Australian Rail, Tram and Bus Industry Union and Australian Municipal, Administrative, Clerical and Services Union v Queensland Rail Limited
[2011] FWA 6073
•8 SEPTEMBER 2011
[2011] FWA 6073 |
|
REASONS FOR DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
Australian Rail, Tram and Bus Industry Union
v
Queensland Rail Limited
(B2011/3357)
Australian Municipal, Administrative, Clerical and Services Union
v
Queensland Rail Limited
(B2011/3368)
COMMISSIONER ASBURY | BRISBANE, 8 SEPTEMBER 2011 |
Proposed protected action ballot - Exceptional circumstances - Extension of notice period - s.443(5).
Background
[1] On 2 September 2011, the Australian Rail, Tram and Bus Industry Union (RTBU) and the Australian, Municipal, Administrative, Clerical and Services Union (AMACSU) applied under s.437 of the Fair Work Act 2009 (the Act) for protected action ballot orders. Both applications sought such orders in relation to employees of Queensland Rail Limited (QR) whose terms and conditions of employment are covered by the QR Network Pty Ltd “Start Up” Union Collective Workplace Agreement 2009 and will be covered by a new proposed agreement.
[2] Directions were issued on 2 September 2011 for the hearing and determination of the applications, requiring inter alia that QR provide a response indicating whether it objected to the making of the order and whether it sought to have its objections heard by Fair Work Australia (FWA). QR advised in accordance with those directions, that it objected to FWA making the order in the terms sought, and wished to be heard in relation to the objection. Both parties filed outlines of submissions and witness statements in accordance with the Directions.
[3] The applications were heard together as provided in s.442 on the basis that they related to industrial action by employees of the same employer, and this would not unreasonably delay the determination of either application. QR submitted that in determining the application, FWA should exercise discretion under s.443(5) of the Act to extend the written notice period that the RTBU and AMACSU must give before they can engage in industrial action from three working days to seven working days. Witness statements were tendered from:
● Peter James Allen, Principal Industrial Officer of RTBU;
● Terri Megan Spence, Solicitor and Principal of the firm Maurice Blackburn Lawyers, for the RTBU;
● James William Mattner, Senior Industrial Officer AMACSU; and
● Simon Mark Williams, Chief Rail Operations Officer QR.
[4] At the conclusion of the hearing on 6 September 2011, I indicated that I would make the protected action ballot orders. I also indicated that I would extend the written notice period as provided in s. 443(5) and would issue written reasons for that decision, setting out the basis for exercising the discretion and the length of the extension which would be ordered. The reasons are as follows.
Statutory requirements for protected action ballot order to be made
[5] I am satisfied on the basis of the evidence and submissions, that the statutory requirements for a protected action ballot order to be made, have been met. As applicants for the orders both the RTBU and AMACSU are bargaining representatives for employees who will be covered by the proposed enterprise agreement, as required by s.437(1) and the agreement is not a greenfields or multi-enterprise agreement. In accordance with the requirement in s.437(3) the applications in each case specify the group of employees who are to be balloted and the questions to be put to the employees including the nature of the proposed industrial action. The enterprise agreement covering the employees to be balloted reached its nominal expiry date on 30 April 2011, as required by s.438(1) of the Act. As required by s.440 of the Act the RTBU and AMACSU gave a copy of the application to QR within 24 hours after making the application, and the Australian Electoral Commission.
[6] I am also satisfied, on the basis of the material set out in the application, and the witness statements tendered by the RTBU and AMACSU, that each Union has been, and is, genuinely trying to reach an agreement with QR, as required by s.447(3)(b) of the Act. Further, I am of the view that the protected action ballot order should require the protected action ballots in respect of the group of employees represented by the RTBU and the group of employees represented by AMACSU, to be held at the same time, pursuant to s.446 of the Act.
Extension of the period of notice of industrial action
[7] The issue for determination is whether FWA should exercise the discretion in s.443(5) of the Act, to extend the period of written notice required to be given before protected industrial action can be engaged in. Section 443(5) provides as follows:
“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.”
[8] The power in s.443(5) is discretionary and its exercise is conditional on FWA being satisfied that there are exceptional circumstances justifying the period of written notice being longer than the three working days specified in s.414(2)(a) of the Act. The right to take protected action is an important feature of the statutory scheme under which bargaining occurs and the taking of protected action is a legitimate bargaining tactic that a union may engage in to strengthen its bargaining position. 1
[9] Ordinarily, and other than where an appropriate application is made for the suspension or termination of protected industrial action, it is not appropriate for FWA to moderate the effects of protected industrial action on an employer or its clients. Further, the structure of the bargaining provisions of the Act is not predicated on FWA shielding the employer from the effects of protected industrial action, and the leverage of parties in a bargaining context should not be disturbed lightly. 2
[10] Section 414(2)(a) requires that three working days notice of protected industrial action be given to the employer, and the starting point is that this period provides the balance inherent in the Object of the Act 3 of achieving productivity and fairness through an emphasis on enterprise based collective bargaining, underpinned by clear rules governing industrial action, by allowing the employer an opportunity to take action to defend itself or mitigate the effects of protected industrial action. The opportunity of the employer to defend itself or mitigate the effects of protected industrial action should not be enhanced, unless there are exceptional circumstances. With respect to the approach to determining whether exceptional circumstances exist in a particular case, I agree with the comments of Vice President Lawler in CEPU v Australian Postal Corporation that:
“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.” 4
[11] In that case, which considered similar provisions in the Workplace Relations Act 1996¸ Vice President Lawler went on to note that taking protected industrial action comes at a cost to workers, and that the cost is increased if the employer is able to take effective defensive action, because the duration of the action by employees necessary to place pressure on the employer, may be increased. His Honour also noted that determining whether exceptional circumstances justify an extension of the required notice period, requires the weighing of the interests of the employer and third parties, in the employer having a greater opportunity to take defensive action, as against the diminution of employees bargaining power that results from such an extension. The view was also expressed that:
“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 normally there should be no extension.”
[12] These principles remain relevant in relation to s.443(5) of the Act.
Evidence and submissions
[13] Mr Williams, Chief Rail Operations Officer of QR gave evidence, that QR operates a City Network Passenger Service in South East Queensland comprising over 140 stations upon which customers make 170,000 trips on a typical weekday, including 20,000 - 21,000 trips undertaken by school students in uniform. During the morning peak period some 68,000 customers are moved around South East Queensland on inbound services arriving at Central Station, and 10% less from Central Station in the afternoon peak;
[14] QR also operates the Travel Train Network incorporating:
● the Sunlander operating north and south bound services between Brisbane and Cairns;
● Tilt Trains between Brisbane/Cairns, Brisbane/Rockhampton and Brisbane/Bundaberg;
● The Spirit of the Outback operating return services between Brisbane and Longreach;
● The Westlander operating return services between Brisbane and Charleville; and
● The Inlander operating return services between Townsville and Mt Isa.
[15] A significant number of persons using the tilt train from Bundaberg to Brisbane are patients who require medical treatment in Brisbane. Those patients can catch the tilt train to Brisbane to consult a medical specialist and return home in one day, and cannot generally drive easily between Brisbane and Bundaberg. Travel train services also carry Australian and international tourists, who have other pre-booked activities and accommodation, at nominated times.
[16] QR also operates tourist trains such as the Kuranda Scenic Railway, the Savannahlander and the Gulflander, carrying thousands of tourists each week. The XPT train operating to and from Sydney travels on the QR network. In addition, QR is responsible for moving trains of other operators around its network, including QR National, Pacific National and various heritage operators. QR controls network access for QR National’s train services from the coal fields in the West Moreton region to the Port of Brisbane and movement of minerals from Mt Isa to Townsville. QR also controls the network that allows rail freight businesses to operate providing for transport of containers, grain, livestock and other freight within Queensland.
[17] Some 220 network controllers are employed across three centres throughout Queensland. Two centres are located in South East Queensland and one in Townsville. Their functions are akin to those of air traffic controllers and no train service can operate on QR’s network without the control and supervision of these employees. Network controllers also control access to the network, including for maintenance crews and their equipment, in scheduled or unplanned or emergency situations. Mr Williams said that any industrial action by network controllers involving stoppages, including overtime bans, could shut down part or all of Queensland Rail’s integrated train services, restrict access to the rail network and stop other rail operators using the network. Industrial action that involved all network controllers entirely withdrawing their labour would effectively shut down the network having significant impacts on the rail travelling public, tourists and many businesses inside and outside Queensland.
[18] Mr Williams provided detailed evidence about measures which could be taken to avoid the disruptions to various customers of QR if seven working days notice of protected industrial action was to be provided, including communication with customers and steps such as hiring buses. Mr Williams also emphasised the geographic spread of QR’s operations and that depending on the nature and extent of industrial action, it may be necessary to communicate with and co-ordinate people across many remote locations, to ensure that system is appropriately prepared to accommodate industrial action. Such communication could not be effected in three working days and would require seven working days. Further, Mr Williams pointed to security issues associated with the necessity to house trains in appropriately protected areas for the duration of any industrial action. In particular, Mr Williams said that the ramifications of insufficient notice of protected industrial action could include:
● Physically and intellectually disabled or elderly customers being unable to find alternative transport or becoming disorientated as a result of change in routine;
● School children not being able to get home in a safe manner; and
● Crowds of commuters becoming agitated due to long delays or cancellations and the potential for injuries to commuters from being pushed-over due to crowd surges.
[19] The substance of Mr Williams’ evidence including statistical matters was not contested. Mr Williams made two concessions in cross-examination that in the case of the industrial action described in question 11 relating to bans on the use of vizirail software, and bans on training duties as described in question 14, three working days notice would be appropriate, if such action was “unbundled”.
[20] The evidence called by the RTBU and AMACSU went mainly to compliance with the requirements for the making of a protected action ballot order. It was submitted for the RTBU and AMACSU that exceptional circumstances must relate to each form of industrial action and an extension of the required period of notice in relation to each form of industrial action must be justified. It was also submitted that in the present case, exceptional circumstances had not been established by QR. In the alternative, it was submitted that seven working days is manifestly excessive, and that at best, the evidence supports five working days notice. The RTBU and AMACSU pointed to the significant media coverage that would attend protected industrial action and submitted that communication methods employed by QR with respect to its customers are instantaneous. The travelling public would have three working days notice of industrial action, and that should be sufficient in light of those considerations.
[21] Mr Allen’s statement made a brief reference to RTBU’s intention of ensuring industrial action is take in a manner consistent with public and workplace health and safety, and of ensuring that a skeleton crew is available during periods of industrial action to cover any safety critical issues.
Conclusions
[22] After considering the evidence of Mr Williams, I am satisfied that there are exceptional circumstances such that the discretion under s.445(3) of the Act to extend the written notice that must be given by the RTBU and AMACSU before protected industrial action can be engaged in, should be exercised. In relation to its City and Travel Train Networks, while QR is not the only provider of public transport in Queensland, it is the main one in a large and diverse geographical area. Further, in relation to those networks, customers as members of the travelling public, are not individually identifiable and do not have established lines of communication or a commercial relationship with QR. Rather, QR has a large number of customers of its City and Travel Train Networks who are vulnerable in that they comprise school students, patients seeking medical treatment and tourists on schedules with interconnecting activities. QR can only communicate with such customers through general media and social networking sites and it is understandable that such persons require more than three working days notice to alter their plans, in the event that industrial action disrupts services.
[23] With respect to QR’s provision of network services to facilitate the movement of coal, minerals and freight, those services are conducted over a wide geographical area and in remote locations. If there is a stoppage on the network, trains must be secured in the interests of safety and security, and alternative planning for customers whose operations will be affected will be extremely difficult in a period of three working days. In my view, these factors are exceptional circumstances, and are not those that ordinarily apply to a business or enterprise facing protected industrial action by employees.
[24] In the event that protected industrial action disrupts City or Travel Train networks, the requirement for an increased amount of notice will assist customers by giving QR a reasonable opportunity to communicate with them and to make alternative arrangements for the provision of transport. That transport will not be as efficient or effective for customers and they will suffer detriment notwithstanding the alternative arrangements. The defensive action on the part QR facilitated by the additional notice, will enable it to mitigate the impact on its customers and will still result in a cost to QR of providing alternative transport. Balanced against these considerations, is the fact that employees will not lose the right to take protected industrial action and will cause significant disruption to QR and its customers by doing so.
[25] In relation to QR’s other services, increased notice will offset the impact of exceptional circumstances such as the geographical factors associated with remote locations, and attendant security issues, rather than strengthening QR’s bargaining position to the detriment of that of the Unions and their members. The capacity to take industrial action will not be lost, and such industrial action will doubtless cause significant disruption, notwithstanding the additional notice.
[26] The remaining question is the quantum of the extension that should be granted. By virtue of s.443(5) the required period of written notice is up to seven working days. In a number of cases where an extension to five working days has been granted, the employer seeking such an extension has nominated five working days 5 as an appropriate notice period, or the extension to five working days is by consent.6 There have also been examples where an extension to seven working days has been granted by consent.7
[27] In the present case, QR seeks seven working days notice and contends that on past experience, such a period is required. That contention is supported with statistical data including availability of buses and their capacity to transport the numbers of QR customers who will require transport, and the various purposes for which customers use QR services. A period of seven days is consistent with the provisions of s.434(5), and in the absence of evidence to contradict the assertions made by Mr Williams that seven working days are required, I am of the view that the period of written notice should be seven working days, with respect to proposed action referred to in all Questions other than Questions 11 and 14 where written notice of three days will be required. Where the industrial action in questions 11 and 14 is taken in conjunction with industrial action referred to in the other questions, seven working days notice of such action will be required.
[28] An Order to give effect to this decision will be issued.
COMMISSIONER
Appearances:
T Butler Solicitor with Maurice Blackburn Lawyers on behalf of the Australian Rail, Tram and Bus Industry Union
N Henderson for the Australian Municipal, Administrative, Clerical and Services Union
J Murdoch, Senior Counsel for Franklin, Athanasellis Cullen on behalf of Queensland Rail
Hearing details:
2011.
Brisbane:
September, 6.
1 LHMU v Foster’s Australia Pty Ltd[2009] FWA 750 per Kaufman SDP at [17].
2 AMWU v Clyde Babcock-Hitachi (Australia) Pty Ltd [2011] FWA 2291 at [7].
3 Fair Work Act 2009 s.12(f)
4 PR979157 (9 October 2007) at [10].
5 AMWU v Clyde Babcock-Hitachi [2011] FWA 229; AFULE v Qld Passenger Pty Ltd [2009] AIRC 49.
6 AMWU and Others v Department of Defence [2011] FWA 3499 and further consent order issued on 30 June 2011 PR510769.
7 CPSU v Australian Customs and Border Protection Service [2011] FWA 5053; CPSU v Australian Customs and Border Protection Service [2011] FWA 3919.
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