“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v AGL Torrens Island Pty Ltd

[2013] FWC 8842

[2013] FWC 8842

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
v
AGL Torrens Island Pty Ltd
(B2013/1391)

And

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
AGL Torrens Island Pty Ltd

(B2013/1392)

And

The Australian Workers’ Union

v

AGL Torrens Island Pty Ltd

(B2013/279)

And

Australian Municipal, Administrative, Clerical and Services Union

v

AGL Torrens Island Pty Ltd

(B2013/280)

DEPUTY PRESIDENT BARTEL ADELAIDE, 11 NOVEMBER 2013

Proposed protected action ballots by employees of AGL Torrens Island Pty Ltd

[1] This decision relates to applications pursuant to s.437 of the Fair Work Act 2009 (the Act) by the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU), the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union (CEPU), the Australian Workers Union (AWU) and the Australian Municipal, Administrative, Clerical and Services Union (ASU) for protected action ballot orders in relation to employees of AGL Torrens Island Pty Ltd (AGL Torrens). The AMWU, CEPU, AWU and ASU are collectively referred to as “the Unions”.

[2] AGL Torrens sought leave to be represented by a lawyer pursuant to s.596 of the Act. This application was opposed by the Unions. Permission to be represented by a lawyer was granted on the basis that AGL did not have an available officer who was experienced in the presentation of a case before the Fair Work Commission (the FWC) and given the nature of the issues in dispute 1 I formed the view that representation would enable the matter to be dealt with more efficiently. In addition, each of the Unions was represented by an experienced official, and I considered that fairness between the parties would be assisted if leave to be represented was granted.

[3] In accordance with s.442 of the Act and by consent of the parties, the four applications were dealt with at the same time. The draft orders are in similar terms save that the draft orders sought by the ASU and AWU include an additional 4 questions to be put to ballot 2 in addition to the five questions that are common to all four draft orders (referred to hereafter as “the common ballot questions”).

[4] The employees to be balloted are covered by the AGL Torrens Island Pty Ltd Enterprise Agreement 2011, 3 (the Agreement) which has a nominal expiry date of 30 June 2013.

[5] Mr Snow, of counsel for AGL Torrens, accepted that the Unions have met the requirements of s.443(1) of the Act (set out below) and it does not oppose the granting of a protected action ballot for each of the respective groups of employees. However AGL seeks that an extended period of notice of industrial action is included in the respective orders, pursuant to s.443(5) of the Act.

[6] AGL Torrens also took issue with the breadth of the common ballot questions although its submission was primarily directed to putting the Unions on notice that the nature of any industrial action notified to AGL Torrens would need to include a greater level of detail as to the nature and duration of the industrial action. Mr Snow also relied on the breadth and expansive nature of the industrial action set out within the common ballot questions to bolster the case on the inclusion of an extended period of notice of industrial action in the ballot order.

[7] The common ballot questions are in the following terms:

“For the purposes of supporting or advancing claims in respect of the proposed Enterprise Agreement with your employer, do you authorise the following types of action to be taken either separately, concurrently or consecutively

1. An unlimited number of stop work meetings of varying duration of time?

Yes □ No □

2. An unlimited number of stoppages on the performance of work between 1 hour and up to and including 24 hours?

Yes □ No □

3. An unlimited number of stoppages on the performance of work between 1 hour and up to and including 48 hours?

Yes □ No □

4. An unlimited number of stoppages on the performance of work between 1 hour and up to and including 7days?

Yes □ No □

5. An unlimited number of ongoing bans on the performance of overtime and/or callouts?

Yes □ No □”

[8] At the conclusion of the hearing on 7 November 2013 I indicated that I regarded the common ballot questions as providing sufficient clarity to enable the employees eligible to vote in the respective ballots to make an informed choice on the nature of the action that may be taken. 4 While the industrial action contemplated by the common questions is broad ranging in terms of time frames and frequency, this is a separate matter to, and is not to be conflated with, the level of detail required in any notice to an employer of industrial action that will be taken.

The period of notice of industrial action

[9] AGL Torrens is a 1280 mega watt natural gas fired power station. It is the largest power producer in South Australia with the capacity to supply 40% of South Australia’s power requirements from 8 generating units, depending upon demand at any given time.

[10] Sections 414 and 443 deal with the notice of industrial action to be given to an employer, and relevantly provide that:

“414 Notice requirements for industrial action

Notice requirements—employee claim action

(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.

(2) The period of notice must be at least:

(a) 3 working days; or

(b) if a protected action ballot order for the employee claim action specifies a longer period of notice for the purposes of this paragraph—that period of notice.

...”

“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) ...

...

(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.”

[11] AGL Torrens argued that the nature of its operations and the requirements to safely manage the power generation equipment constituted exceptional circumstances that justified an extended period of notice of 5 working days. Mr James Edwards, the Operations Manager, AGL Torrens was called as a witness and a statement of his evidence in chief was admitted. 5 Mr Edwards has 20 years experience in the power industry and in heavy manufacturing, with a technical background in plant operation.

[12] While not supporting AGL Torrens’ case for an extended notice period, the Unions did not actively oppose it. The position that the Unions adopted was that, if the FWC was satisfied that the notice period should be extended, it should be expressed in consecutive days rather than working days. I will return to this issue in due course.

[13] The FWC needs to be satisfied of two matters in order to determine that the notice of industrial action given to an employer under s.414(1) of the Act should be longer that 3 working days. Firstly, that exceptional circumstances exist and secondly, that those circumstances justify the giving of a longer period of notice. The decision of His Honour Vice President Lawler in CEPU v Australian Postal Corporation 6 is a well settled authority on the meaning of exceptional circumstances. While this case was decided under s.463(5) of the Workplace Relations Act 1996, it has been frequently cited in relation to the provisions of s.443(5) of the Act because of the similarity of expression and context between the respective provisions. His Honour stated that:

“[10]...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.”

[14] The purpose of the notice of industrial action is to enable an employer who is affected by protected industrial action to take appropriate defensive action. 7

[15] I am satisfied that there are exceptional circumstances in the present matter that justify an extension of the notice period of industrial action. There is a legal requirement for minimum staffing levels to be maintained for the operation of the plant and there is real likelihood that these minima will be unable to be met in the event of industrial action taken in accordance with the common ballot questions. It can take 4 or 5 days to bring a unit to the point of being out of service and in a safe state to be left unmonitored, with the minimum staffing compliment required until that point is reached to protect the integrity of the plant. 8

[16] I concur with the views of Commissioner Bissett in CFMEU v Loy Yang Power Management Pty Ltd, when considering an application for extended notice in similar circumstances to the present matters, including where enforceable minimum staffing levels applied. The Commissioner noted that the parties had found good cause to include minimum staffing levels in a workplace agreement to enable the safe operation of plant and that this was a significant matter to be taken into account in determining whether exceptional circumstances existed. 9

[17] On the evidence presented I am satisfied that the operation of the generating units and the need to safely shut them down in the event of protected industrial action is an exceptional circumstance which, in this case, is sufficient to justify an extended period of notice to AGL Torrens in relation to industrial action which is proposed to be taken.

[18] Mr Snow submitted that the breadth and lack of specificity of the industrial action contemplated by the common ballot questions was alone sufficient to constitute an exceptional circumstance. 10 I do not accept this proposition. The case law around the framing of ballot questions is settled and the primary issue is whether the questions have sufficient clarity so that employees understand the nature of the action that is proposed, so that they can make an informed decision. If this is the case, then the FWC should be hesitant to interfere with the form of the questions as framed in a draft order. Ballot questions are integral to the exercise of the employees’ bargaining power under the scheme of Part 3-3 of the Act. The s.414(1) notice to the employer of the industrial action that is to be taken has a different purpose, namely to enable an employer to take ‘defensive’ action, and therefore the level of detail provided assumes some importance.

The period of the extended notice

[19] As noted, AGL Torrens seeks 5 working days notice of industrial action. “Working day” is defined in the Act to mean “a day that is not a Saturday, a Sunday or a public holiday”. 11 Mr Hanson, for the AWU, noted that Mr Edwards’ evidence in relation to the safe shut down of plant was expressed in calendar days. Mr Hanson submitted that, consistent with the 24 hour/7 day a week operation of the plant, any extended notice to be provided should also be expressed in calendar days and Ms Purdy for the ASU suggested that 5 calendar days would be appropriate and consistent with the evidence. This position was supported by the CEPU and AMWU.

[20] AGL Torrens submitted that the relevant sections of the Act were expressed in terms of working days and as that term was defined in the Act, it would avoid potential confusion in giving the appropriate notice.

[21] The rationale for the Unions’ position is attractive and arguably better suited to a 7 day a week operation than the concept of working days. However I consider that there are problems in the application of this concept. By definition, 3 working days can equate to a variable number of calendar days depending on the occurrence and number of weekend days and public holidays that follow the giving of notice. Five calendar or consecutive days notice, if given over a period which included a Saturday, a Sunday and a public holiday, would not meet the minimum requirement of s.414(2)(a) of the Act of 3 working days notice. A longer period of calendar days notice could potentially exceed the 5 working days notice sought by AGL Torrens, although such a scenario is highly unlikely in practice.

[22] There is a further issue as to whether the Act allows the notice period for industrial action being expressed other than in terms of “working days”. The submissions on this point are insufficient to make a determination on this point. No criticism of the parties is intended - the matter arose from the evidence presented on the day and the ASU offered to put further submissions in writing.

[23] AGL Torrens’ application for extended notice of protected industrial action of 5 working days is granted in relation to the common ballot questions and will be included in the protected actions ballot orders, which are issued with this decision. The ‘default’ notice of 3 working days will apply in relation to industrial action taken in accordance with questions 6-9 of the ASU and AWU amended draft orders.

DEPUTY PRESIDENT

Appearances:

Mr D Winter for the AMWU

Mr J Hanson for the AWU

Mr J Adley for the CEPU

Ms A Purdy for the ASU

Mr W Snow, of counsel, for the AGL Torrens Island Pty Ltd

Hearing details: 7 November 2013

 1   AGL outline of submissions dated 6 November 2013

 2   As contained in the amended draft orders provided by the ASU and AWU at the hearing on 7 November 2013.

 3   AE894337

 4   John Holland Pty Ltd v AMWU and AWU[2010] FWAFB 526 at [19]

 5   Ex AGL 1

 6   [2007] AIRC 848

 7   Ibid, at [13], [14]

 8   Ex AGL 1 and the “Heads of Agreement - Operator Staffing Arrangements” as referred to in clause 9.11.1 of the AGL Torrens Island Enterprise Agreement 2011.

 9   [2012] FWA 3042 at [28]

 10   Mr Snow relied upon “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), [2011] FWA 7257 at [29].

 11   Section 12 of the Act

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