b) Issue 2: What is the nature of the protected industrial action?
(c) Issue 3: Will the protected industrial action threaten to endanger the life, personal
safety, health or the welfare of part of the population?
(d) Issue 4: Should a suspension or termination order be made?”
[38] The first and second matters are relatively straightforward and align with the findings
the legislation obliges the Commission to make.
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[39] A finding is available that at least the protected industrial action notified in the form of
the 12 hour stoppage on 18 November 2024 is “threatened, impending or probable”
(s.424(1)(b)).
[40] The 8 November 2024 notification was to the effect that, on “18th November 2024, each
Relevant Employee will engage in a stoppage of work for the duration of 12 hours. This
stoppage will commence at 7:30am and last until 7:30 pm.” The industrial action would be
tempered by the undertaking given by the CPSU in its notification that “the previously agreed
undertaking is agreed to. If insufficient staff are available as per the undertaking, contact CPSU
Organiser/Delegates”.26 The “previously agreed undertaking” is a reference to the undertaking
given by the union in June and included in the consent order made by Deputy President
Gostencnik on 11 June 2024, the text of which is set out at paragraph 12 of this decision. It
follows that the nature of the protected industrial action is a 12 hour day time stoppage by
CPSU, with the impact potentially offset by the measures set out in the June undertaking.
[41] I am also satisfied that the stoppage notified for 18 November 2024 threatens to
“endanger the life, the personal safety or health, or the welfare, of the population or of part of
it” (s.424(1)(c)).
[42] The threatened endangerment arises because of the circumstances of the prison: a
controlled environment which undertakes the incarceration of prisoners charged with or
convicted of serious crimes. I accept the evidence of Mr Maa and Ms Smith that changes to the
routine needed to keep order heighten the risk of violence to employees or other prisoners, may
harm the already diminished mental health of the prisoners and may escalate the possibility of
self-harm.27
[43] These risks and their intersection with each other are unusual and possibly unique risks.
The consequences of the risks are also profound in the sense that if the risk of violence or self-
harm came to be that either employees or prisoners could face lifelong consequences.
[44] There was previously the stoppage of between 5 ½ and 6 hours duration on 4 June 2024,
about which Mr Maa reported difficulties in obtaining an acceptable number of staff,
notwithstanding the CPSU’s undertaking. The union had undertaken 16 of its members could
be found, however Mr Maa’s evidence was that only 12 attended for work, who were
supplemented by a further 18 staff who did not engage in the stoppage.28 Mr Maa further
reported that on the day “we were extremely fortunate to avoid any serious incidents, even with
30 correctional staff working”.29
[45] In considering whether there is a threat of endangerment arising from the notification
about 18 November 2024, I take into account not only that the notified stoppage is twice as long
as that on 4 June, but also that G4S’ estimation of staff needed to safely run the day shift is very
different from the earlier occasion. I also take into account G4S’ concern that the CPSU
undertaking may not mean that the expected number of employees will actually attend for the
shift; with the implication that if they do not, the risks it faces rise considerably.
[46] Mr Maa’s evidence was that, to run the day shift safely, G4S would need variously 42
employees30 or between 53 and 58 employees.31 The differences in the estimates are not fully
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explained, however I note that he makes references in other parts of his evidence to needing to
take account of the impact of other industrial action in estimating staffing needs, as does Mr
Howard in submissions.32 The CPSU undertaking provides for it using its best endeavours to
“ensure that there are 30 custodial officers available (plus custodial officers for bed sits as
required) and that these persons have the skills, licensing and qualifications appropriate for their
roles / areas of the prison with the necessary skills”.33 The CPSU suggest the 42 employees
referred to in the G4S correspondence of 13 November 2024 as the more reliable of the
estimates, with Mr White submitting the lower number of 42 had been unambiguously accepted
in cross-examination by Mr Maa.34
[47] The two estimates are not necessarily in conflict with each other, and likely speak to the
uncertainties associated with a depleted staffing on a day when the workload remains the same.
[48] Both parties estimate there are about 150 non-union employees, with the CPSU arguing
that there are several mechanisms available to G4S in order to draw upon that pool to
supplement the employees delivered by the CPSU. In particular, in order to deal with the fact
that not all of the 150 would be rostered for work on the 18 November day shift, it is said that
the non-union pool could be accessed through ad hoc overtime allocated after an employee
places their name on a “Call In List”. Mr Maa’s evidence is that volunteering for ad hoc
overtime requires an employee to notify G4S by 10 AM the day prior to availability for work,
after which the person’s name is placed on the list and requested to perform overtime if required.
He makes the point though that “We are not able to anticipate how many employees may
volunteer to be on the "Call In List" on any one day”. He also expects that filling overtime shifts
would be more difficult “where there is industrial action on foot and the employees were being
asked to work to mitigate the effects of the action”.35
[49] In cross-examination, Mr Maa maintained that use of the Call In List was possible as a
means of arranging additional staff, while continuing to point to its limitations;
“At paragraph 99 you refer to a system of G4S seeking staff to perform overtime, and that
they're drawn from a call-in list. You can see that beginning at paragraph 99. In that
paragraph you say that the call-in list is made up of staff who notify G4S on the day prior
of their availability to perform overtime. Do you accept that there's no reason why G4S
couldn't seek volunteers in advance to perform overtime on a particular day?---Yes. A
couple of things to consider is that first of all we don't know who is a CPSU member or
not. So we don't have any visibility across, you know, what members or non-members we
have, and secondly, with regards to the on-call system it is up to the staff to make
themselves available, you know, to put themselves on your on-call list to be able to be
provided the opportunity or to be called for overtime. So - - -
Yes, and that on-call list only appears the day before, is what you've said?---Yes, well,
people can make themselves available a few days in advance leading up to their days off.
You received notification of this stoppage on 8 November. I showed you that letter
notifying the proposed industrial action?---Yes.
So you, as of today, have been aware of the proposed stoppage for about a week?---Yes.
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And you or - nobody at G4S has made any announcement requesting volunteers for the
call-in list on Monday?---Well, the staff are very well aware of the process for making
themselves available for overtime.
Yes?---So people understanding that there's industrial action on Monday, if they choose
to make themselves available for overtime they will make that availability on the system.
The answer to my question, though, is no, is it, that you've not put out an announcement
requesting volunteers?---No, in answer to your question, that as we progress to the period
of the industrial action we will be taking - we're exhausting all options to provide access
for staff to be able to come into duty.
So you accept that there are other options that you can pursue to fill the staff then?---Well,
that's an option that already exists, in terms of normal operations.
Yes?---Yes.”36
[50] The G4S evidence suggests that the overall circumstances are fraught and highly
uncertain. In June, G4S found that the commitment by the CPSU to provide a minimum number
of staff was unreliable. Drawing upon the pool of non-union employees is problematic, with
experience in June showing that a significant number of the employees called in sick. It is also
the case that G4S has no knowledge of who may be a union member or not, meaning that its
capacity to use the overtime roster to supplement the number of staff provided by the union is
limited.
[51] As things stood at the time of the hearing, there was considerable uncertainty faced by
G4S because of the notified protected industrial action planned to be taken on 18 November
2024. It would need to go into that shift with the assumption that the planned protected
industrial action would take place for the entirety of the notified period, a 12 hour shift, with
the consequential expectation that prisoners would be locked down for an extended period,
commencing at or around 8 PM the previous evening.
[52] It would have some visibility after 10 AM the day prior as to the number of non-union
members who put themselves forward for nomination for ad hoc overtime on the Call In List.
It would not know until the commencement of the 7 AM shift on 18 November as to how many
CPSU members would attend for work or how many on the Call In List would present for work
and if it had at least 42 employees.
[53] If sufficient employees attended for work on 18 November, either because of the union’s
undertaking or because of G4S’ capacity to roster and marshal for work sufficient numbers of
the non-union workforce, the safety risk presented by the day would be heightened from an
otherwise normal day, but not as badly than if it had fewer employees for the day. With an
acceptable number of employees for the day (being at least 42), prisoners could be allowed time
out of their cells. If however, insufficient employees attended for work it would be difficult to
arrange for prisoners to have time out of their cells and it may not happen at all, in which case
the safety risk presented from the day would be well beyond the situation if sufficient
employees attended for work or what could reasonably be anticipated.
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[54] Both these circumstances amount to a threat to endanger the life, the personal safety or
health, or the welfare, of the population or of part of it. The threat may reasonably be predicted
to be either of violence from one prisoner to another; prisoner to an employee; or from the
circumstance of prisoner self-harm.
[55] The foregoing conclusions satisfied the thresholds required for an order to be made
pursuant to s.424. The mandatory nature of that consideration in turn requires consideration of
whether the protected industrial action is to be terminated or suspended.
[56] In the matter of Re Svitzer Australia Pty Limited, the Full Bench observed the following
about the matter of suspension or termination;
“[38] Having made the above findings, we are required by s 424(1) to make an order
suspending or terminating Svitzer’s protected industrial action. As to the selection of
the alternatives of a suspension order or a termination order and, in the case of the
former, as to the period of the suspension, the discretion conferred by s 424(1) is
unfettered save by the subject matter and objects of the FW Act. Considerations which
have been taken into account in previous decisions made under s 424(1) include the
following:
• that the system of bargaining under the FW Act encourages enterprise
bargaining and permits protected industrial action;
• the length of time negotiations have been going on;
• the progress that has been made in negotiations;
• whether there has been prior industrial action;
• the views of the parties (especially where both parties agree on the appropriate
course of action); and
• the potential for further industrial action that would enliven s 424(1) and the
need to make further orders.
[39] It is important to bear in mind, however, that the purpose of s 424(1) is the
protection of the population and the economy from the specified types of endangerment
and significant damage, not to bring to an end enterprise bargaining which is perceived
to be “intractable”. The state of progress, or otherwise, in bargaining is a consideration
which may be taken into account in the exercise of the discretion under s 424(1) as to
the type of order to be made, but the FW Act does not disclose any object or purpose to
terminate “intractable” enterprise bargaining as such.”37 (citations omitted)
[57] For its part, the Applicant in this matter, G4S, argued that upon making the requisite
threshold findings, the Commission should determine to suspend the protected industrial action
and to do so for a three month period. It submitted in this regard;
“This period will allow for Corrections Victoria to provide the bargaining unit with
information about redeployment opportunities (noting the pending closure of Port
Phillip Prison by 31 December 2025) and time to bargain over that information. A 3-
month suspension order also appropriately accounts for upcoming end of year leave and
associated interruptions. Objectively analysed, there is no prospect of an agreement
being reached during this period.”38
[2024] FWC 3254
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[58] The CPSU submitted that if the Commission were to find that the conditions in s.424
(1) are met, any subsequent order made should be in favour of termination of the protected
industrial action rather than suspension.39 It reasoned that “the negotiations are intractable as
they stand”, with bargaining having gone on for 18 months. If there were to be a suspension,
rather than termination of the protected industrial action “[t]here is a high prospect that any
future action by the union would again come before this Commission for its response, it's
supervision under section 424”.40
[59] The disruptive externality which impacted on midyear bargaining is the announcement
by the Victorian government that the Port Phillip prison would close by 31 December 2025.
Not unsurprisingly, the announcement focused the minds of both G4S and the CPSU, with
concerns crystallising for both about the two bargaining claims which are presently unresolved;
wage increases and redundancy payments. Each party argues in these proceedings that further
information is required from the government, being the ultimate contractor, as to its intentions
including timing and the like. There is apparently no reliable timetable as to when that
information would likely be available to the bargaining parties.
[60] In many respects, that is not an unusual situation for bargaining parties working in
connection with an enterprise that is a contractor to another. There are often uncertainties as to
the ultimate contractors’ intentions about tendering or renewal of contracts. Sometimes those
externalities are resolved before bargaining is conclude and in other cases they are not resolved.
Those matters of themselves do not prevent bargaining from taking place in a timely and orderly
manner.
[61] Having regard to the matters referred to in Re Svitzer that have been taken into account
in applications for suspension or termination of protected industrial action, I consider overall
that some space remains for orderly bargaining which does not then threaten to endanger the
population or part of it.
[62] There have been two protected industrial action ballots undertaken in relation to the Port
Phillip prison, each of which has voted up a range of protected industrial action measures, some
of which have been the subject of protected industrial action notifications by the CPSU. To
date, there have been the two occasions where the protected industrial action notifications have
rippled into concerns on the part of G4S such that applications need to be made pursuant to
s.424. The first was dealt with by Deputy President Gostencnik and concluded with the
undertaking previously referred to for provision of employees. The second is this matter.
Overall, this consideration suggests that notifications about protected industrial action have so
far been somewhat conservative, albeit testing the boundaries. There is nothing before me that
would suggest that future protected industrial action notifications would automatically be at the
higher end of potential engagement with the provisions within s.424(1). Of course, if they were,
the CPSU’s prediction would likely be accurate that the parties would return to the Commission
under s.424(1).
[63] In relation to the length of time and progress of bargaining, it is of course the case that
bargaining has been proceeding for an extended period, with the notification time for the
commencement of bargaining being 28 July 2023. The notification date though was five months
prior to the nominal expiry date of the 2021 Agreement, being 31 December 2023. While the
[2024] FWC 3254
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overall bargaining period is extended, such is not unusual in the publicly funded sector. The
parties were also close to concluding agreement for a replacement enterprise agreement, with
further progress being disrupted by the announcement by the Victorian government on 26 June
2024 that the Port Phillip prison would close by 31 December 2025. While disruptive, the
announcement cannot be seen as preventing further negotiations, albeit that both parties seek to
have further information from the government as to intentions and timing. It must also be
observed that, even if there was no further information from government, that situation does
not prevent the formulation of claims and provision of responses, and the parties do not appear
to have exhausted those possibilities at this time.
[64] I refer also to my earlier observations with respect to prior industrial action and the
potential for further industrial action. There has been some, with at least two occasions of
testing the boundaries, and with the possibility of further protected industrial action, which does
not necessarily engage the provisions of s.424 or the related provisions of Part 3 – 3 of the FW
Act.
[65] The views of the parties as to the appropriate course of action are referred to above.
[66] Consideration of these matters leads me to the view that it would be inappropriate at this
time to terminate the protected industrial action. To do so would be unnecessary within the
scheme of the protected industrial action that has taken place so far, and may potentially deprive
employees of the opportunity for further industrial action for the purpose of advancing their
industrial claims.
[67] Suspension of the protected industrial action is certainly warranted, as it enables the
parties to engage in appropriate dialogue with each other about information required from
government in order to conclude bargaining or approaches needed to be made to government
to solicit that information; to bargain without the prospect of further high level protected
industrial action; but to have there be a real opportunity for further protected industrial action
within a defined period. G4S press for suspension of the protected industrial action for a period
of 3 months, which would mean the potential for the reinvigoration of protected industrial
action being from mid to late February 2025. That is against the context of the Port Phillip’s
prisons closure at the end of 2025 and likely reductions in staff and prisoners from some time
earlier than close date. I would be concerned that, if a 3 month suspension were to be granted,
that should bargaining flounder in the meantime, or not otherwise progress for some reason,
including an information gap about the government’s intentions and timings, employees might
be disadvantaged in their bargaining.
[68] At the same time a very short suspension, perhaps of 1 month or less would likely not
assist bargaining, with G4S in particular having to then focus on the likelihood of a resumption
of protection industrial action within a short period.
[69] In all, I consider that a midpoint of suspension, for a period of 2 months, is appropriate.
The suspension for that period will allow intensive negotiations over the remaining part of
November and into December and the early part of January. Not only in that time can
negotiations take place, but the necessary representations to government can be made by G4S
and the CPSU about their need for timely and decisive information relating to the reduction in
functions of the Port Phillip prison and its ultimate closure at the end of 2025. A period of two
[2024] FWC 3254
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months will also allow proper progression of the CPSU’s application pursuant to s.240 for
assistance with a bargaining dispute which has been allocated for dealing with by myself.
[70] I determined that for these reasons an order should be issued suspending the protected
industrial action for a period of two months. The order is published separately in Print
PR781321
COMMISSIONER
Appearances:
Mr L. Howard, for the Applicant
Mr A. White, for the Respondent
Hearing details:
15 November.
2024.
Printed by authority of the Commonwealth Government Printer
PR781596
1 PR781321.
2 Exhibit G4S 3; Witness Statement of Peter Maa, [31]
3 Exhibit G4S 3, Attachment PM – 7
4 Exhibit G4S 3, Attachment PM – 23.
5 Print PR775854, 11 June 2024.
6 Exhibit G4S 3, Attachment PM – 23.
7 Exhibit CPSU 1, Witness Statement of Adrian Trait, [31].
8 Exhibit G4S 3,, [10].
9 Exhibit G4S 2, Witness Statement of Amanda Smith.
10 Exhibit G4S 3,, [62].
11 Exhibit CPSU 1, [24].
12 Exhibit G4S 2, [42].
13 Exhibit G4S 3.
14 Exhibit G4S 3.
15 Exhibit G4S 3, [63].
16 Exhibit G4S 3, [64].
17 Exhibit G4S 3, [65] – [66].
WORK NORK 0 COMMISSION ISSION AUSTRALIA, THE SEAL OF THE F
https://www.fwc.gov.au/documents/awardsandorders/pdf/pr781321.pdf
https://www.fwc.gov.au/documents/awardsandorders/pdf/pr781321.pdf
https://www.fwc.gov.au/documents/awardsandorders/pdf/pr775854.pdf
[2024] FWC 3254
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18 Exhibit G4S 3, [76].
19 Exhibit G4S 3.
20 Exhibit G4S 3, [82-84].
21 Transcript, PN 88 – 93.
22 Exhibit G4S 2, [27].
23 Exhibit G4S 2, [29].
24 Exhibit G4S 2.
25 [2024] FWC 2285.
26 Exhibit G4S 3, Attachment PM – 23.
27 See Exhibit G4S 3 [12](f), (g), (k) and (l), [76] and [88]; Smith [10], [15].
28 Exhibit G4S 3, [62] – [63].
29 Exhibit G4S 3, [71].
30 Exhibit G4S 3, Attachment PM – 25, correspondence to CPSU 13 November 2024.
31 Exhibit G4S 3 [93].
32 Transcript, PN 242.
33 Exhibit G4S 3, Attachment PM – 15.
34 Transcript, PN 270.
35 Exhibit G4S 3, [99] – [100].
36 Transcript, PN 109 – 117.
37 [2022] FWCFB 213, (2022) 320 IR 91.
38 Exhibit G4S 1, G4S’ Outline of Submissions, [33]
39 Transcript, PN 132.
40 Transcript, PN 316.
https://www.fwc.gov.au/documents/decisionssigned/pdf/2024fwc2285.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2022fwcfb213.htm
