"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Metropolitan Fire and Emergency Services Board
[2011] FWA 4541
•14 JULY 2011
[2011] FWA 4541 |
|
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)
v
Metropolitan Fire and Emergency Services Board
(B2011/156)
COMMISSIONER ROE | MELBOURNE, 14 JULY 2011 |
Proposed protected action ballot by employees of Metropolitan Fire and Emergency Service Board.
[1] This is an application for a protected action ballot by members of the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) (AMWU) employed by Metropolitan Fire and Emergency Services Board (MFB). The application is made pursuant to s.437 of the Fair Work Act 2009 (the Act). The Application was made in the afternoon of 12 July 2011 and was determined on 14 July 2011.
[2] The matter was heard on 14 July 2011. Mr Ian Thomas assisted by Mr Tony Mavromatis appeared for the Applicant and Mr Sean Hogan assisted by Mr Aaron Hogan appeared for the MFB.
[3] The applicant seeks to ballot employees of MFB who would be subject to a proposed enterprise agreement and who are members of the AMWU.
[4] In considering this matter I must apply s.443 of the Act which provides:
“443 When FWA must make a protected action ballot order
(1) FWA 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) FWA 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) FWA 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.
(4) If FWA 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 FWA decides, under subsection 444(1), is to be the protected action ballot agent; and
(b) the person (if any) that FWA decides, under subsection 444(3), is to be the independent advisor for the ballot.
(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.
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.”
[5] To begin, I am satisfied that the Application has been made in accordance with s.437 of the Act. I am satisfied that the Application was served upon the Respondent and the AEC as the ballot agent as required by Section 440 of the Act. I am satisfied that the Application was not made earlier than 30 days prior to the nominal expiry date of the current agreement, as required by Section 438 of the Act. The current Agreement has a nominal expiry date of 30 June 2011.
[6] The next matter to which attention must be given is whether or not the Applicant has been, and is, genuinely trying to reach an agreement with the employer on behalf of the employees who are to be balloted. I am satisfied, after hearing submissions from the AMWU that this is in fact the case. The MFB agreed that the AMWU are genuinely trying to reach an agreement.
[7] I am satisfied that the questions adequately specify the nature of the proposed industrial action and meet the requirements of Section 443(3)(d). The scope of the Agreement sought by the AMWU adequately describes the group of employees to be balloted as required by Section 443(3)(b). The AEC will be the ballot agent.
[8] Having decided that s.443(1)(a) and (b) have been complied with, I must make a protected action ballot order, as sought by the AMWU. At the conclusion of the proceedings I advised the parties that I would issue the Order. I have published that Order separately.
[9] MFB made application for the inclusion in the Order of a requirement pursuant to Section 443(5) that the period of written notice prior to taking the action specified in the ballot questions should be 7 days rather than the standard requirement for 3 days notice as specified in Section 414(1).
[10] MFB referred me to the decision of Vice President Lawler in CEPU v Australian Postal Corporation. 1
[11] Vice President Lawler summarised the meaning of “exceptional circumstances” in the context of a similar provision in earlier legislation.
“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.” 2
[12] His Honour also found that:
“... 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.” 3
[13] Vice President Lawler then went on to explain the nature of the test.
“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.” 4
[14] I adopt the approach taken by Vice President Lawler.
[15] The MFB and the AMWU made submissions in respect of this matter but there was no formal evidence. The AMWU members are involved in the maintenance of the MFB fire trucks, pumping and other equipment. MFB submitted that the bans could affect the safety of other MFB operational employees and the ability of the MFB to provide vital services in respect to fire safety, fire prevention and emergency response. The MFB conceded that some of the bans proposed would not have such an affect. I was not satisfied that additional notice of the action would have a significant influence on the ability of the MFB to protect community and employee safety in respect to the proposed stoppages and all of the bans except one which I deal with later. The proposed bans in respect to overtime and call backs excluded any ban affecting attendance at fire scenes. I advised the parties of this conclusion and gave them the opportunity to make further submissions.
[16] I was satisfied that the MFB raised legitimate concern in respect to “a ban on any work performed at the roadside with regard to servicing vehicles”. The AMWU submitted that alternative arrangements were able to be made and that the ban would not lead to a significant risk to public or employee safety. The MFB did not accept this submission. In the absence of hearing evidence I advised the parties that I was not prepared to simply accept the AMWU submission. I advised that I was prepared to issue the orders and then deal with this matter in a separate hearing where evidence could be considered. However, the AMWU accepted that I should issue the order requiring seven days notice in respect to this particular ban. The MFB did not make any further submission.
[17] I do not accept that all proposed industrial action affecting an essential service can be regarded as an exceptional circumstance. Industrial action by those maintaining emergency service vehicles and equipment does not in itself constitute an exceptional circumstance. However, it may be that a combination of the nature of the proposed action and the particular circumstances of the maintenance work on the vehicles could constitute exceptional circumstances. If I established that a particular proposed action created an exceptional circumstance then I would have to consider whether or not those exceptional circumstances justify a longer notice period.
[18] I was satisfied that there was no evidence presented that the industrial action specified in the Questions in the Ballot order created an exceptional circumstance that would justify a longer notice period except for the proposed ban on roadside work. I am not satisfied that the industrial action proposed apart from the roadside bans creates an exceptional circumstance or even if they did that a longer notice period is justified.
[19] I am satisfied that if the submissions of the MFB were to be established then it would be an exceptional circumstance and further that additional notice time would be likely to reduce the risks to public and other employee safety which might result from this form of industrial action.
[20] The granting of additional notice time in respect to two hour stoppages would of course reduce the effectiveness of the proposed industrial action. However, I also note in passing that the provision of additional notice time in this instance may have an impact on any future argument for the suspension or termination of the industrial action on the grounds of risks to public safety.
[21] The parties agreed that I should vary the Order made in respect to the protected action ballot to provide that in respect to the action proposed “a ban on any work performed at the roadside with regard to servicing vehicles” the period of notice required to be given be extended from three working days to seven working days. The standard three day notice period will continue to apply to the other proposed forms of industrial action.
COMMISSIONER
Appearances:
Mr Ian Thomas assisted by Mr Tony Mavromatis appeared for the Applicant.
Mr Sean Hogan assisted by Mr Aaron Hogan appeared for the MFB.
Hearing details:
2011
Melbourne
14 July
1 [2007] AIRC 848.
2 Ibid at para 10.
3 Ibid at para 11.
4 Ibid at para 21.
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