"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Keolis Downer Northern Beaches Pty Ltd
[2025] FWC 620
•28 FEBRUARY 2025
| [2025] FWC 620 |
| 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
Keolis Downer Northern Beaches Pty Ltd
(B2025/306)
| COMMISSIONER CRAWFORD | SYDNEY, 28 FEBRUARY 2025 |
Proposed protected action ballot of employees of Keolis Downer Northern Beaches Pty Ltd – employer opposition – not genuinely trying to reach agreement – request for extended notice period – order made – notice period extended to five working days for stoppages of work
BACKGROUND
This is an application by the "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers’ Union (AMWU) under s.437 of the Fair Work Act 2009 (FW Act) for a protected action ballot order in relation to certain employees of Keolis Downer Northern Beaches Pty Ltd (KDNB). KDNB provides public bus services in the Northern Beaches area of Sydney. The application was filed on 27 February 2025.
On 28 February 2025, the Commission was advised that KDNB opposes the application. KDNB outlined the following reasons for opposing the application:
1.The AMWU has not been, and is not, genuinely trying to reach agreement with KDNB.
2.An extended notice period for the industrial action should be required because of the nature of the services provided by KDNB.
Given KDNB’s opposition, I listed the application for hearing at 2:00pm on 28 February 2025 via video.
Julie Gordon (Senior Legal Officer) represented the AMWU at the hearing on 28 February 2025. KDNB was represented by Will Treglown (Human Resources Business Partner).
MATERIAL RELIED UPON
AMWU
In addition to its Form F34 application and an accompanying draft order, the AMWU relied on a Form F34B declaration made by Victoria Harper (Organiser) on 25 February 2025. Ms Harper’s declaration states:
a.KDNB commenced bargaining with the AMWU on 19 November 2024.
b.The parties have met three times on 19 November 2024, 23 January 2025, and 7 February 2025.
c.The AMWU provided a log of claims to KDNB on 19 November 2024.
d.KDNB has not agreed to the AMWU’s log of claims.
e.The AMWU has revised its log of claims since the start of bargaining.
f.An offer put by KDNB has been rejected by AMWU members.
I marked Ms Harper’s declaration Exhibit A1.
Ms Harper also provided a witness statement dated 28 February 2025. This statement provided further details about the bargaining process. Ms Harper provided an email that demonstrates the AMWU had initially sought to bargain with KDNB on 10 September 2024. Ms Harper also provided follow-up emails dated 4 October 2024 and 21 October 2024. KDNB responded for the first time on 21 October 2024 and did not confirm its position. Ms Harper then sent a further follow-up email on 29 October 2024. Bargaining eventually commenced on 19 November 2024. Ms Harper provided evidence about the positions adopted by both parties in the bargaining process. Ms Harper suggested that KDNB has indicated it is not prepared to improve its current offer of wage increases linked to the Wage Price Index. Ms Harper provided evidence about the AMWU’s bargaining outcomes with other businesses in the industry. Ms Harper provided a copy of the AMWU’s log of claims and correspondence sent by KDNB in response to the log of claims.
I marked Ms Harper’s statement Exhibit A2. Ms Harper was not required for cross-examination on her evidence.
The AMWU provided an outline of written submissions dated 28 February 2024. Ms Gordon provided oral submissions during the hearing.
KDNB
KDNB relied on a witness statement from Mark Dunlop (Managing Director) dated 28 February 2025. Mr Dunlop referred to fixed price contract cost pressures on KDNB. Mr Dunlop states the AMWU and KDNB have exchanged offers and he does not consider the AMWU’s wages claim to be reasonable. Mr Dunlop states the AMWU have not been willing to consider cost off-sets for their claims and have proceeded on a “take it or leave it” basis. Mr Dunlop states around 700 employees covered by a different enterprise agreement may be impacted by any industrial action because maintenance work would not be performed on the vehicles they operate. Mr Dunlop states the community will be impacted by any industrial action because they rely on KDNB’s transport services. Mr Dunlop states a notice period of longer than three days is justified because the community will need to be notified about service changes and KDNB and the NSW Government will need time to arrange alternative transport options for the public.
I marked Mr Dunlop’s statement Exhibit R1. Mr Dunlop was not required for cross-examination.
KDNB relied on a written outline of submissions dated 28 February 2025. Mr Treglown made further oral submissions during the hearing.
CONSIDERATION
Genuinely trying to reach agreement
The Full Bench in Esso[1] provided the following summary of the key authorities in terms of assessing whether an applicant is genuinely trying to reach agreement (endnotes omitted):
“[34] In Total Marine Services Pty Ltd v Maritime Union of Australia (Total Marine) the Full Bench upheld an appeal from a decision to grant an application for a protected action ballot. The Full Bench held that the member at first instance had erred in concluding that the applicant had genuinely tried to reach an agreement within the meaning of s.443(1)(b) in circumstances where certain claims were ‘put to one side’; the negotiations involved limited face to face meetings and limited articulation of many of the claims; many items were only set out in a list of headings, being neither explained nor discussed; and no wage claim was specified. In the course of its decision the Full Bench expressed the following views about s.443(1)(b):
‘[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.’
[35] For our part, for reasons we articulate later, we agree with the observations in paragraph [31] and the first three sentences of paragraph [32] of Total Marine, set out above. We note that the observations which follow the first three sentences in paragraph [32] are obiter and although we do not consider that they should be understood as attempting to establish any binding decision rule, nonetheless they are, with respect, somewhat inconsistent with the earlier expressed proposition (with which we agree) that it is not useful to articulate any alternative test or criteria to the words of s.443(1)(b). We note that similar reservations were expressed by the majority of the Full Bench in JJ Richards and Sons Pty Ltd v TWU (JJ Richards No.1) and by the Full Bench in Farstad Shipping (Indian Pacific) Pty Ltd v MUA (Farstad).”
I indicated during the hearing that I was satisfied that the AMWU has been genuinely trying to reach agreement with KDNB. It is apparent that the AMWU attempted to start the bargaining process more than two months before KDNB agreed to bargain on 19 November 2024. The AMWU promptly provided a log of claims on 20 November 2024 and has been attending bargaining meetings to try and reach agreement with KDNB.
KDNB argued that the AMWU has not shown a willingness to move on its wage claims during the bargaining process. Even if that is correct, a party does not necessarily need to make concessions on its claims to establish they are genuinely trying to reach agreement. It is common for parties to engage in hard bargaining where they are reluctant to move on claims. I see nothing overly unusual about this bargaining process. It is also relevant that KDNB has also thus far been reluctant to move on its wages offer.
Extended notice period
The principles associated with the exercise of the discretion in subsection 443(5) to specify an extension of the written notice period are well settled.
The subsection provides:
443 When the FWC must make a protected action ballot order
. . .
(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.
In NTEIU v Charles Darwin University [2018] FWCFB 4011, the Full Bench of the Commission said:
“[20] The exercise of a discretion under s.443(5) results in an interference with the right of a bargaining representative to otherwise give three working days’ written notice of industrial action that is to be organised and engaged in by employees in support of a proposed agreement. That this right should not lightly be curtailed by the imposition of a longer period of notice is evident in the grant of power itself. There must be “exceptional circumstances” in relation to the proposed industrial action the subject of the order justifying a longer period.
[21] The meaning of “exceptional circumstances” in the context of s.463(5) of the Workplace Relations Act 1996 (WR Act) was discussed in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation. In the case, Lawler VP said:
‘[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.’
[22] Section 463(5) of the WR Act is in all material respects the same as s.443(5) of the Act. We consider the discussion extracted above is apposite to the phrase “exceptional circumstances justifying” in s.443(5).
[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).”
In CFMMEU v DP World Sydney Ltd [2019] FCAFC 99 the Full Court of the Federal Court held (at [16]):
“The Full Bench in National Tertiary Education Industry Union v Charles Darwin University was not suggesting that in order to properly discharge the statutory function the reasons for a decision had to be structured into three separate and distinct parts. The Full Bench was providing guidance on the statutory provision which provides that if the FWC is satisfied 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.”
I am satisfied that there are exceptional circumstances that justify a longer written notice period of five working days in relation to the types of industrial action specified in questions one (1) to eleven (11) of the ballot order. The reality is that any of these different types of stoppages could be utilised to implement a lengthy strike because the stoppages can be taken consecutively.
The exceptional circumstances I have identified are that KDNB’s business is critical to public transport users in the Northern Beaches because there are not readily available alternatives. There is no rail network. KDNB indicated during the hearing there are no other businesses that operate buses in the Northern Beaches. This was not contested by the AMWU. KDNB also indicated that it operates an older fleet of buses in the Northern Beaches and that maintenance work is regularly required. KDNB indicated large numbers of buses would be taken off the road in a short period of time if maintenance work cannot be performed on them. This was not contested by the AMWU. I am satisfied that the circumstances of KDNB are exceptional. The circumstances are uncommon and are out of the ordinary course.
I am satisfied the exceptional circumstances justify a longer written notice period because of the lack of alternative options available to KDNB to continue running its bus services if its maintenance workforce for the Northern Beaches is taking industrial action. KDNB indicated there may be scope to transfer resources to the Northern Beaches but that is not a quick or easy process. KDNB said that contractors may be able to be sourced from Volvo or one or two other contracting businesses but that it is unlikely these options would significantly mitigate the impact of the industrial action. The AMWU did not contest that there were not easy options available to KDNB to continue its services if the maintenance workers take industrial action.
I consider it is appropriate to exercise my discretion to extend the notice period for the industrial action involving stoppages of work to five working days in the circumstances of this case. Commuters who utilise bus services in the Northern Beaches are likely to be significantly impacted if the maintenance workers take stoppages of work for a lengthy period. I also consider the bargaining power of the AMWU will not be substantially diminished if they must provide five working days of notice for stoppages of work.
I determine the minimum notice period for the protected industrial action identified in questions one (1) to eleven (11) of the ballot will be five working days.
The minimum notice period for the protected industrial action identified in questions twelve (12) and thirteen (13) of the ballot will be three working days.
Other matters
I am satisfied that there is a notification time in relation to the proposed agreement and that all the other requirements in s.443(1) of the FW Act have been met.
The ballot is to be conducted by the Democratic Outcomes Pty Ltd T/A CiVS (CiVS). CiVS has been approved as an eligible protected action ballot agent under s.468A of the Act[2] and consequently is authorised to conduct the ballot.
For the purposes of s.443(3)(c) and s.448A(2) of the FW Act, I have determined the date by which voting closes for the ballot will be 10 working days from the date of this Order which is 14 March 2025. This was the date proposed by the AMWU.
An order has been separately issued in [PR784875].
This matter will be assigned to a Member of the Commission to conduct the s.448A conference and this Member will issue the Order requiring attendance at the conference. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.
COMMISSIONER
Appearances:
Ms Gordon for the AMWU.
Mr Treglown on behalf of KDNB.
Hearing:
2025.
Sydney (via video using Microsoft Teams).
28 February.
[1] Esso Australia Pty Ltd v AMWU, CEPU and AMWU [2015] FWCFB 210.
[2] Democratic Outcomes Pty Ltd T/A CiVS [2023] FWC 1400.
Printed by authority of the Commonwealth Government Printer
<PR784874>
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