Industrial Relations Commission of New South Wales CITATION : TWU v CHUBB SECURITY SERVICES [2001] NSWIRComm 84 NOTIFIER Transport Workers' Union of Australia, New South Wales Branch PARTIES : RESPONDENT Chubb Security Services Ltd FILE NUMBER: IRC753 of 2001 CORAM: Peterson J CATCHWORDS : Industrial dispute - cash in transit industry - introduction of "soft-skin" vehicles - intermittent industrial action - dispute orders sought and issued. LEGISLATION CITED : Industrial Relations Act 1996 s130 s.137 CASES CITED : Richmond Ex Services Club Limited v. Australian Liquor, Hospitality and Miscellaneous Workers' Union, New South Wales Branch (Unreported, 21 November 1997, IRC97/6283) Davids Distribution Pty Limited v National Union of Workers, New South Wales Branch (Unreported, 24 June 1998, IRC98/2476) HEARING DATES: 04/24/2001 DATE OF JUDGMENT: 04/27/2001 NOTIFIER Mr A A Hatcher of counsel UNION Transport Workers' Union of Australia, New South Wales Branch LEGAL REPRESENTATIVES: RESPONDENT Mr P M Kite SC SOLICITOR Corrs Chambers Westgarth SYDNEY JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: PETERSON J DATE: 27 APRIL 2001 Matter No. IRC753 of 2001 NOTIFICATION UNDER S130 BY THE TRANSPORT WORKERS' UNION OF AUSTRALIA, NEW SOUTH WALES BRANCH, OF A DISPUTE WITH CHUBB SECURITY SERVICES LTD RE INDUSTRIAL ACTION AND DISPUTE ORDERS DECISION 1 Chubb Security Services Ltd ("Chubb") seeks dispute orders pursuant to s137 of the Industrial Relations Act 1996 ("the Act") in the context of an industrial dispute concerning: 1. the introduction of "soft-skin" vehicles, that is unarmoured cars or vans, into the work hitherto carried on by members of the Transport Workers' Union of Australia, New South Wales Branch ("TWU"), working in armoured vehicles, and 2. two-man crewing of armoured vehicles. 2 Section 137 of the Act empowers the Commission in arbitration proceedings to issue dispute orders of the following kind: (a) The Commission may order a person to cease or refrain from taking industrial action. (b) The Commission may order an employer to reinstate or re-employ any one or more employees who were dismissed in the course of the industrial dispute or whose dismissal resulted in the industrial dispute. (c) The Commission may order an employer not to dismiss employees in the course of the industrial dispute if the employer has threatened to do so. (d) The Commission may order a person to cease a secondary boycott imposed in connection with the industrial dispute. 3 The orders sought in these proceedings by Chubb are in the following terms: 1. The Transport Workers' Union, New South Wales Branch ("TWU"), and its officers, employees, members and agents, refrain from imposing any bans, limitations or restrictions in the performance of work at or in relation to the premises of Chubb Security Services Ltd ("Chubb") the Premises being: (a) Newcastle, 17 Ayrshire Crescent, Sandgate; (b) Smithfield, 14 Long Street, Smithfield; (c) Lane Cove, 702 Mowbray Road, Lane Cove West; (d) Wollongong, 110 Gipps Street, Wollongong. 2. The TWU and its officers, employees and agents, shall take all necessary steps to ensure the continuation of work by their members employed at or in relation to the Premises of Chubb in accordance with their contracts of employment and the lawful instructions of Chubb. 3. For the purposes of service in accordance with the Industrial Relations Commission Rules 1996, without limitation to other means of services, these orders may be served on the TWU, its officers, employees and members: (a) by facsimile to the registered office of the TWU; or (b) by handing a copy of these orders to an officer or employee of the TWU. The order is sought to be effective immediately with a life of six months. 4 It is necessary to refer to the history of the dispute commencing with the fact of an agreement made between Chubb and the TWU in November 2000 which extended to the introduction of soft-skin vehicles and two-man crewing of armoured cars. 5 The dispute has developed during 2001 after Chubb, in February, announced to its employees that it had won a contract to perform the work of servicing Westpac automatic teller machines ("ATMs") on the basis of utilising two-man crewed soft-skin vehicles. 6 That announcement led to a strike on 15 February which came before me by way of industrial dispute on that date. The TWU planned to hold a meeting of its members the following morning to consider its position; that meeting determined to resume work. The members of the TWU contend that on presenting for work at some time later that morning they were locked out by Chubb. Chubb denies that proposition and contends that there was no useful work to be done by virtue of its customers having made alternative arrangements to meet their cash needs. I note that at 9.57pm on the previous night the Managers of the four Chubb depots were e-mailed an instruction which conveyed an announcement to be made to crews on the following day. The e-mail was in these terms: "This is a message for the crew, for Friday 16th, OF AND ONLY IF, the yards decide that they want to resume work. Because of your action, and your failure to notify us of your intention before now, we have had to make alternate arrangements and cancel a significant amount of work. Therefore as a result of your action, there is no work available today. You will not be paid for today. You are to leave the site immediately. Regarding Beaconsfield and Smithfield, there will be no weekend work." 7 Mr James Moutafis, Chubb's National Operations Manager, said in evidence that the e-mail was the result of late planning intended to operate if the employees returned to work late, as he said was their custom, from the morning meeting. One troubling aspect of that evidence is that this unavailability of work must have been an expectation shortly afterwards, if not during, the proceeding before me on 15 February. The expectation or possibility was not conveyed to me nor to the TWU at any stage prior to 16 February. 8 Subsequently, the matter, together with other matters, came before Connor C who, on 16 February issued a certificate of attempted conciliation; the matter also was dealt with later that evening by McKenna C and later still on 19 and 20 March by Marks J. On 20 March Marks J, after conciliation held at Chubb's Lane Cove depot over two days, issued directions concerning trials of the introduction of soft-skin and altered manning on armoured vehicles. The soft-skin trial was commenced but deferred, due it seems to the Easter period, until Monday next, 30 April. 9 Five other aspects require to be summarised. The first is that on 9 April a further strike was held. This was the subject of a resumed hearing before me on 11 April at which Chubb sought dispute orders. Upon the TWU giving an undertaking that Chubb would not be subjected to industrial action over the Easter period, for a period of two weeks, the matter was adjourned. 10 Second, on 9 April at 7.09am Mr Anthony Sheldon, the Secretary of the TWU, was interviewed on Radio 2GB by Philip Clarke. The interview, a transcript of which is in evidence, clearly relates the TWU's concerns with the introduction of soft-skins to perform this work in a manner which the TWU finds unacceptable on health and safety grounds, and its view that WorkCover had at that point done nothing to alleviate or respond to the risks inherent in the changed work procedures. The interview appears to have been predicated on what might happen to the cash supply if the TWU members then on strike were to vote to, in effect, prolong the strike; the strike ended at normal starting time the next day. There was no difficulty at the point of commencement with work being unavailable, the TWU having informed Corrs Chambers Westgarth, the solicitors for Chubb, that work would resume. 11 Third, also on 9 April, Mr Kevin Andrich, the TWU co-delegate at Chubb's Lane Cove depot, had a conversation with Mr Ross Judd, Chubb's State Security Manager. They each gave evidence of one aspect of this conversation. The relevant parts of the conversation, according to Mr Judd, are as follows: Mr Judd: Why didn't Brinks and Armaguard go on strike on Tuesday and Wednesday this week as expected? Mr Andrich: We knew that they wouldn't go on strike. We didn't expect them to. The problem is two-man crewing. It's only a problem at Chubb, so it had to start with us. Mr Judd: The timing is very bad, especially when all the tenders closed that day. Where will all this lead to? Mr Andrich: I really don't know. We might get orders against us in the Commission today. We were going to take action later this week, but we'd be hammered in the commission and certainly get orders against us if we did that and likewise if we did anything around Easter or around Anzac Day. We'll give an undertaking today for the next two weeks, but after that week there will be another industry-wide push. 12 Mr Andrich disputed this part of the conversation, which he estimated took 25 to 30 minutes, Mr Judd 10 to 15 minutes. Mr Andrich denied having said the portions of the conversation attributed to him which I have set out in italics. 13 The fourth aspect is that Mr Moutafis deposed that he had a telephone conversation with Mr Aird, a TWU organiser, on 9 April as follows: Mr Aird: The delegates have just had a vote and there will be no industrial action tomorrow. Mr Moutafis: What was the strike all about? Mr Aird: WorkCover. Mr Moutafis: How does Chubb having a strike affect WorkCover? Mr Aird: Yours was one of a series of industrial actions we are going to take this week. There will be further industrial action later this week. Mr Moutafis: Can you clarify what you mean? Mr Aird: You know what I mean. 14 Mr Aird was not called to contravene this conversation. It is, however, the TWU's position that the reference by Mr Aird, if made, predates the undertaking given to the Commission and the period of stability which followed that undertaking. It is, it was contended, thus a matter of history rather than of current relevance. 15 The fifth matter is that on or about 16 February 2001 Chubb commenced proceedings in the Supreme Court in relation to action taken against it involving the TWU. The orders claimed sought to injunct the TWU, its officers, members and others from, in effect, picketing and certain consequential matters. The proceedings were stood over in the light of the resumption of work on that date. Chubb has subsequently informed the TWU that it intends to, or is willing to, pursue the TWU and its members in relation to any loss occasioned by Chubb as a result of industrial action. 16 On Friday, 20 April the matter came before me again for report during which Chubb indicated an intention to seek dispute orders unless the TWU gave a further undertaking designed to avoid industrial action and to enable the parties to proceed upon the two-man soft-skin trials as directed by Marks J. The form of undertakings sought by Chubb went well beyond that which had been given to the Commission on 11 April. The TWU, I would have thought not surprisingly, declined to give the undertaking in the form sought. Chubb then indicated its intention to pursue dispute orders, that now culminating in this decision. 17 Mr Hatcher of counsel for the TWU has put a multi-aspect case against the grant of dispute orders. It includes an attack upon the evidence upon which Chubb seeks to rely as justifying their grant; and general submissions relating to the nature of the discretion involved in issuing dispute orders and the fact that they are not often granted. He pointed to the serious consequences for those the subject of the orders, particularly given the form of orders which is sought. He also submitted that orders should not be made as a security blanket to make Chubb feel comfortable in the absence of actual industrial action or any threatened industrial action. He noted that for the Commission to decline to grant the orders would not prevent the matter being reconsidered if evidence of industrial action or threat arose. He contended that Chubb had itself engaged in a series of actions which constitute industrial action by making the November agreement with the TWU regarding soft-skins and the trial of two-man crewing and then secretly entering into a contract with Westpac inconsistent with that agreement; by locking out the TWU members on 16 February; by Chubb issuing threats concerning the termination of the enterprise agreement and the consequential reversion to the award with substantial reductions in income and the introduction of a different union to perform the work, which threats caused Marks J on 20 March to criticise those observations. It follows, it was submitted, that the TWU was not the only party which was acting in a confrontational or aggressive manner and in a dispute characterised by that conduct by the employer the Commission should take account thereof when considering the exercise of its discretion. It was submitted that the principle of "those who live by the sword should die by the sword" ought have some application in this context when the Commission is considering whether Chubb's interests ought be protected by dispute orders. It was noted that to the extent that Chubb has or will suffer loss it has announced its intention to seek to recover damages in the Supreme Court. In those circumstances, the protection of the Commission becomes a lesser imperative, particularly where there is no industrial action under way or in contemplation. 18 The TWU also submitted that the Commission should not ignore the subject matter of the dispute, it relating to substantial issues involving health and safety. It was submitted that Chubb was providing the employees with two options; either accept that the work must be done contrary to the rules of health and safety or see the work go elsewhere. The Commission, it was submitted, should be wary about granting dispute orders in that context. The TWU submitted that its express commitment to undertake the trials directed by Marks J should be accepted as sufficient indication of its willingness to do so and that orders should not issue in those circumstances. 19 Mr Kite of senior counsel for Chubb urged the Commission to grant dispute orders. The point of the orders sought in these proceedings was to require the TWU and its members to refrain from engaging in industrial action. It was disputed that the TWU's undertaking to participate in the trials commencing on Monday next is adequate to achieve stability over the forthcoming months. The trials were directed by Marks J on 20 March and whilst that undertaking was then in operation a strike occurred on 9 April; that sequence demonstrates that something further is required. It was submitted that the Commission is charged with attempting to prevent industrial dislocation. While there is no ongoing industrial action at the moment there is reliable evidence it is threatened for the future. It was submitted that the TWU and its members possess an unrequited desire to demonstrate its concern over the introduction of soft-skins and WorkCover's alleged failures. Evidence of that desire flows from the conversations with Messrs Aird and Andrich. 20 As to Chubb's actions throughout the matter, Chubb has been attempting to avoid the consequences of industrial action. The evidence of Mr Moutafis was that a one-day strike had an effect which took two to three weeks to catch up and where industrial action was apprehended it was necessary for Chubb and, importantly, its customers to gear up to ensure that the cash supply was not affected. It is too late to try to deal with industrial action once it has commenced because of these effects. It was submitted that Chubb's pursuit of its rights was neither aggressive or improper; it was doing no more than it was entitled to do. As to the proposition advanced by the TWU that Chubb had initiated the industrial action by its February advice of the Westpac contract, it was submitted that the contractual arrangements with Westpac prohibited prior notice. The delegates were informed of the contract immediately it was possible and that caused an immediate strike. Conclusions 21 I readily accept that the Commission, in the exercise of its discretion in relation to dispute orders, commonly treats the issue of such orders as a serious matter, not to be lightly undertaken. See judgment of Glynn J in Richmond Ex Services Club Limited v. Australian Liquor, Hospitality and Miscellaneous Workers' Union, New South Wales Branch (Unreported, 21 November 1997, IRC97/6283) where her Honour said: The making of dispute orders is a very serious matter. In the light of the paucity of evidence to support this application for dispute orders, it is not granted at this time. The application may be renewed at short notice should the necessity arise. I note that the evidence in that matter, which involved a dismissal of an employee and union threats, suggested that the union official had said that "if the decision was not reversed there would be industrial action, that the Union would not be gentle and that the Club would not know when the industrial action would occur." 22 I also observe that Schmidt J in Davids Distribution Pty Limited v National Union of Workers, New South Wales Branch (Unreported, 24 June 1998, IRC98/2476), said: It is insufficient, it seems to me, to explain this and other references in the evidence to the conduct of the union as either 'loose' talk or 'blurring'. The evidence in my view demonstrates that the union has acted in particular ways. There was no evidence called to rebut those acts, despite the adjournment grated to the union. It must be bound by the consequences. The union has declined to give the Commission any assurance about further industrial action. In all of these circumstances I take the view that a proper basis has been established for the making of the orders sought. I also note that the orders made by Schmidt J in that matter included two orders which approximate those sought in the present proceedings. 23 The position in the present matter is that there has been a history of intermittent industrial action, interrupted by periods of peace, one period of which resulted from the TWU's undertaking to the Commission. There is no undertaking offered as to the future save that to which I have already referred but which I accept has not prevented industrial action hitherto, namely on 9 April. The immediate future is a period of importance given the introduction of the trial of two-man soft-skin operation. The directions by Marks J take into account the relevant needs of the parties during the course of that trial. It is obviously necessary that the trial be undertaken without the interference of industrial action, whether by strike, ban or limitation. While the form of undertaking sought by Chubb on 20 April went too far, in my view, by seeking a commitment to the successful introduction of two-man soft-skins, I am troubled by the absence of any substitute form of undertaking being offered. Once it is accepted that the trialling of two-man soft-skins is to be undertaken, as it is here, it only remains for the trial to be conducted in a suitably stable industrial environment. 24 There is obviously a strong public interest in ensuring that the work undertaken by members of the TWU employed by Chubb occurs without disruption. The industry is a service industry which supplies what is in a real sense an essential service to the community. I consider in the circumstances of the case that the Commission is justified in granting dispute orders which would ensure that the forthcoming trials occur in the context of industrial stability. I therefore determine that it is appropriate to grant dispute orders. 25 As to the form of orders, the parties were at issue both as to terms and as to the period of six months' life sought. As to the latter I consider that Chubb has not established that six months is an appropriate period. The period of the trial is expected to be five weeks, although there is some basis for thinking that it might take somewhat longer. I would intend to issue an order for a period of eight weeks with liberty to apply. As to the term of order I consider the form sought is appropriate. I order accordingly. The order shall take effect from 5pm today and shall remain in force until 5pm on Friday, 22 June 2001. 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