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.

^{[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].}