Australian Maritime Officers' Union, The v Port of Melbourne Corporation
[2011] FWA 6182
•9 SEPTEMBER 2011
[2011] FWA 6182 |
|
DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
Australian Maritime Officers' Union, The
v
Port of Melbourne Corporation
(B2011/210)
COMMISSIONER CRIBB | BRISBANE, 9 SEPTEMBER 2011 |
Proposed protected action ballot by employees of Port of Melbourne Corporation.
[1] This decision concerns the application by The Australian Maritime Officers’ Union (AMOU) for a protected action ballot order pursuant to s437 of the Fair Work Act 2009 (the Act).
[2] The AMOU seeks a ballot of those employees who are members of the AMOU and who are employed in the classification of Senior Vessel Traffic Service Officer and Vessel Traffic Service Officer, employed by the Port of Melbourne Corporation (PoMC) in the vessel traffic centres located in the Port of Melbourne and Point Lonsdale and who will be covered by the proposed agreement.
[3] A decision to grant the application was made in transcript on Wednesday 7 September 2011. A decision as to the terms of the Order to be issued was reserved.
[4] This decision, therefore, deals with the matters raised by the PoMC in the event that an Order was to be issued by the Tribunal which related to the terms of the Order.
[5] As indicated at the conclusion of the hearing on 7 September 2011, in order to be expeditious, the submissions of the parties will not be summarised in this decision. However, it is worth repeating that all of the material before me has been considered and has been taken into account in reaching the conclusions set out below.
Issues regarding the Order
[6] The PoMC raised two issues. The first one concerned the clarity of the questions in the draft Order submitted by the AMOU. An application was also made, pursuant to s443(5) of the Act, that the period of statutory notice be extended from 3 working days to 7 working days.
1. Lack of clarity
[7] The first issue raised by PoMC concerned the lack of clarity of questions 1 - 6 inclusive of the draft Order. The clarity of questions 7 and 8 was not challenged but it was suggested that question 7 be deleted as it seemed to be a subset of question 8. In general terms, it was argued that the questions were not sufficiently clear so as to provide the employees, who were deciding whether or not to take industrial action, with the ability to make an informed choice.
[8] The union submitted that the questions were sufficiently clear to the employees who would be voting.
[9] It is useful to set out the questions:
“1. An unlimited number of stoppages of work of 4 hours duration? YES/NO
2. No communication to and from the company when off site YES/NO
3. No roster relief for VTS duties when on Rostered Days Off or Annual Leave or Long Service Leave or Personal Leave? YES/NO
4. No work to be performed when on Rostered Days Off or Annual Leave or Long Service Leave or Personal Leave? YES/NO
5. No acceptance or trailing of any new operational matters? YES/NO
6. A no attendance of any meeting as directed by the employer? YES/NO”
[10] The relevant provisions of the Act include the following:
“437 Application for a protected action ballot order
Who may apply for a protected action ballot order
(1) A bargaining representative of an employee who will be covered by a proposed enterprise agreement, or 2 or more such bargaining representatives (acting jointly), may apply to FWA for an order (a protected action ballot order) requiring a protected action ballot to be conducted to determine whether employees wish to engage in particular protected industrial action for the agreement.
.....
Matters to be specified in application
(3) The application must specify:
(a) the group or groups of employees who are to be balloted; and
(b) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.”
[11] The issue of the clarity and unambiguity of questions has been considered by the Tribunal on a number of occasions. 1 I have reviewed each of the proposed questions in light of the authorities and I consider that the questions are sufficiently clear so as to enable the employees to make an informed choice. As the Full Bench in the Mornington Peninsula Shire Council decision2 stated:
“All that s.437 requires is that the questions should describe the industrial action in such a way that employees are capable of responding to them. The question of sufficient specificity of the industrial action to allow employers to take remedial or response action arises in relation to the notice requirements for industrial action in s.414 of the Act.” 3 [Footnote removed]
2. PoMC’s s.443(5) application to extend the written notice period
[12] PoMC has made an application under s.443(5) of the Act to extend the written notice required under the ballot order from three working days to seven working days with respect to questions 1-6 inclusive. An extension of the notice period was not sought in respect of question 7 and 8. The grounds on which the extension was sought were that, given the nature of the employer’s business, as an essential service for community safety and the Australian economy, there were exceptional circumstances which justified the granting of the extension. Mr Gordon’s evidence was highlighted in this regard.
[13] On the other hand, the AMOU submitted that the written notice period should not be extended on the basis that little evidence had been provided as to why the adjustments to PoCM’s operations could not be made in 3 days but could be made in 7 days.
[14] In considering whether or not to require a longer period of written notice prior to taking protected industrial action under a protected action ballot, I must apply s.443(5) of the Act which provides as follows:
“443 When FWA must make a protected action ballot order
...
(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.
[15] I was referred by the AMOU to the decision of Vice President Lawler in CEPU v Australian Postal Corporation. 4 This decision has been followed in TWU v Action,5 TWU v Scotts Agencies P/L T/A Scott Petroleum6 and CPSU v G4S7.
[16] With respect to the meaning of ‘exceptional circumstances’, in the context of a similar provision in earlier legislation, Vice President Lawler stated:
“PN10
In this passage his Honour was concerned with the ordinary meaning of the expression “exceptional circumstances” and the approach identified is, in my view, equally applicable to the use of that expression in s.465(3). In summary, the expression “exceptional circumstances” requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.
PN11
However, it is important to note that when considering whether to make an order pursuant to s.463(5) the Commission is not simply concerned with determining whether there are exceptional circumstances. There must be exceptional circumstances “justifying” the specification of a longer notice period. The notion of justification is critical and calls for a consideration of the purpose of the notice required by s.441.” 8
[17] Further, Vice President Lawler referred to the majority decision of the Full Court of the Federal Court in Davids Distribution Pty Ltd v National Union of Workers 9 which held that s.170MO of the pre-reform Act:
“...was designed to ensure that industrial disputants who are to become affected by protected action, in relation to which their usual legal rights are significantly diminished, are at least able to take appropriate defensive action.” 10
[18] The nature of the test was then set out by the Vice President:
“Essentially, what is required in determining whether exceptional circumstances justify an extension of the required notices period is a weighing of the interests of the employer and third parties in the employer having a greater opportunity to take appropriate defensive action as against the diminution in the effectiveness of the employees’ bargaining power that results from such an extension. The fact that the legislature has seen fit to condition the ordering of an extension of the required notice period on the presence of exceptional circumstances justifying it, as distinct from merely conferring a simple discretion to extend the required notice period, indicates that ordinarily there should be no extension.” 11
[19] Therefore, the matter I need to determine is whether there are exceptional circumstances justifying an extension to the statutory notice period with respect to questions 1-6.
[20] Mr Gordon’s evidence, both oral and written, was that, with respect to roster relief (question 3), if a VTS employee could not be replaced, the areas of the port affected by the non availability of a VTS employee would be closed. 12 If VTS personnel at Point Lonsdale were absent from rostered duty and were not replaced, it was said that PoMC may be unable to provide the Coast Radio Melbourne (CRM) function.13 Particular concern was expressed by Mr Gordon regarding the ban on unplanned personal leave absences. As PoMC received little or no notice of such absences, the inability of VTS personnel as back-up could cause parts of the port to close and may include the inability to provide CRM.14
[21] In terms of the stoppages of 4 hours duration, Mr Gordon’s evidence was that, if PoMC were to be provided with sufficient notice, they could ensure that all the affected parties were well informed of the consequential closure of shipping operations. 15 He indicated that the greater the length of notice would lessen the impact on the port’s stakeholders and lessen the risk to port safety.16
[22] Commissioner Roe, in CPSU v G4S 17 formed the view that:
“I do not accept that all proposed industrial action affecting an essential service of a maximum security prison can be regarded as an exceptional circumstance.......However it may be that a combination of the nature of the proposed action and the particular circumstances of the prison could constitute exceptional circumstances.” 18
[23] A great deal of the evidence and submissions from the PoMC went to the impact that the proposed industrial action might have on the delivery of an essential service. However, this material is not directly relevant to the question of whether or not additional written notice for the industrial action is justified.
[24] The industrial action contained in question 1 is ‘an unlimited number of stoppages of 4 hours duration.’ The evidence before me was that these stoppages would result in the closure of shipping operations at the Port of Melbourne. There was no evidence, however, of what additional steps would be taken to advise the affected parties if the notice was 7 working days rather than 3 working days. I am not satisfied that this constitutes an exceptional circumstance or, if it did, that a longer period of notice is justified.
[25] In terms of questions 2, 5 and 6, there was no specific witness evidence about these questions except for the general statement of Mr Gordon that the greater the length of notice, the lesser the impact on the stakeholders and the risk to port safety. I do not consider that the industrial action in questions 2, 5 and 6 constitute an exceptional circumstance.
[26] With respect to the remaining questions, questions 3 and 4 provide for no roster relief (question 3) and for no work to be performed (question 4) on: Rostered Days Off or Annual Leave or Long Service Leave or Personal Leave. Evidence was given regarding the unplanned nature of personal leave with PoMC indicating that it received very little if any notice that someone was sick and unable to attend for work.
[27] Rostered Days Off, annual leave and long service leave are planned absences and are therefore known in advance by PoMC. On the basis of the material before me, I am not satisfied that the situations created by these actions, are exceptional circumstances or, even if they are, that a longer notice period is justified.
[28] With regard to personal leave, as this is an unplanned absence and, taking into account the consequences of PoMC not being able to provide a VTS service at very short notice, I am satisfied that no roster relief for personal leave and no work to be performed when on personal leave do constitute exceptional circumstances. On fine balance, I am also satisfied that exceptional circumstances exist with respect to personal leave which justify some extension of the notice period for the industrial action, regarding personal leave only, that is proposed in questions 3 and 4. The additional time would be likely to reduce the risks to port safety as there would be more time available to inform the affected parties that the port facilities could be closed at very short notice as the result of the proposed industrial action regarding personal leave. It is noted that the granting of the additional notice time will reduce the effectiveness of this particular industrial action.
[29] Accordingly, the statutory notice period will be extended from 3 working days to 5 working days with respect to the proposed industrial action concerning personal leave.
[30] The Order 19 will include that, with respect to the action proposed regarding personal leave in questions 3 and 4 of the ballot (no roster relief for VTS duties (question 3) and no work to be performed when on) (question 4), the period of notice required to be given will be extended from three working days to five working days. The standard notice period will apply to the other proposed forms of industrial action including to Rostered Days Off, annual leave and long service leave as contained in questions 3 and 4.
COMMISSIONER
1 [2011] FWAFB 4809; [2010] FWAFB 526; [2009] FWA 221; [2010] FWA 8293; [2009] FWA 829
2 [2011] FWAFB 4809
3 Ibid PN 40
4 [2007] AIRC 848
5 [2010] FWA 3355
6 [2010] FWA 1988
7 [2011] FWA 2115
8 [2007] AIRC 848
9 (1999) 91 FCR 463
10 at 495 per Wilcox and Cooper JJ
11 [2007] AIRC 848 at PN 21
12 Exhibit R2 at paragraph 6 and 12
13 Ibid at paragraph 12
14 Ibid at paragraph 12 and 13
15 Ibid at paragraph 10
16 Ibid at paragraph 13
17 [2011] FWA 2115
18 Ibid at PN 17
19 PR514336
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