Threats to persons or the economy

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Threats to persons or the economy

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Introduction

See Fair Work Act s.424

The Commission must make an order suspending or terminating protected industrial action that is being engaged in or is threatened, impending or probable, if satisfied that the protected industrial action has threatened, is threatening or would threaten:

to endanger the life, the personal safety or health, or the welfare, of the population or a part of it, or
to cause significant damage to the Australian economy or an important part of it.

It has been established that the following terms are to be given their ordinary meanings.^[1] The following dictionary definitions have been adopted previously:

Threaten – constitute a threat to, be likely to injure, be a source or harm or danger.^[2]

Threat – a declaration of an intention to inflict pain, injury or other punishment.^[3]

Related information

Suspending industrial action

Threats to life, personal safety, health or welfare

Section 424 of the Fair Work Act states that the Commission must suspend or terminate protected industrial action that is being engaged in or is threatened, impending or probable, if satisfied that the protected industrial action has threatened, is threatening or would threaten:

to endanger the life, the personal safety or health, or the welfare, of the population or a part of it, or
to cause significant damage to the Australian economy or an important part of it.

It has been established that the following terms are to be given their ordinary meanings.^[4] The following dictionary definitions have been adopted previously:

Health – the general condition of the body or mind with reference to soundness or vigour.^[5]

Welfare – the state of faring well, well-being.^[6]

Has threatened, is threatening or would threaten

The appropriate test is not whether the protected industrial action 'would' endanger, but rather whether it would 'threaten' to endanger.^[7]

The simple existence of a threat to safety or health, or welfare, is insufficient, even if it exists as a result of the protected industrial action. The danger must be probable, rather than simply a possible eventuality.^[8]

Endanger life, personal safety or health

Conduct that puts a person's physical or mental state at risk of material detriment, or that materially hinders or prevents improvements in a person's poor physical or mental state, may qualify as conduct that endangers personal health or safety.^[9]

Even if conduct is not serious enough to endanger life, it might constitute a significant risk to personal safety or health.^[10]

The impact of the conduct must be more than merely to cause inconvenience to the persons concerned. It must expose them to danger.^[11]

Welfare

The term welfare is not limited to situations where life, personal safety or health is endangered.^[12]

Population or part of it

The term 'population' refers to the total number or the body of the inhabitants of Australia.^[13] The reference to 'part' of the population should be read as having a more collective meaning than simply 'individuals'.^[14]

Case examples

Protected industrial action terminated or suspended

Action threatening to endanger life, etc

Ausgrid and Others v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Others [2015] FWC 1600 (Harrison SDP, 13 March 2015).

Facts

The applicants sought the termination or the suspension of protected industrial action which the CEPU and the AMWU, acting as bargaining representatives for their members, had notified. The unions had given notices of intention to take industrial action comprising a four hour stoppage of work.

Ausgrid's electricity network covers about 22,275 square kilometres, supplying electricity to 1.64 million customers, which include residential, large and small businesses, as well as major industry including mining, shipping, tourism, manufacturing and agriculture. All businesses within Sydney's CBD are within the supply area.

Outcome

The Commission was satisfied that it was probable an emergency event or events, such as vehicle impacts and storms, and disconnection and reconnection of customers, would occur during the period of the protected industrial action. The Commission found that the notified action would likely delay the restoration of power in the event of a power interruption. Delays in the restoration of power are such as to threaten to endanger the safety, health and/or welfare of persons impacted by the power interruptions. Orders suspending the protected industrial action were made.

Relevance

The action in this case had the potential to impact a large part of the state of NSW including residential and commercial areas as well as the Sydney CBD. It also threatened to endanger patients in hospitals, nursing homes or facilities with no, or inadequate, back-up power. Some of these patients were on life support.

The Commission commented that s.424(1)(c) is concerned with action that threatens to endanger persons in the manner described and the section does not require a finding that it will endanger such persons in respect of their welfare, health or safety. It may be that, ultimately, no such adverse impact in fact occurs.

Action threatening health and welfare

Monash University v National Tertiary Education Industry Union [2013] FWCFB 5982 (Hatcher VP, Catanzariti VP, Lee C, 26 August 2013).

Facts

The NTEU had sent a 'Notice of Intention to Take Protected Industrial Action' to the University. The Notice did not identify any cessation date for any of the industrial action, meaning that it was indefinite in nature. One of the forms of industrial action was 'a ban on recording, or transmission to the employer, of assessment results, with the exception of results for which an exemption has been granted by the NTEU Exemptions Committee' (the Results Ban).

Outcome

The Full Bench was satisfied that the Results Ban threatened to endanger student health and welfare by heightening student stress and anxiety. The Full Bench found that the indefinite nature of the Results Ban would aggravate its potential and actual effects on students. The Full Bench issued an order suspending protected industrial action in the form of the Results Ban for a period of two weeks.

Relevance

In this case evidence was given by the University's Director of Mental Health (a psychologist) about the vulnerability of university-aged students to mental health disorders as well as the possible impact of the results ban. Her evidence was that one in four young people suffer from a diagnosable mental health disorder in any one year. The university had 13,000 students and this was considered sufficient in number to be characterised as 'part of the population'.

It was admitted that there was no direct evidence of anyone actually suffering harm as a consequence of the ban, however the Full Bench stressed that the section was concerned with threatened endangerment, not actual harm.

Action threatening the personal safety or health or welfare of a part of the population

Victorian Hospitals' Industrial Association v Australian Nursing Federation [2011] FWAFB 8165 (Boulton J, Acton SDP, Lewin C, 15 December 2011), [(2011) 214 IR 148].

Facts

Protected industrial action was being engaged in by the ANF and its members in support of claims being pursued for nurses and midwives employed in the Victorian public health system. The action had the effect of closing, with certain exceptions, one in every three operational beds across the Victorian public health system.

The VHIA, supported by the Government of Victoria, made an application for an order terminating protected industrial action being taken by the ANF in the Victorian public health system. The application was opposed by the ANF and the Health Services Union, submitting that if an order were made, it should be for suspension rather than termination.

Outcome

The Full Bench found that although the industrial action had only been taken over a few days, there was substantial evidence about the serious impact that it had on public health services and on the safety, health and welfare of some patients. The protected industrial action would add extra pressure to a system already under pressure.

The Full Bench was satisfied that the protected industrial action being engaged in by the ANF and its members was threatening or would threaten to endanger the personal safety or health, or the welfare, of people in need of public health care services in Victoria and suspended the protected industrial action for a period of 90 days.

Relevance

The High Court decision in Coal and Allied v AIRC was applied to explain that a careful consideration of the evidence is required in each case before the Commission can be satisfied that an order should be made. In this case there was significant evidence from senior administrators about the detrimental effect that the industrial action was having and was likely to continue to have on the public health system. The action would cause more than just inconvenience to users of the public health system and was found to endanger their safety or health or their welfare.

Protected industrial action NOT terminated or suspended

Action NOT threatening to endanger life, etc

Re KDR Victoria Pty Ltd T/A Yarra Trams [2015] FWC 6282 (Lee C, 9 September 2015).

Facts

An application was lodged by Yarra Trams for an order to terminate protected industrial action that was being taken by the the ARTBIU and its members. The industrial action was for a four hour stoppage of all work commencing at 10am.

Yarra Trams submitted that the industrial action was threatening to endanger the personal safety or health or the welfare of a part of the population of Melbourne who rely on public transport generally and tram services in particular.

Outcome

The Commission held that while the industrial action would undoubtedly have an effect on the travelling public, it was not satisfied that the protected industrial action by the ARTBIU had threatened, was threatening or would threaten to endanger the personal safety or health or the welfare of a part of the population within the meaning of the Fair Work Act. The application was dismissed.

Relevance

Yarra Trams had provided options for passengers to make alternative arrangements for travel using combinations of replacement buses, trains and other modes of transport. The Commission recognised that this would not be as convenient to the passenger if a tram was their preferred mode of travel. However it was not a sufficient basis to establish that the collective welfare was in danger or peril.

Threats to the economy

Section 424 of the Fair Work Act states the Commission must suspend or terminate protected industrial action that is being engaged in or is threatened, impending or probable, if satisfied that the protected industrial action has threatened, is threatening or would threaten:

to endanger the life, the personal safety or health, or the welfare, of the population or a part of it, or
to cause significant damage to the Australian economy or an important part of it.

Significant damage

Significant is defined as being 'Important, notable; consequential'.^[15]

The length of time over which the economic damage is sustained is a relevant consideration.

The Australian economy or an important part of it

Important in this context has been defined based on the dictionary meaning:

of much significance or consequence; an important event.
mattering much (fol. by to): details important to a fair decision.
of more than ordinary title to consideration or notice: an important example.
prominent: an important part.
of considerable influence or authority, as a person, position, etc.^[16]

Case examples

Protected industrial action terminated or suspended

Significant damage to the Australian economy or an important part of it

Minister For Tertiary Education, Skills, Jobs And Workplace Relations [2011] FWAFB 7444 (Giudice J, Watson SDP, Roe C, 31 October 2011).

Facts

The Minister for Tertiary Education, Skills, Jobs and Workplace Relations made an application to Fair Work Australia for the termination of protected industrial action by Qantas and three unions representing Qantas employees. The unions had engaged in protected industrial action in furtherance of their bargaining claims. Qantas planned to take protected industrial action in response, consisting of a lock-out of its workforce and a grounding of its fleet worldwide.

Evidence was given on behalf of the Minister as to the importance of airline passenger and cargo transport to the economy and the effect of the grounding of the Qantas fleet.

Outcome

The Commission found that it was unlikely that the protected industrial action taken by the three unions, even if taken together, threatened to cause significant damage to the tourism and air transport industries. However, the Commission held that the action proposed by Qantas, if taken, threatened to cause significant damage to the tourism and air transport industries and indirectly to industry generally because of the effect on consumers of air passenger and cargo services.

In determining whether to suspend or terminate the protected industrial action, the Commission held that suspension would not provide sufficient protection against the uncertainty to the particularly vulnerable tourism industry, and for that reason ordered that the industrial action be terminated.

Relevance

It was submitted that the tourism industry, including aviation, contributed approximately 2.6 per cent to GDP and had 500,000 employees. The value of inbound tourism was estimated at $24 billion per year. It was found that the response action by Qantas threatened to cause significant damage to the tourism and air transport industries and indirectly to industry generally because of the effect on consumers of air passenger and cargo services. The Qantas evidence was that the cost to it alone was $20 million per day. This was held to be significant.

In contrast, the protected industrial action by the unions was estimated to have only cost approximately $70 million.

Protected industrial action NOT terminated or suspended

Significant damage to the Australian economy or an important part of it

BHP Coal Pty Ltd and Another v Construction, Forestry, Mining and Energy Union and Others PR903492 (AIRC, Bacon C, 17 April 2001).

Facts

BHP and its subsidiary, Hay Point Services, applied to the Commission for an order terminating the bargaining period (pursuant to s.170MH of the Workplace Relations Act) because of the significant damage it argued would be caused to the region of 'Central Queensland'.

BHP engaged a professor of economics at the University of Melbourne to provide a report setting out the economic effect of the industrial action.

Outcome

The Commission found that the borders of the 'Central Queensland region' were totally arbitrary, and that there was insufficient material on which to find that the 'Central Queensland region' could be characterised as 'part' of the Australian economy, and therefore could not be considered an 'important part'.

Relevance

The report stated that the effect of the work stoppages to the region was an economic loss of between 3.1 to 3.8 per cent over a two week period. This was not enough to be considered 'significant'. The Commission commented that if the same loss had occurred over a year it may have been significant. The length of time over which the economic loss occurs is a relevant consideration when determining whether a loss is 'significant'.

Orders

The Commission may make an order under s.424:

on its own initiative, or
on application by any of the following:
- a bargaining representative for the agreement
- the Minister
- if the industrial action is being engaged in in a State that is a referring State as defined in ss.30B or 30L – the Minister of the State who has responsibility for workplace relations matters in the State
- if the industrial action is being engaged in in a Territory – the Minister of the Territory who has responsibility for workplace relations matters in the Territory,
- a person prescribed by the Fair Work Regulations.

Under Regulation 3.10 the following persons may apply for an order suspending or terminating protected industrial action for a proposed enterprise agreement:

if the industrial action is being engaged in, or is threatened, impending or probable, in a State that is not a referring State as defined in section 30B or 30L of the Act – the Minister of the State who has responsibility for workplace relations matters in the State'
an organisation or other person directly affected, or who would be directly affected, by the industrial action other than an employee who will be covered by the proposed enterprise agreement.^[17]