Australian Rail, Tram and Bus Industry Union v Rail Commissioner
[2020] FWC 4587
•4 SEPTEMBER 2020
| [2020] FWC 4587 |
| FAIR WORK COMMISSION |
REASONS FOR DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
Australian Rail, Tram and Bus Industry Union
v
Rail Commissioner
(B2020/470)
COMMISSIONER HAMPTON | ADELAIDE, 4 SEPTEMBER 2020 |
Proposed protected action ballot of employees of Rail Commissioner – union bargaining representative – whether genuinely trying to reach an agreement – form of questions considered – whether additional notice of proposed industrial action is to be required – whether exceptional circumstances exist warranting an extension – exceptional circumstances found – extension granted for certain forms of action – ballot order issued.
1. Background and case outline
[1] The Australian Rail, Tram and Bus Industry Union (ARTBIU) has made an application for a protected action ballot order (PABO) under s.437 of the Fair Work Act 2009 (the Act). The PABO was sought in relation to bargaining for a proposed enterprise agreement concerning employees of the Rail Commissioner, being the statutory authority presently responsible for the provision of metropolitan train services in Adelaide, South Australia.
[2] The Rail Commissioner submitted that the prospect of any industrial action was not justified given the nature of the claims being advanced by the ARTBIU and what it described as the impact of the COVID-19 pandemic upon the South Australian economy; however, it recognised that this was not a basis to oppose the present application. The PABO was opposed by the Rail Commissioner on the basis that one of the prerequisites for the making of a PABO, namely that the ARTBIU has been and is genuinely trying to make an enterprise agreement, 1 had not been met. The Rail Commissioner also contended that various questions originally proposed in the order were not appropriate or consistent with the terms of the Act. In this regard, revised questions were proposed by the ARTBIU during the proceedings that dealt with all but one of these issues. The remaining objection to one question was based on the proposition that proposed industrial action was not sufficiently clear to be properly considered by the ARTBIU members as part of any ballot. Finally, the Rail Commissioner sought that an extension to the period of notice (7 working days in lieu of the “standard” 3 days notice) be provided by the ARTBIU in relation to certain forms of industrial action that were set out in the proposed ballot questions.
[3] The ARTBIU opposed the extended notice and in the alternative proposed that any extension be no more than that determined on the previous occasion 2 by the Commission (5 working days for some forms of action).
[4] There was no contest that the ARTBIU was eligible to bring this application and the remaining relevant statutory requirements for the making of a PABO had been met.
[5] During the hearing of this matter, the ARTBIU led evidence from Mr Darren Phillips, Branch Secretary of the ARTBIU’s SA and NT Branch. 3 This evidence went to the background to the application and compliance with the relevant statutory requirements for the PABO to be issued. The Rail Commissioner led evidence from the following:
• Simon Johnson – Director Enterprise Bargaining (Industrial Relations and Policy Branch), Department of Treasury and Finance – evidence as to the bargaining process directed towards whether the ARTBIU was genuinely trying to each an enterprise agreement; 4
• Daniel Nikoloski – Team Leader – Workplace Reform (Rail) Department of Infrastructure and Transport – evidence as to the bargaining process directed towards whether the ARTBIU was genuinely trying to each an enterprise agreement; 5 and
• Robert Stopp – Director Rail Operations for the Rail Commissioner – evidence directed at the notice of industrial action claim advanced by the Rail Commissioner. 6
[6] Having considered the matters arising from the application, including the evidence led by the ARTBIU and the Rail Commissioner, I issued the ballot order 7 on 2 September 2020 largely in the terms sought. However, the PABO included granting an extended notice period in relation to certain forms proposed industrial action. In so doing, I indicated that I would subsequently issue reasons for that decision.
2. The general context in which the ballot order was sought
[7] The Rail Commissioner is responsible for the provision of metropolitan Train services in Adelaide and the proposed agreement would cover all Train Drivers, Passenger Service Assistants and Rail Operations Support Employees. The employees concerned currently fall under the scope of the Rail Commissioner Rail Operations Enterprise Agreement 2016. 8 This enterprise agreement passed its nominal expiry date on 30 June 2020 but remains in force under the terms of the Act.
[8] There are approximately 300 employees who would be covered by the proposed enterprise agreement and the ARTBIU is a bargaining representative for many, but not all, of these employees.
[9] Part of the context for this matter is that the South Australian Government recently outsourced the provision of Tram services, previously undertaken by the Rail Commissioner, to the private sector and has announced that the rail service will also follow that course commencing in January 2021. To its credit, the Rail Commissioner has sought to advance the resolution of a new enterprise agreement that would become a transitional instrument 9 for any new employer, and the transferring employees, undertaking the transferring work. This would require that the new agreement be made and approved by the Commission prior to January 2021.
[10] Bargaining commenced in January 2020 with the Rail Commissioner and the ARTBIU tabling their respective log of claims. The relevant notice of employee representational rights 10 was also issued at this time and this meets the bargaining notification time as required by the Act in connection with a PABO of this nature.11
[11] The ARTBIU’s log of claims was a comprehensive set of general claims, that included annual wage increases, job security, no forced redundancies for the life of the agreement and various other specific claims associated with allowances and arrangements relating to specified workgroups.
[12] Bargaining meetings have been conducted between the relevant parties since January 2020 with a total of 13 meetings held on an approximately 3-weekly basis. Employees have been represented in negotiations by Mr Phillips from the ARTBIU and Mr Gary Collis from the Australian Employment Alliance. The Rail Commissioner was represented by Mr Johnson as the lead negotiator.
[13] The parties have made progress on reaching a common position including with in-principle agreement on 12 items from the ARTBIU log of claims, with some claims unresolved, including the wage outcome, and other claims not being pressed by the Union.
[14] I observe that in April 2020, the Rail Commission reached in-principle agreement for a new Tram Operations Enterprise Agreement. That agreement included a 2% wage increase over 3 years and a $15,000 incentive payment for the relevant employees resigning from the Rail Commissioner and the SA Public Sector. During negotiations in this matter, Mr Johnson for the Rail Commissioner made comments on a without prejudice basis to the effect that a negotiated outcome in those terms is what would be achievable for the Rail employees. On 14 July 2020, Mr Johnson also confirmed an earlier position that he needed the Union’s “bottom line” by the next meeting. This was communicated in the context of the desire to expedite the negotiations given the upcoming outsourcing of the rail operations.
[15] A paid time meeting of the ARTBIU and its bargaining representatives was organised for 7 August 2020 for the purpose of finalising the “bottom line” position and the position subsequently advanced was developed and approved in that context.
[16] The parties met again on 13 August 2020. The ARTBIU tabled a document and indicated it was their “bottom line”. This document included confirmation of a 4% annual wage claim together with an incentive payment of $60,000 to transfer to the incoming employer. Mr Johnson indicated in clear terms that an outcome of this nature would not and could not be supported by the Rail Commissioner. It is also clear on the evidence that during that meeting Mr Phillips reinforced that this was a “bottom line” position and he rejected an indication of further flexibility.
[17] In light of media interest about the bargaining and the positions of the parties, Mr Phillips was publicly reported to have indicated that should other conditions be met including equipment and training to protect staff from COVID-19, the Union was willing to reduce its pay demand. During the hearing this was confirmed to be the position of the ARTBIU.
[18] A further bargaining meeting is scheduled for 10 September 2020.
3. The requirements for the making of a ballot order
3.1 The immediate statutory provisions
[19] The Act provides relevantly as follows:
“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 the FWC 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.
(2) Subsection (1) does not apply if the proposed enterprise agreement is:
(a) a greenfields agreement; or
(b) a multi-enterprise agreement.
(2A) Subsection (1) does not apply unless there has been a notification time in relation to the proposed enterprise agreement.
Note: For notification time, see subsection 173(2). Protected industrial action cannot be taken until after bargaining has commenced (including where the scope of the proposed enterprise agreement is the only matter in dispute).
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.
(4) If the applicant wishes a person other than the Australian Electoral Commission to be the protected action ballot agent for the protected action ballot, the application must specify the name of the person.
Note: The protected action ballot agent will be the Australian Electoral Commission unless the FWC specifies another person in the protected action ballot order as the protected action ballot agent (see subsection 443(4)).
(5) A group of employees specified under paragraph (3)(a) is taken to include only employees who:
(a) will be covered by the proposed enterprise agreement; and
(b) either:
(i) are represented by a bargaining representative who is an applicant for the protected action ballot order; or
(ii) are bargaining representatives for themselves but are members of an employee organisation that is an applicant for the protected action ballot order.
Documents to accompany application
(6) The application must be accompanied by any documents and other information prescribed by the regulations.
438 Restriction on when application may be made
(1) If one or more enterprise agreements cover the employees who will be covered by the proposed enterprise agreement, an application for a protected action ballot order must not be made earlier than 30 days before the nominal expiry date of the enterprise agreement, or the latest nominal expiry date of those enterprise agreements (as the case may be).
(2) To avoid doubt, making an application for a protected action ballot order does not constitute organising industrial action.
…
440 Notice of application
Within 24 hours after making an application for a protected action ballot order, the applicant must give a copy of the application to the employer of the employees who are to be balloted, and:
(a) if the application specifies a person that the applicant wishes to be the protected action ballot agent—that person; or
(b) otherwise—the Australian Electoral Commission.
441 Application to be determined within 2 days after it is made
(1) The FWC must, as far as practicable, determine an application for a protected action ballot order within 2 working days after the application is made.
(2) However, the FWC must not determine the application unless it is satisfied that each applicant has complied with section 440.
…
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.”
3.2 The role of the Commission in a PABO application
[20] The role of the PABO, and consequently the role of the Commission in considering any such application, is established by the terms of the Act. Essentially, a PABO is a necessary step for a bargaining representative to ultimately seek the capacity to take protected industrial action in support of bargaining for a single enterprise agreement.
[21] The PABO is part of the bargaining regime of the Act. The scheme of the Act is outlined in various decisions of the Commission including in John Holland v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and The Australian Workers’ Union 12 and by the Federal Court in J.J. Richards & Sons Pty Ltd v Fair Work Australia.13
[22] The taking of protected industrial action by both employees and employers that is designed to advance claims and to persuade the other party to change their position, is part of that scheme. This must be undertaken in the context of the relevant party genuinely trying to reach an enterprise agreement.
[23] Whether any proposed industrial action becomes protected will ultimately depend on compliance with the statutory parameters including whether a relevant question is supported by the ballot,14 whether the action is notified in accordance with the requirements of the Act,15 and whether it is industrial action within the meaning of the Act.16 Further, an employer who is subject to threatened, impending or probable industrial action may seek to have such action suspended or terminated on various grounds including whether it endangers the life, the personal health or safety, or the welfare, of the population or of part of it or causes significant damage to the Australian economy or an important part of it,17 or causes significant economic harm.18 Industrial action that is not protected industrial action may be prevented.19
[24] As accepted by the Rail Commissioner in written submissions, it is not presently the Commission’s role to determine whether industrial action is necessary or appropriate, or even whether the bargaining positions of the parties are reasonable, other than to the limited extent that this informs the statutory prerequisites for the issuing of a PABO, such as whether the applicant union is genuinely trying to reach an enterprise agreement.
[25] Where the application meets all of the relevant requirements, the Commission is obliged under s.443 of the Act to issue a PABO, and if all of the requirements have not been met, is obliged not to do so.
4. Has the ARTBIU been genuinely trying to reach an enterprise agreement with the Rail Commissioner and is it still doing so?
[26] One of the prerequisites for the making of a PABO provided by s.443(1) of the Act is that the Commission must be satisfied that the applicant, in this case the ARTBIU, has been and is genuinely trying to reach an enterprise agreement with the employer.
[27] It is not in dispute that the ARTBIU has been genuinely trying to reach an agreement. The Rail Commissioner contends that in light of more recent developments, the Commission should not be satisfied that the Union continues to be doing so. It is clear under the Act that unless I am satisfied on both aspects, the ARTBIU is not in a position to have a PABO made.
[28] The recent developments relied upon by the Rail Commissioner are associated with the ARTBIU affirming its “bottom line” position (including a 4% annual wage increase) to the Rail Commissioner at a bargaining meeting and subsequently indicating in comments made in the media regarding some (downwards) flexibility in its position on the wage outcome.
[29] Whether the ARTBIU ‘has been, and is, genuinely trying to reach an agreement’ must be decided by reference to all of the circumstances of the bargaining that has occurred with Rail Commissioner, including these more recent developments. The relevant circumstances also include the extent of the progress in the negotiations and the steps taken by the applicant union in order to try and reach agreement.
[30] In Total Marine Services Pty Ltd v The Maritime Union of Australia20 (Total Marine) the Full Bench said:
“[30] The requirement that an applicant for a ballot order genuinely try to reach an agreement and be continuing to do so at the time an application for a ballot order is made was a requirement in the Workplace Relations Act 1996. The wording of the relevant section has been altered because of the removal of a process of establishing a bargaining period during which protected action may be taken. The concept of genuinely trying to reach an agreement was dealt with in other parts of the Workplace Relations Act 1996, specifically in relation to the grounds for terminating a bargaining period.
[31] In our view the concept of genuinely trying to reach an agreement involves a finding of fact applied by reference to the circumstances of the particular negotiations. It is not useful to formulate any alternative test or criteria for applying the statutory test because it is the words of s 443 which must be applied. In the course of examining all of the circumstances it may be relevant to consider related matters but ultimately the test in s 443 must be applied.
[32] We agree that it is not appropriate or possible to establish rigid rules for the required point of negotiations that must be reached. All the relevant circumstances must be assessed to establish whether the applicant has met the test or not. This will frequently involve considering the extent of progress in negotiations and the steps taken in order to try and reach an agreement. At the very least one would normally expect the applicant to be able to demonstrate that it has clearly articulated the major items it is seeking for inclusion in the agreement, and to have provided a considered response to any demands made by the other side. Premature applications, where sufficient steps have not been taken to satisfy the test that the applicant has genuinely tried to reach an agreement, cannot be granted.” 21
[31] In approaching any such assessment, it must also be borne in mind that the expression “genuinely trying” in the present context is concerned with the genuineness of efforts by the bargaining representative to achieve the goal of an enterprise agreement that meets the approval requirements of the Act. This will turn upon the applicant’s motivation; its intention, object or purpose.22
[32] The ARTBIU contended that it has been and remains genuinely trying to reach an enterprise agreement with the Rail Commissioner. Amongst other matters, it relied upon the history of the negotiations, the multiple bargaining meetings, and the fact that various concessions from its log of claims had been made. As to the more recent developments, the ARTBIU contended that there was a different approach to the concept of a bottom line and that the indication that something less than the 4% wage claim could be accepted on certain conditions was conducive to reaching an agreement.
[33] The Rail Commissioner contended that as a result of the recent developments outlined above, the ARTBIU had failed to properly represent its position in formal negotiations and that this implied that the Union is not presently bargaining in good faith and is not genuinely trying to reach agreement. This, it suggested, was particularly so given the need for the bargaining to conclude expeditiously so as to have an agreement approved this year. It further argued that the inclusion of some abandoned claims in its statement provided to the Commission as part of these proceedings was a further demonstration that the ARTBIU was not genuinely seeking an agreement.
[34] In terms of the good faith bargaining obligations 23 referred to by implication in the Rail Commissioner’s position, these obligations are not a substitute for the requirement under s.443(1)(b) of the Act that a bargaining representative is genuinely trying to reach an agreement. However, they apply to all bargaining representatives and do set some of the context for the bargaining regime in which the assessment of the ARTBIU’s intentions is made.
[35] In all of the circumstances, I find on balance that the ARTBIU continues to be genuinely trying to reach an agreement with the Rail Commissioner. The fact that the ARTBIU conveyed a position as its “bottom line”, when it was open to further negotiations on some conditional basis, was perhaps unhelpful and not conducive to the bargaining process given the desire to reach an early resolution. However, it is clear on the evidence that Mr Phillips, relying on his own extensive bargaining experience, expected that the “bottom line” position would be challenged and that the Union should not readily concede before getting a proper response from the Rail Commissioner. Further, the additional flexibility is linked to other changes being accepted the Rail Commissioner that are not presently agreed or otherwise resolved between the parties. In any event, this conduct does not mean that the ARTBIU is not genuinely trying to reach an agreement with the Rail Commissioner. 24
[36] I would also observe that the position as confirmed during these proceedings, that the 4% wage outcome is not the final position of the Union, is not only a more realistic reflection of the present and likely future circumstances facing the parties, but also more conducive to achieving an agreement. I will return to this aspect at the conclusion of this decision. I would however observe that should the change from the “bottom line” position have been to expand the differences between the parties on the wage outcome, I may have formed a different view about this aspect of the matter given the context.
[37] To the extent that there was some feint suggestions in the evidence provided by the Rail Commissioner that the ARTBIU was not genuinely trying to reach an agreement due to some changes in its COVID-19 related claims or an alleged focused upon outsourcing claims, these were not developed in submissions or put to Mr Phillips, and do not provide a basis to challenge the application. Further, the inclusion of some original but now abandoned 25 claims in Mr Phillips’ statement26 as being claims that “we have not reached or finalised in principle agreement upon” is open to interpretation; however, confirmation during the hearing that these matters are not being pressed provides some further context to demonstrate that progress has been made in the negotiations and is not a basis to find that the Union is not genuinely trying to reach an agreement with the Rail Commissioner. I would observe that should these matters again become active claims, without a significant change in the bargaining context, this may well raise questions about consistency with the good faith bargaining obligations set out in s.228 of the Act.
[38] Accordingly, based upon the above findings I am satisfied that the ARTBIU has been, and is, genuinely trying to reach an agreement with the Rail Commissioner. This satisfies s.443(1)(b) of the Act.
5. The form of questions in the ballot order
[39] The questions in the amended application 27 sought to be put to its members by the ARTBIU are as follows:
“For the purpose of supporting or advancing claims in negotiation of the proposed enterprise agreement with your employer, do you endorse the taking of protected industrial action against your employer by all or some of the ARTBIU members employed by your employer, which may involve taking separately, concurrently and/or consecutively any or all of the actions set out below:
1. An unlimited number of stoppages of work for 4 hours?
[ ] Yes [ ] No
2. An unlimited number of stoppages of work for 12 hours?
[ ] Yes [ ] No
3. An unlimited number of stoppages of work for 24 hours?
[ ] Yes [ ] No
4. An indefinite number of periodic or indefinite bans on the performance of overtime?
[ ] Yes [ ] No
5. An unlimited number of periodic or indefinite bans on performing higher duties?
[ ] Yes [ ] No
6. An unlimited number of periodic or indefinite partial work bans?
[ ] Yes [ ] No
7. An unlimited number of periodic or indefinite industrial action in the form of interrupting or stopping for work in order to put on an RTBU branded facemask?
[ ] Yes [ ] No
8. An unlimited number of periodic or indefinite bans on acceptance of or offering for work in Company Uniform (excluding Personal Protective Equipment)?
[ ] Yes [ ] No
9. An unlimited number of periodic or indefinite industrial action in the form of interrupting or stopping work to give announcements at regular intervals over train announcement systems of a script provided by the RTBU?
[ ] Yes [ ] No”
[40] The objection by the Rail Commissioner was to proposed question 6. The question sought endorsement for industrial action in the form of an unlimited number of periodic or indefinite “partial work bans”. This term is defined in s.470(3) of the Act in the following terms:
“470 Payments not to be made relating to certain periods of industrial action
… …
(3) A partial work ban is industrial action that is not:
(a) a failure or refusal by an employee to attend for work; or
(b) a failure or refusal by an employee who attends for work to perform any work at all; or
(c) an overtime ban.”
[41] The Rail Commissioner contended that s.437(3) of the Act requires that the questions being put to the employees must describe the nature of the proposed industrial action and be such that they can understand and appreciate what is being put to them for approval. It also contended that the employees would not understand or appreciate the broad definition provided within the Act or be able to make an informed decision.
[42] The ARTBIU contended that the employees would understand that the question was about banning (not performing) part of their work, short of a stoppage. It also contended that the term “partial work ban” was regularly used in PABOs issued by the Commission and that the specification of the actual industrial action was a matter for any subsequent notice given by the Union under s.414 of the Act.
[43] The ARTBIU is correct about the focus of the current issue; it is not about the specification of the actual industrial action for the employer’s purposes. That is a different and subsequent matter. However, the purpose of the PABO and the terms of s.437(3) require that the employees concerned can make an informed decision about whether to endorse the natureof the industrial action posed in the question.
[44] This requirement has been held by the Commission to mean as follows:
“[19] Moving now to the construction of s.437 itself, seen in its statutory context, all that the section requires is that the questions should describe the industrial action in such a way that employees are capable of responding to them. If the questions are ambiguous or lack clarity there may be consequences for the bargaining representative and the employees if reliance is placed on the result of the ballot in taking industrial action. If the question or questions give rise to ambiguity, the conclusion may be reached that the industrial action specified in a notice under s.414 was not authorised by the ballot and that the action is not protected for the purposes of s.409(2). It is true that ambiguity or lack of clarity in the description of the industrial action is undesirable, but these are matters more appropriate for consideration under other provisions. It follows that in most cases the drafting of the questions will be a matter for the applicant.”28
[45] In Total Marine the Full Bench also found:
“[38] The further ground of appeal relates to the nature of the questions asked. Commissioner Thatcher concluded that the questions asked in the ballot are sufficient to enable employees to understand the nature of the protected action they will be asked to authorise. We believe he was correct in that view.
[39] TMS is critical of the use of the term ‘unlimited’ in relation to the particular forms of industrial action. The precise length of any action will be determined subsequently by the bargaining agent who organises the action and the members of the union who choose to participate. It is inevitable that the precise timing and length of the action is not determined at the stage of authorisation. But in voting to authorise the action the employees would have no doubt of the outer limits of the action involved. In our view the requirements for an application are satisfied.”
[46] In Skilled Offshore Pty Ltd v Australian Manufacturing Workers' Union; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; and The Australian Workers' Union 29 a later Full Bench found as follows:
“[33] The Unions proposed that the employees to be balloted be asked the following questions:
“For the purposes of supporting or advancing claims in respect of the proposed enterprise agreement with your employer, do you endorse the following protected industrial action against your employer (to be taken either separately, concurrently and/or consecutively):
1. An unlimited number of stoppages on the performance of work between 30 minutes and up to and including 24 hours? (excluding work that is required by trained and qualified persons of the emergency response teams as required by occupational health and safety legislation and regulations)?
2. Bans on the performance of administrative work (except for the performance of any work required to be undertaken by legislation including any action, process or work consistent with Occupational Health and Safety legislation)?”
[34] There is no appeal in respect of question 2.
[35] As to question 1, we agree with the Deputy President’s findings that the question (a) is sufficiently clear to enable the employees to make an informed choice about whether to approve the nature of the industrial action identified in the question and (b) describes the industrial action in such a way that employees are capable of responding to it. The fact that the expression “taken either separately, concurrently and/or consecutively” appears in the preamble to the questions, rather than separately in each question, does not, in our view, create a “misleading impression” or make unclear the “outer limits” of the proposed industrial action. Accordingly, we reject Skilled Offshore’s arguments in relation to ground 4.” (references omitted)
[47] Accordingly, the immediate issue is whether the relevant question is sufficiently clear to enable the employees to make an informed choice about whether to approve the nature of the industrial action identified in that question.
[48] On balance, I am satisfied that question 6 meets that requirement. Although it may well be better for some further detail of the proposed action to be provided for other purposes, I consider that the notion of partial work bans is sufficiently clear on its face in the context of this workplace and workforce (noting that PABOs have been relatively common in more recent times) and the ballot questions more generally. The employees would reasonably understand that this could relate to a ban (a refusal to perform) some part of their duties, short of a stoppage of work. The fact that this question may to a limited degree overlap with some other forms of proposed action, is not in my view of any great significant for present purposes.
[49] As a result, I have included the full list of revised questions in the Order. I observe that because the full parameters of the proposed action are not included in the question, I have allowed for the potential for industrial action taken in respect of this element to be significant with significant consequences. This is turn has an impact on the issue of notice dealt with below.
6. Should an extended period of notice be required for some forms of proposed industrial action?
[50] The Rail Commissioner sought that written notice of 7 working days be required in relation to some of the proposed industrial action. Section 443(5) of the Act provides, in effect, that if there are exceptional circumstances justifying the period of written notice (referred to in s.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 in relation to the proposed industrial action that is the subject of the protected action ballot.
[51] The Rail Commissioner relied for the most part upon the evidence of Mr Stopp. That evidence included the potential impact of the proposed industrial action, which included service delays, stoppages, cancellations and safety risks, the nature and extent of patronage on the trains including the vulnerable nature of some of those patrons, and the implications of the COVID-19 pandemic. In addition, Mr Stopp provided evidence as to the implications of the current electrification of one of the major train lines (Gawler) and the challenges associated with servicing special events such as AFL at Adelaide Oval. For the most part, I found this evidence to be persuasive and relevant so as to support the existence of exceptional circumstances.
[52] The ARTBIU contended that there were no exceptional circumstances evident here justifying an extended notice period and pointed out that the Rail Commission could undertake some pre-planning for the various forms of industrial action should the PABO be made and industrial action approved by its membership. In the alternative, the ARTBIU contended that should the Commission find exceptional circumstances existed, any extended notice should be no more than determined on previous occasions. In that context, it also contended that the reduced passenger numbers using the trains as a result of the COVID-19 pandemic should mean that there would be less disruption caused by any industrial action and easier for the Rail Commissioner to deal with.
[53] For context, I observe that in similar circumstances during earlier bargaining rounds involving the same parties in 2015 30 and 2016,31 the Commission determined that there were exceptional circumstances warranting extended notice of 5 working days for some forms of proposed industrial action. There are some different circumstances present here, and in any event, each application must be considered and determined in the present context and on its merits.
[54] The principles to be applied in relation to an extension of the notice period for engagement in employee claim action were comprehensively stated in the Full Bench decision in National Tertiary Education Industry Union v Charles Darwin University 32 (NTEIU v Charles Darwin). In relation to s 443(5) generally, the Full Bench observed:
“[20] The exercise of a discretion under s.443(5) results in an interference with the right of a bargaining representative to otherwise give three working days’ written notice of industrial action that is to be organised and engaged in by employees in support of a proposed agreement. That this right should not lightly be curtailed by the imposition of a longer period of notice is evident in the grant of power itself. There must be “exceptional circumstances” in relation to the proposed industrial action the subject of the order justifying a longer period.”
[55] The approach to exceptional circumstances in this context cited by the Full Bench in the above matter was as discussed by Lawler VP in CEPU v Australian Postal Corporation 33 (CEPU), which concerned an equivalent provision of the Workplace Relations Act 199634 where he concluded:
“[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.”
[56] The Full Bench in NTEIU v Charles Darwin then set out the three-step decision-making process required in order to determine whether there should be an extension to the notice period pursuant to s 443(5):
“[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).” 35
[57] Accordingly, in order for an extended period of notice to be granted, the Commission must be satisfied both as to the existence of exceptional circumstances and the fact that these justify the granting of the extended notice.
[58] As made clear in the authorities above, this also requires a weighing up of the opportunity for the Rail Commissioner to take appropriate defensive action against the diminution of the effectiveness of the ARTBIU members’ bargaining power that is contemplated by the scheme of the Act. In that light, it would not be a relevant exercise of discretion to grant additional notice simply to allow the employer to neutralise the impact of the industrial action.
[59] The exceptional circumstances relied upon in this case relate to the impact of work stoppages, overtime bans and other action in relation to the metropolitan train services, and the difficulties faced in that context. These difficulties included the time that would be necessary to put appropriate contingency arrangements in place, and the need to give sufficient notice to the travelling public of the actual alternative arrangements. Further, the special needs of some of the travelling public are also relevant here.
[60] In this case, the Rail Commissioner also relied upon the impact of the COVID-19 pandemic and other factors such as the Gawler line electrification.
[61] In the May 2015 decision 36 I found as follows:
“[22] Adelaide also has a significant bus network and this would be available, given sufficient notice, to provide some additional services to cover for disruptions to the trains. However, depending upon the nature of the rolling stock concerned, it may take up to 20 buses to replace a train.
[23] In terms of the consequences of a stoppage of work or an overtime ban, it is evident that this has the potential to impact on services longer than the actual period of the stoppage and ban. This emerges from the nature of the train service and the need for positioning of rolling stock and the avoidance of leaving passengers part-way through a service. A ban on overtime, or a stoppage of work coinciding with a major event, would also have significant consequences.
[24] In terms of measures that would be necessary to deal with a stoppage of work or an overtime ban this would necessitate the Rail Commissioner assessing the impact on the fleet, staffing availability and the consequences for the passenger services. Further, there would be consequential planning and other operational impacts that would need to be assessed.
[25] Having assessed the likely impact, the Rail Commissioner would need to liaise and work with other government agencies and with the private providers of the bus services to consider what substitute services might be available. I note that these bus services operate under contract to the State Government and are not subject to direction by the Rail Commissioner. At that point, a communication strategy would need to be developed having regard to the needs and circumstances of the travelling public and those with special needs in particular.
[26] In that respect, I accept that particularly those with special needs but also more generally, it is highly desirable for actual contingency services and the advice of the cancellation of actual services to be arranged and for the detail of such to be advised to the travelling public ahead of any impending stoppage. Depending upon the nature and extent of the overtime ban or work stoppage, the evidence of Mr Stopp was that this process could predictably take up to five days.”
[62] I have assessed the Rail Commissioner’s position in the context of the evidence provided in this application and the present circumstances. These findings remain apposite however Mr Stopp sought a longer period given the impact of COVID-19 and other factors, I will return to this aspect.
[63] In all of the circumstances, I am satisfied that there are exceptional circumstances and these justify an extended period of notice in relation to all of the nominated forms of proposed industrial action now sought by the Rail Commissioner. It is the combination of the nature and role of the train services operated by the Rail Commissioner, the consequences of the particular proposed action, and the reasonable contingency planning that would be required in these circumstances once the notice of the actual industrial action is given that create the exceptional circumstances that justify an extended notice period. This is particularly so given the needs of some of those who use the services. These are all relevant considerations in a context of this nature. 37
[64] The industrial action concerned could be taken in various forms by all or some of the relevant members and be taken in combination with other action. Further, depending upon when the action was proposed, the overtime, higher duties, and other bans could have the same impact as the more extensive work stoppages.
[65] In terms of the balance of considerations contemplated in NTEIU v Charles Darwin, I remain of the view that in relation to each of the forms of industrial action where the extended notice would be required, even with the additional notice, the industrial action has the potential to cause significant disruption to the operations and revenue of the Rail Commissioner and to act as an effective part of the ARTBIU’s bargaining power contemplated by the Act.
[66] It is also apparent from the evidence that the particular forms of proposed industrial action that have been included in the extended notice arrangements are more significant and that the exceptional circumstances relied upon by the Rail Commissioner are more acutely impacted by those particular forms of action. Further, for reasons set out earlier, the extended notice will include any industrial action authorised by question 6.
[67] In terms of the length of the extended minimum notice period, I do accept that there are certain factors that tend to exacerbate the exceptional circumstances. In particular, the impact of the COVID-19 pandemic and the present electrification of the Gawler train line. The heightened need for information to be provided to the travelling public, and the fact that social distancing constraints means that a certain level of buses or other alternatives may be required, reinforces the exceptional circumstances. However, the Rail Commission was unable to provide demonstrable examples of additional steps that it may be able to undertake with the additional days claimed or any real explanation about the likely impact of the additional days sought beyond that which has applied under earlier PABOs. I was left with the impression that its case was simply that the more notice the better. Whilst this may be superficially so, given the statutory context, I would need to be positively persuaded that 7 working days (in practice this would amount to at least 9 operational days for the employer) 38 are justified by the exceptional circumstances to substantiate that outcome.
[68] In all of the circumstances of this matter, I was satisfied that a minimum of 5 working days notice is warranted by the exceptional circumstances and appropriate in relation to the forms of industrial action outlined in questions 1 to 6 inclusive.
7. The form of ballot order
[69] Subject to some drafting modifications and the implications of the above findings, I have issued the ballot order largely in the terms sought by the ARTBIU. I have nominated a closing date for the ballot which represents 30 working days after the order. I have done so having regard to the general administrative arrangements with the Australian Electoral Commission (AEC) and the import of s.443(3A) of the Act, which requires that the Commission must specify the date for the ballot that will enable it to be conducted as expeditiously as possible. In that regard, I note that the AEC has, due to delays in the mail system and the impact of the COVID-19 pandemic, advised the Commission that this length of lead time is necessary for a ballot to be conducted. I also observe that the closing date is an outer limit.
[70] I have also confirmed the group of employees by reference to the existing enterprise agreement (which reflects the scope of the present bargaining) and to those employees for whom the ARTBIU is acting as a bargaining agent. This arises from s.437(5) of the Act.
[71] Given my earlier findings, I have also included the additional notice of industrial action for the nominated forms of potential industrial action as determined above.
8. Conclusions and orders
[72] I found that the statutory requirements of s.443 had been met and that the proposed PABO as modified to reflect my decision was in order.
[73] Accordingly, I was obliged to, and did, issue the PABO on 2 September 2020.
[74] I have earlier noted that the clarification of the position confirmed by the ARTBIU in these proceedings may provide some further opportunity for the parties to reach an agreement. I would urge them to seek to do so given that it is desirable from all perspectives that a new enterprise agreement be reached with some expedition. It would not be desirable, including for any employees who might transfer to the new employer under any outsourcing arrangements, for there to be uncertainty about the terms and conditions that would transfer with them.
[75] I also note that should any of the parties in this matter seek the Commission’s assistance to deal with the bargaining dispute, an application may be lodged under s.240 of the Act.
COMMISSIONER
Appearances:
M Diamond with D Phillips and H Boyle for the Australian Rail, Tram and Bus Industry Union.
S Bakewell with M Hii of EMA Consulting, with permission, with R Stopp for the Rail Commissioner.
Hearing details:
2020
August 31
September 1
Video Hearing.
Printed by authority of the Commonwealth Government Printer
<PR722267>
1 Section 443(1)(b) of the Act.
2 5 days notice was determined by the Commission as part of two previous bargaining rounds and related PABO applications.
3 Exhibit RTBU 1, Mr Phillips was subject to cross-examination.
4 Exhibit R1, Mr Johnson was not cross-examined.
5 Exhibit R2, Mr Nikoloski was not cross-examined.
6 Exhibit R3, Mr Stopp was subject to cross-examination.
7 PR722268.
8 [2017] FWCA 418.
9 Part 2-8 of the Act.
10 As required by section 174 of the Act.
11 Section 437(2A) of the Act.
12 [2010] FWAFB 526.
13 [2012] FCAFC 53.
14 Sections 437, s 408 and 409 of the Act.
15 Section 414 of the Act.
16 Section 19 of the Act.
17 Section 424 of the Act.
18 Section 423 of the Act.
19 Section 418 of the Act.
20 [2009] FWAFB 368.
21 This observations in [32] should be understood in the context of the later Full Bench in Esso Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers' Union (AMWU); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU); The Australian Workers' Union (AWU)[2015] FWCFB 210 at [35].
22 Mermaid Marine Vessel Operations Pty Ltd v The Maritime Union of Australia [2014] FWCFB 1317 in citing the majority in J.J. Richards & Sons v Transport Workers’ Union of Australia[2010] FWAFB 9963. See also JJ Richards & Sons Pty Ltd v Fair Work Australia [2012] FCAFC 53 at 58.
23 Section 228 of the Act.
24 See National Union of Workers, The Australian Workers’ Union and “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v Ricegrowers Limited trading as SunRice[2010] FWA 9822 at [9] – [14] and Liquor, Hospitality and Miscellaneous Union - Western Australian Branch v CSBP Limited[2007] AIRC 112.
25 Not included in the ARTBIU’s “bottom line” position.
26 Exhibit RTBU 1.
27 Proposed questions 7, 8 and 9 were amended to more clearly refer to action that would fall within the definition of industrial action in s.19 of the Act. This dealt with objections originally raised by the Rail Commissioner in that regard.
28 John Holland Pty Ltd v AMWU[2010] FWAFB 526.
29 [2015] FWCFB 7399.
30 Australian Rail, Tram and Bus Industry Union v Rail Commissioner[2015] FWC 3415.
31 Australian Rail, Tram and Bus Industry Union v Rail Commissioner[2016] FWC 5766.
32 [2018] FWCFB 4011.
33 [2007] AIRC 848.
34 Section 463(5).
35 See also Construction, Forestry, Maritime, Mining and Energy Union v DP World Brisbane Pty Ltd t/a DP World and Others[2019] FWCFB 1150.
36 Australian Rail, Tram and Bus Industry Union v Rail Commissioner[2015] FWC 3415.
37 See Australian Rail, Tram and Bus Industry Union and Australian Municipal, Administrative, Clerical and Services Union v Queensland Rail Limited[2011] FWA 6073 and Australian Rail, Tram and Bus Industry Union v Metro Trains Melbourne Pty Ltd[2012] FWA 6496, although in that matter the extended notice was not apparently opposed - Order PR527323.
38 Working day is defined in s.12 of the Act as being “a day that is not a Saturday, a Sunday or a public holiday” and the Rail Commissioner operates 7 days per week.
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