Airport strikes: union wins extension to rebut ‘secret’ arguments

By Stephen Easton

Tuesday April 5, 2016

The Fair Work Commission has given the Community and Public Sector Union more time to prepare its arguments against the Department of Immigration and Border Protection, which is trying to stop union members taking industrial action at airports for three months.

The union was going to present its arguments to the FWC today but in an emergency meeting last night, the commission agreed to delay its next hearing until this Thursday. The case could then take several more days to be resolved.

The FWC made an interim order to suspend legal protection for the industrial action from just after midnight on Monday morning, pending its ruling on the department’s sudden Friday afternoon application on the basis of national security concerns.

Yesterday afternoon, CPSU national secretary Nadine Flood said the union asked for the extension so it could have “more than a few hours to properly assess the department’s evidence and whether it provides any genuine reasons for the industrial action to stop”.

Union officials can’t share much of the department’s evidence with its members or the public, because it was given in closed sessions of the FWC over the weekend following DIBP’s application to halt the strikes by some of its Australian Border Force officers.

The previous day, ABF commissioner Roman Quaedvlieg notified the CPSU that he was “considering all legal options” to get the strikers back to work, including issuing a direction under section 27 of the agency’s enabling legislation. The union advised its members that such a direction would not be legally binding, given they had been legal protection by the FWC.

Quaedvlieg appears to have escalated the situation after the CPSU rebuffed earlier requests to reduce the impact of the strikes. The union says on Wednesday the commissioner first asked it to send nearly all the strikers back to work, and then later to “significantly redesign” its plans for industrial action in unspecified ways.

The commissioner’s demands and accompanying legal threats were “unreasonable and unacceptable” to the union.

Yesterday, DIBP said in a statement:

“There is real risk that over time the industrial action will affect the capacity of the Australian Border Force to protect Australia’s border, increasing the likelihood of drug traffickers, child sex offenders, other criminals and persons who are national security risks (such as returning foreign fighters), or harmful and illicit goods in cargo, getting into the country undetected.

These risks, plus the rapidly diminishing ability of the ABF to plug the gaps caused by this round of industrial action, are of immediate concern to the ABF Commissioner, who had no sensible alternative but to legally seek a halt to the action being taken.”

The statement goes on to say DIBP respects the industrial rights of its employees and is not “capriciously” taking the action to suspend those rights. The department also claims to be “bargaining in good faith — within the parameters of the government’s bargaining policy” although both parties well know it is that policy which has prevented DIBP and other large agencies reaching an agreement.

CPSU national secretary Nadine Flood said the department had made “statements … which are inaccurate, selective and damage the reputation of our members and our union, who have always taken a responsible approach to safety and national security” in a press conference yesterday afternoon.

“They have done this while seeking to bar our capacity to respond by being incredibly secret about their grounds for going to the Fair Work Commission to seek the suspension of action, including seeking orders to suppress their evidence and binding CPSU to secrecy,” she added.

“They have also tried to railroad the CPSU and Fair Work Commission over the weekend with hearings on Friday night, Saturday and Sunday.”

SES talking points leaked

Flood also read sections from a set of internal DIBP talking points that were sent to senior staff yesterday, and obtained by the union. She claimed it undermined the government’s public position in these quotes:

“It is well understood, from the Prime Minister down, that national security is not under threat at airports.  [emphasis from original]

While airports are generally targets for a terrorist attack because they, like all transit hubs, are places of mass gathering, we think that PIA (protected industrial action) in its current form does not make airports a more attractive target for an attack like the one recently occurring in Brussels.”

Struggling under the escalating industrial action, but prevented from offering the union an acceptable deal by the government-wide bargaining policy, the ABF leadership is worried about its ability to do its “broad” job of protecting the community.

It is not claiming that the industrial action raises the chance of a terrorist attack like the recent airport bombings in Belgium. Another of the talking points quoted by Flood explains:

“We are not specifically suggesting the PIA has created a national security risk within the airport environs akin to what happened in Brussels. It is the ABF’s substantially depleting ability to properly respond to a very wide spectrum of inbound threats that has manifested in a broadly defined ‘security risk’ as it is described in the Fair Work Act.”

The document also tells senior staff that “the risk manifests primarily in airports and secondarily in cargo centres” and that the problem is the increasing length of strikes:

“Previous rounds of PIA, which were generally conducted in four-hour blocks with a couple of nationwide 24-hour stoppages, could be managed to an acceptable degree through the deployment of the Department’s pool of surge workers.

The current form of PIA, using rolling one-hour stoppages over an extended period, cannot be managed through surge arrangements for a sustained period and is already having deleterious effects on our ability to manage our border. In these circumstances, it would have been remiss not to act.

The Department has fewer surge workers available for deployment than during the previous rounds of PIA, which further compromises our ability to manage a sustained period of PIA.”

That surge capacity became an issue in the increasingly bizarre dispute back in November, when the roles were reversed. Back then the CPSU was adamant that the department’s “approach to dealing with airport strikes” — not the strikes themselves — had caused a security risk.

“We have had multiple reports supporting that this failure to live process occurred at Sydney, Perth, Brisbane and Gold Coast airports. This has clearly posed a risk of missed alerts, potentially allowing a person of national security interest, a potential drug courier or someone with an outstanding arrest warrant entry to Australia without any further questioning,” Flood said at the time.

Back then, it was Border Force claiming the strikes were not having much effect and it was “business as usual” while yesterday, those were the words used by the CPSU’s national secretary.

“In our view the department and Border Force are massively overstating this concern which is a business-as-usual challenge for any government, including ours, about how many people you can check and how many staff are rostered on,” said Flood.

Before the Brussels bombings, Australian Public Service commissioner John Lloyd attempted to play down the impact of industrial action, claiming it was having little impact on agencies and not doing anything to advance the union’s cause. But at the same time he strongly urged airport-based unionists to reconsider striking over the Easter long weekend because of the impact it would have on the public.

Prime Minister Malcolm Turnbull’s refused to intervene in the dispute until after the Brussels bombings, when he asked for the Easter strikes to be suspended and the CPSU agreed. Even so, both sides agreed the action would not affect national security or raise the risk of terrorism if they did go ahead.

The union has long agreed to over 50 exemptions from the strikes to keep key personnel on duty, and claims to “remain open to making further exemptions or changes to protected industrial action to deal with genuine national security risks”.

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