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- Unreported Judgment
Queensland v Together Queensland, Industrial Union of Employees QIRC 82
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Queensland Corrective Services v Together Queensland, Industrial Union of Employees  QIRC 082
State of Queensland (Queensland Corrective Services)
Together Queensland, Industrial Union of Employees
Application for the suspension of protected industrial action
18 May 2019
18 May 2019
INDUSTRIAL LAW – APPLICATION FOR THE SUSPENSION OF PROTECTED INDUSTRIAL ACTION – whether the protected industrial action would endanger the life, personal safety or health, or welfare of the State’s population or part of it
Industrial Relations Act 2016 s 241
Ambulance Victoria v Liquor, Hospitality Miscellaneous Union  187 IR 119
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission and Others (2000) 203 CLR 194.
Ex tempore Reasons for Decision
- The State of Queensland (Queensland Corrective Services) filed an application in the Queensland Industrial Relations Commission to suspend protected industrial action being proposed to be engaged in by Together Queensland, Industrial Union of Employees and the staff at the Townsville Correctional Centre tomorrow (the 19th of May 2019) between 7 am and 7 pm. In short, the Applicant seeks an order that the protected industrial action which involves a planned 12 hour stop work from 7am to 7pm is suspended or terminated immediately and shall not occur, or where occurring shall stop, be discontinued or cancelled and withdrawn.
- The action being taken by the Respondent at the Townsville Correctional Centre is protected industrial action. To suspend or terminate protected industrial action the Commission must be satisfied that certain conditions exist as prescribed under s 241(1) of the Industrial Relations Act 2016. Section 241(1) is in the following terms:
241 Suspension or termination if life, property, health or welfare is endangered
(1) The commission must, on application by a person mentioned in subsection (2), suspend or terminate protected industrial action for a proposed bargaining instrument being engaged in, or threatened to be engaged in, if satisfied the industrial action has threatened, is threatening or would threaten—
(a) to endanger the life, personal safety or health, or welfare of the State’s population or part of it; or
(b) to cause significant damage to the State’s economy or an important part of it.
- The Applicant's case is that s 241(1)(a) is enlivened. The 'population' of the State said to be at risk are the staff members within the correctional facility and those inmates within that facility. It is accepted by the parties that in order to decide the Application, the Commission must first determine whether it is satisfied that the protected industrial action has threatened, is threatening or would threaten to endanger the life of a part of the State's population, the personal safety or health or part of the State's population, or the welfare of a part of the State's population.
- I have been referred to a number of authorities within the submissions both by the State of Queensland and Together Union. In particular my attention is drawn to the decision in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission and Others.. In considering a similar provision under the Workplace Relations Act 1996 wherein their Honours wrote:
The nature of the threat as to which a decision maker must be satisfied under section 170 ((m)(w)) of the Act, involves a measure of subjectivity or value judgment. A decision under section 170 ((m)(w)) 3B, that industrial action is ‘threatening to cause significant damage to Australian economy or an important part of it is not simply a matter of impression or valued judgement.’ The decision maker must have some basis for his or her satisfaction over and above a generalised predictions as to the likely consequences of the industrial action in question.
- The words, "would threaten to endanger" having regard to the decision of Kaufman SDP in Ambulance Victoria v Liquor, Hospitality Miscellaneous Union should be interpreted on the basis that they require the Applicant to demonstrate on the basis of probabilities rather than possibilities. The Applicant contends that the personal safety, health and welfare of the inmates and also the staff members of the correctional centre at Townsville will be affected.
- The Commission received evidence from psychologist, Ms Niclaire Byrne, Acting Deputy General Manager Wolston Correctional Centre, Brisbane and also from the General Manager of the Townsville Correctional Centre, Mr Peter Hall.
- The evidence of Ms Byrne related to the likely mental health effects upon the prisoner population due the proposed strike action and her evidence considered the mental health conditions and potential stressors and triggers for mental health issues within the prison population. While Ms Byrne made some reference to the Townsville population her evidence was, and I mean this by no disrespect, general evidence concerning her experience and her particular area of expertise in regard to the mental health of prisoners and it did not necessarily relate to the potential consequences from the proposed protected industrial action at Townsville. Ms Byrne did in cross-examination however, accept that it was a possibility that there could likely be mental health consequences of tomorrow’s proposed action but she could not say that it was probable.
- Mr Peter Hall, gave evidence which was in the main directed towards the operational implications of the strike action, the lockdown and the difficulties that it would pose for his remaining staff members, both the administrative and correctional staff and the prison population. The evidence before the Commission was that the 18 correctional officers would be available for the lockdown period within the Townsville Correctional Centre. In addition, Mr Hall suggested that some 20 plus administrative staff would also be available across the four sites of the Townsville Correctional Centre.
- I appreciate that the Townsville Correctional Centre is an aging facility, not fit for purpose, and a difficult centre in order to manage and to control the prison population having regard to the facility that is concerned there. However, I am not convinced that the staff – both administrative and correctional – would not be able, in the circumstances, to manage the centre safely in the current set of circumstances. It is unclear to me on the evidence that the number of personnel identified by Mr Hall in his evidence would be insufficient to manage and perform the necessary functions and services that are required to be performed to manage the prison population during a lockdown.
- In addition, the evidence by My Hall was that there were 16 additional correctional officers outside the perimeter of the Townsville Correctional Centre who would be available to assist should there be an incident within centre. It does not on the evidence before me indicate that there would be a potential problem other than there would be some delay in having them come within the centre.
- I understand from the evidence of Mr Hall that the guardhouse will be manned and arrangements have been placed to give access to those 16 additional officers if necessary. Mr Hall’s evidence is that a police patrol will monitor the perimeter of the Townsville Correctional Centre and a dog patrol will also be in attendance at the facility.
- I recognise from the evidence that was given that prisons are inherently dangerous places. Incidents can and, as we heard in the evidence this evening, do occur from time to time. Incidents may be violent and can present significant risks not only to the prison population but those charged with maintaining order within the centre. But the test applied by the High Court in Coal and Allied Operations is that a decision maker must have some basis for his or her satisfaction over and above a generalised prediction as to the likely consequences of industrial action in question. Whilst the evidence would reach the threshold of a generalised prediction as to the likely consequences it would not reach a point, in my view, that would satisfy the Commission as required by law. That is, there was no basis for the satisfaction over and above what might be described as in these circumstances a generalised prediction as to the likely consequences of the proposed industrial action at the Townsville Correctional Centre.
- The evidence in my view supports the possibility of adverse consequences but not the probability of those consequences and accordingly I must find that the application should be dismissed.
- Application dismissed
- Published Case Name:
State of Queensland (Queensland Corrective Services) v Together Queensland, Industrial Union of Employees
- Shortened Case Name:
Queensland v Together Queensland, Industrial Union of Employees
 QIRC 82
18 May 2019