"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
[2011] FWA 7473
•1 NOVEMBER 2011
[2011] FWA 7473 |
|
DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
(B2011/3790)
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(B2011/3792)
(B2011/3796)Australian Rail, Tram and Bus Industry Union
(B2011/282)
v
Queensland Rail
COMMISSIONER ASBURY | BRISBANE, 1 NOVEMBER 2011 |
Proposed protected action ballot - Exceptional circumstances - Extension of notice period - s.443(5).
Overview
[1] On 26 October 2011, the Australian Rail, Tram and Bus Industry Union (RTBU), the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) applied under s.437 of the Fair Work Act 2009 (the Act) for protected action ballot Orders. Those applications were in substantially similar terms. On 27 October 2011, the Australian, Municipal, Administrative, Clerical and Services Union (ASU) made an application under s.437 of the Act which was also in substantially similar terms to the applications filed by the AMWU, CEPU and the RTBU (collectively referred to hereinafter as the Unions).
[1] The applications sought such Orders in relation to employees of Queensland Rail Limited (QR) whose terms and conditions of employment are covered by the Infrastructure Projects Union Collective Agreement 2009; the Civil Maintenance Union Collective Agreement 2009; the Electric Control Operators Union Collective Workplace Agreement 2009; the Trackside Systems Union Collective Agreement 2009 and Facilities Union Collective Workplace Agreement 2009 and who will be covered by a proposed enterprise agreement.
[2] Directions were issued on 26 October 2011 for the hearing and determination of the applications, requiring QR to provide a response indicating whether it objected to the making of the Orders and whether it sought to have its objections heard by Fair Work Australia (FWA). The Directions also required the Unions and QR to file outlines of submissions and statements from any witnesses whose evidence was to be relied on in proceedings relating to the applications. On 27 October 2011, QR advised in accordance with the Directions, that QR would not be opposing the making of the protected action ballot Orders, but would seek an Order from FWA under s.443(5) of the Act, that the notice period for protected industrial action be extended from three working days to seven working days, as provided in s.414(2)(b) of the Act.
[3] QR further advised that it had reached agreement in principle with the Unions with respect to the extension of the notice period for protected industrial action, with respect to certain employees, commitments going to safety matters and the removal of a ballot question dealing with track inspections.
Submissions and witness statements
[4] All parties filed outlines of submissions. The Unions also filed the following witness statements in support of the applications:
● Steven Ernest Franklin, State Organiser, AMWU;
● James William Mattner, Senior Industrial Officer, ASU;
● Peter Jason Young, State Organiser, CEPU; and
● Ross Schimke, Organiser, RTBU.
[5] The submissions and witness statements filed by the Unions went to the requirements set out in Division 8 of the Act, in relation to applications for protected action ballot orders. The submissions also indicated that agreement had been reached with QR to the effect that it would be appropriate for the protected action ballot Orders sought by the Unions to require that the Unions give seven days notice of the intention to take protected industrial action with respect to Electric Control Operators and Fault Control Co-ordinators. These employees are members of and/or are covered by the ASU, CEPU and RTBU.
[6] The Unions also set out in their submissions and witness statements, undertakings to the effect that notwithstanding any protected industrial action that might be occurring, members will undertake work necessary to ensure the safety of the general public, and workplace safety, such as clearing a broken down train from a track. The Unions have also given undertakings that work known as “walking the road” or “running the road”, which is a process of inspecting the track every 72 hours, will continue. The undertakings given by each Union are as follows:
● AMWU - Paragraphs 4 and 42 of Submissions filed 27 October 2011 and email forwarded to Solicitors for QR at 9.46 am on 28 October 2011 (Attachment 1 QR Submissions);
● ASU - Further submission filed on 27 October 2011;
● CEPU - Paragraphs 4 and 42 of Submissions, paragraph 17 of the Witness Statement of Mr Young and email forwarded to Solicitors for QR at 11.29 am on 29 October 2011 (Attachment 2 QR Submissions);
● RTBU - Paragraphs 4 and 42 of Submissions and paragraph 19 of the Witness Statement of Mr Schimke.
[7] Amended applications were also filed by the Unions to reflect agreement to delete a question relating to track inspections from the Orders sought.
[8] On the basis of the agreement with the Unions in relation to additional notice of protected industrial action being provided by Electrical Control Operators and Fault Control Co-ordinators, the removal of the question dealing with track inspections, and the undertakings in relation to public and workplace safety, QR did not file witness statements and relied on its written submissions. QR also submitted that Fair Work Australia should exercise the discretion in s.443(5) of the Act to extend the notice period for protected industrial action for the abovementioned classifications of employee, on the grounds previously established in other cases: Australian Rail, Tram and Bus Industry Union and Ors v Queensland Rail [2011] FWA 6925 (7 October 2010) and Australian Rail, Tram and Bus Industry Union and Anor v Queensland RailLimited [2011] FWA 6073 (8 September 2011).
Statutory requirements for protected action ballot order to be made
[9] On the basis of the written submissions, and witness statements filed by the Unions and QR, I am satisfied that the statutory requirements for a protected action ballot Order to be made have been met. The applicant Unions are bargaining representatives for employees who will be covered by the proposed enterprise agreement, as required by s.437(1) and the agreement is not a greenfields or multi-enterprise agreement. In accordance with the requirement in s.437(3) the applications in each case, as amended, specify the group of employees who are to be balloted and the questions to be put to the employees including the nature of the proposed industrial action. The enterprise agreements covering the employees to be balloted have reached their nominal expiry dates, as required by s.438(1) of the Act. As required by s.440 of the Act the Unions have stated that they have given a copy of each application to QR and the Australian Electoral Commission within 24 hours after making the application.
[10] I am also satisfied, on the basis of the material set out in the applications, and the witness statements tendered by the Unions, that they have been, and are, genuinely trying to reach agreement with QR, as required by s.447(3)(b) of the Act. Further, I am of the view that the protected action ballot orders should require the action ballots in respect of the groups of employees represented by each of the AMWU, ASU, CEPU and RTBU to be held at the same time, pursuant to s.446 of the Act.
Extension of the period of notice of industrial action
[11] I am satisfied that FWA should exercise the discretion in s.443(5) of the Act, to extend the period of written notice required to be given before protected industrial action can be engaged in. Section 443(5) provides as follows:
“5) If FWA 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.”
[12] The power in s.443(5) is discretionary and its exercise is conditional on FWA being satisfied that there are exceptional circumstances justifying the period of written notice being longer than the three working days specified in s.414(2)(a) of the Act. For the reasons set out in ARTBU and Others v Queensland Rail Limited 1I am of the view that there are exceptional circumstances relating to the operations of Queensland Rail, such that an extension of the required period of written notice that must be given before protected industrial action can be taken, is warranted, where industrial action could bring the network to a stop. Those exceptional circumstances are that:
- QR is the most significant provider of public travel services in Queensland and there is no other transport provider that has the capacity to service all of QR’s customers.
- The geographical area over which QR’s services are provided is very large and encapsulates remote locations.
- Many of the users of QR’s services are vulnerable in that they are school students, elderly persons, patients seeking medical treatment and tourists on schedules with interconnecting activities.
- The logistical arrangements for notifying the travelling public and providing alternative methods of transport for them cannot be put into place in the three day period specified in s. 414(2)(a) of the Act.
[13] In the present case, the Unions and QR have agreed that it is appropriate for seven days notice to be given with respect to industrial action by Electrical Control Operators and Fault Control Co-ordinators. On the basis of that agreement, and undertakings by the Unions in relation workplace safety and the safety of the public, QR does not oppose the Order for a protected action ballot. As previously stated, the power to extend the notification period for protected industrial action is discretionary. The manner in which the power is to be exercised is also discretionary, and FWA may decide to extend the notice period for all employees or particular classifications, or for certain forms of industrial action. The length of the extension is also discretionary up to the seven day maximum. In the present case, I accept that the agreement between QR and the Unions about the terms of the extension provides an appropriate basis for the discretion to be exercised.
[14] Accordingly the applications for protected action ballot orders are granted. I have also decided that the discretion in s.443(5) to extend the notice period required to be given before protected industrial action can be taken, should be exercised in respect of Electrical Control Operators and Fault Control Co-ordinators. Employees in those classifications are members of and/or covered by the ASU, CEPU and RTBU.
[15] Orders will issue with this decision. The Orders relating to the applications by the ASU, CEPU and RTBU will also require that the period of notice for the purposes of s.414(2)(b) of the Act for industrial action by Electrical Control Operators and Fault Control Co-ordinators will be seven days.
COMMISSIONER
1 [2011] FWA 6073
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