Australian Rail, Tram and Bus Industry Union v Rail Commissioner

[2016] FWC 5766

[2016] FWC 5766

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
(B2016/853)

COMMISSIONER HAMPTON ADELAIDE, 18 AUGUST 2016

Proposed protected action ballot of employees of Rail Commissioner – union bargaining representative – two proposed agreements rejected by votes of employees – alternative bargaining representative now involved – significant change to claims made after second vote – whether genuinely trying to reach an agreement – whether additional notice of proposed industrial action 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) made an application for a protected action ballot order (PABO) under s.437 of the Fair Work Act 2009. The PABO was sought in relation to bargaining for a proposed enterprise agreement concerning employees of the Rail Commissioner, being the statutory authority responsible for the provision of metropolitan train services in Adelaide, South Australia.

[2] This is the second such application made by the ARTBIU during the current round of bargaining and some of the background has been outlined in an earlier decision 1 of the Commission which set out the basis of a PABO issued in mid May 2015 (the 2015 decision).

[3] The PABO was opposed by the Rail Commissioner on the basis that the Commission should not be satisfied that one of the necessary requirements for such an order had been met. That is, the Commission should find that the ARTBIU was not genuinely trying to reach an agreement. Further, the Rail Commissioner sought that an extension to the period of notice be provided by the ARTBIU in relation to certain forms of industrial action that were set out in the proposed ballot questions. In that regard, I note that the ARTBIU proposed that an additional notice period apply to some forms of action, but not the full extent sought by the employer.

[4] There was no contest that the ARTBIU was eligible to bring this application and that, subject to the above issues, all of the other relevant statutory requirements for the making of a PABO had been met.

[5] Having considered the matters arising from the application, including the evidence led by the ARTBIU and the Rail Commissioner, I issued the ballot order 2 on 17 August 2015. The PABO included granting an extended notice period in relation to the expanded list of 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

[6] The Rail Commissioner is responsible for the provision of metropolitan Train and Tram services in Adelaide, South Australia 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 2011. 3 This enterprise agreement passed its nominal expiry date in December 2013 but remains in force under the terms of the Act.

[7] There are approximately 300 employees who would be covered by the proposed enterprise agreement and the ARTBIU is a bargaining representative for some of these employees. Bargaining commenced in August 2014 with the delivery of an ARTBIU log of claims and the provision of the relevant notice of employee representational rights. 4 No issues associated with the bargaining notification time arise in this matter.5

[8] The ARTBIU’s August 2014 log of claims was a comprehensive set of general claims, that included for a 4.5% annual wage increase, the retention of the no forced redundancy provisions of the present agreement and various other specific claims associated with shift penalties and arrangements and other issues related to various roles covered by the bargaining.

[9] Various meetings were held between the bargaining representatives over the 19 months that followed August 2014. A proposed enterprise agreement was put out to a vote of employees in February 2016. The February 2016 proposed agreement was endorsed by the ARTBIU on an in-principle basis but was soundly rejected by the ballot of employees.

[10] In February 2016, a significant number of the employees who were the subject of the proposed agreement formally appointed a new bargaining representative, Mr Collis, under s.176(c) of the Act. Whilst the exact number of ARTBIU members who have appointed Mr Collis has not been disclosed, based upon the evidence that is before the Commission, it is a reasonable inference that well over 100 employees would fit into this category. The ARTBIU became aware of this development in late February or early March 2016.

[11] A second log of claims was then put forward by the ARTBIU in April 2016 (April 2016 claims). The April 2016 claims were based upon the terms of the February 2016 proposed agreement with additional claims being advanced in relation to shift penalties and arrangements. The April claims also proposed an average wage increase of 2.5% across the 4 years of a proposed agreement. 6

[12] Following further negotiations, in May 2016, a second proposed enterprise agreement, substantially similar to the February 2016 proposed agreement, was put to a vote of employees by the Rail Commissioner and again rejected by a significant majority of employees. The May 2016 proposed agreement was not supported by the ARTBIU. In July 2016, a third log of claims (July 2016 claims) was put forward by the ARTBIU.

[13] The July 2016 claims represented a much more comprehensive log than the April 2016 claims. It included many of the original items from the April 2014 claims, some new items, and a claim for 5% annual wage adjustments. The ARTBIU has also now included an additional 8.3% productivity wage claim.

[14] There is no direct evidence before the Commission as to the bargaining position adopted by Mr Collis in the negotiations leading to this point.

[15] The ARTBIU contended that it is, and always has been, “genuinely trying to reach an agreement”. It further contended that in order for the Commission to determine the “genuineness” of the ARTBIU’s attempts to reach an agreement, it must take into account the circumstances of the current negotiations. These circumstances include that:

• The first round of negotiations lasted 19 months;



• The first proposed agreement had the support of the ARTBIU despite being ultimately rejected by the employees;



• The second proposed agreement, which did not have the support of the ARTBIU, had a higher number of “no votes” which demonstrated that employees were becoming increasingly disgruntled with the proposals;



• The Rail Commissioner has conceded that the ARTBIU had beengenuinely trying to reach an agreement;



• The July 2016 claims were created with the involvement of the National Office of the ARTBIU and following consultation with its members that meant “bargaining needed to start from scratch”;



• The ARTBIU’s “extensive consultation through surveys and direct communication” after the second agreement was rejected resulted in a new set of claims being received from its members; and



• Negotiations had continued for some 23 months and the employees had not received a pay increase since the expiration of the current agreement in 2013.

[16] The ARTBIU further contended that:

• The requirement of “genuinely trying to reach an agreement” does not equate to an “unrevised and unchanging position to be put in bargaining”;



• Where a “no vote” has increased significantly, it would be prudent for an employee organisation to go back to its members to find out what they want;



• The Rail Commissioner had been in receipt of the July 2016 claims for approximately six weeks before the ARTBIU made its PABO application and is yet to provide a response. The ARTBIU’s right to seek a PABO should not be “held hostage to the failure of the Respondent to provide responses”; and



• There is no evidence for the contention that the ARTBIU’s change in position was in any way related to some of its members now electing Mr Collis as their bargaining representative.

[17] Mr Phillips, the Branch Secretary, gave evidence on behalf of the ARTBIU and provided much of the context for their position.

[18] The ARTBIU also opposed the granting of an extended period of notice (for the taking of industrial action) in relation to the additional categories of industrial action sought by the Rail Commissioner. In particular, it submitted that interruptions to service were a daily occurrence and that there were no exceptional circumstances associated with the particular industrial action warranting the extended notice period.

[19] The Rail Commissioner contended that the ARTBIU may have been, but is not now, genuinely trying to reach an agreement within the meaning of the Act. It contended as follows:

• The test for “genuinely trying to reach an agreement” is twofold in that the Commission must be satisfied that the ARTBIU has been and is genuinely trying to reach an agreement;



• The ARTBIU met the requirements of “genuinely trying to reach an agreement” up until it submitted its July 2016 claims;



• The idea that bargaining had to “start from scratch” after the second “no vote” cannot be justified if the ARTBIU was genuinely trying to reach an agreement;



• The July 2016 claims are so fundamentally different from the April 2016 claims that it bears no resemblance to the earlier position and cannot be seen as an attempt to reach an agreement;



• The July 2016 claims could be understandable if it were an initiating and original log of claims. However “it occurs against a factual background of long term bargaining and formal positions” put by the ARTBIU;



• The July 2016 claims more closely resembles the original log of claims, provided to the Rail Commissioner in 2014. However, even if it is accepted that returning to its original position, after two years of bargaining, means the ARTBIU is “genuinely trying to reach an agreement”, the July 2016 claims are still larger in size and ambit than the original claims;



• The ARTBIU lodged their PABO application without awaiting a response from the Rail Commissioner. It did so because it had no interest in any such response as it knew its July 2016 claims were so “grandiose and improbably extensive” that it was bound to be rejected; and



• The real motive behind the more extensive July 2016 claims was to “win back” some of its members that have now appointed Mr Collis as their bargaining representative. This switch, of some 100 members, coincides with the involvement of the ARTBIU National Office and the July 2016 claims. The Commission is entitled to take these factual circumstances into account.

[20] The Rail Commissioner also contended that if the Commission found that the July 2016 claims met the “genuineness test”, this will allow the ARTBIU to subsequently adopt a further, more extensive, log of claims in order to advance its position and for it, as the employer, to do likewise and that this would not be appropriate.

[21] The Rail Commissioner submitted that if the Commission were to grant the PABO, the Order should include a notice period of five working days for the following protected industrial action types:

• Periodic or indefinite bans on the performance of overtime;



• Periodic or indefinite bans on performing higher duties;



• Periodic or indefinite bans on dual boarding and amalgamation of Train Control boards and Train Graphs; and



• Periodic or indefinite bans on uncoupling Railcars.

[22] Mr Robert Stopp, Director, Rail Operations, gave evidence on behalf of the Rail Commissioner. This evidence went to the potential impact of the above proposed industrial action, which included service delays, stoppages, cancellations and safety risks. The Rail Commissioner contended that this evidence was not effectively challenged and that the Commission is entitled to accept the evidence as fact. Further, it contended that the ARTBIU has failed to show the Commission how the current proposed forms of industrial action differ from those where the Commission has previously decided that exceptional circumstances exist.

[23] The Rail Commissioner also contended that the closing date for the ballot should be 25 working days from the grant of the PABO, rather than the normal 20 days sought by the ARTBIU. This is because of complexities that arise from some ARTBIU members having now nominated Mr Collis as their representative who, although remaining as ARTBIU members, would not be entitled to vote in the PAB.

3. The requirements for the making of a ballot order

3.1 The immediate statutory provisions

[24] 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

[25] 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.

[26] 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 7 and by the Federal Court in J.J. Richards & Sons Pty Ltd v Fair Work Australia.8

[27] 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.

[28] 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,⁹ whether the action is notified in accordance with the requirements of the Act,¹⁰ and whether it is industrial action within the meaning of the Act.¹¹ 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,¹² or causes significant economic harm.¹³ Industrial action that is not protected industrial action may be prevented.¹⁴

4. Has the ARTBIU been genuinely trying to reach an agreement with the Rail Commissioner and is it still doing so?

[29] It is not in dispute that the ARTBIU has been genuinely trying to reach an agreement. What is in issue is whether it is still doing so given more recent developments including the provision of the July 2016 claims. Unless I am persuaded that this is the case here, the ARTBIU is not in a position to have a PABO made.

[30] In Total Marine Services Pty Ltd v The Maritime Union of Australia¹⁵ (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.”

[31] In JJ Richards & Sons Pty Ltd v Fair Work Australia¹⁶ the Federal Court was dealing with a circumstance where the employer had refused to bargain. Flick J determined, in effect, that the Commission cannot reach a state of satisfaction that an “applicant ... is ... genuinely trying to reach an agreement with the employer” unless:

● an applicant has approached the employer and informed the employer of the general ambit of that for which agreement it sought; and

● the employer has foreshadowed - even in the most general terms - its attitude as to the proposed agreement.¹⁷

[32] Flick J also went on to observe in the same decision that the above “minimum statement” was “sufficient to dispose of the present application however more may be required and much may well depend on the factual scenario in which the terms of s.443(1)(b) are to be applied.”¹⁸

[33] I note further that Flick J also observed that the addition of the term “genuine” in the phrase genuinely trying to reach agreement “serves to emphasise the importance of a person actually trying to solicit agreement.” His Honour continued that:

“[u]ntil a proposed agreement has been disclosed to the prospective parties, and that response elicited, an applicant has not even tried to reach agreement - let alone genuinely tried to reach agreement.”¹⁹

[34] In 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 SunRice²⁰(Ricegrowers) Watson VP was dealing with circumstances where a proposed agreement arising from the bargaining representatives was rejected by the employees. He observed:

“[9] The determination of whether the applicant unions are genuinely trying to reach an agreement involves a finding of fact based on all of the relevant circumstances. In this case there have been extensive negotiations and two failed ballots. The negotiations are well advanced. Ricegrowers relies on the rejection of the Agreement in the face of endorsement by the bargaining representatives and what it sees as unreliable or unrepresentative statements as to positions put by bargaining representatives on behalf of their members.

[10] In my view a bargaining representative may not be genuinely trying to reach an agreement if it puts positions which are at odds with the views of those it purports to represent. However on the evidence before me I am unable to reach such a conclusion. The negotiations have obviously been difficult and protracted. I am satisfied that the endorsement of the Agreement by bargaining representatives was bona fide but obviously reflected a fine balance. It is also clear that some employees, including those involved in, or close to the negotiations did not endorse the Agreement.

[11] As the result of the ballot indicates, the campaign against the Agreement carried more weight than the endorsement of it by the bargaining representatives. The employees made a decision which was open to them and effectively rebuffed the position of their representatives. In my view these circumstances do not amount to the bargaining representatives not genuinely trying to reach an agreement.

[12] After the ballot result was declared the unions conveyed a position for a new agreement which was a departure from the approach taken in the negotiations to date insofar as it sought a rollover of existing provisions rather than a completely revised agreement. Ricegrowers contends that this casts further doubt on the efforts being made by the unions to reach an agreement.

[13] In my view the position does not amount to the unions not genuinely trying to reach an agreement. The second rejection of the Agreement was a major setback for Ricegrowers - but also for the bargaining representatives. In order to continue to bargain effectively they needed to proceed with considerable caution.

[14] The position advanced by the applicant unions and CEPU in their letter of 6 December 2010 appears to be a reversion, and makes it very hard for Ricegrowers to address particular issues of concern within the previous agreement framework. However given the recent history the approach is to an extent understandable. It proposed one way forward. It did not preclude others. From Ricegrowers perspective it was unhelpful. However it did not mean that the unions were not genuinely trying to reach an agreement.”

[35] I note that in this matter, the second rejected agreement proposal was not endorsed by the ARTBIU but there are some parallels with the circumstances evident in Ricegrowers.

[36] In the original Total Marine decision,²¹ Thatcher C stated as follows:

“[126] I agree with the MUA submission that there is nothing in Division 8 that would require FWA, in determining applications for protected action ballot orders, to supervise the conduct of bargaining representatives in relation to the employees they represent.

[127] The absence on the part of TMS of knowledge of the contact between MUA officials and the relevant employees is not a relevant consideration in dealing with this application.

[128] The process of allowing bargaining representatives to determine whether employees wish to engage in particular protected industrial action for the purpose of supporting or advancing claims is far different to the process for the approval of enterprise agreements, which includes the requirement (s.180(5)) that the employer take all reasonable steps to ensure that the terms of the agreement and the effect of those terms are explained to the employees. Also, the employer gives affected employees a copy of, or access to, the proposed agreement and certain other material prior their approving the agreement.”

[37] It is, in my view, important to appreciate that the Commissioner was dealing with the following submission made by the employer:

“[125] The TMS representative submitted:

“A bargaining representative on its ordinary natural meaning clearly means a representative of someone, and representative is to represent someone's views. Now, how on Earth an applicant could argue that there's good faith bargaining going on or, more particularly and more relevantly, there's a genuine try to get as far for an agreement which under this Act is made between the employer and the employee, and how it can say it's genuinely trying to do that as a bargaining representative, which is what section 443(1) requires, without some evidence that it is representing views, in other words, there has been some communication between employees and the union is, in my submission, beyond me.”

[38] In Total Marine, the Full Bench, stated:

“[34] Commissioner Thatcher considered whether the MUA was impermissibly mixing its claims for an enterprise agreement with claims for other types of agreement and found that it was not. He considered whether there was a need to demonstrate that the MUA was representing the views of employees it purported to represent and determined that the Act did not require that type of supervision. We believe he was correct in this view.”

[39] When seen in context, I do not understand the Full Bench in Total Marine to be suggesting that the conduct of a bargaining representative in properly representing its members cannot be a relevant consideration. Rather, it was not necessary for the Commission to supervise the internal processes of a bargaining representative, or seek evidence in order to confirm that it was representing the views of its members.

[40] I would respectfully agree with the approach evident in Ricegrowers. That is, in some, but probably rare, cases it may be appropriate to consider whether a bargaining representative has been putting forward proposals that it knows are at odds with its members’ position. That conduct, in appropriate circumstances, may indicate that the bargaining representative is not genuinely seeking an agreement, and may for instance, be negotiating with an ulterior motive.

[41] 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

[42] The evidence of Mr Phillips, which I accept, was that in relation to each of the revised claims, the ARTBIU had consulted with the membership as part of formulating its position. It is the case that the July 2016 claims represents a significant departure from the nature and extent of the matters advanced as part of the April 2016 claims. They are in many ways a reversion back to the original log of claims with some significant added scope.

[43] I am inclined to the view that part of the motivation for this development is a response to the fact that Mr Collis is now acting for a significant part of its membership. However, that has been evident since late March 2016, including at the time that the ARTBIU put forward its April 2016 claims. What has changed more significantly is that the second proposed agreement was rejected by the employees and this has, not surprisingly, led the union to, in effect, revise its entire approach to the bargaining and to adopt a different bargaining position.

[44] Based upon the long history of negotiations in this matter, it would be evident that the Rail Commissioner was unlikely to willing accede to many of the July 2016 claims. This has two potential consequences. Firstly, the fact that the ARTBIU did not wait for a response from the Rail Commissioner before bringing this application, is not an indication that the union is not genuinely trying to reach an agreement. That is, the response could have been provided by the Rail Commissioner in the intervening period and in any event the ARTBIU would reasonably expect that the majority of the claims would be rejected.

[45] Secondly, the fundamental change in position could in some circumstances be indicative of a party not genuinely pursuing an agreement but rather acting for some ulterior motive. Whilst I accept that the influence of Mr Collis’ involvement may well be a factor, the context and evidence reveals that the overriding objective of the ARTBIU is to change the bargaining dynamic and to produce a response from the Rail Commissioner that is more in line with its members’ expectations.

[46] That fact that the revised position could be counterproductive in the short-term and may not have that result, or may represent arguably excessive ambit, does not mean that that ARTBIU is not genuine in its efforts to achieve an enterprise agreement given the long and problematic negotiations to that point.

[47] The Rail Commissioner advanced the proposition that if the union was found to be genuinely trying to reach an agreement in the context of the significant change in position, this could lead to subsequent future revised positions whenever the membership of the union instructed it to do so. Further, it was suggested that such a finding could also lead it, as the employer, to “start from scratch” and to adopt an “extensive and extreme log of claims” in response.

[48] In the context of a bargaining process, I would accept that if a party fundamentally changed its bargaining position without reason, this could lead to the view that it was not genuinely trying to reach an agreement. It could also bring into question whether it was meeting the good faith bargaining provisions of the Act. 23 In this case, the rejection of the second proposed agreement and further consultation with members has provided a context for the revised position. The adoption of the revised position by the ARTBIU and the rejection of the second proposed agreement would also represent a significant change in circumstances that might objectively lead to a revised position by the Rail Commissioner. Even if that involved changes to previously offered proposals as part of a revised proposition, that would also not be an indication that the Rail Commissioner was not genuinely trying to reach an agreement. Whether the revised position does actually produce that result is of course a different matter.

[49] It is also the case, for reasons outlined earlier in this decision, that a bargaining representative must seek and represent the views and interests of its constituency.

[50] On balance, I am satisfied that the ARTBIU has been, and is, genuinely trying to reach an agreement with the Rail Commissioner.

5. Should an extended period of notice be required for some forms of proposed industrial action?

[51] The Rail Commissioner sought that written notice of five 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.

[52] As is set out in the May 2015 decision, the approach to exceptional circumstances in this context was discussed by Lawler VP in CEPU v Australian Postal Corporation 24 (CEPU), which concerned an equivalent provision of the Workplace Relations Act 199625 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.

...

[21] Essentially, what is required in determining whether exceptional circumstances justify an extension of the required notices period is a weighing of the interests of the employer and third parties in the employer having a greater opportunity to take appropriate defensive action as against the diminution in the effectiveness of the employees’ bargaining power that results from such an extension. The fact that the legislature has seen fit to condition the ordering of an extension of the required notice period on the presence of exceptional circumstances justifying it, as distinct from merely conferring a simple discretion to extend the required notice period, indicates that ordinarily there should be no extension.

[22] The first example provided in Davids Distribution provides an illustration of where exceptional circumstances may justify an extension of the required notice period. A sophisticated piece of plant, such as a smelter, may take many days to shut down without damage. The employer is exposed to wholly disproportionate damage if it is prevented by too limited a notice period from undertaking an orderly shutdown of the plant. A further example may be afforded by a strike by teachers where the school needs to be able to notify parents of the strike so as to give them an opportunity to make alternative arrangements for the care of their children on the days of the strike. Typically, three working days will be insufficient for this purpose.”

[53] 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.

[54] In the May 2015 decision, the forms of potential industrial action where the additional notice was required were:

● An unlimited number of stoppages of the performance of work for 2 hours;

● An unlimited number of stoppages of the performance of work for 4 hours;

● An unlimited number of stoppages of the performance of work for 8 hours;

● An unlimited number of stoppages of the performance of work for 24 hours; and

● An indefinite ban on the performance of overtime.

[55] There were 15 forms of industrial action where additional notice was not sought (or granted) as part of the May 2015 decision, which included bans on revenue collection, some reporting functions, the provision of some train planning information, non-critical training, wearing company uniform (except Personal Protective Equipment) and the towing of EMU 26 railcars.

[56] In this case, the ARTBIU accepted that the additional notice is appropriate for the stoppages of work but not the proposed overtime bans that the employer again raised in that regard. The Rail Commissioner also sought that the additional notice be applied to three other forms of actions, being:

● Periodic or indefinite bans on performing higher duties;
● Periodic or indefinite bans on dual boarding and amalgamation of Train Control boards and Train Graphs; and
● Periodic or indefinite bans on uncoupling Railcars.

[57] The latter two of these bans were not part of the May 2015 PABO.

[58] In order to warrant an extended period of notice, 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. Notwithstanding the May 2015 decision, the circumstances of the present application, in light of the evidence, must be the fundamental consideration.

[59] As made clear in CEPU 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.

[60] In this case, the Rail Commissioner relied upon the following factors to demonstrate exceptional circumstances that warranted the extended period of notice:

● The nature and extent of the train services as a fundamental part of Adelaide’s public transport network;
● The consequences of the relevant potential industrial action and the complexity of planning and implementation of contingency arrangements;
● The requirement to advise passengers, particularly those with special needs, of the actual arrangements ahead of the industrial action taking effect and the potential consequences of not being able to do so; and
● The nature of major events, particularly those at Adelaide Oval, and the fact that these were largely staffed using (or impacting upon) overtime arrangements.

[61] In the May 2015 decision I found as follows:

“[20] In general terms, the evidence of Mr Stopp was largely unchallenged and I accept it. Having regard to that evidence, I find that the following circumstances exist:

• A large part of Adelaide’s public transport network is provided by the train service operated by the Rail Commissioner. This includes operations over 7 days per week and 23 hours per day, with something in the order of 45,000 passenger journeys per day;
• The network involves four main lines (and two branch lines) and during peak times and major events almost all of the 130 units of rolling stock are utilised;
• The train service is designed to be fully accessible to special needs passengers and these include passengers who may be intellectually and/or physically disabled and vision impaired. School children and the elderly are also catered for within the rail services; and
• The proposed enterprise agreement would cover approximately 300 of the 450 staff of the Rail Commissioner, including those who operate the trains and control the train network.

[21] The tram service that is also operated by the Rail Commissioner involves only a single line and whilst industrial action would impact upon the public, that impact is small compared to the rail network.

[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 these findings in the context of the evidence provided in this application and the changed circumstances. Those changed circumstances include the fact that the ARTBIU now represent a smaller proportion of the group of employees involved. However, I am unable to determine whether their members, who remain represented by the union as a bargaining representative, are confined to certain areas and/or whether they are in critical positions that might have a particular impact on the operations of the rail network.

[63] In general terms, and subject to the above caveat, the findings made in the May 2015 decision remain apposite.

[64] 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.  27

[65] 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, train control and uncoupling bans could have the same impact as the more extensive work stoppages. Although Mr Stopp accepted that there were, in the normal course, some regular interruptions to services, the foreseeable consequences of the proposed industrial action are significantly more serious than the inconvenience of the daily interruptions being referenced by Mr Stopp in that regard.

[66] In reaching my conclusions, I have also considered the fact that the potential ban on performing higher duties was not subject to the extended notice as part of the May 2015 decision. The Rail Commissioner did not seek an extended period of notice at that time and no evidence was led in that respect. The evidence of Mr Stopp, which I accept, is that depending upon the nature of the ban as notified and those involved, that ban had the potential to shut down the Adelaide Rail Station. In the context of the considerations outlined above, there are also exceptional circumstances associated with this form of industrial action that warrant a period of extended notice.

[67] In terms of the balance of considerations contemplated in CEPU, 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.

[68] 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.

[69] In terms of the length of the extended minimum notice period, five days was determined by the Commission as part of the May 2015 decision, was accepted by the ARTBIU in relation to some of the forms of industrial action, and was the period sought by the Rail Commissioner. A minimum period of five working days is appropriate to deal with the exceptional circumstances.

6. The form of ballot order

[70] Subject to some 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 20 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 also note that the AEC, as the protected action ballot agent, may make an application under s.447 of the Act to vary the PABO if the difficulties in determining the role of voters, or other circumstances, mean that it is not able to reasonably conduct the ballot within the specified timeframe.

[71] I have also confirmed the group of employees by reference to the existing enterprise agreement (which reflects the scope of the present bargaining) and as to those employees for whom the ARTBIU is acting as a bargaining agent. This arises from s.437(5) of the Act and the need for this approach was properly raised by the Rail Commissioner, and acknowledged by the union, during the hearing of this matter.

[72] Given my findings, I have also included the additional notice of industrial action for the nominated forms of potential industrial action as determined above.

7. Conclusions and orders

[73] 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.

[74] Accordingly, I was obliged to, and did, issue the PABO on 17 August 2016.

[75] I 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. Given the lengthy and somewhat problematic nature of bargaining to this point, this might be a useful alternative to the present strategies.

COMMISSIONER

Appearances:

M Diamond for the Australian Rail, Tram and Bus Industry Union.

S Bakewell with M Hii of EMA Consulting (as a bargaining representative) for the Rail Commissioner.

Hearing details:

2016

Adelaide with a video link to Sydney

11 August.

Final written submissions:

12, 15 and 16 August 2016.

 1  Australian Rail, Tram and Bus Industry Union v Rail Commissioner[2015] FWC 3415.

 2   PR584014.

 3   [2011] FWAA 8834.

 4   As required by section 174 of the Act.

 5 Section 437(2A) of the Act.

 6   Exhibit R1.

 7   [2010] FWAFB 526.

 8 [2012] FCAFC 53.

9 Sections 437, s 408 and 409 of the Act.

10 Section 414 of the Act.

11 Section 19 of the Act.

12 Section 424 of the Act.

13 Section 423 of the Act.

14 Section 418 of the Act.

15 [2009] FWAFB 368, per Watson VP, Hamberger SDP and Roberts C.

16 [2012] FCAFC 53.

17 JJ Richards & Sons Pty Ltd v Fair Work Australia [2012] FCAFC 53 at PN58.

18 Ibid.

19 Ibid at PN59.

20 [2010] FWA 9822.

21 The Maritime Union of Australia v Total Marine Services Pty Ltd[2009] FWA 187.

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.

 23   Section 228 of the Act. See also Australasian Meat Industry Employees' Union v G & K O'Connor Pty Ltd [1999] FCA 310.

 24   [2007] AIRC 848.

 25   Section 463(5).

 26   EMU is an electric rail car that must be towed by diesel/electric cars in order to access some maintenance facilities.

 27   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.

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