Background

On 18 September 2015, the Australian Rail, Tram and Bus Industry Union (ARTBIU) and its members reached an in principle agreement with KDR Victoria Pty Ltd (trading as Yarra Trams) as part of its enterprise agreement negotiations. The agreement had the effect of ending weeks of industrial action.

Prior to the agreement being reached, and in an attempt to stifle the industrial action being taken, Yarra Trams made an application for an order terminating the protected industrial action.

The application was dismissed by Commissioner Lee, who found that there was no basis to terminate or suspend the protected industrial action.

Facts

The ARTBIU and its members planned to take protected industrial action by way of a stoppage of all work commencing at 10.00 am on Thursday, 27 August 2015 and finishing at 2.00 pm that day. The effect of the stoppage would be that Melbourne trams would not run between these hours.

Yarra Trams applied to the Commission for orders to terminate the industrial action under Fair Work Act 2009 (Cth) (FW Act), on the basis that the proposed 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”.

Submissions by Yarra Trams

Yarra Trams submitted that its service provided an integral part of the Melbourne Trams System, and that for many people using the service during the stoppage it was the only transport option available to them. It argued, among other things, that the protected industrial action threatened to endanger the personal safety, health or welfare of that part of the population of Melbourne who relied on trams to attend medical appointments and/ or other appointments, such as carer appointments, that cannot be easily rescheduled.

Yarra Trams also submitted that the logistics associated with the stoppages meant that the impact would not be confined to the hours of 10.00 am to 2.00 pm, but that disruption to normal services would extend from 9.00 am until 4.00 pm or 5.00 pm. As a result, the stoppages would also affect school children at the end of the school day.

Decision

Commissioner Lee noted that the relevant section of the FW Act (s. 424) is not intended to be triggered where the industrial action is merely causing an inconvenience, nor is it intended to prevent legitimate protected industrial action in the course of bargaining.

Furthermore, previous cases suggested that when considering the welfare of the population, there needs to be a basis upon which it is reasonable to conclude that the collective welfare is in peril or danger.

When applying these principles to this particular application, Commissioner Lee acknowledged that the industrial action would indeed impact passengers using Melbourne’s public transport system. However, he rejected Yarra Trams’ application for an order, noting that the industrial action did not endanger the personal safety or health or welfare of the population.

When assessing the likely impact of the industrial action, the Commissioner considered the actions available to Yarra Trams to mitigate the impact of the action. He considered that no trams would operate at all for a period of four hours and praised Yarra Trams’ mitigation strategy of an extensive network of replacement buses. However, the Commissioner was concerned that more services could have been provided if Yarra Trams had approached other bus operators.

The Commissioner also stated that ‘earlier and more strenuous efforts should have been made by the company to communicate the fact of the action’.

In regard to Yarra Trams’ main submission about passengers who may be required to attend appointments, the Commissioner stated that the evidence was weak.

He said that although passengers would be unable to attend appointments by tram for a period of the day, they could possibly attend appointments by using other methods of public transport.

What actions have constituted to ‘endanger’ personal safety, health or welfare?

The Commission is empowered to suspend or terminate protected industrial action because of its potential to endanger the personal safety, health or welfare of the population. It is necessary that the proposed industrial action would “probably” rather than “possibly” threaten to endanger the population in any of those respects.1 The concept of endanger has its ordinary meaning, being to “expose to dangers; imperil”.2

In considering “welfare” it has been held that a threat to welfare “is a threat that is material or substantial and certainly beyond mere inconvenience”.3 In addition, conduct that is at risk of being materially detrimental to a person’s mental or physical state may qualify as conduct that threatens to endanger “personal safety or health”.4

Applications which have been successful in proving that protected industrial action will “endanger” personal safety, health or welfare include the following examples.

  • Where patient care is being compromised due to industrial action causing emergency departments to become blocked and overcrowded, patients having to remain in emergency for longer periods awaiting transfer to wards and more hospitals being placed on ambulance bypass.5
  •  Where there is a ban on recording and transmitting assessment and examination results of graduating university students. This creates a risk that necessary academic checks and administration processes will not be completed to allow for graduation or for the publication of academic transcripts for employment, additional study, funding and visa purposes. The Commissioner in this case noted that this risk reflects potential for real or actual harm and is not merely an inconvenience or disruption.6

Bottom line for employers

The threshold for the suspension or termination of protected industrial action is very high. Both legislation and case law suggests that mere inconvenience, even on a large scale, will not be sufficient to justify an order. Rather, there needs to be clear evidence to show that some collective welfare is in danger or peril.