Australian Municipal, Administrative, Clerical and Services Union v Central SEQ Distributor-Retailer Authority T/A Urban Utilities
[2023] FWC 789
•31 MARCH 2023
| [2023] FWC 789 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
Australian Municipal, Administrative, Clerical and Services Union
v
Central SEQ Distributor-Retailer Authority T/A Urban Utilities
(B2023/283)
| DEPUTY PRESIDENT DOBSON | BRISBANE, 31 MARCH 2023 |
Proposed protected action ballot of employees of Central SEQ Distributor-Retailer Authority Trading As Urban Utilities - application to extend minimum period of notice - exceptional circumstances - s.443(5)
An application pursuant to s.437 of the Fair Work Act 2009 (the Act) has been filed by the Australian Municipal, Administrative, Clerical and Services Union (ASU) for protected action ballot orders in relation to certain employees of Central SEQ Distributor-Retailer Authority T/A Urban Utilities (Urban Utilities)
Urban Utilities sought permission to be legally represented at the hearing of the matter pursuant to s.596. The ASU did not oppose permission for Urban Utilities to be represented. On the basis that it would allow me to deal with the matter more efficiently, leave was granted for Ms Shae McCartney of Clayton Utz to represent the Respondent in accordance with s596(2)(a) of the Act.
Employees to be balloted
The employees to be balloted are employees of Urban Utilities who are also members of the ASU and who are covered by the Urban Utilities’ SAS Laboratory Employees’ Enterprise Agreement 2020.
The nominal expiry date of the Agreement is 7 August 2021, therefore there is no restriction on the application having been made pursuant to s.438 of the Act.
Urban Utilities does not oppose the protected action ballot orders being granted subject to requesting an extension to the notice period of 3 working days, as required under s.414(2) of the Act, to 7 working days before taking protected industrial action pursuant to s.443(5) of the Act.
Attached to the ASU’s application was a statutory declaration made by Mr Benjamin Jones, the Local Government Bargaining Coordinator of the ASU in its Queensland (Services and Northern Administrative) Branch (TSU) in support of the application. Mr Jones outlined the history of enterprise negotiations between the parties commencing on 4 July 2022 when the ASU notified Urban Utilities of their intention to enter negotiations for a new Agreement.
Mr Jones outlined in his statement that the ASU has been meeting with Urban Utilities since 17 August 2022 to negotiate a replacement Enterprise Agreement and that it had been initially agreed that the meetings would occur on a fortnightly basis, continuing until 15 September 2022. Mr Jones outlined that on 1 September 2022, the ASU formally tabled a pay claim on behalf of all employee bargaining representatives which preceded a comprehensive log of claims.
Mr Jones outlined that on 15 September 2023, the ASU consolidated and tabled a log of claims on behalf of all bargaining representatives (the Single Bargaining Unit or SBU). During a meeting of this same date, the parties agreed that further meetings would occur until the end of 2022.
Mr Jones further outlined that at a meeting held on 30 September 2022, Urban Utilities tabled a formal pay offer for a proposed two-year Enterprise Agreement. This proposal was rejected by the SBU on the basis that the quantum offered represented an effective pay cut given the rate at which CPI has outstripped pay increases under the current and previous agreements.
Mr Jones stated that on 13 October 2022, the ASU tabled a revised log of claims on behalf of all employee bargaining representatives which featured additional claims from new individual bargaining representative and removed other original claims. The ASU submitted that this revised log of claims contained a net reduction in the total number of employee claims.
Mr Jones further stated that on 10 November 2022, an individual bargaining representative tabled a revised pay claim with extensive written supporting commentary which was adopted by the SBU and negotiations continued.
Longer period of notice
Section 414(2) of the Act requires that written notice of any protected industrial action to be taken must be provided at least 3 working days prior to the action occurring. Section 443(5) allows the Commission to specify a longer period of up to 7 working days where the Commission is satisfied that there are exceptional circumstances justifying the minimum period of notice being longer than 3 working days.
Urban Utilities seeks a notice period of 7 days on the basis that there are exceptional circumstances in accordance with s.443(5) of the Act in the nature of their business which justify orders extending the 3 working days by a further 4 days to 7 days, for four of the proposed questions in the proposed Protected Action Ballot, namely Questions 1, 2 3 and 8.
The ASU opposes the extension of the notice period and submitted in the initial instance that there were no exceptional circumstances.
Urban Utilities in support of its application for an extension of time relied upon the evidence of Mr Colin Hester the Head of Environmental Solutions for Urban Utilities, who is responsible for the employees as specified in the Application and who holds a Bachelor of Applied Science in Applied Chemistry from the Queensland Institute of Technology.
Mr Hester in his witness statement stated that Urban Utilities is a statutory body under the South-East Queensland Water (Distribution and Retail Restructuring) Act 2009 and is a service provider under the Water Supply (Safety and Reliability) Act 2008. He further outlines that Urban Utilities is regulated by a range of regulatory bodies and legislative regimes relating to health and safety, including Queensland Health and the Department of Environment and Science, and the Department of Regional Development Manufacturing and Water.
Urban Utilities is responsible for delivering drinking water, recycled water and wastewater services to residential and commercial properties in South East Queensland and additionally is involved in emergency response management. Further, the Respondent operates the Scientific Analytical Services Laboratory responsible for providing water sampling services and chemical and microbiological analysis to a range of industries which rely upon the results for commercial and health and safety purposes.
Mr Hester stated that it is essential for the Respondent to perform quality assurance and testing of the water supply including critical environmental protection services and that Urban Utilities has established the SAS laboratory specifically for this purpose. Mr Hester further stated that if Urban Utilities is unable to perform the testing correctly, it will not be able to ensure that it meets the Australian Drinking Water Guidelines (ADWG) and can't guarantee that the water would be safe to drink.
Mr Hester stated that the current contingency plans in place with Urban Utilities with alternate Laboratories would not be sufficient to cover a stoppage of work of all employees in relation to microbial testing.
Mr Hester stated that a delay of up to 4 hours would likely not affect the function of the laboratory, but a longer delay would greatly jeopardise the testing, put the samples outside of the withholding period and potentially cause safety risks of the public and third party providers. Mr Hester stated that it would be difficult to replace officers who fill the current roles because they are required to be trained and authorised to perform the specific work. They also have to be inducted to the sites that they visit. This is a requirement to perform the work and comply with Urban Utilities work health and safety obligations. Urban Utilities would also have to ensure that sampling and analysis is undertaken competently. Mr Hester stated that Urban Utilities has a small contracting pool and some in-house staff who can fill the testing positions. However, this cover (sic) less than half of the relevant staff. Urban Utilities is also considering other contingencies such as relying on commercial laboratories to perform analytical and sampling works. However, it would not be possible for commercial laboratories to perform the work with three days' notice. In fact, seven days will not be sufficient to meet the scale of demand. The greater the notice, the more samples they will be able to ensure are tested.
Mr Hester's evidence was that delays in microbial testing would have an impact on the public drinking water supply. They would require more time to train and induct staff to perform this critical work. They have performed their business continuity planning and have been unable to establish a way to mitigate the risks without more time to organise the reallocation of work to external laboratories and their own pool of additional staff without more accurate knowledge of the breadth, length and nature of the proposed industrial action. However, in his evidence he acknowledged that other testing work (relevant to Questions 1, 2 and 3 of the proposed PABO) was on water that was used for industrial purposes.
The Respondent submitted that exceptional circumstances existed in:
a) the public purpose of the Respondent
b) it’s role and statutory obligations with respect to health and safety; and
c) the specific nature of the work required to be undertaken.
The Respondent submitted that in relation to whether the exceptional circumstances justified a longer notice period that the following circumstances indicated this to be so:
a)in order to ensure (sic) the ability to mobilise alternative labour in order to ensure that the SAS Laboratory is able to perform the necessary public health outcomes;
b)proposed actions will prevent an entire day’s monitoring from being completed, putting at risk the day-to-day quality assurance checks required as part of the respondent's public health requirements;
c)the Respondent has sought but has not yet been able to obtain alternate contingencies to assist with this work whilst the proposed Protected Industrial Action is undertaken. It is likely that any commercial providers will have longer turnaround times than the Respondent and therefore additional notice is required to prepare contingencies to ensure public safety; and
d)by way of an example of why an extension to the notification period is sought, is that some samples collected and handled by the employees within the Urban Utilities SAS Laboratory Enterprise Agreement 2020 contain particular analytes that have a specific time period in which they have to be dealt with (known as the withholding period). This work is time critical as the analyte may expire or the time value of the sample result is lost if there is a delay in part of the process, specifically pertaining to drinking water.
The ASU’s written submissions were made in the absence of the materials later filed by the Respondent. The ASU did not contest the evidence of Mr Hester however the ASU in final oral submissions put to the Commission that the Respondent had not made out that there were exceptional circumstances.[1]
In the ASU’s submissions, the Respondent has said:
“Well, we don’t know what is going to happen. We think it could be terrible. We need more than three days. We don’t know how much more than three days, certainly not four days but definitely 7 and maybe more than seven” in some circumstances.
The ASU submitted that some of the matters raised by the Respondent would be more properly raised under other parts of the Act. In my view the ASU is correct and that is evidenced by the provisions of s 424 of the Act.
The ASU further submitted that the Commission should not exercise its discretion under s443(5) of the Act to extend the period of notice as the Respondent had neither put evidence before the Commission justifying that a longer period of notice was reasonable or necessary and that the Respondent was unclear on whether they could find sufficient workforce to cover the stoppage of work.
The Commission is required to be satisfied that there are exceptional circumstances justifying the period of written notice being longer than 3 working days, pursuant to s.443(5) of the Act.
The proper interpretation and application of the words ‘exceptional circumstances’ has been considered in a number of decisions of the Commission. In Transport Workers’ Union of Australia[2] it was noted that the uniform approach adopted by this Commission is that of Vice President Lawler in CEPU v Australia Post[3] dealt with under the Workplace Relations Act 1996 which cites with approval the decision of Rares J of the Federal Court of Australia in Ho v Professional Services Review Committee No 295[4]:
“[10] 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.
[11] 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.”
The Vice President went on to state:
“[21] Essentially, what is required in determining whether exceptional circumstances justify an extension of the required notice 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 diminutions 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.”
More recently a Full Bench of the Commission in National Tertiary Education Industry Union v Charles Darwin University[5] (NTEIU) accepted that the words “exceptional circumstances” in s 463(5) of the Workplace Relations Act 1996 is in all material respects the same as the phrase “exceptional circumstances justifying” contained in s.443(5) of the Act. The Full Bench further concluded that the making of an order to extend the period of notice for the taking of protected industrial action involves:
“[23] The determination of whether the circumstances in a particular case are ‘exceptional’ involves an evaluative judgement. A proper approach to the exercise of the Commission’s discretion under s.443(5) requires first that a member identify or make findings about the particular facts or circumstances in relation to the proposed industrial action which are said inform the evaluative judgement that such factors or circumstances are exceptional circumstances. The phrase “exceptional circumstances” carries its ordinary meaning.
[24] Secondly, there must be a consideration whether the identified exceptional circumstances are circumstances “justifying” a longer notice period. This also involves an evaluative judgement made on the basis of probative material. The use of the verb “justifying” in s.443(5) signifies that the identified exceptional circumstances must show or prove that it is reasonable or necessary or the circumstances warrant or provide good reason to require a longer period of written notice.
[25] Thirdly, if the member is satisfied there are exceptional circumstances justifying a longer period of notice, there must be a consideration of whether to exercise the discretion and, if so, the additional period of notice that should be given in the circumstances (noting the maximum period).”
Conclusion
It is noted that, for both parties, due to the shortage of notice requirements for a listing under s437 of the Act, the availability of fuller submissions and evidence is not always possible.
As is often the case in matters before the Commission, when applying the provisions of the Act discretionary decisions largely turn on their own facts and circumstances. As much was stated by the Full Bench in the NTEIU case referred to above.
There is no question that should the Commission exercise a discretion under s.443(5) of the Act to increase the notification period, the result is an interference with the right of the ASU to otherwise provide three working days’ written notice of industrial action that is to be organised and engaged in by employees in support of a proposed agreement. Such a right should not be lightly exercised. There must be “exceptional circumstances” justifying a longer period in relation to the proposed industrial action the subject of the order.
I have had regard to the reasons put forward by Urban Utilities relating to the extension of the notice period and note as stated in the evidence of Mr Hester that a delay to the work performed particularly in the testing of water samples across a large section of South East Queensland would result in the Respondent’s inability to guarantee water would meet the Australian Drinking Water Guidelines (ADWG) and that the Respondent would not be able to guarantee that the water will be safe to drink. This was the uncontested evidence of Mr Hester. In my judgement this amounts to exceptional circumstances.
I next turn my mind to whether requiring an extended notice period would be justified. When I pressed Mr Hester in respect of the lack of clarity about how much notice was required and what could or couldn’t be achieved in that period of time, his explanation was that without knowledge of the length, breadth and nature of the potential industrial action, having regard to the 4 proposed ballot questions in issue, it was not possible to more clearly define what action would be needed to ensure the most critical testing could occur. I think the Respondent ought not take this situation lightly. Whilst Mr Hester gave evidence that Urban Utilities had put Business Continuity Planning in place, the evidence given by Urban Utilities to the Commission, does not support that this has been completed to the level expected given the serious implications of a failure to fulfil their role and responsibilities to the public.
I am also of the view, that where the reasons for the extension application are beyond the immediate interests of Urban Utilities and the employees concerned and extend to the interests of Public Health, they are exceptional. While not being unique or unprecedented they are out of the ordinary course. In respect of whether the exceptional circumstances justify the specification of a longer notice period, I am satisfied on the evidence of Mr Hester that three working days’ notice is an insufficient period to make contingent arrangements for some but not all of the proposed questions in issue and consequently I accept that this justifies an extension of the notice period required, again for some but not all of the proposed questions in issue.
In accordance with s.443(5) of the Act, I am therefore satisfied that there are exceptional circumstances justifying an extension to the period of written notice contained in s 414(2)(a) of the Act from 3 working days to 5 days, for questions 1 and 2 and from 3 working days to 7 working days, in respect of question 8. I am not satisfied that there are exceptional circumstances justifying an extension to exercise my discretion with respect to Question 3.
Orders to be made
Having regard to the evidence before me, I am satisfied that the requirements in s.443(1) of the Act (which relate to the Applicant having been and is genuinely trying to reach an agreement) have been met and accordingly, the orders sought must be made.
I am further satisfied on the application of Urban Utilities that there are in accordance with s.443(5), exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) of the Act being extended from 3 working days to 5 days, for questions 1 and 2 and from 3 working days to 7 working days, in respect of question 8. I am not satisfied that there are exceptional circumstances justifying an extension to exercise my discretion with respect to Question 3.
Orders will be issued separately with this decision.
DEPUTY PRESIDENT
Appearances:
Mr N Henderson and Mr B Jones for the Australian Municipal, Administrative, Clerical and Services Union.
Ms S McCartney of Clayton Utz for Urban Utilities
Hearing details:
Brisbane 31 March 2023
[1] CEPU v Aust. Post [2007] AIRC 848 [10].
[2] TWU [2012] FWA 133
[3] CEPU v Aust. Post [2007] AIRC 848 [10].
[4] [2007] FCA 388
[5] [2018] FWCFB 4011
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