Australian Institute of Marine and Power Engineers, The v Commonwealth Government Australian Customs and Border Protection Service
[2011] FWA 6882
•6 OCTOBER 2011
[2011] FWA 6882 |
|
DECISION |
Fair Work Act 2009
s 437 - Application for a protected action ballot order
Australian Institute of Marine and Power Engineers, The
v
Commonwealth Government - Australian Customs and Border Protection Service
(B2011/3515)
DEPUTY PRESIDENT SAMS | SYDNEY, 6 OCTOBER 2011 |
Proposed protected action ballot by employees of Australian Customs and Border Protection Service (Commonwealth Government).
[1] The decision deals with an application, pursuant to s 437 of the Fair Work Act 2009 (‘the Act’) filed by the Australian Institute of Marine and Power Engineers (‘the Union’) in which the Union seeks a protected action ballot order for its members employed by the Australian Customs and Border Protection Service (‘the employer’). The Union seeks to ballot its members who would be covered by a proposed enterprise agreement with the employer. I note the nominal term of the current agreement expired on 30 June 2011.
[2] The application was listed for hearing on 29 September 2011. Mr J Fallone appeared for the Union and Ms K Ross and Mr T Price, appeared for the employer. Ms Ross did not oppose the making of the order, (identified in an amended draft order tendered by Mr Fallone). However, the employer made an application, pursuant to s 443(5) of the Act, seeking to extend the period of written notice of industrial action required under the proposed ballot order from three working days to seven working days.
[3] Ms Ross provided a comprehensive submission in support of the employer’s application, which said, inter alia:
Customs and Border Protection is a relatively large Commonwealth agency employing in excess of 5,000 employees nationwide in a wide range of locations. In terms of Customs and Border Protection’s maritime operations, it is tasked with protecting Australia’s national interests by generating awareness of activity in Australia’s maritime domain, providing visibility of the civil maritime domain across government, and preventing, detecting and responding to risks posed by security threats. These threats include irregular maritime arrivals, illegal activity in protected areas; maritime terrorism, including protection for offshore oil and gas installations; illegal exploitation of natural resources; piracy, robbery and violence at sea; compromise to bio-security; and marine pollution.
Customs and Border Protection has a fleet of 11 patrol and response vessels, including eight Bay class vessels and three contracted vessels, and employs approximately 300 people in its maritime operations, including approximately 36 persons as either Chief Engineers or First Engineers.
Customs and Border Protection adheres to a six to 12 month long-term sailing plan, as do other agencies with shared maritime border security responsibilities. That is, each vessel, including each of the Bay class vessels, is scheduled up to between six and 12 months in advance.
Employees within the Marine Unit are, in essence, a fly-in/fly-out workforce. Voyages are for 22 days at a time. Employees in the Marine Unit are flown between their city of residence and port of departure on commencement and completion of a voyage.
Employees in the Marine Unit work according to a six week roster. Customs and Border Protection is required to give seven days notice of any roster changes. Roster changes are necessary, for example, to cover unplanned absences due to personal leave or other unexpected circumstances. Because of the fly-in/fly-out nature of the work, there are significant lead times involved and, depending on their place of residence relative to the port of departure and their intended port of departure, the booking of flights into and out of those ports requires advanced notice due to the relatively small number of available seats..
The nature of the role of Chief or First Engineers is such that if that a person in one of those roles is unavailable, then the vessel is unable to sail and therefore the entire crew is not required.
As part of its regulatory obligations, Customs and Border Protection must ensure that it has a minimum and adequate level of manning on vessels and this requires that there are marine engineers on board its vessels at all times. Should the marine engineering capability be impacted by industrial action Customs and Border Protection would need time to develop plans to ensure that vessels are not left in an unsafe situation. This may require vessels to be placed in dry dock as leaving it in the water without engineering support would be unsafe. Arranging for dry docking requires significant lead time.
Alternatively Customs and Border Protection would have to have vessels placed in a “dead ship” state. This requires the removal of all weapons and ammunition and any perishable food and then all on board systems would be shut down. Achieving this will take time and given some of the remote ports that Marine Unit vessels operate from makes this task more complex.
The fly-in/fly-out nature of the workforce means that there are significant administrative and financial costs involved the arrangement of travel and accommodation for the marine workforce that would not be participating in this industrial action. In addition to satisfying the requirement to provide Marine Unit employees with seven days notice of any roster changes, the longer the period of notice that Customs and Border Protection has of pending industrial action, the less impact to employees and the more likely that the cost to the Commonwealth associated with the cancellation or amendment of travel and accommodation bookings for crews can be minimised.
Marine Unit employees who do not choose to participate in this industrial action (only two of ten officers are either Chief or First Class Engineers on board Bay Class vessels) will be impacted and Customs and Border Protection wishes to minimise the inconvenience of unnecessary travel. Additionally, the seven days notice period will allow Customs and Border Protection to find those impacted employees alternative duties in the officers’ home port thus avoiding uncertainty and unnecessary travel away form [sic] home.
In order to ensure appropriate coverage in respect of border security and safety critical situations at seas in the event that Customs and Border Protection vessels are unable to sail due to industrial action, Customs and Border Protection requires the fullest time possible to liaise with other agencies in order to ensuring a sufficient level of coverage by other agencies’ vessels. The marine environment has inherent risks not found in land based controlled environments and as the northern waters of Australia move into the monsoon season, we need to ensure that any contingency arrangements are as comprehensive as possible and this will require as much notice as possible.
Just as Customs and Border Protection’s sailing plans are set out six to 12 months in advance, so too are those of other agencies operating in the maritime space. So facilitating changes to sailing plans at short notice is obviously difficult, particularly so with only three days notice. A seven day notice period would allow Customs and Border Protection a greater prospect of arranging satisfactory alternative coverage.
[4] Ms Ross also relied on two recent decisions of Deegan, C, involving the employer and the CPSU, where the Commissioner had extended the notice period of industrial action due to the nature and operations of the Customs and Border Protection Service.
[5] Mr Fallone opposed the employer’s application and suggested an alternative: that three days notice be required for industrial action of 12-24 hours duration and extended notice be required for industrial action of any longer duration. He relied on a decision of Roe, C, in CPSU, the Community and Public Sector Union v G4S [2011] FWA 2115, where the Commissioner in that case extended the notice to five days in certain circumstances, at the Port Phillip Prison, and to a decision of Hamberger, SDP, in Transport Workers’ Union of Australia v the Chief Executive of the ACT Internal Omnibus Network (ACTION) on behalf of the Australian Capital Territory [2010] FWA 3355, where His Honour extended the notice to five days in the bus transport industry.
[6] Mr Fallone submitted that, given the undertaking of the Union that no industrial action would be taken while a vessel is at sea, the concerns of the employer were unwarranted. He also said that the employer has the capacity to engage private contractors to perform particular functions whilst engineers on Bay Class vessels may be taking industrial action.
[7] In reply, Ms Ross said that in the CPSU matters before Deegan C, the Union had proposed bans, and not complete stoppages. In this case, the employer could be faced with an unlimited number of 72 hour duration stoppages. She noted the crucial role played by Chief Engineers and First Class Engineers in that if they are not on the vessel, it cannot sail. Mr Price added that even the absence of an engineer could be a safety breach where engineers are required to shut down all of a vessel’s systems.
[8] At the conclusion of the hearing, I announced my decision to grant the substantive application with the extension of the notice period as proposed by the employer in the following form:
The Union is required, pursuant to s 443(5) of the Act, to provide seven (7) working days written notice to the Employer of any industrial action.
An amended order was published the same day. I now provide the reasons for my decision.
[9] The relevant provisions of the Act governing applications of this kind are set out in s 443 of the Act as follows:
(1) FWA must make a protected action ballot order in relation to a proposed enterprise agreement if:
(a) an application has been made under section 437; and
(b) FWA is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.
(2) FWA must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).
(3) A protected action ballot order must specify the following:
(a) the name of each applicant for the order;
(b) the group or groups of employees who are to be balloted;
(c) the date by which voting in the protected action ballot closes;
(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.
(4) If FWA decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:
(a) the person that FWA decides, under subsection 444(1), is to be the protected action ballot agent; and
(b) the person (if any) that FWA decides, under subsection 444(3), is to be the independent advisor for the ballot.
(5) If FWA 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.
Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.
[10] There is no dispute between the parties that the application has been properly made under s 437 of the Act. Accordingly, s 443(1)(a) is satisfied. Similarly, there is no dispute that the applicant Union has been, and is genuinely trying to reach an agreement with the employer of the employees proposed to be balloted. In this respect, I also rely on the uncontested statement of Mr Fallone of 23 September 2011, which accompanied the application. While there was some allegations and counter responses concerning issues of ‘good faith bargaining’, this is not the test for approval of an application under s 443 of the Act; namely, that FWA need only be satisfied that the Union is genuinely trying to reach an agreement. To this extent, I am so satisfied.
[11] In respect to the extension of the written notice period of industrial action, I am satisfied, pursuant to s 443(5) of the Act that the employer has made out ‘exceptional circumstances’ justifying the extension of the notice of industrial action to 7 working days. I consider that the decision of Deegan C in CPSU, the Community and Public Sector Union v Australian Customs and Border Protection Service [2011] FWA 3919 to be directly analogous to this application in that the employer in that case is the same employer, performing the same functions, as in this case. The Commissioner said at para 9:
I am satisfied for the purposes of s.443(5), on the basis of the unopposed submissions put on transcript by the representative of Customs, that exceptional circumstances exist which justify the period of written notice being increased from three (3) to seven (7) working days. The exceptional circumstances relate to the nature of the work carried out by Customs employees and the implications for the national interest if such work were to be disrupted by industrial action taken at short notice.
I consider that it is important to maintain consistency in decisions of FWA about the same subject matters. In any event, I agree with the Commissioner’s characterisation of the nature and implications of the work involved in the employer’s operations, as constituting ‘exceptional circumstances’.
[12] The decision of Roe, C, supra, concerned proposed industrial action by prison officers at Port Phillip Prison, Victoria. In my view, the ‘exceptional circumstances’ in respect to the operations of prisons, as considered by the Commissioner in that case, are not directly applicable to the circumstances of engineers engaged in the national interest of protecting Australia’s borders. In any event, that case, and the ACT bus case, turned on their own particular facts and circumstances; in particular, the prison case related to proposed bans and 2 hour stoppages - not unlimited 72 hour stoppages as proposed in this case.
[13] The amended application will be approved with the increase in the written notice period of industrial action required to be provided by the Union before engaging in industrial action. The order was issued separately on 29 September, 2011.
DEPUTY PRESIDENT
Appearances:
Mr J Fallone for the Union
Ms K Ross & Mr T Price for the employer
Hearing details:
29 September
SYDNEY
2011
Printed by authority of the Commonwealth Government Printer
<Price code C, PR515367>
0
3
0