REASONS FOR DECISION

Fair Work Act 2009
s.418 - Application for an order that industrial action by employees or employers stop etc.

Victorian WorkCover Authority T/A WorkSafe Victoria
v
CPSU, the Community and Public Sector Union
(C2017/3720)

Order to stop industrial action - Reasons for Decision.

[1] An application was made on Friday, 7 July 2017 by the Victorian WorkCover Authority, trading as WorkSafe Victoria (WorkSafe) pursuant to s.418 of the Fair Work Act 2009 (the Act) seeking orders from the Fair Work Commission relating to alleged unprotected industrial action allegedly being taken by the Community and Public Sector Union (CPSU) and its members employed by WorkSafe. After a hearing of the application an Order was made by the Commission which came into effect at 7:30 PM on Friday, 7 July 2017. 1

[2] At the time the Order was circulated to the parties, they were informed that Reasons for Decision would be issued by the Commission on the next business day. These are my reasons for my decision to make the order.

[3] WorkSafe employees and the CPSU are covered by the Victorian WorkCover Authority Enterprise Agreement 2016 – 2020 2 (the Agreement) which was approved by the Commission on 21 June 2017 and came into operation on 28 June 2017. The nominal expiry date of the agreement is 30 November 2020.

[4] The Applicant in this matter, WorkCover, alleged that, through a newsletter dated 5 July 2017 and circulated by the CPSU to members of the union who are employed by WorkSafe, the union indicated an intention to take industrial action in several forms. WorkSafe argue that the indicated matters should be regarded as industrial action within the meaning of the Act and that the things stated within the newsletter would reasonably lead to a finding by the Commission that the intimated industrial action is unprotected industrial action and that as a consequence it should also be found that unprotected industrial action within WorkSafe is happening, or is threatened, impending or probable or is being organised, as those terms are referred to in s.418(1) of the Act.

[5] The background to this matter includes that an alleged dispute relating to WorkSafe was notified by the CPSU to the Commission pursuant to s.739 of the Act on 27 June 2017. 3

[6] That alleged industrial dispute was notified as a dispute arising under an earlier enterprise agreement to the one referred to by me above, being the Victorian WorkCover Authority Enterprise Agreement 2012 (the 2012 Agreement). 4 The alleged dispute in that matter is set out as a failure by WorkSafe to consult in accordance with the terms of the 2012 Agreement about changes the organisation proposed to make, or did make, in relation to “major changes to their Operational Motor Vehicle Policy”. The day after the alleged dispute was notified, on 28 June 2017, WorkSafe advised the Commission that it considered the Commission did not have jurisdiction to deal with the alleged dispute at that time, owing to the requisite procedural steps in the dispute resolution procedure not having been complied with.

[7] WorkSafe’s correspondence to the Commission advised that it had notified the CPSU that it would consult with its employees in relation to the amendments to its operational motor vehicle policy. The correspondence to the Commission indicated that WorkSafe considered this to fully resolv the alleged dispute and that no further intervention from the Commission was necessary.

[8] Having received this notification, the Member to whom the matter was assigned, Deputy President Clancy, referred the WorkSafe correspondence to the CPSU for its advice to him, which appears yet to have been received. A file note on the dispute file dated 7 July 2017 indicates that Deputy President Clancy’s Chambers was advised by a Ms Carr that the CPSU was seeking legal advice, with the relevant contact Officer attending the Commission 7 July 2017 in relation to the proceedings before me.

[9] Both the s.739 dispute, and this application made pursuant to s.418 of the Act, relate to WorkSafe inspectors and investigators who have the power to enter workplaces pursuant to applicable Victorian legislation. They do so in order to ensure compliance with or to investigate possible non-compliance with the State’s occupational health and safety and dangerous goods legislation. In some circumstances the employees may issue directions to persons in charge of workplaces about the safe operation of the workplace. In the course of their duties the inspectors and investigators use what are referred to as “tool of trade” vehicles, as well as other “tool of trade” equipment such as laptop computers and mobile phones. The evidence before the Commission includes that, on average, such employees may be away from WorkSafe’s offices at least 65% of their working time, and might only attend WorkSafe offices one to two times a week to undertake tasks like team meetings, training, meetings with their manager or to collect documents. In this regard, the evidence was of a highly mobile workforce that ordinarily did not start or finish from WorkSafe’s offices very often:

“16. In most circumstances, Relevant Employees commence work at the first workplace that they are scheduled to visit each day and finish work at the last workplace that they visit on a particular day.

17. Relevant Employees very rarely attend a WorkSafe Office prior to their first site inspection/investigation on any particular day. Instead, they drive directly to the location of their first inspection/investigation. The notable exception to this is our specialist Inspectors (including major hazard and earth resources inspectors) who generally spend more time in the office.

18. Similarly, Relevant Employees very rarely return to a WorkSafe Office after completing their final site inspection/investigation on any particular day. Instead they drive home from the location of their last inspection/investigation.

19. The practice of starting and finishing work at the location of an employee's first and last inspection/investigation is a long standing practice that is intended facilitate the most effective and efficient performance of duties by the Relevant Employees. In particular, it enables Relevant Employees to attend more workplaces in the course of their duties by minimising unnecessary travel to and from their designated offices.” 5

[10] In relation to the antecedents of WorkSafe’s application to the Commission, the following background is put forward by Ms Williams, its Executive Director Health & Safety:

“52. WorkSafe is currently exploring the possibility of implementing a number of new practices and minor amendments to policies in relation to the use of all WorkSafe vehicles (including tool of trade vehicles), such as changes to the Operational Use and Executive Motor Vehicle Policies, personal duress alarm options and the use of in-vehicle telematics systems (Proposed Changes).

53. The CPSU has raised concerns regarding the adequacy of the consultation that has been undertaken in relation to the Proposed Changes. On 27 June 2017, the CPSU notified the Fair Work Commission of a dispute under the dispute resolution procedure in the enterprise agreement in place at the time (ie the predecessor to the current Agreement) in relation to its concerns regarding the adequacy of consultation in relation to one of the Proposed Changes.” 6

[11] On 5 July 2017 WorkSafe received a copy of a CPSU newsletter which addressed the potential new practices and possible amendments to policies in relation to the use of what are referred to as “tool of trade” vehicles by inspectors.

[12] WorkSafe’s application in this matter relates to the content of the CPSU newsletter and a copy was provided in evidence to the Commission at the hearing. The newsletter advises that CPSU members have passed certain resolutions:

“OMVP and Telematics & Duress Alarm Issues Update

Following today's meeting regarding Operational Motor Vehicle policy, Telematics and Personal Duress Alarm issues, CPSU members carried the following resolutions to be implemented immediately;

We the CPSU members, are extremely offended by the dishonest behaviours displayed by WorkSafe management representatives in connection to the Operational Motor Vehicle Policy.

WorkSafe Management Representatives have demonstrated a complete disregard and disrespect for their legal obligations in workplace consultation, employee representation and the recently negotiated workplace agreement.

Based on the aggressive and unreasonable nature in which WorkSafe Management Representatives have conducted themselves, we the CPSU members hereby pass the following resolutions;

1. Categorically reject the forced changes to the Operational Motor Vehicle Policy.

2. Will start and finish their working day at their designated office.

3. If supplied with WorkSafe electronic hardware such as computers and telephone will be left at their designated office at the end of their working day and retrieved the next morning.

4. All workplace visits to be have two (2) employees in attendance including After Hours Incident Response.

5. All normal hours of work to be conducted with the span of hours. Only work to be conduct outside the span of hours will be After Hours Incident Response with 2 employees in attendance and will start and finish from their designated office.

6. Entry reports will only be compiled at a WorkSafe office in an ergonomic environment.

7. Will not answer and make telephones calls whilst driving.

8. Will support the exploration of personal emergency duress alarms.

9. Categorically reject the in car vehicle telematics being installed into WorkSafe vehicles.

10. Call on the Minister responsible for WorkSafe Victoria, the Hon. Robin Scott, to intervene and resolve the issues in dispute with WorkSafe management representatives.

Please pass this onto your colleagues who aren't yet members, as the proposed policy affects every staff member that uses any WorkSafe vehicle. Any questions regarding this bulletin can be emailed to Organiser Terri Carr or call [number].

KAREN BATT

CPSU Victorian Branch Secretary / Federal Secretary

Wednesday 5th July 2017” 7

[13] The CPSU does not contest that the newsletter came from it, or that it is in the terms above, or that it was circulated to its members employed by WorkSafe.

[14] WorkSafe’s application is made pursuant to s.418 of the Act. Determination of the application requires consideration of that section, as well as other relevant provisions in s.417 and s.419. Section 19, which provides the definition of industrial action, also requires consideration. Each of these sections is in the following terms:

“19 Meaning of industrial action

(1) Industrial action means action of any of the following kinds:

(a) the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work;

(b) a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee;

(c) a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work;

(d) the lockout of employees from their employment by the employer of the employees.

Note: In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v The Age Company Limited, PR946290, the Full Bench of the Australian Industrial Relations Commission considered the nature of industrial action and noted that action will not be industrial in character if it stands completely outside the area of disputation and bargaining.

(2) However, industrial action does not include the following:

(a) action by employees that is authorised or agreed to by the employer of the employees;

(b) action by an employer that is authorised or agreed to by, or on behalf of, employees of the employer;

(c) action by an employee if:

(i) the action was based on a reasonable concern of the employee about an imminent risk to his or her health or safety; and

(ii) the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.

(3) An employer locks out employees from their employment if the employer prevents the employees from performing work under their contracts of employment without terminating those contracts.

Note: In this section, employee and employer have their ordinary meanings (see section 11).”

“417 Industrial action must not be organised or engaged in before nominal expiry date of enterprise agreement etc.

No industrial action

(1) A person referred to in subsection (2) must not organise or engage in industrial action from the day on which:

(a) an enterprise agreement is approved by the FWC until its nominal expiry date has passed; or

(b) a workplace determination comes into operation until its nominal expiry date has passed;

whether or not the industrial action relates to a matter dealt with in the agreement or determination.

Note: This subsection is a civil remedy provision (see Part 4-1).

(2) The persons are:

(a) an employer, employee, or employee organisation, who is covered by the agreement or determination; or

(b) an officer of an employee organisation that is covered by the agreement or determination, acting in that capacity.

Injunctions and other orders

(3) If a person contravenes subsection (1), the Federal Court or Federal Circuit Court may do either or both of the following:

(a) grant an injunction under this subsection;

(b) make any other order under subsection 545(1);

that the court considers necessary to stop, or remedy the effects of, the contravention.

(4) The court may grant an injunction under subsection (3) only on application by a person referred to in column 2 of item 14 of the table in subsection 539(2).

(5) Despite subsection 545(4), the court may make any other order under subsection 545(1) only on application by a person referred to in column 2 of item 14 of the table in subsection 539(2).

Note: Section 539 deals with applications for orders in relation to contraventions of civil remedy provisions.

Division 4—FWC orders stopping etc. industrial action

418 FWC must order that industrial action by employees or employers stop etc.

(1) If it appears to the FWC that industrial action by one or more employees or employers that is not, or would not be, protected industrial action:

(a) is happening; or

(b) is threatened, impending or probable; or

(c) is being organised;

the FWC must make an order that the industrial action stop, not occur or not be organised (as the case may be) for a period (the stop period) specified in the order.

Note: For interim orders, see section 420.

(2) The FWC may make the order:

(a) on its own initiative; or

(b) on application by either of the following:

(i) a person who is affected (whether directly or indirectly), or who is likely to be affected (whether directly or indirectly), by the industrial action;

(ii) an organisation of which a person referred to in subparagraph (i) is a member.

(3) In making the order, the FWC does not have to specify the particular industrial action.

(4) If the FWC is required to make an order under subsection (1) in relation to industrial action and a protected action ballot authorised the industrial action:

(a) some or all of which has not been taken before the beginning of the stop period specified in the order; or

(b) which has not ended before the beginning of that stop period; or

(c) beyond that stop period;

the FWC may state in the order whether or not the industrial action may be engaged in after the end of that stop period without another protected action ballot.

419 FWC must order that industrial action by non-national system employees or non-national system employers stop etc.

Stop orders etc.

(1) If it appears to the FWC that industrial action by one or more non-national system employees or non-national system employers:

(a) is:

(i) happening; or

(ii) threatened, impending or probable; or

(iii) being organised; and

(b) will, or would, be likely to have the effect of causing substantial loss or damage to the business of a constitutional corporation;

the FWC must make an order that the industrial action stop, not occur or not be organised (as the case may be) for a period specified in the order.

Note: For interim orders, see section 420.

(2) The FWC may make the order:

(a) on its own initiative; or

(b) on application by either of the following:

(i) a person who is affected (whether directly or indirectly), or who is likely to be affected (whether directly or indirectly), by the industrial action;

(ii) an organisation of which a person referred to in subparagraph (i) is a member.

(3) In making the order, the FWC does not have to specify the particular industrial action.”

[15] The submissions made by WorkSafe in this matter put forward that the foregoing matters, and especially those set out in items 2 – 6 above, amount to unprotected industrial action and that because of the content of the CPSU newsletter it reasonably believes that the industrial action is happening, is threatened, impending or improbable and/or is being organised. It argues that the matters set out in items 2 – 6 are contrary to the longstanding work practices of employees employed under the Agreement. Employees regularly start and finish work away from the WorkSafe offices; regularly keep WorkSafe tool of trade equipment with them and do not return it to the WorkSafe offices each day; regularly undertake worksite inspections and investigations alone; perform work outside of the span of hours in certain defined circumstances, and especially when responding to after-hours incidents; and regularly complete “entry reports” away from the WorkSafe offices.

[16] WorkSafe argue that each of the above matters, if implemented, would be contrary to usual work practices. Further, they argue that changes of this time would have a serious and negative impact on the capacity of the organisation to undertake its work. WorkSafe has supported their submissions on these matters with evidence. That evidence has not been contradicted by the CPSU.

[17] I accept WorkSafe’s evidence and submissions that each of the CSPU’s newsletter items 2 to 6 would, if implemented, be “the performance of work by an employee in a manner different from that in which it is customarily performed or the adoption of a practice in relation to work, the result of which is a restriction or limitation on, or delay in, the performance of the work”, in the context of the meaning of industrial action as that term is defined in s.19 of the Act.

[18] I find that the matters set out in items 2 – 6 of the CPSU newsletter are industrial action and that furthermore each is not, or would not be, protected industrial action.

[19] I note in relation to these matters that the evidence before the Commission is that these matters were the subject of a single instance of actual industrial action being taken. That single instance was on the evening of 5 July 2017, with Ms Williams’ uncontradicted evidence being:

“60. I have been advised by one of my operational line managers that on 5 July 2017 approximately 12 of the Relevant Employees left their laptops at the Mulgrave Office overnight. This meant that these employees also necessarily had to commence work at the Mulgrave Office the following morning on 6 July 2017 before attending their first workplace on that day.” 8

[20] Notwithstanding this single instance of actual industrial action, the evidence before the Commission includes that WorkSafe conducts an after-hours roster of inspectors and investigators in order to properly respond to incidents that occur at night and on weekends. While the CPSU was given an opportunity in the hearing before me to withdraw the items of industrial action that could or would impact on after hours work, no such commitment was given.

[21] Further, no commitment was given that the other items of industrial action, that could or would impact on ordinary hours Monday to Friday, would be withdrawn.

[22] It is noted however, that in relation to the taking of future industrial action, the CPSU committed to recommending to its members on Monday, 10 July 2017 that their resolutions, set out in the 5 July 2017newsletter, not be implemented until consultation with the union is undertaken.

[23] Because no commitment was given in relation to the coming weekend’s after-hours roster and that the recommendation was to not implement industrial action and not to withdraw the notification, I am satisfied on the evidence before me that the industrial action set out in the CPSU newsletter remains threatened, impending or probable or is being organised.

[24] In relation to the matters that require consideration by the Commission within s.418:

• I am satisfied that the newsletter from the CPSU to its members dated 5 July 2017 advises actions to be taken by its members, who are employees of WorkSafe, and that the same newsletter encourages it be passed onto non-members by members, “as the proposed policy affects every staff member that uses any WorkSafe vehicle”.



• I am satisfied that the action set out in the newsletter amounts to industrial action within the meaning of s.19 of the Act for the reason that the action as advised would lead to the performance of work by an employee being done in a manner different from the work to that which is customarily performed or that it would be the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on or a delay in the performance of work; and that the same actions would amount to a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee.



• I am satisfied that the actions set out in the newsletter would not be protected industrial action within the meaning of s.408 of the Act.



• I am satisfied that none of the action set out in the newsletter would amount to the preservation of the status quo within the meaning of clause 64.3 of the Agreement.



• I am satisfied that an application has been made by a person who was affected or is likely to be affected by the industrial action, being WorkSafe.

[25] Having considered the jurisdictional prerequisites within s.418 of the Act, and also having taken into account the evidence which is now before the Commission, I am satisfied that I must make an order that industrial action stop, not occur or not be organised for a period of one month.

COMMISSIONER

Appearances:

Mr B Avallone, of Counsel, for the Applicant.

Mr K Farouque, solicitor, for the CPSU.

Hearing details:

2017.

Melbourne:

7 July.

 1   PR594438.

 2   AE424703.

 3   C2017/3461.

 4   AE403222.

 5   Exhibit A1, Witness Statement of Marnie Williams, [16]-[19].

 6   Ibid [52]-[53].

 7   Ibid Attachment MKW-7.

 8   Ibid [60].

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