Transport Workers' Union of NSW and Chubb Security Services Ltd and Linfox Armaguard Pty Ltd [2005] NSWIRComm 369 (16 November 2005)

Last Updated: 8 December 2005

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Transport Workers' Union of NSW and Chubb Security Services Ltd and Linfox Armaguard Pty Ltd [2005] NSWIRComm 369

FILE NUMBER(S): IRC 406 and 407

HEARING DATE(S): 20/07/2004, 21/07/2004, 01/11/2004, 02/11/2004, 03/11/2004, 04/11/2004, 03/02/2005, 04/02/2005, 07/02/2005

DECISION DATE: 16/11/2005

PARTIES:

Applicant:

Transport Workers Union of New South Wales

First Respondent:

Chubb Security Services Ltd

Second Respondent:

Linfox Armaguard Pty Ltd

JUDGMENT OF: Wright J President Kavanagh J Connor C

LEGAL REPRESENTATIVES

Applicant:

Mr A A Hatcher of counsel

Transport Workers' Union of New South Wales

(Mr G Astorga, solicitor)

First Respondent:

Mr J V Murphy of counsel

Australian Industry Group New South Wales Branch

(Ms V Paul)

Second Respondent:

Mr A R Moses of counsel

Clayton Utz, Solicitors

(Mr J J Catanzariti/Mr M Baroni)

CASES CITED: Alstom Power v AWU [2000] NSWIRComm 180

AFMEPKIU v Caltex Australia Ltd (unreported, Connor C, 14 November 2002)

AMIEU v Australia Meat Holdings [1996] NSWIRComm 22

ASMOF (NSW) v CSAHS [2005] NSWIRComm 339

AWU v BHP Steel [2001] NSWIRComm 1050

ETU v John Goss Projects [1996] NSWIRComm 39

Labor Council of NSW v Axis Metal Roofing (2004) 131 IR 272

Labor Council of NSW v Bechtel Australia Pty Ltd (unreported, Murphy C, 28 September 2001)

Mills v Meeking (1990) 169 CLR 214

NSW Teachers Federation v TAFE Commission [1997] NSWIRComm 115

TWU v Kwikasair Express (unreported, McKenna CC, 2 August 1994)

LEGISLATION CITED: Industrial Relations Act 1996 s 130 s 143 s 193

Interpretation Act 1987 s 9 s 33

JUDGMENT:

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

FULL BENCH

CORAM: WRIGHT J, President

KAVANAGH J

CONNOR C

Wednesday 16 November 2005

Matter No IRC 406 of 2004

TRANSPORT WORKERS UNION OF NEW SOUTH WALES AND CHUBB SECURITY SERVICES AND ANOR

Application by Transport Workers Union of New South Wales for authorisation of payment in respect of an industrial dispute pursuant to section 143 of the Industrial Relations Act 1996

Matter No IRC 407 of 2004

TRANSPORT WORKERS UNION OF NEW SOUTH WALES AND CHUBB SECURITY SERVICES

Application by Transport Workers Union of New South Wales for authorisation of payment in respect of an industrial dispute pursuant to section 143 of the Industrial Relations Act 1996

DECISION OF THE COMMISSION

[2005] NSWIRComm 369

1 On 30 January 2004, the Transport Workers' Union of New South Wales ("the TWU") filed two applications pursuant to s 143 of the Industrial Relations Act 1996 for orders for payment to its members who took industrial or strike action and who were employees of Linfox Armaguard Pty Ltd ("Linfox Armaguard") and Chubb Security Services Pty Ltd ("Chubb") working in the Cash-In-Transit Industry.

History

2 The TWU makes the claims for payment based on an assertion there was a reasonable concern held by employees at the relevant times as to their safety which led to them refusing to comply with the requirement of their employer to perform armoured car delivery work without an escort.

3 The evidence revealed there had been a history of industrial unrest in the industry up to December 2003, when the first relevant action took place. Issues such as the appropriate manning levels for the various armoured car deliveries, wage rates for employees and the necessary level of security for each particular delivery had been aired with some regularity before members of the Commission particularly before Marks J and Connor C in conciliation proceedings.

4 Throughout 2002 and 2003, there had also been a number of armed hold-ups and suspicious activity around Cash-In-Transit deliveries. There was a suggestion the industry had become a focus of organised crime and violent criminal elements were showing an active interest in the security industry.

5 Also, in December 2003, Chubb was negotiating a new Enterprise Bargaining Agreement ("EBA") with the TWU. At issue between Chubb and the TWU in the hearing was whether in negotiations relating to the proposed EBA, the TWU had made any claim for more escorts on security deliveries "other than raising such an issue as a trade-off for the companies' demand to implement two-man crewing". Both Chubb and Linfox Armaguard, the respondents, were working towards two-man crewing.

6 It was in this industrial climate and following three further events (to be referred to in detail later in this decision) that employees in the Cash-In-Transit industry took the industrial action for which these two claims for payment are made.

7 The industrial action taken was a refusal of employees to make deliveries without escorts. There was an issue as to whether the employees' refusal to perform some duties for safety reasons could be labelled a "strike".

8 As noted, the present applications are brought under s 143 of the Industrial Relations Act. The applications are in the following terms:

In Matter No IRC 406 of 2004

[That an order be made under s 143 of the Industrial Relations Act in the following terms:] That employees of Chubb Security Services Ltd and Armaguard Australia Pty Ltd who attended for work on 19 December 2003 but were not paid be paid for that day.

The claim is particularised as follows:

1. On 19 December 2003 Armoured Car employees at various New South Wales depots of Chubb Security Services Pty Ltd and Armaguard Australia Pty Ltd attended for work ready, willing and able to perform all runs that could be performed with an escort.

2. Those employees offered or otherwise required to work on runs to be performed with an escort performed such work. Those employees offered or otherwise required to work on runs to be performed without an escort declined to perform such work. The vast majority of employees who declined to perform such work were ordered from the premises even though they remained ready, willing and able to perform any work offered that was escorted. Those employees ordered from the premises or otherwise not provided with work were not paid for that day.

3. Refusal to perform unescorted work was based on a reasonable concern for health and safety. Prior to 19 December 2003 there were a number of hold-ups and a focus in the mainstream media on those incidents and related matters. The hold-ups, without exception, were perpetrated on non-escorted operations. The closest in time of these incidents to the day in question was Wednesday 17 December 2003 ...

In Matter No IRC 407 of 2004

(by way of an amended application):

[Than an order be made under s 143 of the Industrial Relations Act in the following terms:] That employees of Chubb Security Services Ltd at the following depots who engaged in industrial action based on health or safety concerns on the following days but were not paid be paid for those days:

Lane Cove: 23 and 26 January 2004

Newcastle: 27 January 2004

Wollongong: 23, 27, 28 January 2004.

The claim is particularised as follows:

1. On 23 - 28 January 2004 Armoured Car employees at various New South Wales depots of Chubb Security Services Pty Ltd undertook industrial action due to health and safety concerns. This industrial action took two shapes: the first took the form of employees only making themselves available for work on all runs that could be performed with an escort and the second took the form of employees not making themselves available for work in any runs schedule for that day which specifically was the 27 January 2004 and that action occurred at the Newcastle depot. This claim specifically excludes the industrial action that arose on the 27 – 28 January 2004 at the Lane Cove depot of Chubb Security Services Pty Ltd.

2. Those employees offered or otherwise required to work on runs to be performed with an escort performed such work. Those employees offered or otherwise required to work on runs to be performed without an escort declined to perform such work. On 23 January 2004, those who declined to perform such work were ordered from the premises. On each of the days 24 - 28 January employees who were scheduled to perform non-escorted work, telephoned their respective supervisors and made themselves available for work on runs to be performed with an escort. These employees were told that there was no work available for them and that they should not attend the premises. Employees ordered from the premises or directed not to come into work have been told by Chubb management that they will not be paid for those days they did not perform work.

3. Refusal to perform unescorted work was based on a reasonable concern for health and safety. Prior to 19 December 2003 there were a number of hold-ups and a focus in the mainstream media on those incidents and related matters. The hold-ups, without exception, were perpetrated on non-escorted operations. The closest in time of these incidents to the day in question was Wednesday 17 December 2003.

4. The concerns of the employees on that day were recognised by Marks J who, on 19 December 2003, made directions consistent with the employees' position regarding escorts. These directions were later modified by Marks J and then Walton J. Notwithstanding the alterations, heightened security measures remained in place until the directions expired on 11 January 2004. The Union attempted to have the directions extended but the Duty Judge, Staunton J, refused to extend the orders.

5. On 22 January 2004, an article was published in the Daily Telegraph which, as later stated by Boland J in dispute proceedings, "served to heighten the concern of armoured vehicle operators employed by Chubb." That article alleged that the owner of a business contracted to Chubb Mobile Services (CMS) had been charged with planning an armed robbery involving armoured vehicles operated by Chubb. Boland J also found that the "security concerns of employees could have been better handled by Chubb especially at a time when security was a volatile issue."

6. The following factual matters relating to the article were acknowledged by Boland J as having since been confirmed as correct: That the owner and accomplices of Obliging Security that contracted to CMS had been arrested and charged with conspiracy to commit armed robbery and the alleged target was a Chubb armoured vehicle and that CMS is, in turn contracted by Chubb Security Services Ltd to undertake certain security work.

7. Before the publication of the article Chubb took no steps to inform employees of its knowledge about these security concerns. Neither did Chubb inform the Commission of them despite its repeated advocacy in the abovementioned proceedings against increased security.

8. On the 27 January 2004, employees from the Newcastle depot refused to provide any services for that day due to the health and safety concerns as raised in paragraph 5. The other incident which concerned the employees from the Newcastle depot involved an incident that occurred at the Lakehaven Shopping Centre where an individual was seen by the employees at that time videoing the crew as they serviced the site. This issue along with the article in The Daily Telegraph raised serious health and safety concerns by the employees who undertook industrial action that due to it.

9 The matters were first dealt with by McKenna C. She determined the matters proceed by way of a reference to the President for consideration of reference to the Full Bench of the Commission in accordance with s 193 of the Act. She referred the following question:

Whether, upon the correct construction of s 143(4) of the Act, it is necessary for an applicant seeking the exercise of the Commission’s discretion to show that, at the time of the relevant industrial action:

(a) Each of the relevant employees, engaged in the industrial action, because of an honest belief, held on reasonable grounds, that he or she had a concern at the time of the industrial action in relation to their health and safety;

(b) That it was objectively reasonable, at all times during the industrial action, for each of the relevant employees to hold the relevant concern.

10 The parties agreed the reference under s 193 be considered in the terms of the following issues:

Whether, upon the correct construction of section 143(4) of the Act, it is necessary:

(a) for each individual employee invoking the section to establish;

(i) he or she engaged in industrial action;

(ii) the action engaged in was based only on a concern for health or safety, where 'based on' means that the reason for the employee's action was a concern for his or her health or safety; and

(iii) the concern held by the employee was reasonable, where the question of reasonableness is to be determined by establishing that the employee held a bona fide concern for his or her health or safety that was not fanciful, illogical or irrational having regard to the circumstances of the employee and the circumstances in which the concern arose, and

(b) if the matters in (a) are proved then, whether the Commission's powers to authorise payments or make orders is limited to only the particular employee(s) whose health or safety caused the alleged concern (in that there was a causal connection between the health or safety of the particular employee(s) and the alleged concern).

11 The President referred the matters to the Full Bench and also referred for hearing and determination by the Full Bench the whole of Matter Nos IRC 406 and 407 of 2004.

12 Mr A A Hatcher of counsel appeared for the TWU. Mr A R Moses of counsel appeared for Linfox Armaguard. Mr J V Murphy of counsel appeared for Chubb.

13 Mr Hatcher relied on evidence from the delegates and co-delegates at each of the Linfox Armaguard depots. He also relied upon evidence from the relevant TWU organiser, Mr T O'Donnell. The transcripts of prior related proceedings brought under s 130 of the Industrial Relations Act before Marks J, Haylen J and, following the relevant industrial action, transcript of conciliations before Walton J, Vice-President, Staunton J and Boland J, were also tendered. A prior decision of Connor C relating to conditions of work within the Cash-In-Transit industry was also tendered. Extracts from Peterson J's Report to the Minster in Matter No IRC 1880 of 1995, "Reference by the Minister for Industrial Relations pursuant to s 345(4) of the Industrial Relations Act 1991" regarding the transport and delivery of cash and other valuables were tendered.

14 Mr Moses relied upon the evidence of Linfox Armaguard Depot Managers and Security Officers. Mr Murphy called Chubb Depot Managers and Security Officers.

15 Most witnesses called by each party were required for cross-examination. Some affidavits had documentation annexed to them which were the subject of limited access orders by the Full Bench because of commercial confidentiality.

Legislation

16 The claims are made pursuant to s 143 of the Industrial Relations Act which provides:

Section 143 - Strike Pay Prohibited

(1) An employer who pays any remuneration or provides any other financial benefit to an employee in respect of time spent by the employee in engaging in industrial action is guilty of an offence.

Maximum penalty: 100 penalty units.

(2) The employer is not guilty of an offence if the payment of the remuneration or provision of the financial benefit was authorised or ordered by the Commission.

(3) The Commission may, on the application of an industrial organisation of employees, authorise the payment of remuneration or the provision of financial benefits that would otherwise constitute an offence under this section. The Commission may, instead, order the employer to pay any such remuneration or provide any such benefit if it considers it appropriate in the circumstances.

(4) The Commission may authorise or order an employer to do so:

(a) only if the applicant satisfies the Commission that the relevant industrial action was based on a reasonable concern for health or safety, and

(b) only to the particular employees whose health or safety caused that concern.

(5) For the purposes of this section, industrial action is not based on a reasonable concern for health or safety if the employees whose health or safety is alleged to be involved have engaged in industrial action instead of complying with a direction by the employer:

(a) to move to a specified safe place in the work place or to another suitable workplace, and

(b) to do other appropriate and available work there if required.

(6) In this section, employer includes a person acting on behalf of the employer.

SUBMISSIONS AS TO THE LEGISLATIVE SCHEME

TWU Submissions

17 The TWU submitted the correct approach to the construction of s 143 of the Act is as stated in the decision of Walton J, Vice-President in Labor Council of NSW v Axis Metal Roofing (2004) 131 IR 272. The TWU submitted the following propositions may be taken from that decision:

(1) Section 143(4)(a) contains three essential elements:

(i) there must be industrial action;

(ii) the industrial action must be based on a concern for health and safety; and

(iii) the concern must be reasonably held.

(2) The question of whether industrial action, as defined in the dictionary to the Act, has occurred, will be a question of fact.

(3) The words “based on” in the context of s 143(4)(a) mean “by reason of".

(4) Because industrial action is by its nature a collective activity, then the relevant concern for the purpose of s 143(4)(a) must be a concern of the group engaged in the activity. It does not matter that the industrial motivation of each employee engaged in the industrial action has not been expressed. In determining what “the collective mind” was, the relevant “basis” for the industrial action may be inferred from the surrounding circumstances.

(5) Whether the concern was reasonable will be assessed objectively.

(6) A concern will be reasonable if it is not fanciful, illogical or irrational.

(7) It is not necessary that the existence of an actual risk to health and safety be demonstrated, but rather what must be demonstrated is the existence of a reasonable concern for health and safety at the time of the industrial action. It is irrelevant that evidence subsequent to the industrial action establishes that there was in fact little or no risk to health and safety.

(8) The objective assessment of reasonableness is to be carried out by reference to the perception of the ordinary employee faced with the same issues or situation.

(9) The relevant concern must exist for the whole of the period of industrial action for which payment is sought.

(10) The effect of s 143(4)(b) is that an employer may be authorised or ordered to make payment only to those employees who are affected by the health and safety concern. That is, the reference to “the particular employees whose health or safety caused that concern” refers to the employees who engaged in the industrial action and who were relevantly within the scope of the health and safety issue.

(11) It is not necessary in order to satisfy s 143(4)(b) to prove the circumstances of each individual employee in relation to whom a claim is made. What is required is proof, on the balance of probabilities, that an employee or some group of employees were employees “whose health or safety caused the requisite concern”.

Linfox Armaguard Submissions

18 Linfox Armaguard submitted that the approach taken to s 143(4) in Axis Metal Roofing (that is, that there is no need for the Commission to hear the views of each individual employee to determine whether the industrial action which he or she took, was based on a bona fide concern for health or safety rather than some other reason) is erroneous.

19 It was submitted that Axis Metal Roofing supports the proposition that the "reasonableness of the concern" may be adjudged either from the intention of the individual employees or alternatively the group of employees. However, there is no indication whether both individual and collective intentions must be considered. The Linfox Armaguard contention is since the Commission has only the power to make an order with respect to the affected employees, the concern of any employee who may be part of a group but was not exposed to the risk, is not relevant to the determination of the issue arising for consideration pursuant to s 143(4).

20 Linfox Armaguard submitted the analysis of the Vice-President in Axis Metal Roofing of s 143(4), in particular at [165] and [191] is incorrect. The policy of the legislative scheme (which in large measure is designed to promote the avoidance of industrial action or strikes) requires that a narrow construction be adopted and applied.

21 Further, that the proper interpretation of s 143 calls for "words of confinement". This is said to arise from the fact s 143(4)(b) defines the class of employees about whom the Commission may make orders as being only those whose health or safety “caused” the concern, rather than those who held the concern, or whose health or safety was affected. A literal reading of the words of s 143(4)(b) may give rise to the impression that it was the concern of the applicant which was at issue. Such a literal reading would be a result at variance with the purpose of the legislation, and also at variance with the use of the word “only” in s 143(4)(b).

22 The Commission should interpret s 143(4) in a manner which promotes the object underlying the provision: s 33 of the Interpretation Act 1987 and Mills v Meeking (1990) 169 CLR 214. Linfox Armaguard also submitted that, in a circumstance where certain employees engage in industrial action because of a reasonable concern for health or safety, which then causes other employees, not affected by the concern, to engage in “sympathy” industrial action, then the latter group of employees cannot be the beneficiary of an order under s 143. Although the latter group engaged in industrial action which is based upon a reasonable concern for health or safety, they are not the employees whose health or safety caused the concern. It follows, for the same reason, that if the former group of employees have decided to engage in industrial action based upon a concern shared by some (but not all) of them, then any employees who are engaging in industrial action without holding the necessary concern are not employees whose health or safety caused the reasonable concern. If a given employee does not hold a concern for their health or safety, then there is nothing which is capable of amounting to a cause for that concern.

23 Linfox Armaguard submitted once it is accepted that there can be no cause for concern without the holding of a particular concern, it follows that it is necessary for an applicant to show, in respect of each and every employee who would benefit from an order under s 143, that each and every such employee held the reasonable concern for their health or safety at the relevant time. The only way that this can be shown is by direct evidence from each and every such employee. The fact that an employee participated in a site meeting during which particular concerns were expressed, or was a member of a union whose officials held a particular concern, cannot be sufficient to show that the employee’s health or safety caused concern.

24 It was submitted the section is to be construed in a limited way. The only employees who can recover are those who can show that they are within the class defined by s 143(4)(b); and the only way that the Commission can be satisfied that a given employee comes within that class is by direct, probative evidence from each member of the class; it follows that each of the questions in the reference should be answered in the affirmative.

Chubb Submissions

25 Chubb adopted the submissions of Linfox Armaguard as to the effect of s 143 and also submitted that s 143 of the Act makes it an offence for an employer to pay an employee in respect of time spent engaged in industrial action. This reflects the policy of the Act which promotes orderly dispute resolution procedures and, if necessary, conciliation and arbitration in the Commission. These are the appropriate mechanisms for the resolution of industrial disputes, as opposed to direct industrial action/strike.

26 Chubb submitted s 143(2) to (5) establish a limited exception to the general prohibition on the payment of strike pay, where a union satisfies the Commission that the “relevant industrial action/strike was based on a reasonable concern for health or safety”: s 143(4). However payment of strike pay in such circumstances is only lawful in cases where the Commission has authorised or ordered that such payments be made: s 143(3). The use of the word “may” in s 143(3) indicates that the Commission retains what has been described as a “residual discretion” to authorise or order, or to refuse to authorise or order, such payments.

27 Chubb submitted, unlike some other provisions of the Act such as Part 6 of Chapter 2 – Unfair Dismissals, s 143 is not a beneficial provision which the Commission should construe broadly (or, at least, not narrowly) so as to ensure that employees are not deprived of the benefit of the provision (see Axis Metal Roofing per Walton J, Vice-President at [139]). Section 143 has the effect of rendering unlawful the payment of strike pay. It serves an important purpose in protecting employers from claims for payment from employees for periods when those employees have been engaged in direct industrial action/strike, especially when such action has been taken in defiance of the employees’ obligations under award and/or enterprise agreement dispute resolution mechanisms.

28 Chubb accordingly submitted that a union seeking an authorisation, or order, from the Commission in relation to the payment of strike pay to its members bears the onus of satisfying the Commission that the requirements of the “limited exception” to the general prohibition on the payment of strike pay have been met. To adopt a less than rigorous approach to applications by unions pursuant to s 143(4), Chubb submitted, could promote the misuse of so-called “safety disputes” in order to avoid the general prohibition on claims for strike pay. Chubb relies on concerns of this nature that have been recognised and expressed by members of this Commission.

29 Chubb relied upon the authority of Axis Metal Roofing and the Vice-President's observations as to s 143 at [130] where his Honour said s 143:

... is consistent with, and reinforces, the dispute resolution processes established by the Act, which favour more orderly forms of dispute resolution, by conciliation and arbitration, over industrial action (which is not to say that the Act precludes the taking of industrial action in appropriate circumstances). This construction is also consistent with the overall objects of the Act.

And further at [139]:

[T]he provision is principally directed to the strict confinement of payments to employees engaged in industrial action/strike.

INDUSTRIAL ACTION/STRIKES

19 December 2003 at Linfox Armaguard and Chubb Depots

30 The industrial action which occurred on 19 December 2003 involved employees of both Linfox Armaguard and Chubb at the following work locations:

(a) Linfox Armaguard Depots:

Smithfield, Bankstown, Artarmon, Rosebery, Kingsgrove, Penrith, Newcastle and Wollongong.

(b) Chubb Depots:

Lane Cove, Smithfield, Newcastle and Wollongong.

TWU Submissions

31 The TWU relied on the evidence of a delegate and/or co-delegate from each location to demonstrate the nature of the concern which caused the employees to take the industrial action/strike. The TWU official involved, Mr O’Donnell, gave evidence as to the nature of the concern as expressed by TWU members to him. The TWU submitted the evidence revealed:

(1) There had been an high and escalating incidence of armed robberies or attempted armed robberies on armoured car crews, as well as a number of other suspicious incidents, against a background of wave of gun-related crime at the time.

(2) This had culminated in an attack on an armoured car crew carrying coin at Broadway on 17 December 2003, which was seen as reaching a new low in terms of criminal desperation - coin trucks not having been regarded as being at risk before.

(3) The Daily Telegraph editorial of 18 December 2003 ... constituted a separate source of concern, in that by alleging that guards “are normally instructed never to pull their guns anyway” and that the guns “serve no purpose - other than being a lame visual deterrent”, potentially misinformed criminals about the risks involved in attacking armoured car crews and diminished or destroyed the deterrent effect which firearms issued to guards was intended to have.

32 Such evidence, the TWU submitted, demonstrated that employees regarded the provision of escorts as the most appropriate response to situations of high risk, with all work being regarded as generally at high risk at the time the industrial action/strike took place.

33 The evidence of its witnesses, namely, its delegates and the union official, the TWU submitted, was entirely consistent as to there being concerns which motivated the industrial action/strike that took place. Those concerns were generally demonstrated to exist arising from:

(1) The existence of a long-standing view amongst employees that the provision of escorts was vital to their safety and security;

(2) Feedback given to TWU delegates in the months and weeks leading up to 19 December 2003 by employees, as well as the thinking of the delegates themselves over this period, in relation to a growing sense of insecurity;

(3) The views expressed at the industry delegates’ meeting which occurred on 18 December 2003, at which it was decided that each yard ought to consider and vote on a proposal to refuse to perform work unless escorted; and

(4) The views of employees expressed at the yard meetings which occurred on the morning of 19 December 2003, at which the employees at each of the yards voted to take the proposed industrial action.

34 The TWU submitted the evidence demonstrated the threefold concern held by the employees, which caused them to take the industrial or strike action they did, was a reasonable one. Firstly, there was the environment in which safety was a concern due to the increase in armed robberies and the view that there was a criminal element interested in the operations of the industry; further, the armed robbery in December 2003, of a coin carrying truck which type of job had never before attracted criminal attention; finally, there was the newspaper editorial which alleged that guards carrying guns could not use them. The TWU submitted that such revelations undermined the effect of guards carrying guns. The TWU contended the carrying of a gun gave safety assurance to the guards.

35 The TWU submitted the evidence of Mr Mayne, the Security Manager called by Linfox Armaguard, also confirmed the reasonableness of the employees’ concern that, in a period of perceived (and actual) high risk of armed robbery, their safety was in jeopardy unless they were provided with escorts for all work:

The employees on the statistics were entitled to the belief that circumstances at the time rendered all tasks high risk and therefore an escort was necessary.

36 Reliance was placed by the TWU on the decision of Marks J and that of Walton J, Vice-President, in dispute proceedings arising from the industrial or strike action of 19 December 2003. The TWU submitted no member of the Commission found its members were other than genuine and reasonable.

37 Of relevance, the TWU submitted, was the industrial action/strike was confined to those for whom the provision of an escort was refused - those employees who were provided with an escort continued to work.

TWU Submissions re 23 to 28 January 2004 at Chubb Depots

38 This claim (as amended) is in respect to industrial or strike action which occurred only at Chubb Depots at the following work locations and dates:

Lane Cove: 23 and 26 January 2004

Newcastle: 27 January 2004

Wollongong: 23, 27 and 28 January 2004

39 The TWU submitted that the principal concern and reason for the industrial action taken at Chubb Depots in January 2004 was the discovery, by way of an article published in the Daily Telegraph on 22 January 2004, that the owner of Obliging Security, a subcontractor to Chubb Mobile Services (which was acting as a subcontractor to Chubb Security Services), together with two other associates, had been arrested and charged with planning an armed robbery on a Chubb armoured vehicle or vehicles.

40 The TWU contends the article, which suggested a security breach in Chubb’s system caused a concern amongst employees for their safety, and was the principal basis upon which the industrial or strike action was taken. That concern was therefore reasonable in the circumstances.

41 The TWU submitted there was an ongoing additional concern at the Newcastle yard, namely the “Lake Haven incident”. A lack of response by Chubb to demands for extra security for jobs at this shopping centre, together with the Obliging Security article, caused a complete stoppage of work at the Newcastle yard on 27 January 2004.

42 The TWU submitted that the Commission, in assessing the reasonableness of the employees concern during the period of the industrial or strike action, is entitled to have regard to the decision of Boland J who in his Honour's statement issued on 28 January 2004, expressly recognised the genuine and reasonable nature of the employees’ concerns arising from the article.

43 The TWU contended Boland J found that Chubb had failed to take adequate measures in comprehensively briefing its employees as to the threat of a robbery in circumstance where the company knew of that threat and failed to undertake a review of its contractors. Weight should be given to the fact, the TWU submitted, that when such a review was carried out, it resulted in Chubb dismissing half its contractors and engaging other contractors directly rather than through Chubb Mobile Services.

44 The TWU conceded the industrial or strike action in relation to which a claim for payment could be made is confined to those employees whose safety was actually at risk. The facts support this claim, the TWU submitted, at the Lane Cove yard on 23 January 2004 as only those employees who were not provided with escorts did not work. Similarly, for normal rostered work on 26 January 2004, only those for whom Chubb refused to provide escorts did not attend for work.

45 At Wollongong, the position was the same on 23 January 2004. The position changed on 27 and 28 January 2004, the TWU conceded, arguing the facts revealed although employees attended the yard and were still willing to perform work if escorted, they were told that unless all work was performed as normal, then no work would be performed by anybody.

46 At Newcastle on 27 January 2004, there was a complete stoppage of work. However, the additional issue of the "Lake Haven" incident came to play on that day, in relation to which additional security measures (on top of the provision of escorts) had been requested and refused. Therefore, these employees are also entitled to the order.

47 The TWU submitted the applications ought be granted and payment ordered to the employees with respect to the dates claimed.

Linfox Armaguard Submissions re 19 December 2003

48 Linfox Armaguard conceded the use of escorts for the type of work carried out by members of the TWU in the Cash-In-Transit industry remained an unresolved issue for some years.

49 Linfox Armaguard submitted it had put in place practices as defined in the industry Code of Practice. No risk assessment was implemented by Linfox Armaguard prior to it being provided to employees who performed the particular work at a site and when a request was made for further supports it would be discussed and on occasions provided. Linfox Armaguard therefore submitted the provision of escorts on runs was what was necessary for each task as "assessed" for safety. Therefore, there could be no concern by the employees that could be held to be reasonable in any of the circumstances as pleaded.

50 The evidence of Mr Mayne is relied upon by Linfox Armaguard. His conclusion from a review of the robberies which had occurred was that the majority of incidents could have been avoided if the employees maintained a greater level of separation from each other. He observed that the close proximity of employees to each other (bunching up) made them easier targets and this was the case whether the crew was two man or support crew. He found the provision of an escort does not avoid "risk".

51 As to the Linfox Armaguard robbery on 17 December 2003, at Broadway, concerning a Linfox Armaguard crew involved in a coin delivery, Linfox Armaguard relies on the fact the vehicle carrying out the work was a coin crew from the Linfox Armaguard's Bankstown Depot. It submitted therefore, only those members at the Bankstown Depot could have held a "reasonable concern". Further, as neither Mr O’Donnell nor any TWU delegates contacted management to discuss such a concern about the robbery during the course of that day nor on 18 December 2003, the Commission should reject there was such a concern.

52 Linfox Armaguard submitted the evidence of Mr O’Donnell and the TWU delegates as to what was discussed at the site meeting does not allow the Commission to make any findings, on the balance of probabilities, on the following issues:

(a) what the particular concerns for health or safety were on 18 December 2003;

(b) which employees health or safety caused the concern;

(c) why the demand for escorts was considered a rational or logical response to the alleged concerns;

(d) why the TWU or delegates did not meet with Armaguard to discuss their concerns and to consider a joint response to the concerns; and

(e) why the matter was not re-listed before the Commission in order to seek its assistance in relation to the concerns.

53 Linfox Armaguard contended, whether the Commission adopts the TWU's construction of s 143(4) of the Act or not, the TWU has failed to establish that every Linfox Armaguard employee at each of their depots held either an individual or collective concern about their health or safety such as to require a blanket demand for an escort on 19 December 2003. As no evidence was led by the TWU as to who those employees were and as the TWU called no direct evidence as to their concerns and as Mr O’Donnell, the TWU official and the site delegates were unable to provide specific evidence of named employees who informed them of their concern at the meeting on 18 December 2003 the onus, which is carried by the applicant, has not been established.

54 Linfox Armaguard submitted the evidence revealed that following the industry delegates' meeting there were to be site meetings on 19 December 2003 at each Linfox Armaguard depot in order for a vote to be taken on the position that had been agreed to by the TWU delegates on 18 December 2003. Late in the afternoon of 18 December 2003, the TWU informed Linfox Armaguard that a decision had been made to place bans on all jobs that were not supported from 19 December 2003. Mr O’Donnell confirmed the advice. On 19 December 2003, site meetings took place at Linfox Armaguard depots. The employees voted to place bans on all jobs that were not supported. On the same day Linfox Armaguard notified a dispute to the Commission. Linfox Armaguard submitted in such a circumstance there was no genuine concern by members as to their health or safety.

55 Further, Linfox Armaguard submitted neither the TWU correspondence to the Associate to Marks J of 19 December 2003 nor the submissions made on 19 December 2003 in conciliation raised as the trigger for the alleged concern for health or safety the attack on the Linfox Armaguard coin truck at Broadway, Sydney on 17 December 2003. Mr O’Donnell in evidence, Linfox Armaguard submitted, was unable to provide any explanation as to why this concern was not raised on 19 December 2003.

56 Linfox Armaguard submitted neither the orders of Marks J nor the orders of Walton J, Vice-President, reflect that the concern of employees for their health or safety arose out of the robbery; rather, the concerns related to enterprise bargaining negotiations.

57 In the alternative, Linfox Armaguard submitted, on the assumption the evidence of Mr O’Donnell is accepted and that what triggered the action on 18 December 2003 was the urgent concern for escorts following the attack on the coin truck at Broadway, Sydney - then the issue arises as to which employees' health or safety caused this concern. The coin crew that was attacked were based at the Bankstown depot which dealt with bulk coin work and processing across the Sydney metropolitan area. Therefore, Linfox Armaguard submitted, it is the health or safety of those employees that needs to be examined and whether they are entitled to an order pursuant to s 143(4) of the Act.

58 If Linfox Armaguard’s contention as to the construction of s 143(4) is not accepted then, it was submitted, the issue arises as to whether the health or safety of these employees at the Bankstown depot that caused the concern, justified the industrial action/strike taken by Linfox Armaguard employees at all of its depots including Rosebery, Orange, Penrith, Newcastle, Smithfield, Artarmon, Kingsgrove and Wollongong. Linfox Armaguard submitted such industrial action/strike could not be justified as a proportional response to the concern caused by the risk to health or safety of the relevant employees at the Bankstown depot.

Chubb Submissions re 19 December 2003

59 Chubb submitted it in no way seeks to diminish the concerns of employees about risks in the Cash-In-Transit industry but notes there has been no fatality in the industry since 1995. While the TWU sought to establish that a "wave of lawlessness" swept Sydney at the time, Chubb submitted that the facts relied on by the TWU precipitating the strike action were not correct.

60 Chubb submitted the Commission must gain a clear and balanced understanding of the nature and level of lawlessness in order to determine whether the alleged concerns of the employees for their health or safety was in existence and if so, reasonable.

61 Similarly, Chubb submitted there is a lack of evidence adduced by the TWU members who work for Chubb to identify the nature and level of lawlessness which gave rise to concerns of the employees for their health or safety.

62 Chubb noted at the time of the industrial action/strike in December 2003 and January 2004, employees at Chubb were involved in negotiations over a number of industrial issues, including their claim for increased wages. Further, Chubb noted at Lane Cove, there was also a claim for the payment of an allowance of two per cent calculated from the previous EBA which would have been payable had the implementation of two person crewing progressed at the site.

63 As to the chronology of events, Chubb submitted, on 18 December 2003, the day before the first strike the subject of the claim, TWU delegates at Lane Cove presented management with a hand written list of matters which were described as “safety issues”. Nowhere in the list of issues, Chubb submitted, was there any mention of the need for additional escorts. The strike action, Chubb submitted, was in support of these demands and it was a coincidence the action was taken on the day after the attempted robbery on the Linfox Armaguard truck at Broadway, Sydney. Chubb submitted the Commission would not accept the armed robbery was the catalyst for the strike on 19 December 2003, for which payment is sought.

64 Chubb submitted it would be artificial for the Commission to conclude that, by the morning of 19 December 2003, the focus of the minds of the employees had shifted from concern about a claim for a wage increase, and other industrial claims, to health or safety concerns arising from an incident which had occurred two days earlier involving employees of another company.

65 Chubb conceded throughout 2003 (and earlier) the TWU had been constantly before Marks J. Those proceedings involved, amongst other things, safety concerns over crewing levels and conceded that on 16 December 2003, the TWU and Chubb were before Marks J on the question of working hours.

66 Each witness at the hearing acknowledged that he understood that if safety/crewing disputes could not be resolved between the parties the Commission was available to resolve them. Chubb submitted it is relevant that not one witness was able to offer any explanation as to why it was necessary to take direct industrial action/strike in December 2003 and January 2004 rather than bring the matters before the Commission, as the union and its members were obliged to do pursuant to their award/EBA obligations.

67 Chubb submitted there was no need to take industrial action of the sort that was taken in December 2003 and January 2004. The withdrawal from work on 19 December 2003, was a clear departure from the normal manner of performing work wherein the need for an escort was determined by the CSI (risk assessment). As a result jobs of the sort and which were, prior to 19 December 2003, performed without an escort were, on 19 December 2003, required to be performed with an escort.

68 Following the Broadway incident, an industry meeting of TWU delegates held on 18 December 2003 determined to issue a “recommendation” which, in fact, decreed that all armoured vehicle work was to be escorted. Chubb submitted that it was the promulgation of this decree, rather than concerns over safety held by individual employees, which led to the taking of industrial action/strike on 19 December 2003. While yard meetings were held on the morning of 19 December 2003, no delegates or other members attempt to explain to management representatives the nature of the safety concerns allegedly held by them.

69 No identified concerns were relayed to management nor any cogent explanation as to how such alleged concerns led to the imposition of a ban on performance of “minor” jobs without the presence of escorts. In such circumstances the Commission should reject the application for payment on 19 December 2003.

Chubb Submissions re 23 to 28 January 2004

70 Chubb submitted the TWU's case in relation to the industrial action which occurred in January 2004 relies upon the publication of another article in the Daily Telegraph, this time concerning the activities of the former proprietor of Obliging Security and his associates.

71 In relation to the claim for strike pay for this period of industrial action Chubb submitted generally:

(a) Chubb management moved quickly to inform the union and its members through Mr O’Donnell of the true situation concerning Obliging Security in order to allay concerns that may have arisen as result of the contents of the Daily Telegraph article. Management also communicated directly with the employees. Despite this the ban on unescorted work was reimposed unilaterally without any attempt being made by the union and it's members to ascertain the true facts.

(b) The ban on unescorted work was imposed despite the fact that the union had only days earlier sought the extension of Walton VP’s directions, concerning provision of additional escorts, beyond 11 January 2004. This application was denied by Staunton J. The unilateral reimposition of the ban without recourse to the Commission discloses an attitude to the orderly resolution of industrial disputes which ought not be rewarded by the exercise of the Commission’s discretion in favour of the union and its members.

(c) There is insufficient evidence from witnesses appearing for the TWU identifying that their concerns were relayed to management or offering any cogent explanation as to how such concerns led to the imposition of a ban on performance of “minor” jobs without presence of escorts. It seems particularly, from Mr Eccleston's statement ... that any implications arising from the newspaper article were raised by the delegates/union and not by individual employees.

(d) Again, nowhere in the evidence is there any attempt to explain why it was necessary to take direct industrial action/strike rather than seek the assistance of the Commission. The action by the Union on this occasion warrants further criticism on the basis that the very industrial ban which was imposed had been the subject of proceedings before three members of the Commission in the immediate past.

72 As to the relevant particulars at each depot Chubb submitted:

Lane Cove

In addition to the claim for payment relating to 23 January 2004, there is a claim for an unspecified number of employees for the Australia Day Public Holiday on 26 January 2004. Because of comments made by management on the Friday that work would not be provided to persons who were scheduled to work on unescorted runs, those rostered for unescorted work did not attend on that day. Chubb submitted that this basis for failing to attend for and perform work in the normal manner does not satisfy the requirement of s 143(4).

Newcastle

73 There is no claim relating to Newcastle employees for Friday 23 January 2004, as all work was escorted. The evidence relied upon by the TWU is there was great dissatisfaction about the lack of response that had been given “to both the Obliging Security matter and an ongoing issue regarding a security problem at Lakehaven shopping centre”. On 27 January 2004, a total walk out occurred which involved even those employees who would have been engaged on escorted runs. Chubb submitted that there is no evidence upon which it could be found that this action was based on a reasonable concern for health or safety of the employees. The action went well beyond what had earlier been regarded as necessary to alleviate the health or safety concern, namely a ban on unescorted work. The industrial or strike action on that day was prompted by a perceived lack of response from management about both issues rather than a health or safety concern.

74 As to the concern arising from the Lake Haven Shopping Centre, Chubb submitted this was an escorted run, and involved the observation of persons acting suspiciously at the shopping centre in early December 2003. The matter had been reported to police. Chubb submitted that despite the alleged concern arising over this matter it was never raised by the employees or the TWU in any of the various Commission proceedings in December 2003 and January 2004.

75 Chubb submitted there is no evidence or not sufficient evidence to make the connection between any alleged concern over one part of one run (that is, Lake Haven Shopping Centre), which had occurred a month before, and a strike by all employees, the vast majority of whom would not have been required to perform that run, a run in any event that was accompanied by an escort.

Wollongong

76 The Wollongong employees' position, according to Mr Dent, during the industrial action which occurred on 27 and 28 January 2004, was that they were effectively locked out because of the ban placed on performing unescorted work. Chubb submitted that the Commission would prefer the evidence of Mr Herbert, the company's witness, to Mr Dent as Mr Herbert's evidence is entirely consistent with the approach adopted by the TWU and its members at Lane Cove. Chubb submitted that the proposition that the employees at Wollongong on 27 and 28 January adopted a different position to that adopted by the colleagues at Lane Cove, namely “one out, all out” should not be accepted. Similarly, the proposition that Chubb management, through Mr Herbert, adopted a different position to that adopted by management in each of the other yards should also not be accepted.

77 Chubb submitted the TWU had therefore failed to satisfy the requirements of s 143(4) and the Applications for Orders should be dismissed.

THE DISCRETION OF THE COMMISSION

Linfox Armaguard Submissions

78 Linfox Armaguard submitted the Commission as a matter of discretion should not make the order sought in the application filed by the TWU.

79 The making of an order by the Commission under s 143(4) of the Act is a very serious step. Further, persons who are required to comply with such an order must know with certainty to which employees such an order is directed to in order to avoid the possibility of an offence being committed for the purposes of s 143(1) of the Act. The order sought by the TWU is so general and does not name the Linfox Armaguard employees who are to receive the benefit of such an order. It is critical that such an order clearly identify the persons upon whom it is binding.

80 As the industrial action on 19 December 2003 was taken in circumstances where:

(a) the grievance procedure in the relevant industrial instruments (Transport Industry C.I.T Award and Armaguard NSW Road Crew Enterprise Agreement 2002 – 2005) was not followed by the TWU. A matter conceded by Mr O’Donnell. This is despite the fact that Mr O’Donnell some twelve months earlier was involved in proceedings in which Commissioner Connor expressly stated that rather than blanket demands for escorts being made following a security issue, there should be a site by site analysis and the matter being brought before the Commission if any dispute could not be resolved;

(b) there was no rational explanation for the TWU proceeding with industrial action before either consulting Armaguard management or re-listing proceedings that were before the Commission involving the issue. It is important to note that the employees continued to work on 18 December 2003 despite the alleged existence of a risk and continued to work post 12 January 2004 (and did not file an Application to vary the Award in relation to escort issues until November 2004) despite assertions from Mr O’Donnell, in the proceedings before Justice Staunton that the very same risks were ongoing; and

(c) the blanket demand for escorts for a risk that was said to be ongoing and existing post 12 January 2004 was an out of proportion response. This is supported by the Application to vary the Award which differs from the blanket demand imposed on Armaguard on 19 December 2004.

Linfox Armaguard submitted the Commission should not in its discretion grant the orders sought.

Chubb Submissions

81 Chubb submitted the Commission should refuse to exercise its discretion in favour of the authorisation or order of strike pay in this case. To do so would only serve to encourage the taking of unnecessary industrial or strike action in defiance of the award or EBA dispute resolution mechanisms and the processes of the Commission.

82 Chubb submitted that authorisation of strike pay in such circumstances is only lawful in cases where the Commission has authorised or ordered that such payments be made (s 143(3)), and that the use of the word “may” in s 143(3) indicates that the Commission retains what has been described as a “residual discretion” to authorise or order (or to refuse to authorise or order) such payments.

83 In Axis Metal Roofing, Walton J, Vice-President at [143] described s 143(4) as a “limited exception to the prohibition in s 143” and noted at [144]:

[W]hilst recognising the importance of occupational health and safety in the workplace, the legislature did intend to strictly confine the circumstances in which the Commission may exercise a discretion to authorise or order a payment to employees, to only those particular circumstances contemplated by s 143(4).

In addition to the statutory requirement to “strictly confine” circumstances in which strike pay may be authorised or ordered, his Honour’s observations make it clear that the Commission retains a discretion to authorise/order payment of strike pay, or to decline to so authorise/order, even in circumstances where the Commission is satisfied that the relevant industrial action/strike was based on a reasonable concern for health or safety. His Honour observed at [148] that, in the exercise of this discretion, concepts such as “imminent”, “serious”, “proportionate” and “justified” will be relevant. His Honour’s findings as to the Commission’s “residual discretion” are consistent with the presence of the word “may” in s 143(4) (see s 9(1) of the Interpretation Act 1987).

84 It was further noted by Walton J, that the existence of award or enterprise agreement provisions dealing with the resolution of safety issues, and the failure of employees to comply with such provisions in favour of taking industrial action would, at [436]:

... in the ordinary course ... be a significant reason for the refusal of the application (under s143(4)).

His Honour in that case identified at [436]:

[A] highly unusual set of conditions which should not result in the exercise of a discretion to refuse the relief sought by the applicant (and which warranted a conclusion that there was either no breach of the award or that any breach of the award was purely technical and minor). ...

85 Chubb submitted each of the TWU witnesses employed by Chubb acknowledged that he was aware of, and understood, the obligations imposed upon employees by the Award/EBA dispute settlement provisions in relation to dispute over matters such as a claim for additional escorts. Each witness conceded that on 19 December 2003, those obligations in this respect were ignored.

86 Each TWU witness was aware that issues such as unresolved claims for additional escorts could be brought to the Commission for resolution without the need to take direct industrial action/strike. None of them was able to provide any cogent explanation as to why the Commission was rebuffed on this occasion in favour of the unilateral imposition of a ban on performance of unescorted work. Chubb submitted that this matter alone is sufficient to warrant the exercise of the Commission’s discretion to refuse to authorise or order the strike pay for those employees who refused to work as normal on this day. In this regard, Chubb submitted an award application in relation to provision of escorts, which was foreshadowed by the TWU in December 2003 and January 2004, but which was not filed in the Commission until October 2004, does not provide for the requirement for all work to be escorted.

TWU Submissions in Reply

87 As to the use of the Commission's discretion the TWU submitted the grant of the applications for payment is a proper use of the Commission's power under s 143 of the Act.

88 Further, in reply, the TWU submitted each witness gave evidence to challenge the assertion in the evidence of both respondents regarding the concern felt as to health or safety in the performance of duties in the Cash-In-Transit industry and asserted, in the circumstances, the reasonableness of those concerns.

THE LEGISLATIVE SCHEME - CONSIDERATION

89 The approach that should be adopted to the statutory construction issue in this matter is that discussed in the recent majority decision of the Full Bench in ASMOF (NSW) v CSAHS [2005] NSWIRComm 339 at [61] and following. Without repeating the whole of the discussion it is sufficient for present purposes to note that the operation of statutory provisions is a question which, as with any issue of construction, may often be resolved by ascertaining the intention of the legislature from the express words of the instrument viewed in their context and that (ASMOF at [63]):

The starting point of our consideration must therefore be the express words of the relevant provision viewed in their context having particular regard to the relevant provision's ordinary and grammatical meaning, paying due regard to the statutory purpose and the context in which the relevant words are used, the reference to context being in its wider sense.

90 The Act provides that an employer who pays any remuneration or other financial benefit to an employee who engages in industrial action is guilty of an offence (s 143(1)). However, the Commission may authorise such a payment and, in such a circumstance, the employer is not guilty of an offence (s 143(2)). The Commission may make such an order if it considers it appropriate in the circumstances (s 143(3)). Such an order may be made if the applicant satisfies the Commission that the relevant industrial action was based on a reasonable concern for health or safety and be made to the employees whose health or safety caused that concern (s 143(4)). The industrial action is not based on a reasonable concern for health or safety if the employees whose health or safety is alleged to be involved have engaged in industrial action instead of complying with the direction of the employer to move to a specified safe place in the workplace or to another suitable workplace, and to do other appropriate and available work if required (s 143(5)).

91 The onus is on the applicant to satisfy the Commission the relevant industrial action was based on a reasonable concern for health or safety. If the Commission is so satisfied it may order or authorise such a payment but only in relation to the particular employees whose health or safety caused that concern.

92 There is thus a legislative prohibition on strike pay with a limited exception: the legislature has recognised the significance of occupational health and safety in the workplace and established an exception to the prohibition which would encompass industrial action based on a reasonable concern for health or safety (as well as other limitations as enunciated in the section). The legislature therefore confines the circumstances in which the Commission may exercise its discretion to those particular circumstances set out in s 143(4).

93 Linfox Armaguard and Chubb contended that, in order for the TWU to succeed in its applications, it is necessary to demonstrate the existence of the reasonable concern for health or safety “by direct evidence from each and every employee” in respect of whom a claim is made. They submitted the analysis of Walton J in Axis Metal Roofing was erroneous to the extent it was concluded otherwise.

94 Both respondents contended the concern of any employee who is part of the group but not exposed to the risk is a concern not relevant to the determination pursuant to s 143(4) of the Act.

95 Both respondents submitted a narrow construction must be adopted and employees not affected by the concern for health or safety, that is employees who took industrial action in sympathy with those who were affected by the concern, cannot be the subject of an order under s 143 of the Act. It follows, it was submitted, the Commission should therefore analyse each particular concern of each particular employee in order to determine the beneficiary of an order rather than the group concern or the concern as expressed through the industrial organisation.

96 The respondents submitted therefore, the questions to be considered by the Full Bench should be as follows:

Whether, upon the correct construction of section 143(4) of the Act, it is necessary:

(a) for each individual employee invoking the section to establish:

i. he or she engaged in industrial action;

ii. the action engaged in was based on a concern for health or safety, where ‘based on’ means that the predominant reason for the employees’ action was a concern for his or her health or safety; and

iii. the concern held by the employee was reasonable, where the question of reasonableness is to be determined by establishing that the employee held a bona fide concern for his or her health or safety that was not fanciful, illogical or irrational having regard to the circumstances of the employee in which the concern arose, and

(b) if the matters in (a) are proved then, whether the Commission’s powers to authorise payments or make orders is limited to only the particular employee(s) whose health or safety caused the alleged concern (in that there was a causal connection) between the health or safety of the particular employee(s) and the alleged "concern".

97 We reject this approach and consider the approach taken by the Vice-President in Axis Metal Roofing involves the correct approach to the interpretation of s 143 and is consistent with the approach to statutory construction to which we have referred. His Honour held in that case at [165]:

Industrial action (in the form of a strike) involves, by definition, more than one employee. Given that industrial action is by its nature a collective activity and that s 143 stipulates that such activity will be an offence unless the reason or basis for that activity to be a concern for health or safety, it follows that any such concern must be considered to be a concern of the group engaged in the industrial activity. It is not to the point, therefore, that the industrial motivation of each employee engaged in a strike has not been expressed. Nor does it defeat this proposition that it would be difficult to determine a “collective mind”, as the relevant “basis” for the industrial action may be inferred from the surrounding circumstances. (emphasis added)

98 His Honour took the view that the concern for health or safety is that held by the group of employees engaged in the industrial action, not by the industrial organisation to which they belong. We consider this approach is correct and entirely consistent with earlier authorities: see, for example, AFMEPKIU v Caltex Australia Ltd (unreported, Connor C, Matter No IRC 817 of 2002, 14 November 2002); Alstom Power v AWU [2000] NSWIRComm 180; AMIEU v Australia Meat Holdings [1996] NSWIRComm 22; AWU v BHP Steel [2001] NSWIRComm 1050; ETU v John Goss Projects [1996] NSWIRComm 39; Labor Council of NSW v Bechtel Australia Pty Ltd (unreported, Murphy C, 28 September 2001); NSW Teachers Federation v TAFE Commission [1997] NSWIRComm 115; and TWU v Kwikasair Express (unreported, McKenna CC, Matter No IRC 138 of 1994, 2 August 1994).

99 We do not accept that a literal reading of s 143(4) means that the concern of the applicant, the industrial organisation, is the relevant consideration. In Axis Metal Roofing, Walton J, Vice-President, held at [167] to [169] as to the proper consideration of the word "concern":

It follows that the relevant inquiry is not the subjective motivation of particular employees, but whether the relevant industrial action was based on a bona fide concern for health or safety, that is, whether there was a bona fide belief that there was a health or safety risk. As was reasoned by Weinburg J, the words "a reasonable concern for health or safety" take their meaning, or "shades of meaning", from the statutory context. In this case, the section falls within that part of the Act which regulates industrial disputes, which by definition involves the regulation of the collective behaviour of employees. That context demonstrates that the Commission may be required to consider the "concerns" of a group of workers (being those collectively engaged in the relevant industrial action) rather than, necessarily, the individual subjective intention or motivation of a worker or each worker in such a group.

Further, there is no basis, in my view, to compound the requirements derived from the words "reasonable concern" in s 143(4) as proposed by the Intervenor, that is, that it must be demonstrated that each worker must have a concern which is reasonably held, and there must also be an objective assessment to show that there exists a reasonable or rational basis for the taking of industrial action. Such an approach improperly blends the question of whether a bona fide concern is held with the objective assessment of whether there is a reasonable basis for that concern.

I turn then to the third element required to attract jurisdiction under s 143(4)(a). That is, having established that employees have engaged in industrial action based on a concern for health or safety, s 143(4)(a) requires that the concern be "reasonable". I have no doubt, and there was no dispute amongst the parties or the Intervenor in this matter, that the requirement that any concern for health or safety be reasonable involves an objective assessment of the nature of that concern. Such an approach is consistent with authority, for instance, the decision of Schmidt J in New South Wales Teachers Federation v TAFE Commission (unreported, IRC 111 of 1997, Schmidt J, 26 September 1997) where her Honour held (at 30):

It was common ground between the parties that the concern dealt with in s 143(4)(a) is the concern which each teacher had for his or her own safety and that such a concern must be measured on an objective basis and at the time the industrial action in question was taken. I agree with this approach to the construction of the 1996 Act.

As to the reasonable concern, his Honour held at [180]:

Fourthly, there was a discussion as to when the reasonableness of a concern for health or safety should be determined. The applicant submitted that a concern for health or safety must be considered "in light of the circumstances that existed and the information available at the time the industrial action took place": (see Alstom Power Pty Limited v Australian Workers Union [2000] NSWIRComm 180 at [70]). The Intervenor contended, however, that "It is also clear that there is a temporal element in "reasonable concern for health and safety"; that is the concern must exist at the time of the commencement of industrial action, and must continue for the whole of the period of industrial action (or at least, must continue for the whole of the part of that period for which payment is sought)". I agree with the Intervenor's submission that the reasonable concern for health or safety must continue during all times that the relevant industrial action is occurring. However, it is unnecessary to determine whether that assessment is strictly jurisdictional or discretionary in nature, as in either case the absence of a reasonable concern limits the basis for the Commission to authorise or order payments to employees. Any payment authorised or ordered under s 143(3) may only be made in respect of the period during which the requirements in s 143(4)(a) and (b) continue to be met. Put simply, a concern for health or safety is reasonable until it ceases to be reasonable. Beyond that period, there is no basis for industrial action of the type that would be caught by s 143(4)(a).

As to the relevance of the industrial environment, his Honour held at [181]:

Finally, the applicant submitted that it may be relevant in a particular case to take into account evidence concerning previous incidents affecting the health and safety of employees when determining whether a concern for health or safety is reasonable. In support of this submission the applicant relied on TWU v Kwikasair (at 12) where McKenna C held:

In this case, the only conclusion that can be reached, in the light of the WorkCover advice, is that Mr Fletcher and the employees based the industrial action on a reasonable concern for health or safety. Moreover, the effect of the earlier health or safety incidents, culminating in the incidents on 28 October, created a belief in the minds of the employees that the respondent was unable or unwilling to establish a safe system of work for handling dangerous goods. This can separately and legitimately form part of a reasonable concern for health or safety.

100 His Honour thus accepted the concern for health or safety could be the concern of the group engaged in industrial or strike action; the concern must continue during the relevant industrial action; the immediate concern for health or safety can be assessed in the industrial environment at the relevant time and in that context the concern must be reasonable in its common sense meaning.

101 Section 143(4) therefore requires two inquiries. Firstly, s 143(4)(a) requires a finding from the Commission that the industrial or strike action was based on a reasonable concern for health or safety. This involves an exploration of the reason why the industrial action/strike was taken. We accept that industrial or strike action is a collective activity, usually undertaken as a result of a collective decision-making process. The grounds for that collective action and the basis for the collective decision become relevant to the Commission's consideration but such does not require the Commission to explore the subjective motivations of each particular employee involved in the industrial action: see Axis Metal Roofing at [167].

102 After the first requirement is met, the Commission may make under s 143(4)(b) an order for payment in respect of those employees whose health or safety caused the concern (being the concern for health or safety upon which the industrial action was based). The provision recognises industrial action by a group may occur because of a concern held by the group as to health or safety of only a portion of the group. The provision evinces a legislative policy that payment to a particular employee who has taken industrial action is not justified where there is no concern held about that employee’s own health or safety.

103 It is necessary under s 143(4)(a) to identify and assess the reasonableness of the collective concern of the group as to health or safety upon which industrial or strike action taken by the group was based. Section 143(4)(a) does not necessarily require an analysis of the individual motivations of those persons in the group who are eligible for the benefit of an order under s 143(4)(b).

104 The provision requires the Commission to be satisfied that the industrial or strike action was “based on” a concern of the relevant type. Ascertaining the reason or cause for industrial action therefore requires not an inquiry into the motivation of each individual employee but drawing inferences and conclusions from evidence as to the concern of the collective of employees.

105 We therefore reject the proposition that such an assessment would involve a subjective consideration of the individual views of the actual person in the situation. We accept the reasonable concern for health or safety must continue for the whole of the period of industrial or strike action (Axis Metal Roofing at [180]) and the question as to whether previous occupational health or safety incidents can affect the reasonable concern for health or safety may be a matter related to the relevant circumstances (Axis Metal Roofing at [181] and [182]).

106 We do not accept that the applicant has to demonstrate that an actual risk existed at the time of the industrial action. The intention of the legislature expressed in the words of the provision must be given effect. It is therefore not necessary for there to be proof that there was a demonstrable risk to health or safety, it is only necessary to demonstrate a reasonable concern was so held by the group who took the industrial action. Such concern must be assessed from the perspective of an ordinary and reasonable person in the position of an employee of the relevant employer.

107 In AFMEPKIU v Caltex Australia Limited, Connor C expressed the test in the following way:

I must satisfy myself ... that the employees were genuine over their safety concerns over the prospect of H2S leaks, whether they were right in their concerns or not.

And later:

[T]he test is subjective in that I must place myself in the position of the employees in determining whether or not they were genuine in their fears on safety grounds. The test is objective in so far as I am obliged to determine whether or not their fears were reasonable.

CONSIDERATION

Matter No IRC 406 of 2004 - industrial or strike action on 19 December 2003

108 The claim as to 19 December 2003 is for payment to employees at both the Linfox Armaguard and Chubb Depots who did not, on 19 December 2003, make themselves available for work other than for work performed under escort. The industrial action involved employees of both Linfox Armaguard and Chubb at the following depots:

· Linfox Armaguard

Smithfield, Bankstown, Artarmon, Rosebery, Kingsgrove, Penrith, Newcastle and Wollongong.

· Chubb

Lane Cove, Smithfield, Newcastle and Wollongong.

109 In order to determine whether the employees held a reasonable concern for their safety we find it necessary to examine the industrial context in which the industrial action of 19 December 2003 was taken.

110 Chubb and the TWU were in ongoing negotiations for a new EBA. The existing EBA was to come to an end in December 2003. Throughout the negotiations, outstanding issues of concern were canvassed in the Commission before Marks J. Transcript of those proceedings reveals wage negotiations and site specific safety issues were particularly addressed.

111 Also between the respondents, Linfox Armaguard and Chubb, and the TWU, the manning levels of crews and the associated introduction of two man crews was an ongoing issue in dispute. The manning levels dispute also brought forward the issue of security and how security levels were determined. The question became which deliveries required escorts and what type of escort was necessary for that particular job. The manning levels and the need for escorts became two issues intertwined and an examination of the transcript evidence persuades us we should reject the proposition that the need for more escorts was not a live issue before the relevant events.

112 Escorts were put in place on high risk deliveries by the (then) two armoured vehicle companies in 1995 after an extended stoppage following two armed robberies in which one employee was shot dead and another wounded.

113 By 9 March 2003, a Cash-In-Transit Code of Practice was formulated by the WorkCover Authority of New South Wales. The purpose of the Code was to provide guidance to prevent injury and illness to persons engaged in the Cash-In-Transit Industry. The Code of Practice did not and does not prescribe manning levels, but requires a “risk assessment” approach in relation to each delivery. The site is "risk assessed" by the company's security section and then there is a recommendation as to the measure of crewing needed with the aim of ensuring a "safe" delivery. The quality of the risk assessments by both respondents was challenged.

114 In 2003, Linfox Armaguard addressed the TWU's expressed concern as to the need for more escorts on deliveries, in which it conducted through Mr Mayne, its Security Manager, an analysis of hold-ups in the industry. Of the 11 armed hold-ups which occurred between May 1998 and September 2003 Mr Mayne concluded it was not a lack of escorts that made the delivery vulnerable to attack but the difficulty was maintaining a greater level of physical separation between staff performing the work. Staff, it was found, generally clustered close by each other especially on recognised danger sites. Relevantly, of the 11 robberies he examined, 10 had occurred on jobs which were not escorted. We accept this is a disproportionately low number of robberies on escorted jobs or, it could be said, a disproportionately high number of robberies on un-escorted jobs. We accept from the evidence that escorted crews are less likely to be the subject of robbery.

115 Analysis of circumstances arising from an attempted robbery of a Chubb delivery at Hornsby on 22 December 2003 provided the basis for the conclusion that the significant role of the escort prevented the robbery occurring while the cash was being collected and was in transit from the client site to the vehicle.

116 We find Mr Mayne’s conclusion that it is important that crews comply with separation procedures on all jobs to be a reasonable one but it does not discount that the provision of an escort seems to afford extra protection when deliveries of cash are taking place.

117 Both respondents have adopted the practice of using escorts as the principal measure to enhance security on the identified higher risk deliveries. At Linfox Armaguard the evidence revealed branch managers generally acceded to requests for the provision of additional escorts on deliveries regarded by the employees as high risk as 30 per cent of jobs were escorted while only 16 per cent of the deliveries had been assessed as needing an escort.

118 Mr Sandy Law, delegate at the Linfox Armaguard Smithfield Depot, described the industrial climate as at December 2003 thus:

At that time and since around May 2003, I had been having regular meetings, often weekly, with all delegates and management due to the members' concerns regarding safety. The fear that all of us drivers had performing the work without an armed escort was consistently emphasised by the delegates, including myself. Management dismissed our concerns and wrote off attacks as isolated incidents, but did keep mouthing the words that they would look into the question of increasing escort numbers. The number of escorts never actually increased and in some cases decreased as management relied on risk assessments saying escorts were not needed at particular sites.

119 Mr Michael Walliker, delegate at the Linfox Armaguard Newcastle Depot said, as to work from his depot:

Around November 2003, I recall an attack against Brinks armoured officers at the National Australia Bank in Auburn. It was around this time and a little later that I also noticed a growing number of security alerts coming through from the company. It caused a great deal of alarm to me and the rest of the members in the yard when we received numerous security alerts at around that time. I spoke to the men about the alerts and I recall them getting very agitated and nervous about the performance of their jobs. I raised this nervousness with Mr Guildford but he said that so long as it did not affect Newcastle, we should not be concerned. When I reported this response to the yard there was anger and people were expressing the view that the company was going to wait until someone was attacked or killed to increase security. I approached Mr Guilford on two or three more occasions during December as the attacks continued. I said that employees were panicky because incidents seemed to be occurring on a daily basis. Mr Guilford again dismissed our issues, partly I believe, as he was leaving the company, which he did a few days after I last raised with him.

120 Mr Dean Ponting, delegate at Chubb's Lane Cove Depot, said:

Over that period there were numerous security alerts relating to Chubb and the industry. There were also attempted robberies on Chubb crews in the Sydney area and attacks on both Brinks and Armaguard crews. With the exception of an attempted armed robbery of a Chubb Operation at the Commonwealth Bank on or around 16 October 2003 and an attempt on an Armaguard crew in Liverpool Westfields, all of the security incidents that I was aware of in this period were perpetrated on crews that were not escorted (the escorts in the 16 October and Liverpool Westfields incidents played a role in preventing an actual attack) ...

The combination of these things meant that by the time of the armed robbery of the Armaguard coin crew at Broadway, employees in my depot were almost in a state of panic about having to perform the work, particularly the work needed to be performed without an escort. Members were approaching me left, right and centre for information about the attacks and what was being done to prevent them. The Armaguard robbery in Broadway was a shock to people at my yard because it was an attack on a coin crew. Coin crews are not considered to be that attractive to criminals. There was speculation in my yard, coming from Armaguard employee contacts, that the attackers had made a mistake and were in fact intending to target an ATM crew that normally service the site. That to me makes a lot more sense and is more consistent with the pattern of attacks that I have experienced. However, although there was speculation amongst employees to that effect, we did not know this for sure and so we couldn’t help thinking that criminals were copying previous recent successful attacks on unescorted crews.

121 We accept that, by December 2003, there was in existence an industrial environment where the Cash-In-Transit industry was suffering a high and escalating incidence of armed robberies or attempted robberies on armed car crews. We also accept from the evidence that, within the industry, there was a growing perception that organised crime was showing serious and increasing interest in the work of the armoured car or Cash-In-Transit firms. Gun related robberies were on the increase. In the last four months of 2003, there were seven armed robberies against three armoured car companies (six of which occurred prior to 19 December 2003 and one which occurred a few days later). In addition, leaving aside a number of security incidents the character of which was debated between the parties (such as, whether a particular robbery was violent) there were at least three armed robberies against armoured car crews which were described by the companies as "attempted" armed robberies. Most of the robberies were committed at banks and ATMs serviced by the armoured car companies. There was also evidence of a number of suspicious incidents affecting both the armoured car companies directly or sub-contract staff involved in the maintenance of ATMs.

122 Mr Farahar, General Manager of Chubb, accepted that there was, in 2003, a wave of successful or attempted armed robberies against the armoured car industry in the Sydney area.

123 It was in this industrial climate that, on 17 December 2003, there was an armed attack on a Linfox Armaguard armoured car crew carrying coins at Broadway. Coin trucks had not been regarded in the industry as at risk before this robbery. The incident therefore raised the particular concerns of employees. The evidence as to the circumstances of this robbery was very detailed. The employees were performing a coin delivery but were also carrying a specific amount of other cash. Further, the crew did not follow the delivery route identified in the site risk assessment, although this appears to have been because the employees had never seen the assessment. It was missing from the relevant branch office. The particular armoured vehicle which was used for the delivery was indistinguishable from other armoured vehicles which carried cash (although we accept it is obvious when a crew leaves the vehicle if they are carrying only or predominantly coins, since coins are bulky and carried on a trolley).

124 There is a procedure used by all armoured car operatives as to information made available by them to their employees arising from any attack in the Cash-In-Transit Industry. The information comes to employees through a security "alert". The Linfox Armaguard security alert described the 17 December 2003 robbery as being on a crew from the Bankstown yard which had “just serviced a Changemaster machine”, while the Chubb security alert described it as an armed robbery “which took place on a crew performing a coin service”. The "alerts" of the respondents, when compared to the reaction of employees, understate the effect of this robbery. The effect on employees, we find, was profound.

125 Mr Craig Marvin, one of the co-delegates at the Chubb Smithfield Depot said as to the effect of this particular robbery at the workplace:

I recall that there was a far amount of discussion about this particular robbery because it was on a coin truck. I remember there was a sense of disbelief that a coin truck could have been hit. I remember some of the comments from the floor including one to this effect:

"Coin trucks, there the safest of safe jobs and now they are starting to get hit,"

and another

"What type of dick head is it that would hit a coin truck, there hitting anything. We've got to do something about all this.

126 Mr Dean Ponting, delegate at the Chubb Lane Cove Depot said, as earlier noted, of his workplace:

The combination of these things meant that by the time of the armed robbery of the Armaguard coin crew at Broadway, employees in my depot were almost in a state of panic about having to perform the work, particularly the work needed to be performed without an escort. Members were approaching me left, right and centre for information about the attacks and what was being done to prevent them. The Armaguard robbery in Broadway was a shock to people at my yard because it was an attack on a coin crew. Coin crews are not considered to be that attractive to criminals. There was speculation in my yard, coming from Armaguard employee contacts, that the attackers had made a mistake and were in fact intending to target an ATM crew that normally service the site. That to me makes a lot more sense and is more consistent with the pattern of attacks that I have experienced. However, although there was speculation amongst employees to that effect, we did not know this for sure and so we couldn't help thinking that criminals were copying previous recent successful attacks on unescorted crews.

127 Mr Michael Walliker, delegate at the Linfox Armaguard Newcastle Depot, said, as to the significance of this incident for his workplace:

The coin crew attack at Broadway Shopping Centre on 17 December shocked me immensely as coin crews were not normally targeted due to low cash amount offenders would gain from attack. Employees at that stage were sick of the inaction of the company and wanted something done about it.

128 The industrial environment was further aggravated when, on the day following the Broadway robbery, 18 December 2003, the Daily Telegraph published an editorial which discussed the Broadway attack. Relevantly, the editorial noted:

The irony is, because these guards generally operate in public places, often with big crowds, they are normally instructed never to pull their guns anyway. This means they serve no purpose – other than being a lame visual deterrent to criminals who know they won’t be fired at.

The Industry might argue that its guards feel safer if allowed to carry guns. The public doesn’t. Get rid of them.

129 We accept the contention of the TWU that the article suggested there were no, or very limited, risks involved in attacking armoured car crews and if the stated editorial view was accepted, it could have diminished or destroyed the deterrent effect which the issue of guns to guards was intended to have.

130 On 18 December 2003, the same day as the Daily Telegraph's article and the day after the Broadway robbery, the TWU through Mr O'Donnell, the relevant organiser called a delegates meeting. Mr O'Donnell's evidence as to the working environment within the industry at this time was as follows:

During this period and particularly after the 17 December attack, I had calls and conversations with delegates at Armaguard and Chubb emphasising the concerns being expressed to them by employees about the current danger of performing work in the industry. The consistent message I was getting from these conversations was that employees thought that the current environment was so volatile that they wanted to stop work until they could be assured that all steps could be taken to protect them. I had calls from both Senior Delegates from Chubb and Armaguard on behalf of the delegates and members who were contacting them. I also had calls from individual members at my Parramatta office calling for additional escorts and industrial action if the companies did not deploy them. The sentiment of our members was that they could not remember any other period of time that in which there had been such a high number of armed attacks on armoured vehicles in such a short period of time. Also, that if criminals were now willing to attack low value, heavy coin operations and fire on Police to do so, there needed to be immediate upgrades to the levels of security in the industry.

131 Following the industry meeting of TWU delegates on 18 December 2003, the same day, the TWU issued to its membership a Recommendation which read as follows:

Responding to the recent spate of hold ups exposing 'cash in transit' workers to unacceptable risk your TWU has prepared the following brief overview of current safety legislation in the NSW 'cash in transit industry' and recommended position for all TWU members to enforce.

Current Safety Requirements in NSW

The NSW Occupational Health and Safety Act requires that employers ensure the safety of its employees. The Transport Industry - Cash -in-Transit (State) Award and the Workcover Cash in Transit Code of Practice require employers, amongst other things, to conduct adequate safety and risk assessments and to consult with employees about safety and risks associated with the performance of their work.

Recommended Position for All TWU Members

In addition to the obligations of employers under these instruments, the following provision should, as a minimum, apply for each job performed by an armoured vehicle:

(i) An armoured car crew of at least 2 persons where at least 2 persons exit the vehicle to perform the work;

and in addition

(ii) An escort, which shall, at a minimum, consist of one uniformed and armed cash transportation worker providing the support in a separate vehicle clearly marked with the words "Armoured Car Support Vehicle" which is equipped with the following:

· Back to base radio capability;

· A radio link with the armoured car being supported; and

· A telephone

The function of the support is to attend the scene of the job before the job is performed in order to survey the area and give the employees carrying the cash the "all clear" to commence the job and then on-going support until the job is safely completed.

and

(iii) Any additional appropriate security and crewing levels.

132 The recommendation was approved by the delegates and was then carried by them to individual meetings of members held at each depot. Employees voted to accept the recommended position placed before them by the delegates. The recommendation had the effect that all employees would refuse to conduct any operation without an escort.

133 Both respondents asserted it was not a concern for health or safety which triggered the industrial or strike action but rather a reaction to a union "edict". The respondents asserted there were no expressions of concern by members to either management arising from the coin robbery or the newspaper article. Linfox Armaguard asserted Mr O'Donnell had rather expressed the view following the newspaper article that his members were worried they were going to lose their guns.

134 Chubb asserted the action by employees on 19 December 2003, was connected to the prior strike at its Lane Cove and Wollongong yards on 18 December 2003, which was taken in support of wage claims associated with the ongoing enterprise bargaining negotiations (and also at Lane Cove related to site specific safety issues).

135 We reject these propositions. Mr Farahar, General Manager of Chubb, conceded that by 19 December 2003 the Lane Cove Depot dispute had settled, independently of the TWU's wage claim. He also conceded it was on the recommendation and intervention of Mr O'Donnell, of the TWU, that the industrial action at Lane Cove was resolved.

136 As a result of the vote at each depot, employees refused to work on 19 December 2005, on unescorted runs due to concern for their safety. Other escorted deliveries were performed.

137 The industrial or strike action of 19 December 2003 came before Marks J by way of a notification under s 130 by Armaguard Pty Ltd of a "dispute with Transport Workers Union of NSW and Ors re Bans" which became Matter No IRC 5253 of 2003. Chubb was joined in the application. His Honour observed:

[U]nless something is done to resolve the immediate problem, albeit on an interim basis, there is grave risk that the companies will not be able to service their clients. It may be other recourses, such as the police, will be necessary to assist those of the customers whose requirements cannot be met by the companies ...

His Honour then issued the following directions:

1. For each job performed by an armoured vehicle where an armoured car crew of not more than two persons exit the vehicle, the employer shall provide an escort which shall consist of one uniformed and armed cash transportation worker operating out of a separate vehicle equipped with one of back -to- base radio capability, a radio link with the armoured car being supported or a telephone.

2. This direction is not intended to minimise or otherwise impact upon a higher or more significant requirement imposed by any security risk assessment undertaken with respect to any site.

3. Such support person is to attend the scene of each job before the job is performed and shall survey the area and give to the employees operating the armoured vehicle an "all clear" to commence the job and shall provide ongoing support until the job is safely completed.

4. All employees of each Armaguard Australia Pty Limited, Chubb Security Services Limited ... shall immediately cease any industrial action and shall refrain from imposing any ban, limitation or restriction in carrying out his or her work under the provisions of any applicable industrial instrument.

138 The statement and directions of Marks J did not resolve the issue of escorts. His Honour issued a Certificate of Failed Conciliation in Matter Nos IRC 5253, 7279 and 7283 of 2003 and in a Statement and Directions on 21 December 2003, referred to a number of complex contemporaneous issues affecting the industry including:

1. There have been a number of recent incidents where employees have been held up by armed assailants. This has increased apprehension on the part of employees for their own safety.

2. Armed hold-ups, especially in shopping centres, create risks also for members of the public.

3. There is an impression, gained through the media and elsewhere, that there is increased lawlessness in our community and increased resort to the use of firearms.

4. On the other hand, the employees in this industry have been trained for their work which is, admittedly, inherently dangerous and they are armed.

5. The number of incidents when compared with the overall movements of cash and securities are small.

6. If the directions remain in place, some customers cannot be serviced by the operators and will have to make their own arrangements for the carriage of cash which, in turn, may create additional security problems.

7. The substantial and underlying problem has been created by the companies concerned being forced to compete on costs. That is, the cause of the problem is cost driven and not safety or security driven. The customers are overwhelmingly financial institutions and large commercial organisations. I apprehend that the additional cost involved for the provision of one additional employee as an escort on some runs will represent a minuscule addition to the aggregate bottom line profits of all these organisation (sic). This poses the question whether the enhanced safety of employees should be sacrificed for bottom line profits of financial institutions and these large commercial entities, including the major retail chains, or because of the inability of the companies to service their customers.

8. Having received a great deal of information from experts and operators in this industry, I am concerned on an interim basis that there are now scientifically accurate means of predicting confidently whether a particular operation is or is not likely to be safe. Thieves, by definition, exhibit anti-social conduct and act illogically, irrationally and unpredictably, especially when armed. In my opinion a conservative approach needs to be taken.

9. Attitudes to safety have changed remarkably in our community over the last few years and continue to change. An obvious example is the universal use now of hard harts (sic), safety harnesses and railings and hearing protection devices in the building industry. In the wider community all bicycle riders now wear safety helmets. This industry has been the subject of a wide-ranging inquiry by Peterson J in 1995 but it seems that many of his Honour's recommendations have not yet been adopted by the industry.

139 The Vice-President on 23 December 2003, while vacation judge, had before him the following matters for orders and/or further revised directions:

· Matter No IRC 7279 of 2003

Notification under s 130 by Armaguard Australia Pty Limited of a dispute with the Transport Workers' Union of Australia (NSW Branch) and another re industrial action

· Matter No IRC 7283 of 2003

Notification under s 130 by Chubb Security Services Ltd of a dispute with the Transport Workers' Union of NSW re recommended position statement

140 It is relevant to consider the content of the following further recommendation made by his Honour after consideration of the issues dealt with by him:

1. All Employees of Linfox Armaguard Pty Limited and Chubb Security Services Limited ("the Employers") shall immediately cease any industrial action (which they deny they have engaged in) and shall refrain from imposing any ban, limitation or restriction in carrying out his or her work under the provisions of his or her contract of employment or under the provisions of any applicable agreement.

2 The Employers shall immediately cease any industrial action (which they deny they have engaged in) and shall refrain from imposing any ban, limitation or restriction.

3. These recommendations (excluding paragraphs 1 and 2) are confined to the categories of work defined in paragraph 5 which are performed in the Sydney, Newcastle and Wollongong metropolitan areas (unless otherwise provided for in paragraph 5).

4 Subject to the process outlined in paragraph 7-10, for each job performed in relation to the categories of work defined in paragraph 5 below where an armoured crew of not more than 2 persons exit the vehicle, the employer should provide an escort which consists of one armed and appropriately qualified person operating out of a separate vehicle equipped with one of a back-to-base radio capability, a radio link with the armoured car being supported or a telephone.

5 The work which will be performed within the scope of paragraph 4 of these recommendations fall within the following categories:

· Financial Institutions and the ATMs located at Financial Institutions;

· At licensed premises where cash transaction points are required to be serviced, but only where the cash transaction point is located within an area of the licensed premises in which alcohol is served and consumed or where the crew must transit through such an area and where the service time is within that licensed premises' normal trading hours for the service of alcohol;

· At major shopping complexes where the non-bunkered free standing ATMs to be serviced are located in a public access area, whenever there is public access;

· Major railway stations as defined in Schedule 1 (excluding TVMs);

· At bunkers where there is no "peep hole" or CCTV monitoring system offering work crews visibility, outside the bunker area, prior to exiting;

· At communication areas where the service point (which for this purpose is defined as the area between the customer transaction point and the armoured vehicle) is located in an area not providing at least one of the following mediums of voice or electronic data (duress) transmission;

- 2 way radio between work crew and vehicle together with GSM (2 person crew);

- 2 way radio between work crew (2 and 3 person crews);

- 2 way radio between vehicle and base (3 person crew)

- GSM coverage; and

- CDMA coverage.

· In regional areas as determined by the undertaking of a risk assessment, conducted by the employer, on a site-by-site basis and having regard to the vehicle being secured while in transit between the service points; and

· Where there has been a history within the last 12 months of any "armed" robbery or attempted "armed" robbery, or where specific information is received of the threat of an "armed" robbery at the specific service point.

6 Such support person is to attend the scene of each job before the job is performed and shall survey the area and give to the employees operating the armoured vehicle an "all clear" to commence the job and shall provide ongoing support until the job is safely completed.

Procedure for Resolving Crewing Security Issues

7 In respect of work performed by employees within the scope of financial institutions and ATMs at financial institutions and major railway stations as defined in Schedule 1 (excluding TVMs) which are referred to in paragraph 5 (except work for which an escort was provided as at 18 December 2003), the Employers should not depart from the recommendation within that paragraph without:

(i) making a determination (based on an assessment of current risk) as to whether a support crew is needed to carry out the work;

(ii) identifying to the Employees (through a delegate of the TWU at the relevant site) the work which in its determination does not require a support crew;

(iii) giving the Employees ( through a delegate of the TWU at the relevant site) an opportunity to respond;

(iv) giving due consideration to any response advanced by the Employees (including any recommendation concerning the risk assessment);

(v) seeking agreement with the Employees (through a delegate of the Transport Workers Union of the relevant site) on the resolution of any issue in dispute in relation to a determination, including the question of whether current and/or reasonably available resources have been attempted to service the work with an escort.

8. The Employees, the Employers and the delegates of the TWU shall act in good faith and take all necessary expeditious and reasonable steps in the carrying out of the process set out in paragraph 7.

9 In the event that there is a dispute on the basis of a bona fide safety concern in relation to any determination made in accordance with paragraph 7, then the Transport Workers Union will notify the WorkCover Authority of New South Wales to seek their advice, assistance and/or review of the matter that is in dispute or have the matter re-listed before the Industrial Relations Commission of New South Wales pursuant to paragraph 14.

10 In the event that the process outlined in paragraph 7 is required to be invoked, the Employees are to continue to perform the work in accordance with the Employer's determination referred to in paragraph 7(i) until such time as the matter is resolved in the following manner:

(a) through the process set out in paragraph 7(ii) -(v); and

(b) a review of the situation by the WorkCover Authority of New South Wales and/or the Industrial Relations Commission of New South Wales.

11 With respect to work other than in the categories set out in paragraph 5, the status quo as at 18 December 2003 with respect to manning levels and the provision of an escort shall remain in place.

12 It is acknowledged that these recommendations in consideration of the circumstances, not least the need to act to safeguard the public interest pending a full and final resolution of the respective alleged underlying issues in separate proceedings, may not in themselves be relied upon or prejudice any parties' rights otherwise in the above referred or related proceedings.

13 The employers shall ensure that all employees are paid their lawful entitlements to wages for 19 December 2003. If there is a dispute about whether section 143(1) of the Industrial Relations Act 1996 applies the TWU shall expeditiously make an application for an Order under section 143(3), which the Commission will deal with as soon as is practicable.

14 All delegates of the TWU who have attended the Commission proceedings on 19, 21, 22 and 23 December 2003 shall be paid for the time spent in such attendance.

15 No party shall take further action in any jurisdiction other than the Commission in relation to any issue arising out of or in connection with Matters Nos. 5253 of 2003, 7279 of 2003 and 7283 of 2003.

16 Nothing in these recommendations affects the right and obligations under the Occupational Health and Safety Act 2000 (NSW).

17 These recommendations will come into effect at 9.00pm today and remain in force until midnight on 11 January 2004.

Directions

18 Both parties have leave to restore the matters to the Commission's list on 1 hour's notice.

141 Heightened security measures therefore remained in place until the Recommendation expired on 11 January 2004. On 9 January 2004, on the application of the TWU, Staunton J (also sitting as vacation judge) refused to extend the orders of Walton J beyond 11 January 2004. Her Honour said:

While I fully understand and appreciate the safety concerns raised by the TWU, that the employers have a liability to address, there is nothing before me to persuade me that I should alter the timetable for the recommendations imposed by Walton J.

142 It is relevant to note that the Vice-President in considering his Recommendations referred to both two man crewing, the need for escorts and the diversified style of deliveries to ATMs and other businesses as well as the differing geographic areas of delivery, eg. into shopping malls or stand alone services.

143 Given the industrial environment in the Cash-In-Transit industry up to December 2003, the apparently unprecedented armed robbery of the coin truck on 19 December 2003 and the Daily Telegraph editorial of 18 December 2003 which referred to the lack of protection provided by armed escorts to Cash-in Transit deliveries, we find the industrial action of 19 December 2003 was based upon a concern by employees of Chubb and Linfox Armaguard for their safety if required to perform armoured car work without an escort. We accept the concern of employees was that they faced an undue risk of armed robbery and thus that their safety was seriously endangered.

144 We accept this concern was reasonable, having regard to the very particular circumstances prevailing at the time and that the established practices within the industry to provide escorts for armoured car deliveries when there was a high-risk situation.

145 Evidence revealed the industrial action was confined to those who were the subject of the relevant concern - that is, those who would otherwise have had to perform a delivery without the provision of an escort. Employees who were provided with an escort for their delivery, we accept were willing to work, and did work unless prevented from doing so by their employer. Such a circumstance we find satisfies the requirement of s 143(4)(b) of the Act.

Matter No IRC 407 of 2004 - industrial action/strike in January 2004

146 The claim as to January 2004 is for the payment in respect of the industrial action which occurred only at Chubb Depots as follows:

Lane Cove: 23 and 26 January 2004

Newcastle: 27 January 2004

Wollongong: 23, 27 and 28 January 2004

147 On 22 January 2004, the Daily Telegraph published a further article which revealed the proprietor of a company called Obliging Security who had sub-contracted to Chubb Mobile Services, which was itself in turn sub-contracted to Chubb, and two other associates, had been charged by the police with planning an armed robbery on a Chubb armoured vehicle. The article alleged the men had been watching armoured vehicles make deliveries in Condell Park and Bass Hill and they had obtained firearms for the purpose of the robbery. One of the criminals allegedly had said:

[A] mate of mine is the head of security at Chubb. He gives me all the inside mail.

148 After the arrest, at the home of the proprietor of Obliging Security, police found a Chubb Security uniform, documents containing confidential cash management details from Chubb Security, and a significant amount of Chubb information.

149 Mr Vincent, Chubb’s National Security Manager, revealed Chubb had known since 5 December 2003, about the arrest and the charge against Mr Wilson, the sub-contractor, however, that information was never passed on to employees. This decision was made by Mr Vincent because of a request by police to keep it confidential and because the three persons directly involved in planning the armed robbery had already been arrested (with bail refused on 12 December 2003). After the bail hearing, police confirmed to Mr Vincent they did not believe any employee within Chubb had been involved in the conspiracy. Such information was, again, not passed on to employees.

150 Employees therefore first learned of the planned robbery and associated arrests in December 2003 through the Daily Telegraph article of 22 January 2004.

151 At the Lane Cove and Wollongong Depots work ceased on all deliveries without escorts on the next day, 23 January 2004.

152 Chubb sent a memorandum dated 22 January 2004 to employees but it was not received by employees until 23 January 2004. It read as follows:

22 January 2004

Memo to All Armoured Vehicle Operators

Not for external circulation

Chubb takes matters of security extremely seriously and as such we have been working with the police to provide information in the investigation of alleged activities of Obliging Security as reported in the Daily Telegraph this morning.

It is the Police and Chubb's belief that no Chubb employee was involved in this case.

The Police have information to believe the reference to "the head of security at Chubb" made in a telephone conversation by a person charged with Peter Wilson, relates to a former contractor; Peter Wilson of Obliging Security, who provided maintenance services to Chubb and does not relate to security employees or management within Chubb.

The Daily Telegraph article indicated a Chubb Security uniform was found in the home of Peter Wilson and was allegedly part of the plan. The Police have confirmed that the uniform was not a Chubb uniform used for the provision of cash services and used by armoured vehicle operators.

Should you have any questions regarding the above, please contact Simon Farahar or your supervisor.

Maurie Carr

Executive Director

Chubb Security Services

153 The TWU contends the memorandum implicitly affirmed the thrust of the Daily Telegraph article. The TWU conceded the memorandum also revealed that Police believed that no employee of Chubb was involved, and the uniform recovered was not a Chubb armoured car crew uniform (it was later shown to be a Chubb Mobile Services uniform).

154 However, we accept this memorandum created a concern amongst employees. Chubb had seemingly inadvertently sub-contracted some work to a criminal who, with others, was apparently prepared to carry out armed attacks on Chubb armoured vehicles with crews. While arrests had been made it seemed that confidential Chubb information had passed into the hands of criminals. What that information was or where it had ended up was not clear in the memorandum. Further, there was the implication that a source, within Chubb, had been supplying information to such criminals and could still be doing so.

155 Mr Eccleston, one of the co-delegates at the Chubb Lane Cove Depot, best outlined the reaction of employees as follows:

There were a couple of main concerns. First was the fact that although the article had said that one of the people apprehended talked about a head of Chubb Security being implicated, the article did not note any arrests or make any further reference to contacts that might have been involved in Chubb. This left open the possibility that if what the apprehended person had said was true then a person in Chubb who had been providing information or assistance to those people was still in place. If that was the case it was possible that any run or job performed by the company was potentially tainted. The second concern was that the company had not approached myself or to the best of my knowledge any other employee or the union about these matters. As mentioned I learned about these matters by reading the article in the newspaper. I was shocked that the company had not provided any briefing to employees about the potential risk that existed as a result of these matters, especially since the company in Commission proceedings throughout the end of the last year kept saying that their work practises were safe and kept arguing against extra security measures.

The decision was made at that delegates' meeting that there would need to be report backs to employees to advise them of the implications of the article that had been published. A meeting at my depot was held at 6 o'clock Friday morning on 23 January 2004. At that meeting Tony O'Donnell and myself outlined the implications of the article in the paper to employees. Some of the comments which came from employees at the meeting to the best of my recollection were as follows:

"I don't believe this, this is what we have been telling them about the dangers of FLR contractors for ages;"

"Why didn't they tell us about it, this had been going for a couple of months and we haven't even been told about the risk;"

"Who's the head of Security that they were talking about;"

"How do we know that all the information about our runs are not on the hands of crooks;"

"They should put escorts on all runs until they can show us that all of the people involved are put behind bars;"

"They've known about all this and the same time they have been saying that we don't need extra escorts;"

There was a unanimous vote at that meeting in favour of the position that we had put in December, that is, that employees would work on escorted runs, and not perform work unless the run was escorted.

This position was put to the company and on 23 January those employees normally rostered to work on a run with an escort went out to work as usual. Others, who were not provided with escorted work did not work...

156 On 23 and 26 January 2004 at the Lane Cove Depot, on 27 January 2004 at the Newcastle Depot and on 23, 27 and 28 January 2004, at the Wollongong Depot, industrial or strike action was taken by members of the TWU. There was a refusal to perform unescorted deliveries. The dispute as to industrial action came before Boland J, as vacation judge, as a result of a notification by Chubb.

157 Chubb sent a further Memorandum dated 27 January 2004, in response to concerns caused by the Daily Telegraph article of 22 January 2004. However, it did not, in content, provide any further information. It was not until 28 January 2004, again under the hand of Mr Carr, Executive Director of Chubb, that employees were told all the facts.

158 Boland J in a statement issued on 28 January 2004, expressly recognised the genuine and reasonable nature of the employees’ concerns saying:

9. Whether or not the article in the Daily Telegraph is entirely accurate - and Chubb says it is not - fundamental aspects of the story appear to be correct. That is, the owner of Obliging Security that contracted to CMS had, along with two accomplices, been arrested and charged with conspiracy to commit armed robbery and that the alleged target was a Chubb armoured vehicle. CMS is, in turn, contracted by Chubb Security Services Ltd to undertake certain security work. The TWU had a reasonable concern that Obliging Security would have had access to Chubb uniforms and confidential information regarding Chubb’s cash management operations and that the uniforms and the information might be circulating amongst criminal elements in the community and might be used in planning hold-ups in the future.

10. The Daily Telegraph article, understandably, served to heighten the concern of armoured vehicle operators employed by Chubb. This was especially the case after it was learnt by them that Chubb had been aware of surveillance being carried out by the police on the alleged would-be robbers as they planned the robbery yet undertook no consultation with employees. The only piece of advice issued to Chubb branches in NSW was a security alert that on 3 November 2003 police had advised an Armaguard crew to be on the lookout for a certain vehicle. Moreover, whilst the alleged criminals were arrested on 21 November 2003, a fact that Chubb did not, surprisingly, become aware of until 5 December 2003, no mention of the alleged criminal activities was made in any of the later proceedings before the three members of the Commission to whom I have previously referred and in circumstances where Chubb strongly resisted any increased security measures sought by the TWU and also where, after learning of the alleged planned robbery, the TWU considered that Chubb had not undertaken any adequate review of its security arrangements.

It seems to me that the security concerns of the employees could have been better handled by Chubb especially at a time when security was a volatile issue. ... the employees were entitled to know about Obliging Security before the story broke in the Daily Telegraph. Indeed, in my opinion, it should have been revealed at the earliest possible time that would not compromise confidential investigations or security. As it was, the story eventually come out via the press, thereby fuelling the sense of disquiet amongst employees about their employer’s commitment to their security in the face of potential armed robberies.

159 His Honour indicated if he had the power he would have allowed payment for the days concerned due to the reasonable concern of employees for their health or safety. His Honour accepted Chubb had failed to take adequate measures to comprehensively brief its employees and to undertake a review of its contractors given its knowledge of the security breach. The evidence revealed that, when the review was carried out, it resulted in Chubb dismissing half its contractors and engaging other contractors directly rather than through Chubb Mobile Services.

160 Chubb’s delay, until 28 January 2004, in properly briefing its employees we conclude gave rise to a situation where employees given the limited information in their possession, the ongoing unrest in the industry throughout 2003 and the armed robbery on a coin delivery in December 2003, had reason to believe that their safety was at risk unless they were provided with an escort on jobs. The article of 22 January 2004, starkly raised a serious security breach in Chubb’s system of work.

161 We therefore accept at the relevant time there was a concern amongst employees for their safety. We accept such concern was reasonable in the circumstance.

162 However, the statute also requires that any payment made must be confined to those whose health or safety caused the concern. At the Lane Cove yard on 23 January 2004, only those employees who were not provided with escorts did not work. Similarly, for the normal rostered work on 26 January 2004 (a public holiday), those for whom Chubb refused to provide escorts did not attend for work.

163 The position at Wollongong was similar on 23 January 2004. However, the position at Wollongong changed on 27 and 28 January 2004. Mr Wally Dent, the TWU delegate at Chubb's Wollongong yard, said:

At a yard meeting of employees at my depot on the morning of 23 January there was general discussion about the implications of the article, including the lack of security in general and the fact that the transcript has one of the persons who was arrested saying that he was in contact with the “head of security at Chubb” and that “confidential cash management details” were found in the police raid. Security concerns relating to FLR contractors was ongoing at our depot and throughout the company because of the access that such contractors had to security codes, keys and security assessment information about jobs that we serviced combined with the fact that they were not under the direct control of Chubb. As a result of these concerns I again approached the yard manager, as I had done in December, and said that employees were willing to work on all of the runs that were provided with an escort. On 23 January, five escorted runs rolled out of the Wollongong yard. Another normally unescorted Friday run did not roll out as the company did not provide an escort for it, and the employees scheduled to work on that run did not perform any work and were sent home and have not been paid for that day.

As was normally the case at our depot no runs, to the best of my knowledge, were scheduled for the weekend of 24 and 25 January. On 26 January 2004, Australia Day, 2 trucks rolled out of the yard escorted as scheduled. On 27 January 2004 employees rostered on turned up for work as normal. The Commission proceedings relating to the Obliging Security concerns were still occurring and employees again put to the company that they would perform any escorted work. On this day however, the yard manager, Keith Herbert approached us and read from a prepared statement, that he later told me had come from Martin Hanna at head office, to this effect:

“Employees are required to do all of the work as normally rostered, even on those runs that are not escorted, or no work at all is going to be provided. If work is not performed as normally rostered this is a refusal of duty, a strike.”

In response to this I said words to the effect:

“No, we’re not refusing duty, we’re not striking, we’ve told you what the position is. We’re willing to do any work on any of the escorted runs and any other run that can be provided with an escort, like what happened on Friday.”

He replied:

“No. You lot do all of the work or you don’t get any work. If that’s the position you should all go home. They’re my directions.”

The result of this was that the company did not make any work available to employees to perform on 27 January. This was despite the fact that 90% of the work was already scheduled to roll out with an escort and could have done so. Myself and employees remained at the yard and continued to offer ourselves for work for some time after that conversation with the yard manager. However, when it became obvious that the company was not going to offer any work on the day employees made a decision to return home.

164 At the Wollongong Depot the employees were told that unless all work was performed as normal, then no work would be performed by anybody. Why the depot management took this attitude is unclear. It may be that management did not understand the delegate's indication as to the willingness of employees to work with escorts. We however, accept the concern of the employees at the relevant time was as to their safety. We accept that concern was reasoned. We accept that the Wollongong employees were willing to perform deliveries on escorted vehicles but Chubb did not provide that employment.

165 At the Newcastle Depot on 27 January 2004, there was a complete stoppage of work. That is no work, even on escorted vehicles, was carried out. There was an additional concern operating at the Newcastle yard which was referred to as the “Lake Haven incident”. This involved the discovery in late December 2003 that Chubb armoured vehicle crews performing jobs at the Lake Haven Shopping Centre were subject to surveillance by two persons, who had been seen “pacing out” distances from the truck stop to the ATM or to the bank. A lack of response by Chubb to demands for extra security for deliveries and pick ups at this shopping centre, together with the Obliging Security article in the Daily Telegraph were the reasons the employees took a decision for the complete stoppage of work at the Newcastle yard on 27 January 2004.

166 Chubb agreed to provide additional measures for the Newcastle employees by the following day, including a change in the delivery hours, and an arrangement whereby two armoured vehicles arrived at the centre, at the same time, together with the security manager putting some seven or eight people on the ground for deliveries.

167 However, we do not accept at Newcastle the previous day’s refusal by the employees to perform any work reflects in the relevant temporal or causal requirement to establish a reasonable concern. The incident at Lake Haven was not immediate in time to the industrial or strike action. We find the withdrawal of all labour even on escorted runs takes the circumstances outside an expression of a reasonable concern held by the employees for their safety. In such circumstances, we do not accept this industrial action on this occasion reflects a reasonable concern for safety such as to attract an order under s 143.

168 We find the industrial action of 23 and 26 January 2004 at the Lane Cove Depot and 23 January at the Wollongong depot were actions based on a concern that the employees at Chubb who performed armoured car work without an escort would be subject to an undue risk of armed robbery and thus have their safety seriously endangered.

169 We accept this concern was reasonable having regard to the circumstances prevailing at the time and to the established standard of providing escorts for armoured car crews in high risk situations. We are satisfied the industrial action was confined to those who were the subject of the relevant concern - that is those who would otherwise have had to work without the provision of an escort.

170 We accept that employees who were provided with an escort for their work would have been willing to work and did work unless prevented from doing so by their employer. We conclude that such circumstances satisfies the requirements of s 143(4)(b) of the Act.

Discretion

171 The respondents contend the Commission would, in the exercise of its discretion, refuse the applicant's application for payment even if it is found the industrial action was taken in a circumstance where employees had a reasonable concern for health or safety. The respondents submitted the issue of orders for payment by the Commission would give sanction to the taking of industrial action and it is not in the public interest for the Commission to do so. It was further submitted the existing agreements required the TWU to approach the Commission and no breach of the agreement should be sanctioned by the Commission; it was not in the public interest for the Commission to do so.

172 The Legislature in prohibiting payment for industrial action as a matter of policy allowed an exception when issues of occupational health or safety were concerned and in that very exceptional situation, an order permitting payment may be made. Issues as to safety in the Cash-in-Transit industry have been a major concern for many years. Those issues have been addressed by a judicial inquiry, the proclamation of a Code of Conduct for the industry and the consistent airing of industrial disputation before this Commission. The issue of the safety of employees working in the Cash-in-Transit Industry has been unresolved for a very long time.

173 We conclude that the circumstances in the industry on the relevant dates have revealed the employees had a reasonable concern for their safety at work in the Cash-in-Transit Industry in December 2003 and January 2004. In those circumstances, it would not be appropriate to exercise our discretion to refuse to make the orders sought by the TWU, to the extent they have been made out.

Orders

174 In considering what orders should be made the appropriate course is to address the orders sought in the TWU's application rather than specifically making orders by reference to the questions posed by the respondents (we have of course dealt with those questions in the course of this decision). We therefore make orders along the lines of those sought by the TWU except in respect of the industrial action at Chubb's Newcastle depot on 27 January 2004. The TWU shall bring in short minutes of order in terms of these orders and the reasons for decision within 14 days of today.

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LAST UPDATED: 07/12/2005