DECISION

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

Hillsbus Co. Pty Ltd.
v
Gurdev Singh Bajwa & Others
(C2018/6243)

Application for an Order that industrial action by employees or employers stop etc.

[1] This matter involves an application made under s. 418 of the Fair Work Act 2009 (the Act), seeking that the Fair Work Commission (the Commission) make an Order that industrial action that is happening, threatened, impending, probable or being organised is to stop, not occur or not be organised.

[2] Section 418 of the Act is in the following terms:

“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.”

[3] The application has been made by Hillsbus Co. Pty Ltd (the employer) and it seeks an Order against Mr Gurdev Singh Bajwa and another 127 named individuals (the Employees) who are allegedly engaged in a particular form of industrial action as part of bargaining for a new enterprise agreement to replace the existing industrial instrument that covers the work of inter alia, the Employees, that being, the ComfortDelGro Cabcharge Pty Ltd and the Transport Workers’ Union of Australia Fair Work Agreement 2015 (the 2015 Agreement).

[4] The Hearing of this application commenced via urgent Notice of Listing at 9:30 am on 8 November 2018. Ms C Lenard, solicitor, appeared for the employer. There was no appearance by or on behalf of any of the 128 named individual respondents.

[5] In the circumstances, and as the matter was identified to involve complexity, the Commission was satisfied that, at least on an interim basis, the requirements of s. 596 of the Act had been met, and therefore the employer was granted conditional permission to be represented by lawyers or paid agents.

[6] The operations of the employer that are the subject of the application are conducted in the State of New South Wales. The employer conducts a public transport business relevantly operating as a bus service in New South Wales. The 2015 Agreement has a nominal expiry date of 30 June 2018, and the employer has been engaged in negotiations for a replacement enterprise agreement. The negotiations for a replacement enterprise agreement have involved the employer and bargaining representatives including bargaining representatives from the Transport Workers’ Union of Australia (the TWU). The TWU has not been identified as a respondent to the application.

[7] The employer provided evidentiary material in support of the application through witness statements of Mr Wayne Jeff, Mr Jordan Kocis, Mr Simon Bosnjak, Ms Kathleen Collins and Ms Balvinder Kaur. The evidence provided by the employer supported the assertion that the individuals named as respondents to the application had been involved in a collective personal leave campaign. The alleged collective personal leave campaign manifest as an event whereby, on 7 November 2018, an extraordinary number of individuals were absent from work on the basis of claims for personal leave.

[8] The alleged collective personal leave campaign significantly impacted particular operations of the employer such that a substantial number of bus services were delayed, cancelled or otherwise disrupted. On 7 November 2018, a significant numbers of members of the travelling public were adversely impacted as the employer was unable to operate approximately 300 specific services including school bus services, as a result of the extraordinary number of employees absent on personal leave.

[9] In circumstances where none of the named respondents had appeared at the Hearing on 8 November, the Commission was persuaded to issue Interim Orders as requested by the employer, and provide for further Hearing of the matter which has occurred today, 12 November 2018. Further, the Notice of Listing for the further Hearing of the matter included advice to the respondents that they should indicate whether they opposed the application, and wished to state the basis for their objection to the Orders as sought by the employer.

[10] At today’s further Hearing of the matter, the Commission confirmed that the requirements of s. 596 of the Act had been met, particularly because of the complexity associated with the circumstances surrounding the application seeking an Order to stop unprotected industrial action. Consequently, the Commission has granted permission for either the applicant or any of the individual named respondents, to be represented by lawyers or paid agents.

[11] Prior to the commencement of the further Hearing and as a result of representations made by some of the Employees to the employer, the employer has amended the application by deleting a number of particular individuals from the list of 128 named respondents included in the application. A final list of named respondents shall be determined as a result of any further representations made either today during the Commission proceedings, or subsequently as a result of further review by the employer of material provided to the Commission.

[12] The further Hearing of the matter today has provided opportunity for the named respondents to be heard in respect to the application. The Commission has heard from Mr Bridge from the TWU acting on behalf of the named respondents who have provided material to support the nature of the reason for their absence on personal leave on 7 November 2018. The Commission has carefully considered the responses that have been provided by various named individual respondents many of whom appeared at the proceedings today, together with other documentary material that has been provided to the Commission by various of the individual respondents.

[13] The material, submissions and statements provided by the various respondents has broadly indicated the reason(s) for their individual personal leave absence on 7 November 2018. This material would likely satisfy the basis upon which the relevant provisions of the 2015 Agreement would oblige the employer to make payment in respect of the personal leave absence of that particular individual. However, any satisfaction of the relevant terms of the applicable industrial instrument to provide basis for individual personal leave absence, may not necessarily satisfy the Commission that the resultant collective personal leave campaign was anything other than unprotected industrial action.

[14] The proper determination of this application has involved examination of the circumstances surrounding the alleged collective personal leave campaign as it manifest on 7 November 2018. The collective personal leave campaign when properly examined, represents covert industrial action involving an extraordinary number of individuals all making claim for personal leave such that there could be no proper basis to establish that this event was nothing more than an unusual coincidence.

[15] Importantly, it is relevant to consider whether such covert industrial action involving the collective personal leave campaign can properly satisfy the definition of industrial action. The definition of industrial action is found at section 19 of the Act which 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).”

[16] The determination of the application requires consideration as to whether a collective personal leave campaign which might satisfy relevant terms of the applicable industrial instrument such that payment for that absence would otherwise be made, would satisfy the meaning of industrial action as contained in s. 19 of the Act.

[17] The relevant parts of s. 19 would seem to be those words contained in subsection (1) (a) which state, “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” and those words appearing in subsection (1) (b) which read, “a ban, limitation or restriction ...on the acceptance of or offering for work by an employee” and those words appearing in subsection (1) (c) which read; “a failure or refusal by employees to attend for work…”. [ Emphasis added]

[18] The evidence provided during the Hearing has established that an extraordinary number of individual absences on account of personal leave occurred on 7 November 2018. There was evidence including audio recordings, which strongly supported that individuals had been engaged in a covert campaign which encouraged others to participate in a coordinated manner, in an event that involved multiple claims for personal leave all made on the same day, 7 November 2018.

[19] It is important to note that covert industrial action in various forms has been found to satisfy the definition of industrial action as prescribed by s. 19 of the Act The Full Bench Decision in Australian Workers’ Union v BlueScope Steel  1 (BlueScope) determined that a collective refusal to volunteer for overtime was properly held to be industrial action. In this instance the action is more covertly organised than it was in the BlueScope case. However, the same inferences can be drawn as to the collective determination by particular employees to make claims for personal leave at the one time.

[20] Consequently, in summary, I am satisfied that a campaign of covert industrial action has been undertaken and there is proper basis upon which to find that this concerted activity satisfies the meaning of industrial action as contained in s. 19 of the Act. Further, I am satisfied that the industrial action is not protected industrial action and it is happening, impending, probable and is being organised. The industrial action is covert in nature and manifests as a collective personal leave campaign.

[21] Therefore the Commission must make an Order that the industrial action stop, not occur and not be organised for the stop period which I have determined to be until 30 November 2018.

[22] The covert industrial action taken in this instance must be unequivocally condemned. Covert industrial action taken in respect to public bus operations does not provide opportunity for the employer to implement steps to mitigate the impacts of the industrial action on the travelling public. The members of the public, including schoolchildren, who rely upon the provision of public transport services, and who were, at very least, greatly inconvenienced by the cancellations and disruptions to bus services on 7 November, are entitled to have the Commission properly apply the relevant legislative sanctions as a means to avoid any repetition of the unconscionable conduct of the respondents.

[23] Specifically, the determination that the respondents have taken unprotected industrial action shall mean that, although the individual applications for personal leave would otherwise require the employer to make payment for their absence on 7 November 2018, no payment could be made by the employer to any of the individual respondents in respect to the period during which they participated in unprotected industrial action. The result will mean that the respondent individuals will have their personal leave balance debited for their absence on 7 November 2018. However, the employer is prohibited from making any payment in respect of the absence which has been found to have been unprotected industrial action.

[24] The application is granted. The Interim Order shall be replaced with an Order made broadly in the terms sought by the employer. However, the final form of the Order shall be subject to further review by the employer such that the list of named respondents shall be communicated to the Commission by no later than 2pm tomorrow, 13 November 2018, after which time the Interim Order shall be replaced with an Order that will include the finalised list of named respondents.

COMMISSIONER

Appearances:

Ms V Bulut Counsel, with Ms S Williams and Ms C Lenard, solicitor from K & L Gates appeared for the employer.

Mr S Bridge from the TWU and Mr G Bajwa and Others appeared unrepresented.

Hearing details:

2018.

Sydney:

November, 12.

Printed by authority of the Commonwealth Government Printer

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 1   Australian Workers’ Union v BlueScope Steel Ltd [2008] AIRCFB 24, 171IR @ 115.