Australian Rail, Tram and Bus Industry Union v Rail Commissioner

[2015] FWC 3415

[2015] FWC 3415

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
(B2015/534)

COMMISSIONER HAMPTON ADELAIDE, 22 MAY 2015

Proposed protected action ballot by employees of the Rail Commissioner - 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

[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 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] During the course of the hearing conducted in relation to this application on 18 May 2015, the Rail Commissioner did not oppose the PABO, however the employer 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.

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

[4] Having considered the matters arising from the application, including the evidence led by the Rail Commissioner, I issued the ballot order 1 on Tuesday 19 May 2015. The PABO included granting an extended notice period in relation to certain forms 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

[5] 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. 2 This enterprise agreement passed its nominal expiry date in December 2013 but remains in force under the terms of the Act.

[6] The ARTBIU is a bargaining representative for many of the employees to be covered by the proposed enterprise agreement. Bargaining commenced in August 2014 with the provision of an ARTBIU log of claims and various meetings (approximately 15) have been held between the bargaining representatives. Through those discussions, there has been in principle agreement and concessions made by the parties on many issues, however there is no agreement between the representatives on the full terms of the proposed enterprise agreement.

3. The requirements for the making of a ballot order

[7] 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.

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.”

[8] There is no contest that the ARTBIU is eligible to bring the application and that it has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted. The evidence and other material before the Commission is also sufficient to demonstrate satisfaction that all of the other requirements of s.443 of the Act have been met.

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

[9] 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.

[10] The approach to exceptional circumstances in this context was discussed by Lawler VP in CEPU v Australian Postal Corporation 3 (CEPU), which concerned an equivalent provision of the Workplace Relations Act 19964 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.”

[11] The exceptional circumstances relied upon in this case relate to the impact of work stoppages and overtime bans of the metropolitan train services, and the difficulties faced in that context. These difficulties included the time necessary to put appropriate contingency arrangements in place, and the need to give sufficient notice to the travelling public of the actual alternative arrangements.

[12] The forms of potential industrial action where the Rail Commissioner has sought to have the additional notice 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.

[13] The forms of industrial action where additional notice was not sought involved 15 other forms of industrial action including 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 5 railcars.

[14] 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.

[15] 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.

[16] 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 nature and needs to passengers including those with disabilities and special needs;
● 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.

[17] The Rail Commissioner led evidence from Mr Stopp, Director, Rail Operations.

[18] The ARTBIU opposed the contention that additional notice should be provided, largely on three grounds. Firstly, that metropolitan train services were common and not exceptional and that the taking of industrial action as part of a bargaining process was also not exceptional. Secondly, that the Rail Commissioner, who also operates a tram service in Adelaide, did not apply for extended notice as part of a recent PABO 6 involving that service. I apprehend that the ARTBIU also contended that this supports the notion that exceptional circumstances did not exist that would justify extended notice being provided in this case. Thirdly, that mere inconvenience to the Rail Commissioner that might be caused by the normal period of notice for industrial action was not sufficient to warrant the order sought by the employer.

[19] The ARTBIU did not lead evidence in relation to the extended notice period and did not seek an adjournment or other opportunity to do so. The Union did however cross-examine Mr Stopp and provided evidence going to merit of the PABPO itself. 7

[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.

[27] In terms of the balance of considerations contemplated in CEPU, it is evident that even with the additional notice associated with the relevant proposed action, 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 ARTBIUs bargaining power.

[28] In all of the circumstances, I am satisfied that there are exceptional circumstances and these justify an extended period of notice in relation to the nominated forms of proposed industrial action. 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. This is particularly so given the needs of some of those who use the services.

[29] I note that the nature of considerations that I have taken into account is consistent with approach taken by the Commission in other matters. 8 Clearly however, each case must be considered in its own circumstances.

[30] It is also evident 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.

[31] In terms of the length of the extension, the evidence of Mr Stopp supports the notion that a period of five working days is appropriate to deal with the exceptional circumstances. In that regard, I note, and have taken into account, that the term “working days” is defined in s.12 of the Act to be “a day that is not a Saturday, a Sunday or a public holiday.”

7. The form of ballot order

[32] 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, given the arrangements with the AEC and the requirements of s.443(3A) of the Act. I have also confirmed the group of employees by reference to the existing enterprise agreement (which reflects the scope of the present bargaining) and included reference to the potential exclusion of employees who are presently subject to an individual agreement-based transitional instrument, to reflect the operation of the Act. 9

[33] I have also included the additional notice of industrial action for the nominated forms of potential industrial action as determined above.

Appearances:

D Phillips of the Australian Rail, Tram and Bus Industry Union.

S Bakewell, Agent (with permission) with R Stopp for the Rail Commissioner.

Hearing details:

2015

Adelaide

May 18

 1   PR567508.

 2   [2011] FWAA 8834.

 3   [2007] AIRC 848.

 4   Section 463(5).

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

 6   PR566642 issued on 30 April 2015.

 7   Exhibit ARTBIU 1.

 8   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.

 9 Item 2 of Schedule 13 of Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.

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