Australian Workers' Union, The v ISS Facility Services Pty Ltd T/A ISS World

[2020] FWC 5511

[2020] FWC 5511

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.437—Protected action

Australian Workers’ Union, The
v
ISS Facility Services Pty Ltd T/A ISS World
(B2020/632)

COMMISSIONER WILSON MELBOURNE, 16 OCTOBER 2020

Proposed protected action ballot of employees of ISS Facility Services Pty Ltd – Section 443(5) - Whether exceptional circumstances justify extended notice period for employee claim action – Exceptional circumstances not found – Period not extended

[1] The following are my reasons for a decision disclosed to the parties at the conclusion of the hearing on Thursday, 15 October 2020.

[2] The Australian Workers’ Union (AWU) has made an application for a protected action ballot order (PABO) pursuant to s.437 of the Fair Work Act 2009 (Act). The application seeks a ballot be conducted of 6 employees of ISS Facility Services Pty Ltd (ISS) employed to perform sweeping of Melbourne tram lines for the safe operation of trams. The employees are involved in bargaining for an enterprise agreement to replace one presently operating, the ISS Sweeping Division (Vic) Collective Agreement 2009 1 the nominal expiry date of which was 12 June 2012. The AWU is the bargaining representative for the employees in question.

[3] Section 441 of the Act provides that the Commission must, as far as practicable, determine an application for a PABO within two working days after the application is made. The application was made on Friday, 9 October 2020 and on Monday, 12 October 2020, in response to correspondence from the Commission, ISS advised it did not object to the application as such, however sought the Commission exercise its discretion under s.443(5) of the Act to extend the period of written notice beyond 3 working days to 7 working days on the basis that there are exceptional circumstances that justify the extension. The matter was allocated to my Chambers late on Wednesday, 14 October 2020 and was listed for hearing at 2.00PM on Thursday, 15 October 2020.

[4] Mr Craig Winter, an Industrial Officer with the AWU appeared for the Applicant at the hearing and Mr Jed Moore, ISS General Counsel appeared for ISS with Mr Neil Bailey, Open Space Operations Manager. Mr Rory Mackintosh, an AWU Organiser provided the statutory declaration required by the Fair Work Commission Rules in support of the making of the application as well as a short witness statement setting out a number of background matters. Both Mr Mackintosh and Mr Bailey provided oral evidence.

[5] The application made by the AWU is for a ballot to be conducted of employees by the Australian Electoral Commission with the ballot closing 30 working days after an Order is issued by the Commission. A single rolled-up question of 6 elements is proposed to be put to employees. The proposed question asks those being balloted whether they “authorise the following protected industrial action against your employer, which may be engaged in separately, concurrently and/or consecutively”. Five of the elements of the rolled-up question ask authorisation for successively increasing length of “stoppages of the performance of all work” ranging between one minute’s duration and indefinite. The sixth element invites approval of “[a]n unlimited number of periodic and/or indefinite bans on the major repair of equipment”.

[6] Section 437 of the Act enables a bargaining representative to apply for a PABO subject to the requirements set out therein and the Commission must make a protected action ballot order in relation to a proposed enterprise agreement in the circumstances set out in s.443. Section 443 relevantly provides”

“(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.”

[7] In particular it is to be noted that the Commission must make an order if there is an application under s.437 and it 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.

[8] There is no argument before me that the requirements of s.443 have not been met. The statutory declaration of the AWU’s Mr Mackintosh states his union is a bargaining representative and that he believes the AWU has been genuinely bargaining to reach agreement. In support of his belief he has referred to the process of bargaining, which included agreement from ISS to commence bargaining in July 2018; the provision of a log of claims by the AWU; eight bargaining meetings having been held with ISS in the two year period between 13 September 2018 and 10 September 2020; and a stated preparedness to be willing to further adjust or relinquish claims as bargaining further progresses.

[9] I am satisfied on the material before me that the statutory criteria are met and that the Commission must therefore make an order pursuant to s.443 of the Act.

[10] Before doing so though, consideration must be given to ISS’s submission that the circumstances of the matter enliven the discretion in s.443(5) to extend the notification period for the taking of protected industrial action from 3 working days to 7 working days. The AWU do not agree the provisions of the section are enlivened and submitted the notification period should remain at the standard. Section 443(5) is in these terms:

“(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.”

[11] ISS submissions about whether there are exceptional circumstances justifying a longer period for the notification of protected industrial action include that the work subject to the application involves the sweeping of the tram tracks in Melbourne, without which the tram network may not be able to operate. This is because the work of the employees in question is to mechanically sweep and clean various elements, including the top surface of tram lines. The importance of the work is explained thus:

“If the sand utilised by the trams in braking is not cleared from the tracks it can prevent trams from being able to stop or accelerate and creates a risk of power surges and possible electrocution due to electricity being conducted through the sand into the tram.” 2

[12] ISS notes that despite some restrictions to usual services as a result of the COVID-19 pandemic, the tram network remains crucial as a means of public transport for essential workers who are continuing to attend work during the current restrictions. Should there be protected industrial action taken by the employees concerned, noting that the AWU has as members 6 of the 7 employees engaged in the work involved, ISS may be unable to provide the necessary services which in turn means the tram service may be impacted by delays or cancellations which may have significant effects on “many third parties, including the travelling public who will be inconvenienced by the disruption and may impede essential workers from being able to attend their work”. ISS may in turn be exposed to financial penalties from Yarra Trams or Public Transport Victoria. ISS submitted that its capacity to provide its services would be significantly limited by protected industrial action taken with only 3 days’ notice. It does not have other locally employed staff who could undertake the work concerned and may be unable to find requisite staff to replace those taking industrial action. In order to undertake the work, a person needs to have a Medium Rigid truck license, have experience in driving mechanical sweeping trucks and to have undertaken a safety induction with Yarra Trams.

[13] The Full Bench has held in National Tertiary Education Industry Union v Charles Darwin University 3 (NTEU) and endorsed in Construction, Forestry, Maritime, Mining and Energy Union v DP World Brisbane Pty Ltd and Others4 (DP World) that applications for an extended notice period under s.443(5) require probative evidence, with the Commission needing to be satisfied both that there are exceptional circumstances that would warrant an extended period, and that it is appropriate to grant an extended notice period. In this regard, the Full Bench stated that to grant an extended period of notice is to interfere with the right of a bargaining representative and its right to provide three working days’ written notice of industrial action and therefore it should not lightly be curtailed without evidence justifying the grant of such power.5 The Full Bench went on to summarise the steps to be taken by the Commission when determining whether to grant such power:

“[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).” 6

[14] The expression “exceptional circumstances” requires consideration of all the circumstances; “[t]o 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.” 7 There is not exceptionality merely on the basis that industrial action might result in adverse consequences for third parties, since a consequence of industrial action is that detrimental effects on suppliers, customers or subcontractors of the employer is an ordinary incident of protected industrial action,8 with DP World finding that “on no basis could it be said that the simple fact that protected industrial action has effects upon third parties requiring ameliorative steps to be taken is “out of the ordinary course”, “special”, “rare” or “uncommon” such as to constitute the requisite exceptional circumstances”.9

[15] The circumstances submitted by ISS are that it employs a small number of people to maintain the Melbourne tram lines. Six of the seven people it engages for this work are members of the AWU. Insufficient notice of protected industrial action may mean some or all of its sweeping work is not carried out or is delayed. That in turn may delay or stop some Melbourne trams which in turn would inconvenience passengers. Insufficient notice may mean ISS has insufficient time to make alternative arrangements for the work, which needs to be undertaken by skilled and licensed people. The problems it encounters in this regard may be heightened because of the COVID-19 pandemic; in particular, there is a pressing need for the tram service to continue to be available.

[16] Of these elements it could be said that the thing which is out of the ordinary course, or unusual, or special, or uncommon is the need for employees undertaking the work to have both a Medium Rigid truck license AND have experience in driving mechanical sweeping trucks. There is though no evidence before me about the extent of that experience or where someone would turn for potential employees with such experience. It is not said by ISS that the experience may only be with mechanical sweeping trucks involved in rail maintenance. The COVID-19 pandemic is also an exceptional circumstance, both for reason of the need to ensure an essential service continues to be available to the community, 10 as well as because finding skilled replacement workers may be harder during the pandemic.11

[17] There is evidence from both parties that other firms can and have been engaged at relatively short notice for the performance of rail sweeping work. The evidence also includes that the work is organised around a routine of one sweeping truck on dayshift and three on night shift. Employees are assigned to trucks and trucks in turn are assigned to defined routes.

[18] ISS argue that the community’s heightened expectations about essential services as a result of the COVID-19 pandemic increases the need for rails to be swept and properly maintained, in order for the essential tram service to continue uninterrupted. Against that submission, the AWU argued the number of employees involved and the fact they are just a small component of the overall tram service means the pandemic itself does not mean there is exceptionality. The fact that Yarra Trams arranged another service provider to take over from ISS at very short notice of less than one day earlier in the year when ISS employees were required to self-isolate proves an extension is not required for the purposes of the PABO.

[19] I consider the evidence in this matter is distinguishable from that under consideration by Commissioner Hampton in RTBIU v Rail Commissioner. 12 In that matter the Commissioner was dealing with a PABO application involving up to 300 employees working across the entirety of the Adelaide rail network and took into account in his finding of exceptional circumstances the possibility that industrial action may have significant disruption which would require substantial planning to avoid.13

[20] In Sydney and Brisbane Container Terminals, 14 which also made findings of exceptional circumstances for the purposes of s.453(5), Deputy President Asbury took account of the likelihood of significant problems for shipping if a greater period for the notification of protected industrial action were not allowed. Those problems include spoilage of cargo15 as well as the limited alternative arrangements that could be made for container handling by other stevedores.16

[21] I have considered and taken into account all of the evidence in this matter. If there were no evidence before me to the effect that alternative service providers can be sourced to replace ISS if need be in the event of protected industrial action and at relatively short notice, I would have been persuaded there were exceptional circumstances of the nature required to be found under s.443(5). However, the fact there are alternative providers and that such providers have previously been engaged to replace ISS leans against a finding of exceptionality in this case.

[22] I therefore do not find exceptional circumstances.

[23] Further, I do not consider that such circumstances as do exist would justify a longer notice period.

[24] For protected industrial action to be taken requires the action to be approved by a protected action ballot which will not be completed for another 30 days. The action must then be notified but does not need to be notified if bargaining resumes or such impasse as there may be is overcome with sufficient progress made as to persuade employees there is no need for protected industrial action.

[25] The arguments put by ISS are mainly to do with its capacity to make alternative arrangements in case there actually is protected industrial action, as well as the potential for disruption to its clients or their passengers. Respectfully, if those things are foreseeable ameliorative arrangements could be planned well in advance with preliminary steps also taken well in advance.

[26] As a result of these matters an order will be issued by me in the terms sought by the Applicant.

[27] In closing I indicate that the Commission stands ready, pursuant to s.240 of the Act to assist the parties with any bargaining dispute that arises and both parties are encouraged to consider seeking the assistance if the matter progresses to the point of protected industrial action.

COMMISSIONER

Appearances:

Mr C. Winter for the Applicant
Mr J. Moore for the Respondent

Hearing details:

2020.
Melbourne (via video);
15 October.

Printed by authority of the Commonwealth Government Printer

<PR723595>

 1   AE874713.

 2   Exhibit ISS 1, Respondent’s Outline of Submissions, 13 October 2020.

 3   [2018] FWCFB 4011.

 4   [2019] FWCFB 1150, [13] – [16].

 5   Ibid, [20].

 6   Ibid.

 7   Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation[2007] AIRC 848, [10], endorsed in NTEU v Charles Darwin University[2019] FWCFB 1150, [14], and Construction, Forestry, Maritime, Mining and Energy Union v DP World Brisbane Pty Ltd and Others[2019] FWCFB 1150, [15].

 8   Ibid, [17].

 9   Ibid, [17] – [18]; with reference to Davids Distribution Pty Ltd v National Union of Workers [1999] FCA 1108, 91 FCR 463, at [87], (per majority, Wilcox and Cooper JJ).

 10   Exhibit ISS 1, [4].

 11   Ibid, [6].

 12   [2020] FWC 4587.

 13 Ibid, [61] – [62].

 14   [2020] FWC 3616.

 15   Ibid, [56].

 16 Ibid, [65] – [70].