Australian Rail, Tram and Bus Industry Union v Aurizon Operations Limited and Australia Eastern Railroad Pty Ltd

[2015] FWC 766

[2015] FWC 766

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

Australian Rail, Tram and Bus Industry Union
v
Aurizon Operations Limited and Australia Eastern Railroad Pty Ltd
(B2015/251)

COMMISSIONER SPENCER BRISBANE, 3 FBERUARY 2015

Proposed protected action ballot - 5 days notice of intention to take action by consent - further condition sought on transport of perishable or hazardous goods

[1] This decision relates to an application made pursuant to s.437 of the Fair Work Act 2009 (the Act) for a Protected Action Ballot Order of members of the Australian Rail, Tram and Bus Industry Union (the Union/Applicant) employed by Aurizon Operations Limited and Australia Eastern Railroad Pty Ltd (the Respondent) in all classifications falling under the QR National Traincrew Enterprise Agreement 2010 and all classifications falling under the Australia Eastern Railroad North Queensland Rail Operations Agreement 2011.

[2] The Applicant had made an application for a similar Protected Action Ballot Order of employees of the Respondent, which was issued on 5 November 2014 1, whereby the Respondent sought, and the Applicant agreed to, the provision of 5 days written notice of the intention to take protected action, in accordance with the Order.

[3] On receipt of the current application, Directions were set, in line with the requirements in s.441 of the Act, for the Respondent to confirm in writing whether they objected to the application, and if so, on what grounds.

[4] The Respondent indicated that they did not oppose the making of the Order in the terms sought (with the provision of the 5 days notice) on the condition that the Applicant agreed that any industrial action taken did not interfere with the transport of perishable and/or hazardous goods.

[5] The Respondent submitted that a condition regarding the transport of hazardous and/or perishable goods is more appropriately dealt with as part of the questions put to members, so that members understood that the industrial action they are being asked to support is conditional. It was submitted, by the Respondent, that the appropriate words in the opening paragraph in Clause 6 (the questions to be put in the ballot) of the Draft Order should be as follows:

In support of reaching an Enterprise Agreement with Aurizon Operations Limited, do you wish to organise and/or engage in separately, concurrently and/or consecutively, the following protected industrial action, on condition that a period of protected industrial action does not affect the transportation of perishable and/or hazardous goods arriving at their final destination in circumstances where the transportation of the goods began prior to the notified commencement of the period of protected action?

[6] The Applicant did not agree to the condition sought by the Respondent.

[7] The Applicant then made an amended application, altering the questions to be put to members, as follows:

“6. QUESTIONS

In support of reaching an Enterprise Agreement with your employer, do you wish to organise and/or engage in separately, concurrently and/or consecutively, the following protected industrial action:

Question 1:
An unlimited number of stoppages of work for 24 hour duration, in all or part of the workplace?

Question 2:
An unlimited number of indefinite or periodic bans on the working of overtime, in all or part of the workplace?

Question 3:
An unlimited number of indefinite or periodical bans on the handling, distribution or conveyance of perishable or hazardous goods?”

[8] Accordingly, further Directions were set. The Respondent maintained their position on the inclusion of the condition.

[9] There was no objection by the Respondent that all of the other statutory pre-requisites for the making of the Order were met. It is considered that all of the statutory pre-requisites for the issuing of the Orders have been met. The only objection to the Order sought, made by the Respondent, was in relation to the condition, relating to the transport of perishable and/or hazardous goods. The parties’ submissions on that issue are further considered in this Decision.

Legislation

[10] Section 443 of the Act provides for when the Fair Work Commission must make a protected action ballot order as follows:

443 When the FWC must make a protected action ballot order

(1) The FWC 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) the FWC 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) The FWC 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.

(3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.

(4) If the FWC 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 the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and

(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.

(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.

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.

[11] The Respondent in seeking the condition of the taking of particular industrial action relied on s.415 and s.424 of the Act as follows:

415 Immunity provision

(1) No action lies under any law (whether written or unwritten) in force in a State or Territory in relation to any industrial action that is protected industrial action unless the industrial action has involved or is likely to involve:

(a) personal injury; or

(b) wilful or reckless destruction of, or damage to, property; or

(c) the unlawful taking, keeping or use of property.

(2) However, subsection (1) does not prevent an action for defamation being brought in relation to anything that occurred in the course of industrial action.

…

424 FWC must suspend or terminate protected industrial action—endangering life etc.

Suspension or termination of protected industrial action

(1) The FWC must make an order suspending or terminating protected industrial action for a proposed enterprise agreement that:

(a) is being engaged in; or

(b) is threatened, impending or probable;

if the FWC is satisfied that the protected industrial action has threatened, is threatening, or would threaten:

(c) to endanger the life, the personal safety or health, or the welfare, of the population or of part of it; or

(d) to cause significant damage to the Australian economy or an important part of it.

(2) The FWC may make the order:

(a) on its own initiative; or

(b) on application by any of the following:

(i) a bargaining representative for the agreement;

(ii) the Minister;

(iia) if the industrial action is being engaged in, or is threatened, impending or probable, in a State that is a referring State as defined in section 30B or 30L—the Minister of the State who has responsibility for workplace relations matters in the State;

(iib) if the industrial action is being engaged in, or is threatened, impending or probable, in a Territory—the Minister of the Territory who has responsibility for workplace relations matters in the Territory;

(iii) a person prescribed by the regulations.

Application must be determined within 5 days

(3) If an application for an order under this section is made, the FWC must, as far as practicable, determine the application within 5 days after it is made.

Interim orders

(4) If the FWC is unable to determine the application within that period, the FWC must, within that period, make an interim order suspending the protected industrial action to which the application relates until the application is determined.

(5) An interim order continues in operation until the application is determined.

Submissions

[12] In relation to the condition sought by the Respondent, limiting industrial action in relation to the transport of perishable or hazardous goods, it was submitted that Aurizon transports a variety of “perishable and/or hazardous goods, including but not limited to acid, fuel, electrolytes, sodium cyanide, ammonium nitrate, sodium hydroxide, medical supplies; and refrigerated product and groceries”.

[13] It was submitted that industrial action which interferes with the Respondent’s transit of perishable or hazardous goods may not have the protection of s.415 of the Fair Work Act by virtue of the operation of s.415(1)(b). It was submitted that industrial action which has the effect of stranding perishable and/or hazardous goods part way through its journey is very likely to involve wilful or reckless destruction of, or damage to property.

[14] Further, it was submitted that industrial action which interferes with the transit of perishable or hazardous goods is also likely to threaten the personal safety or health, or the welfare, of the population or part of the population as contemplated by s.424(1)(c).

[15] The Respondent also submitted that Unions, including most recently the Australian Federated Union of Locomotive Employees (AFULE) in B2014/1648 2, have “properly and willingly undertaken not to interfere with the transport of perishable and hazardous goods in circumstances where the transportation of these types of goods has commenced prior to the notified commencement of the period of the protected action”. The Respondent submitted that this represented a “sensible and responsible approach to industrial action, particularly given the circumstances outlined above.”

[16] In terms of the “circumstances outlined” by the Respondent, only the nature of the goods being transported were referred to. No further submission was made about the timing of the transport of these goods, taking into account the 5 days notice of any industrial action to be taken.

[17] The Applicant submitted, in response, that they had voluntarily conceded to providing a 5 day notice period, before any industrial action is to take place, and that this notice period ought to be more than sufficient for the Respondent to organise the transport or appropriate storage of its hazardous and perishable cargo.

[18] It was submitted by the Applicant that the Respondent’s suggestion that the proposed industrial action is “likely to threaten the personal safety or health, or the welfare, of the population or part of the population as contemplated by s.424(1)(c) or that it may result in the wilful or reckless destruction of perishable goods is very fanciful given that five days is more than sufficient to organise alternative arrangements for the goods. If it were to create a threat to personal health, safety or welfare of the population or goods were to be destroyed, it would be due to poor planning on the part of the Respondent rather than the inconvenience caused by well notified industrial action.”

[19] The Applicant recognised that there would be some inconvenience caused as a result of the industrial action; and submitted that “this is the point of industrial action. It would be of no effect if it were to cause no inconvenience.”

[20] Further, the Applicant submitted that the fact that the ‘condition’ was consented to by another Union, in matter B2014/1648, is a matter for those parties only, and should not be a consideration in this matter.

[21] After receipt of the initial submissions, the parties were Directed as to whether they sought to file further submissions or required a hearing. The Respondent did not seek to put additional material before the Commission. The Applicant relied on a brief further submission and both parties sought a determination on the papers.

[22] The Applicant relied on the extract from the case of Alcoa of Australia Ltd v Australian Workers Union 3 by Barker J, as referred to in Berkeley Challenge Pty Ltd T/As Spotless V United Voice4 as follows (with the emphasis added by the Applicant):

“In Alcoa Barker J stated that:

I consider, therefore, there is force in a submission made on behalf of the union in this case that s 414(6) should be construed with an understanding that under the FW Act the respondent has the right to engage in protected industrial action. Generally, the reason for industrial action is to cause a degree of inconvenience and expense to the employer as a legitimate bargaining tool. The fact that the applicant may suffer a loss of profits and its operation and staff may be inconvenienced is no reason of itself to find that a notice should be as specific as the applicant in this case would like it to be.

In these circumstances, while I accept there is a serious question to be tried, having regard to the authorities, such as they are, I do not consider that, in the particular circumstances of this case, the general question concerning specificity raised by the applicant is at the high end of a scale of seriousness. 5

This is, in my opinion, a correct view and is apposite in this case. The Act gives employees the right, under certain circumstances to take industrial action with protection. Davids Distribution places some requirements on the content of the notice for a particular reason and that is to enable the employer to put in place proper defensive action. This must be balanced, however, against the rights given to employees. Of course the industrial action will cause inconvenience. This is the reality of bargaining under the current legislative framework. It would be wrong, however, to suggest that the purpose of the notice of industrial action is to enable the employer to offset all of the inconvenience of such action.

...

This is a matter where some 89 employees who are cleaners at Tullamarine and Avalon airports, out of a workforce of approximately 129 employees, will take strike action for a limited period of time on 16 September 2011 and 17, 18 and 19 September 2011. The place where the action will take place and times within which the action shall occur are clear. The employees who shall participate are known. The action will take place at airports. There is no evidence that this will do any harm beyond inconvenience. BCPL says the work to be banned is necessary work. Little paid work is not. But these are short stoppages of work following which the work will resume. There is inconvenience in the action but this is ‘no reason of itself to find that a notice should [be] as specific as the applicant in this case would like it to be.’ 6 The employer has contingency plans. That it would like to refine these further is no reason to find the notices given by United Voice are deficient such that the action would not be protected.” 7

Consideration

[23] In the current matter, the Respondent sought a condition on the taking of protected industrial action. In this regard, it was open to the Respondent to seek a longer notice period from the Applicant by consent, or seek (via an application pursuant to s.443(5)) a notice period of up to the 7 working days maximum, if ‘exceptional circumstances’ justified such a period.

[24] The 5 day notice of industrial action, agreed to by the Applicant, has not arisen as a result of a conclusion reached on the basis of a consideration of ‘exceptional circumstances’ pursuant to an application under s.443(5). It is inserted in the Draft Order as a result of a consent arrangement.

[25] Section 437 does not provide jurisdiction for the Commission to impose; a condition on the type of industrial action (outside the approved questions) or notice of such (except pursuant to an application under s.443(5)).

[26] The consent 5 day notice period affords the Respondent an opportunity to take defensive action to re-organise transport schedules, to accommodate the proposed industrial action and to reduce the impact of such. There was an absence of material that such a period was not adequate for this purpose.

[27] The imposition of an additional condition (as sought by the Respondent) to avoid any effect or inconvenience of a type of industrial action, is not the aim of the statutory scheme. The Respondent has not made an application pursuant to s.443(5), nor made out a case to warrant such. The Respondent did not provide a timeframe for the transport routes of the perishable or hazardous goods, which demonstrated a situation where the transit of perishable or hazardous goods, that had already commenced, may be affected, despite a 5 day notice period of the intention to take industrial action.

[28] If, in the Respondent’s view, the action notified or taken by the Applicant necessarily invokes a requirement for an immunity provision pursuant to s.415 (Immunity provision) or s.424 (FWC must suspend or terminate protected industrial action—endangering life etc), it is open to the Respondent to exercise their rights accordingly. No information or application, sufficient to warrant a consideration, relevant to these provisions, was advanced by the Respondent.

Conclusion

[29] For the aforementioned reasons, the Protected Action Ballot Order is made in the terms sought by the Applicant in the amended application, with an agreed notice period of 5 days.

[30] A separate Order [PR560608] will issue.

COMMISSIONER

 1   PR557695.

 2   PR558398.

 3 196 IR 103.

 4   [2011] FWA 6421.

 5 196 IR 103 at [35]-[36].

 6 196 IR 103 at [36].

 7   [2011] FWA 6421 at [45] - [46], [48].

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<Price code C, PR560611>