Airport strikes in holding pattern after Fair Work ruling

By Stephen Easton

April 28, 2016

The Fair Work Commission has put a stop to airport strikes by Australian Border Force officers for just over two months, ruling past industrial action had already put national security at risk.

The FWC first suspended legal protection for the industrial action from midnight on April 3 with an interim order, to allow it to hear arguments for and against the Department of Immigration and Border Protection’s application for a longer suspension.

Yesterday’s ruling puts a 90-day hold on the rights it previously granted the Community and Public Sector Union’s DIBP members to take action, backdated to when the original interim order was issued nearly a month ago.

The department argued the union’s protest actions increased the chances of criminals and terrorists slipping through the net “significantly higher than usual” when combined with high passenger numbers versus its forecast staffing levels.

Commissioner Nicholas Wilson decided the campaign of rolling strikes earlier this year “was threatening and would continue to endanger the life, personal safety or health or welfare of the population or part of it” — the standard for a suspension under section 424 of the Fair Work Act.

He was persuaded by the ABF’s testimony that “criminal or terrorist opportunistic behaviours become more likely as a result, since systemic weaknesses can be more easily identified and exploited” and decided the situation was already too dangerous:

“The evidence shows this risk is not merely foreseeable, but that such behaviour more than likely occurred within the recent period of protected industrial action.”

Wilson considered past rulings under the relevant section of the act: two cases where the National Tertiary Education Union was taking action against Monash University and the University of South Australia, respectively, and a battle between the Australian Nursing Federation and the Victorian Hospitals’ Industry Association.

He decided that the “seriousness of the endangerment of the population” from the ABF action was “objectively far greater” than in either of the university cases, and “at least comparable” with the danger posed by the striking nurses.

Wilson accepted ABF assistant commissioner Clive Murray’s argument that, since March this year, “the nature of the industrial action has evolved such that it has become much more difficult to deploy available, suitable resources to meet operational requirements” in airports.

Murray argued that while experienced “surge staff” — “strike breakers” to the CPSU — could fill in for a range of different roles, they were being pushed beyond their capabilities and stamina.

With tactics commissioner Wilson called “a highly sophisticated plan”, the union appears to have been a victim of its own success. The commissioner writes:

“Without question, the evidence shows the protected industrial action to have had a suffocating effect. The capacity of the ABF to undertake its core functions was seriously affected.”

Counsel for the department also argued the congestion caused by the strikes made the airports more difficult to police, at the same time as increasing the potential severity of any incident that did occur.

‘Contradictory statements’: CPSU

In a defiant statement yesterday afternoon, the CPSU said the department’s evidence at the hearing contradicted previous statements and an internal memo to senior executives. National secretary Nadine Flood said:

“Border Force said something different to their own staff in writing and the Fair Work decision has ignored those facts and rebuttal evidence from the CPSU on those matters. Indeed, the Commonwealth went so far as to ask the Fair Work Commission to prefer Mr Murray’s evidence to the Department’s own written statements to hundreds of senior staff.”

After hearing each side’s arguments, the commissioner preferred Murray’s claims over the contradictory evidence of the union’s three witnesses, who all lost credibility in the commissioner’s eyes under cross-examination.

Wilson said the CPSU’s witnesses demonstrated “limited” understanding of the true effects of the industrial action on airport security. But the union says there were “significant inaccuracies” in Murray’s evidence and accused the agency of unfair tactics that made it hard for the CPSU witnesses to respond.  Flood said:

“We do think that criticising CPSU witnesses for not being specific enough in their responses is a bit rich when the Commonwealth’s confidentiality orders restrained them from discussing the specifics and seeking information from other Border Force officers.

“Indeed the games played by Border Force, saying their evidence was so confidential it took three days to get it from Canberra to Sydney to one of our witnesses, meant she had just 20 hours, from 1pm one day to 9am the next, to consider over 100 pages of evidence from Mr Murray and respond with a written statement, without being able to seek information from anyone else.”

The ruling suggests that union members in agencies with critical functions can reduce their chances of being restrained under the same section of the act by giving away some of the element of surprise that makes the action so effective:

“The protected industrial action had its serious effects because the ABF had the required advance notification of when and where industrial action might take place, but not much more. While it satisfies the legislated requirements, the uncertainty surrounding what will occur, and when and where, creates a very large risk for the ABF. It might have a little industrial action, or none at all, or the absence of every union member for every hour notified in every airport. The proposition advanced by the CPSU that the legally required notification has been given to the ABF is no answer to the escalated risks now identified by the ABF.”

Union fails in AEC action

The CPSU also lost out in a separate FWC ruling yesterday, also related to its long-running federal government campaign. The union wanted the commission to force the Australian Electoral Commission to return to the bargaining table, and bring someone from the Australian Public Service Commission with “the capacity to make decisions” about the Commonwealth’s strict enterprise bargaining policy.

The CPSU identifies the overarching policy as its main target, but struggles to land a hit as it deals with the agencies that are bound by it separately.  The agencies can argue their hands are tied as the APSC makes decisions about the application of the policy, and the APSC can point to Public Service Minister Michaelia Cash as the ultimate decision-maker.

The order sought by the union would have dragged Cash into the fray along with the APSC, as it would have forced a representative from her office to attend bargaining meetings to discuss any matter the APSC left up to the minister.

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