Australia: Stopping the clock: FWC suspension orders pause time limits for taking protected industrial action

In Transport Workers' Union of Australia v Broadspectrum (Australia) Pty Ltd [2019] FWCFB 663, a Full Bench of the Fair Work Commission (Full Bench) confirmed that an order suspending specific protected industrial action will pause the time period within which all industrial action approved by a protected action ballot must commence.

The effect of this decision is that employees can commence any authorised protected industrial action after a suspension order ceases to operate. It is not necessary to obtain a further protected action ballot order.

BACKGROUND

The question in dispute in this case arose in the context of negotiations for an enterprise agreement between Broadspectrum Pty Ltd (Broadspectrum) and the Transport Workers' Union (TWU).

Broadspectrum Court Security and Custodial Services is contracted by the Western Australian Department of Justice, and is responsible for the delivery of court security in all WA courthouses. Broadspectrum also provides transport services of those in custody between correctional facilities and other locations like courts and hospitals.

The TWU applied for and obtained a protected action ballot order from the Fair Work Commission (FWC)1 in June 2018. In the subsequent ballot, TWU members approved the taking of the following forms of industrial action:

  • bans on overtime;
  • bans on the completion of paperwork;
  • bans on wearing uniform shirts;
  • work-to-rule periods;
  • bans on performing higher duties;
  • 4-hour, 8-hour, 24-hour and 48-hour bans on performing work.

In August 2018, the TWU gave notice to Broadspectrum of its members' intention to engage in the following industrial action:

  • bans on overtime;
  • bans on wearing uniform shirts; and
  • bans on higher duties.

Broadspectrum applied to the FWC for a suspension of this proposed industrial action under s 424 of the FW Act, which provides that the FWC must make an order suspending or terminating protected action if it would threaten to 'endanger the life, the personal safety or health, or the welfare, of the population or of part of it'. Given the nature of the services provided by Broadspectrum, Deputy President Beaumont concluded that the proposed industrial action met this threshold and suspended the action for a period of two months.2

After the suspension order ended in October 2018, the TWU gave notice to Broadspectrum of its intention to engage in two other types of industrial action which had been approved in the earlier ballot: the paperwork ban and a 4-hour stoppage.

Broadspectrum then applied for an order under s 418 of the FW Act that these proposed forms of protected action stop or not occur. Deputy President Beaumont granted the order on the basis that the paperwork ban and 4-hour stoppage were not legally protected forms of industrial action.3

THE LEGISLATIVE FRAMEWORK AND THE LEGAL ISSUE

Section 459 of the FW Act sets out the conditions under which industrial action is authorised by a protected action ballot approving such action. Relevantly, the action must commence within 30 days of the results of the ballot being declared, or within an extended period set by the FWC. In this case, the Deputy President had extended the period during which protected action could be taken by a further 30 days. However, as the paperwork ban and 4-hour stoppage were proposed to commence after this extended time limit had ended, Deputy President Beaumont found that these actions were unauthorised.4

Section 429 of the FW Act provides that if protected action in the form of employee claim action has been suspended by the FWC (e.g. under s 424), once the suspension period ends the action may be taken without the need for another ballot. In these circumstances, the s 459 time limit for commencing authorised action is calculated by disregarding the duration of the suspension period (s 429(3)). In other words, a suspension order 'stops the clock' on the authorised industrial action period under s 459, and the clock starts 'ticking' again once the suspension ends.

However, Deputy President Beaumont concluded that the s 429 'stop the clock' mechanism only applied to the industrial action which was the subject of the suspension order (in this case, the proposed overtime, uniform and higher duties bans).5

Consequently, the proposed paperwork ban and 4-hour stoppage were outside of the authorised time limit, as neither was included in the TWU's initial notice of industrial action and hence were not the subject of the suspension order.

THE FULL BENCH'S DECISION

The TWU lodged an appeal against Deputy President Beaumont's decision and order stopping the paperwork ban and 4-hour stoppage. The union's argument that the Deputy President incorrectly concluded these forms of industrial action were not protected was based on the following two main grounds:

  1. The suspension order had the effect of suspending all forms of industrial action authorised by the ballot, not just the three types of action of which the TWU first gave notice to Broadspectrum.
  2. Alternatively, s 429 permits employees (after a period of suspension has ended) to take all forms of action listed in the protected action ballot regardless of whether or not they were specifically the subject of the suspension order.6

The Full Bench rejected the TWU's first ground of appeal, noting there is clear Full Court of the Federal Court authority that only the form(s) of industrial action found to be threatening endangerment to life, safety, health or welfare, or the economy, could be the subject of a suspension order (under s 424(1)(c) or (d)).7 However, the same authority confirmed that once a suspension order is made, s 413(7) will have the effect of suspending all other forms of industrial action authorised by a ballot (as well as any protected action of the other party).8

On the other hand, the Full Bench upheld the TWU's second ground of appeal. The Full Bench considered that s 429 should be interpreted in light of the overall context and purpose of the FW Act, which seeks to lay down 'clear rules' for the taking of protected industrial action that are 'fair, simple and democratic'.9 The purpose of s 429 is therefore to ensure that the capacity to take employee claim action pursuant to a protected action ballot, after a suspension order ends, is not 'diminished or rendered nugatory by the period of suspension'.10

The Full Bench observed that this purpose would be weakened if it were only the industrial action that was suspended under s 424 that could be resumed after a suspension order ended.11 This could not have been Parliament's intention as it would result in 'perverse' consequences, i.e. employees would have the capacity to resume or commence industrial action that has been determined under s 424 to present a serious threat to the population's health and safety, while simultaneously being prevented from engaging in industrial action that does not present such a threat.12

By requiring that the suspension period be disregarded, s 429(3) 'effectively 'stops the clock' on the running of the 30 or 60 day period operating pursuant to s 459(1)(d) in relation to employee claim action to which the section applies'.13

The Full Bench concluded that 'where there is a suspension of protected industrial action, s 429 allows employee claim action authorised by a protected action ballot to be engaged in after the suspension period without the need for a further protected action ballot, and the suspension period does not count in determining the period in which such action may be taken.'14

The effect of s 429(3) here was to extend the period in which employee claim action could be taken pursuant to the TWU's ballot for a further two months after 18 September 2018. The proposed paperwork ban and 4-hour stoppage notified by the union after the suspension order ended would therefore have been protected industrial action. As Deputy President Beaumont misconstrued s 429, there was no basis for her s 418 order that those forms of industrial action stop or not occur.15

IMPLICATIONS FOR EMPLOYERS

  • The key take-away from this decision is that all approved forms of industrial action authorised by a protected action ballot will be back on the table once the suspension order ceases to operate.
  • This consideration is not just important for businesses operating in industries where disruption of their activities may be found to endanger the lives, health and safety of the population, or an important part of the economy, as the basis for a s 424 suspension order.
  • The Full Bench made clear that s 429 will also allow all authorised employee claim action to be commenced or resumed at the end of other FW Act suspension orders issued on the basis of significant economic harm to the parties involved (s 423), significant harm to a third party (s 426), or for the purposes of 'cooling off' the bargaining process (s 425).16
  • Employers should always be aware of and prepared for all the forms of industrial action authorised by a protected action ballot that their employees and representative unions are contemplating, not just those of which formal notice has been given at a particular point in bargaining.
  • Any of those types of proposed action may be taken before the applicable time limit under s 459 ends – factoring in now that a suspension order will 'stop the clock' on calculating that time limit.

Footnotes

1 Under Fair Work Act 2009 (Cth) (FW Act), Part 3-3, Division 8.

2 Broadspectrum (Australia) Pty Ltd v Transport Workers' Union of Australia [2018] FWC 4930.

3 Broadspectrum (Australia) Pty Ltd v Transport Workers' Union of Australia [2018] FWC 6582.

4 Ibid.

5 Broadspectrum (Australia) Pty Ltd v Transport Workers' Union of Australia [2018] FWC 6582 [67].

6 Transport Workers' Union of Australia v Broadspectrum (Australia) Pty Ltd [2019] FWCFB 663 [12].

7 Australian and International Pilots Association v Fair Work Australia [2012] FCAFC 65.

8 Section 413(7) relevantly states that for industrial action to be protected, no order can be in place that suspends any industrial action in relation to the proposed enterprise agreement.

9 Transport Workers' Union of Australia v Broadspectrum (Australia) Pty Ltd [2019] FWCFB 663.

10 Ibid [41].

11 Ibid.

12 Ibid [42].

13 Ibid [39].

14 Ibid [44].

15 Ibid [51].

16 Ibid [43].

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Chambers Asia Pacific Awards 2016 Winner – Australia
Client Service Award
Employer of Choice for Gender Equality (WGEA)

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions