Applications by "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU), Communications, Electrical, Electronic, Energy,...
[2023] FWC 526
•15 MARCH 2023
| [2023] FWC 526 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
Applications by "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU), Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), and the Rail, Tram, and Bus Union (Union (RBTU)
(B2023/194, B2023/195, B2023/197)
| COMMISSIONER PLATT | ADELAIDE, 15 MARCH 2023 |
Proposed protected action ballot of employees of Aurizon Bulk Central Pty Ltd
The following reasons relate to my decision to issue protected action ballot orders on 2 March 2023.[1]
On 28 February 2023, three separate applications were made by the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU) (B2023/194), the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) (B2023/195) and the Rail, Tram, and Bus Union (Union (RBTU) (B2023/197).]
Each of the applications sought protected action ballot orders (PABOs) pursuant to s.437 of the Fair Work Act 2009 (the Act) in relation to bargaining for a proposed enterprise agreement with Aurizon Bulk Central Pty Ltd (Aurizon).
Each of the applications were identical, save for the group of employees that was to be balloted.
A Conciliation conference was conducted on 2 March 2023 at 9:00AM. Whilst the conciliation did not resolve the matter in its entirety, I was advised by Aurizon that it did not object to the issuance of PABOs in respect of each application and that the only outstanding matter was the determination of whether the default notice period specified by s.414 of the Act would be extended in accordance with s.443(5) of the Act for the industrial action identified in questions [17] to [20] of the proposed draft order.
Questions [17]-20] proposed the following industrial action;
· An unlimited number of stoppages of work of up to 4 hours duration?
· An unlimited number of stoppages of work of up to 8 hours duration?
· An unlimited number of stoppages of work of up to 12 hours duration?
· An unlimited number of stoppages of work of up to 24 hours duration?
There was no submission that the requirements of s.437(2A), s.443(1)(b) or s.440 of the Act had not been met, and there was evidence on file that satisfies me in relation to these requirements.
Directions were made for the filing of materials relating to the extended notice period by 2.00pm on 2 March 2023 and the hearing was listed for 3.00pm on 2 March 2023.
Aurizon filed a statement of Mr Declan Nolan (Manager Bulk Central Rollingstock Maintenance),[2] written submissions and a copy of Reason for Decision by (then) Commissioner Hampton in respect of a s.437 application by the RBTU, AMWU and the CEPU against Genesee & Wyoming Pty Ltd.[3] Mr Nolan gave evidence and was cross-examined.
The CEPU filed a statement of Mr George Kostoglou (Locomotive Maintainer).[4] Mr Kostoglou was not required to be cross examined. The CEPU also filed written submissions. In its submission, the CEPU contended that Mr Kostoglou’s evidence supported a conclusion that ‘exceptional circumstances’ were not present. In his evidence, Mr Kostaglou advised that scheduled maintenance is sometimes deferred, and that unscheduled work for his team is rare. Mr Kostoglou confirmed that absent maintenance approval, trains could not depart. The CEPU also urged me not to follow Commissioners Hampton’s approach in ARTBIU, AMWU and CEPU v, Genesee & Wyoming Australia Pty Ltd.[5]
The RTBU filed a written submission. It contended that the withdrawal of labour by its members will not necessarily delay rail movements, and that Aurizon is regularly required to reschedule freight services to deal with delays. The RTBU contends ‘exceptional circumstances’ are not present such to reduce the impact of its capacity to take industrial action.
The AMWU did not file any material but supported the positions advanced by the other Union.
At the hearing, Aurizon was represented by Mr Williams (of counsel), who sought permission pursuant to s.596 of the Act, being granted without opposition.
The CEPU was represented by Mr Austin. The RTBU was represented by Ms Davis. The AMWU was not initially represented but prior to the end of the hearing, a Representative[6] appeared and advised that the AMWU supported the submissions of the CEPU and the RTBU.
Period of notice
Section 443(5) of the Act states that:
443 When the FWC must make a protected action ballot order
(5) If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.
The onus is on the Respondent to demonstrate that exceptional circumstances exist.
The principles to be applied in determining if exceptional circumstances exist are well settled and detailed in National Tertiary Education Industry Union v Charles Darwin University.[7]
The Facts
It was drawn to my attention that Commissioner (as he then was) Hampton dealt with an identical s.437 application in October 2019. [8] At the time, the rail freight services were provided by Genesee & Wyoming Australia Pty Ltd (GWA). The evidence before me is that Aurizon provides the same rail freight services as GWA, however, the name of the entity was changed due the restructuring of the rail freight corridor operators.
Aurizon is a major rail freight provider and provides freight services on the Adelaide Darwin corridor and between Adelaide and Thevenard. The employees relevant to the PABO application perform maintenance services on locomotive and rolling stock. In the event that the required pre-journey inspections cannot be performed, that train will not depart. In the event that a critical maintenance issue arises enroute, the train may not be able to complete the journey and depending on its location, may block the route.
The Adelaide Darwin corridor has a total of 12 train movements each week, each round trip taking five days. Each train is about 1.5km long and carries the equivalent of approximately 1200 twenty-foot containers. Goods carried include grain, condensates, ores, mining equipment, groceries (including perishables), medical supplies and other retail goods. Each day the equivalent of 47 containers are delivered to Katherine, 104 to Alice Springs, 14 to Tennant Creek and 200 to Darwin. Aurizon contend that the prolonged restriction of freight services which could arise from protected industrial action (PIA) contemplated in questions [17] to [20] would have a significant adverse effect on many rural communities that rely on this service to receive groceries (including perishables and medical provisions).
In the event that PIA is taken, Aurizon will have access to the portion of its workforce that are not members of the Applicant Unions, or those members who choose not to participate in the PIA, or other suitably qualified employees of Aurizon, or Contractors and replacement freight operators (e.g. Road Transport).
Aurizon contend that road transport would not be a viable alternative. The Union(s) contended that Aurizon was able to ameliorate the loss of track access in the 2022 floods by road transport and thus, this was a viable alternative. Flood impact is distinguishable as once commenced, the flood impact is relatively predictable, and the same cannot be said for commencement and duration of industrial action proposed by question [17] to [20] in the Application.
Consideration
My consideration of the existence of exceptional circumstances justifying an extension of the default notice period is limited to the industrial action proposed in Questions [17] to [20].
I accept that the impact on the proposed action on third parties is significant, it is not common and represents an exceptional circumstance particularly with respect to the Adelaide Darwin rail corridor. The circumstances of those third parties, and the impact if rail services are not provided as expected, is beyond the normal impact of industrial action and is exceptional within the meaning of s.443(5) of the Act.
[24] I am satisfied that these exceptional circumstances justify a longer period of written notice. The evidence before the Commission supports the notion that a period longer than 3 working days’ notice is reasonably required to make some appropriate arrangements to
ameliorate the consequences of the relevant industrial action, including by arranging for
alternative freight haulage to the remote and distant locations concerned. In my view, an extended notice period to 5 working days will permit reasonable defensive action but will still lead permit the negative consequences of such industrial action for Aurizon and not significantly diminish the effectiveness of the employees’ bargaining power.
I note that my determination is consistent with that taken by Commissioner Hampton in 2019. Whilst I have come to my own conclusion it is desirable that Commission’s outcomes with like facts are consistent.
An order to this effect was published on 2 March 2023.
COMMISSIONER
Appearances:
A Representative for the AMWU
Ms M Davis for the RBTU
Mr D Austin for the CEPU
Mr D Williams For the Respondent
Hearing details:
Adelaide
2023:
March 2.
[1] PR740560, PR740561, PR740562.
[2] Exhibit R1
[3] [2019] FWC 6977
[4] Exhibit CEPU 1
[5] [2019] FWC 6977
[6] A Representative of the AMWU was admitted late to the hearing, whose appearance was indistinct.
[7] [2018] FWCFB 4011
[8] [2019] FWC 6977
Printed by authority of the Commonwealth Government Printer
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