"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Spotless Facility Services Pty Ltd T/A Spotless

[2018] FWC 4656

[2018] FWC 4656

FAIR WORK COMMISSION

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
Spotless Facility Services Pty Ltd T/A Spotless

(B2018/680)

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Spotless Facility Services Pty Ltd T/A Spotless
(B2018/677)

DEPUTY PRESIDENT MASSON MELBOURNE, 10 AUGUST 2018

Proposed protected action ballot of employees of Spotless Facility Services Pty Ltd - whether additional notice of proposed industrial action required - whether exceptional circumstances exist warranting an extension - exceptional circumstances not found - extension not granted.

[1] Applications have been made by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) under s 437 of the Fair Work Act 2009 (the Act) for protected action ballot orders in relation to certain employees of Spotless Facility Services Pty Ltd T/A Spotless (Spotless) who are to be covered by the proposed agreement and are represented by the AMWU and CEPU (the employees).

[2] On 2 August 2018, the Commission wrote to Spotless requesting that it advise the Commission by 10.00 am on 3 August 2018 as to whether there was any objection to the CEPU application. Spotless responded to the Commission on 3 August 2018 advising that it objects to the CEPU application on the basis that it seeks an extension to the notice period for particular forms of industrial action. In subsequent correspondence on 3 August 2018, the CEPU advised the Commission that it did not consent to an extension to the notice period required for the taking of industrial action as sought by Spotless.

[3] On 3 August 2018, the Commission wrote to Spotless requesting it to advise the Commission by 10.00 am on 6 August 2018 as to whether there was any objection to the AMWU application. Spotless responded to the Commission on 6 August 2018 advising that it objects to the AMWU application on the basis that it seeks an extension to the notice period for particular forms of proposed industrial action. In correspondence on 6 August 2018, the AMWU advised the Commission that it did not consent to an extension to the notice period required for the taking of industrial action as sought by Spotless.

[4] The parties consented to the applications being heard simultaneously and the matter was listed for hearing before me on 8 August 2018. The CEPU was represented by Ms Ashvini Ambihaipahar. The AMWU was represented by Ms Anne Donnellan. Spotless was represented by Mr Rogan McMahon of the Ai Group.

[5] In the materials filed by Spotless for the hearing, two objections were raised to the applications. The first was that the period of notice required for the taking of all forms of industrial action should be extended from three days to seven days. The second issue was an objection in relation to one of the proposed ballot questions, that being Question 8 in each of the applications which relevantly stated as follows:

“In support of reaching an enterprise agreement with your employer, do you authorise protected industrial action against your employer, separately, concurrently and/or consecutively in the form of:

…………

8. An unlimited number of indefinite or periodic bans on call backs and/or call outs?

Yes [ ] No [ ]”

[6] The latter objection was based on Spotless’ belief that the proposed question was ambiguous and uncertain and lacked specificity.

[7] At the commencement of the hearing, the CEPU and AMWU confirmed acceptance of amendments to the wording of Question 8 as proposed by Spotless. The amendments that were agreed to by the parties was to delete the existing proposed Question 8 and replace it with the following Questions 8 & 9:

“In support of reaching an enterprise agreement with your employer, do you authorise protected industrial action against your employer, separately, concurrently and/or consecutively in the form of:

…………

8. An unlimited number of indefinite or periodic bans on call backs?

Yes [ ] No [ ]

9. An unlimited number of indefinite or periodic bans on call outs?

Yes [ ] No [ ]”

[8] On the basis of the consent position reached with respect to the proposed ballot questions, Spotless confirmed that it did not oppose the PABO, however pressed its submission that an extension to the period of notice be provided by the AMWU and CEPU in relation to all forms of industrial action that were set out in the proposed ballot questions.

Context in which ballot order was sought

[9] Spotless is engaged in the provision of facilities maintenance services across Australia with its clients covering government departments, education campuses, hospitals, mining sites, aged care facilities, and defence sites and facilities. Two of its biggest areas of work include the Estate Maintenance and Operations Services (EMOS) contract with the Department of Defence and a portfolio of Public Private Partnership (PPP) Hospital contracts.

[10] Certain employees of Spotless are covered in their employment by the Spotless National Maintenance Enterprise Agreement 2014 1 which reached its nominal expiry date on 31 October 2016. The CEPU and AMWU are both covered by that agreement.

[11] The CEPU and AMWU are both bargaining representatives respectively for at least one of the employees to be covered by the proposed enterprise agreement. Bargaining meetings commenced in October 2017, following which, several further meetings were conducted prior to a ballot of employees for a proposed agreement conducted on 29 March 2018. A majority of employees voted to reject the proposed agreement. Further meetings have since been conducted and whilst progress has been made in bargaining, there is no agreement between the representatives on the full terms of the proposed enterprise agreement.

Statutory requirements for making a ballot order

[12] The Act provides relevantly as follows:

“437 Application for a protected action ballot order

Who may apply for a protected action ballot order

(1) A bargaining representative of an employee who will be covered by a proposed enterprise agreement, or 2 or more such bargaining representatives (acting jointly), may apply to the FWC for an order (a protected action ballot order) requiring a protected action ballot to be conducted to determine whether employees wish to engage in particular protected industrial action for the agreement.

(2) Subsection (1) does not apply if the proposed enterprise agreement is:

(a) a greenfields agreement; or

(b) a multi-enterprise agreement.


Matters to be specified in application

(3) The application must specify:

(a) the group or groups of employees who are to be balloted; and


(b) 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 the applicant wishes a person other than the Australian Electoral Commission to be the protected action ballot agent for the protected action ballot, the application must specify the name of the person.

Note: The protected action ballot agent will be the Australian Electoral Commission unless the FWC specifies another person in the protected action ballot order as the protected action ballot agent (see subsection 443(4)).

(5) A group of employees specified under paragraph (3)(a) is taken to include only employees who:

(a) will be covered by the proposed enterprise agreement; and


(b) either:

(i) are represented by a bargaining representative who is an applicant for the protected action ballot order; or

(ii) are bargaining representatives for themselves but are members of an employee organisation that is an applicant for the protected action ballot order.

Documents to accompany application

(6) The application must be accompanied by any documents and other information prescribed by the regulations.

438 Restriction on when application may be made

(1) If one or more enterprise agreements cover the employees who will be covered by the proposed enterprise agreement, an application for a protected action ballot order must not be made earlier than 30 days before the nominal expiry date of the enterprise agreement, or the latest nominal expiry date of those enterprise agreements (as the case may be).


(2) To avoid doubt, making an application for a protected action ballot order does not constitute organising industrial action.

440 Notice of application

Within 24 hours after making an application for a protected action ballot order, the applicant must give a copy of the application to the employer of the employees who are to be balloted, and:

(a) if the application specifies a person that the applicant wishes to be the protected action ballot agent—that person; or


(b) otherwise—the Australian Electoral Commission.

441 Application to be determined within 2 days after it is made

(1) The FWC must, as far as practicable, determine an application for a protected action ballot order within 2 working days after the application is made.


(2) However, the FWC must not determine the application unless it is satisfied that each applicant has complied with section 440.
…


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.

(3) The FWC 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.

(3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.

(4) If the FWC 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 the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and


(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.

(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.”

[13] There is no contest that the CEPU and AMWU are eligible to bring their applications and that they have been, and are, genuinely trying to reach an agreement with the employer of the employees who are to be balloted. The evidence and other material before the Commission is also sufficient to demonstrate to the satisfaction of the Commission that all of the other requirements of s 443 of the Act have been met.

Should an extended period of notice be required for some forms of industrial action

[14] Spotless sought that written notice of seven working days be required in relation to all forms of the proposed protected industrial action. Section 443(5) of the Act provides, in effect, that if there are exceptional circumstances justifying the period of written notice (referred to in s 414(2)(a)) being longer than three working days, the protected action ballot order may specify a longer period of up to seven working days in relation to the proposed industrial action that is the subject of the protected action ballot.

[15] The approach to exceptional circumstances in this context was discussed by Lawler VP in CEPU v Australian Postal Corporation²(CEPU), which concerned an equivalent provision of the Workplace Relations Act 1996³ where he concluded:

“[10] In this passage his Honour was concerned with the ordinary meaning of the expression “exceptional circumstances” and the approach identified is, in my view, equally applicable to the use of that expression in s.465(3). 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.

[21] 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.

[22] The first example provided in Davids Distribution provides an illustration of where exceptional circumstances may justify an extension of the required notice period. A sophisticated piece of plant, such as a smelter, may take many days to shut down without damage. The employer is exposed to wholly disproportionate damage if it is prevented by too limited a notice period from undertaking an orderly shutdown of the plant. A further example may be afforded by a strike by teachers where the school needs to be able to notify parents of the strike so as to give them an opportunity to make alternative arrangements for the care of their children on the days of the strike. Typically, three working days will be insufficient for this purpose.”

[16] The exceptional circumstances relied upon in this case by Spotless relate to the impact of the foreshadowed bans and stoppages, that being:

•  With respect to the EMOS contract – the maintenance and integrity of critical defence force and defence intelligence infrastructure may be compromised, the failure to maintain which poses a significant capability risk to the Department of Defence and a risk to Defence Department personnel and Australian security more generally; and

•  With respect to the PPP Hospital contracts – the maintenance and integrity of critical equipment and services in a large number of major public hospitals may be compromised, the failure to maintain which may impact the ability of those public hospitals to maintain essential services to the community and/or respond to emergencies.

[17] The forms of potential industrial action for which Spotless has sought to obtain the additional notice were:

Question 1 - An unlimited number of stoppages of the performance of all work for the duration of 1 hour;

Question 2 - An unlimited number of stoppages of the performance of all work for the duration of 2 hours;

Question 3 - An unlimited number of stoppages of the performance of all work for the duration of 4 hours;

Question 4 - An unlimited number of stoppages of the performance of all work for the duration of 8 hours;

Question 5 - An unlimited number of stoppages of the performance of all work for the duration of 24 hours;

Question 6 – An unlimited number of indefinite or periodic bans on overtime;

Question 7 – An unlimited number of indefinite or periodic bans on paperwork including electronic (unless safety related);

Question 8 - An unlimited number of indefinite or periodic bans on call backs; and

Question 9 - An unlimited number of indefinite or periodic bans on call outs.

[18] In order to warrant an extended period of notice, the Commission must be satisfied both as to the existence of exceptional circumstances and the fact that these justify the granting of the extended notice.

[19] As made clear in CEPU above, this also requires a weighing up of the opportunity for Spotless to take appropriate defensive action against the diminution of the effectiveness of the CEPU and AMWU members’ bargaining power that is contemplated by the scheme of the Act. In that light, it would not be a relevant exercise of discretion to grant additional notice simply to allow the employer to neutralise the impact of the industrial action.

[20] Spotless led evidence from Ms Susan Lillehagen, who provides Human Resources support to Spotless’ defence line of business, and Mr Keith Blackwood, who is the Group Manager responsible for Spotless’ PPP Hospital contracts.

[21] Ms Lillehagen provided a witness statement 4 and gave the following evidence:

•  One of her responsibilities was that of the management of the EMOS contract with the Department of Defence. That contract required the management, integration and co-ordination of base services on behalf of the Department of Defence. 5

•  The contract involves 319 sites across QLD and NSW with major sites including RAAF Base Amberley, RAAF Base Wagga, Gallipoli Barracks – Enoggera, Wide Bay Training Area, Kokoda Barracks – Kunnungra, Russell Offices – Canberra, Blamey Barracks – Kapooka, Lavarak Barracks – Townsville and Townsville RAAF Base. 6

•  Of the 1397 Spotless staff employed to support the EMOS contract, 213 are engaged on Estate Upkeep services 7 which involves the maintenance of buildings, plant, equipment and facilities. Estate Upkeep work requires employees engaged in a range of classifications including fitters, diesel fitters, heating, ventilation and air-conditioning (HVAC) mechanics, electricians, refrigeration mechanics, plumbers and carpenters.

•  Estate Upkeep services requires the maintenance of critical and highly sensitive infrastructure including airfield lighting and control towers; naval wharf infrastructure; defence facility power supply; intelligence gathering infrastructure; satellite monitoring systems; and the high security Russell offices – Canberra.

•  Access of Spotless staff or contractors to defence sites and facilities requires various levels of security clearance according to the level of security sensitivity of the particular site, the minimum clearance period being 6-8 weeks; 3-9 months being required for secret site clearance; and up to 18 months being required for obtaining a clearance to access top secret facilities. 8 Spotless also have a small number of approved and security cleared sub-contractors, although they are already engaged to support the EMOS contract.9

•  Apart from the small number of security cleared sub-contractors, there are no other staff or contractors available to perform the work in the absence of Spotless employees performing the work, this being due to the security clearance requirements.

•  A failure of Spotless to provide the contracted service and the absence of available alternate service providers could, in the circumstances of critical infrastructure breakdown, compromise the Defence Department’s operational capability or impact on defence force personnel and Australian security through compromised intelligence gathering activities.

•  Extending the period of notice of industrial action would allow Spotless to take some defensive action by providing the Defence Department with sufficient notice to put contingency arrangements in place; reschedule work; bring planned activities forward; run additional overtime shifts to complete critical works; and source appropriate contractors with skills and necessary security clearance to work on Defence Department sites. 10

[22] Under cross examination, Ms Lillehagen gave the following evidence:

•  Confirmed that Spotless did not provide services on all Australian Defence Department sites and that while she was not aware of the number of contractors and personnel involved on those other sites, it was likely that contractors supporting those sites outside of NSW and QLD would have personnel that had the necessary security clearance to undertake work on sites that Spotless currently performed work on.

•  Conceded that one of Spotless’ potential key competitors in the area of Defence Department facilities maintenance was Broadspectrum, but she expressed the view that they would be likely to be committed to other contracts and not easily redeployed to Spotless supported sites.

•  Conceded that extending the required period of notice of industrial action from three to seven days would be insufficient time to overcome the security clearance hurdles but that it would allow some mitigation of the risks faced by the Defence Department.

•  Of the 8600 responsive work orders completed each month 11 under the EMOS contract by Spotless, she was unable to provide a breakdown of that work that was “critical” as opposed to routine and preventative.

•  Was unable to provide a breakdown of those employees of Spotless that had the “high security” clearance and acknowledged that it was a small number out of the 213 employees engaged on the Estate Upkeep services.

[23] Mr Blackwood provided a witness statement 12 and gave the following evidence:

•  He is responsible for overseeing the management and operations of Spotless’ portfolio of PPP Hospital contracts which includes:

(i) Royal Adelaide (800 beds);

(ii) Sunshine Coast University Hospital (700 beds);

(iii) Bendigo Hospital;

(iv) Royal Children’s Hospital – Melbourne;

(v) Orange and Bathurst Hospitals;

(vi) Queen Elisabeth II Hospital – QLD; and

(vii) Ramsay Health Care Hospitals 13

•  The contracts required Spotless to provide responsive as well as essential planned and preventative mechanical and electrical maintenance support for hospital infrastructure and equipment. Critical equipment required to be monitored and maintained included medical gas and medical breathing compressors; filters and distribution systems; pneumatic tube systems to distribute medical samples and pharmacy items; co-generation and emergency generators; fire protection systems and potable water systems. 14

•  Two key hospitals covered by the contract were Royal Adelaide and Sunshine Coast University Hospitals, which by their size and location, were the primary trauma hospitals for their respective regions. Those contracts respectively required 35 full time equivalent (FTE) Spotless staff for Royal Adelaide and 22 FTE for the Sunshine Coast University Hospital contracts. 15 Due to their regional size and importance from a trauma management perspective, maintenance of infrastructure was more critically important.

•  The implications of critical equipment failures for the delivery of hospital services to the community were that the operations of the hospital/s could be partially or fully compromised in an extreme case. This potentially includes the particular impact on the ability of Royal Adelaide and Sunshine Coast University Hospitals with responsibility to deliver emergency and trauma services for their respective regions.

•  Three days’ notice of industrial action was not sufficient time to enable Spotless to take appropriate defensive measures to maintain essential services in support of the hospitals subject to the PPP Hospital contracts. This was due to the difficulty in obtaining alternate labour with the necessary skills and experience to support specialist equipment 16 and the need in some cases to source Original Equipment Manufacturer (OEM) support staff which may be located interstate or in some cases overseas.

•  Were 7 days’ notice provided of industrial action, Spotless would be able to mitigate risk to public health infrastructure by giving their clients a longer period of notice to plan and implement alternate arrangements; run additional overtime shifts in advance of the industrial action; and source appropriately skilled contractors. 17

[24] Under cross examination Mr Blackwood gave the following evidence:

•  While conceding that critical equipment failures was a rare event, failures did nonetheless occur and specific reference was made to a relatively recent failure of a back-up generator at Royal Adelaide hospital.

•  There were other service providers in the industry including a key competitor, Serco, however it was estimated that Spotless held approximately 80% of the market in which it was operating, that is PPP Hospitals.

•  Acknowledged that the equipment used in hospitals supported by Spotless was not unique and would be potentially used in other hospitals throughout Australia.

•  Confirmed that Spotless had 10-15 sub-contractors across its PPP Hospitals contracts, but that they were generally engaged on supporting specific and specialised equipment.

•  Confirmed that Spotless was the only facilities maintenance contractor at Royal Adelaide and that there were no other contractors on that site capable of performing the work.

•  Training of other contractors with relevant qualifications to provide support for specialist equipment could take many weeks.

•  He was not aware of how many employees who would be covered by the proposed agreement were not union members and may be available to undertake work if industrial action occurred.

[25] Neither the CEPU nor AMWU led evidence in support of their submissions in opposing the extended notice period sought by Spotless and did not seek an adjournment or other opportunity to do so.

[26] In its closing submissions, Spotless submitted that the nature of its work undertaken with respect to the EMOS and PPP Hospital contracts rendered it “exceptional” because of the adverse implications for national security and public health arising from critical equipment and infrastructure failures. The unique difficulties arising from the limited availability of alternate resources by reason of security clearances required in the case of the EMOS contract and specialist equipment in the hospital sector demanded additional notice be provided to enable appropriate defensive measures.

[27] The CEPU and AMWU variously submitted that:

•  No evidence was adduced as to how long it would take Spotless to identify and mobilise alternate contractors;

•  Seeking seven days’ notice of industrial action with respect to the EMOS contract would still fall well short of mitigating the identified risk when security clearances would take at least 6-8 weeks to secure;

•  Spotless operates in a competitive environment which can be likened to the competitive environment dealt with in CEPU v Chubb Fire and Security Ltd 18 (Chubb) where the extension of the notice period was not granted;

•  All of Spotless’ clients would be able to access alternative service providers and referred to Transport Workers’ Union of Australia v Scotts Agencies Pty Ltd 19 (Scotts), in which case, the fact that Scotts Agencies was not a sole supplier of fuels to an emergency service was an important factor in the decision not to extend the notice period;

•  Spotless has ample opportunity to plan for and initiate contingencies in preparation for protected industrial action;

•  The circumstances of this matter are distinguishable to those identified in CEPU and that the factors present are not so exceptional as to justify an extension of the notice period to seven working days particularly when weighing the diminution of the employees’ bargaining power.

Consideration

[28] I am satisfied on the largely unchallenged evidence of the witnesses, that Spotless is required through its EMOS and PPP Hospital contracts to provide facilities management support to critical defence and public health infrastructure. The interruption to the operation of critical plant and equipment in either of these sectors could self-evidently have profound implications from a defence and intelligence capability perspective in the case of the EMOS contracts, and in the delivery of public health services and in particular emergency medical services in the case of the PPP Hospitals contracts. The unarguable importance of defence, intelligence and public health and medical emergency infrastructure weigh in favour of a finding that “exceptional circumstances” exist.

[29] I am satisfied that, with respect to the EMOS contract, there may be significant barriers to securing alternate labour or contractors to provide critical maintenance support in circumstances where industrial action by Spotless employees occurs such that it impacts on Spotless’ service delivery under the EMOS contract. The difficulty of sourcing labour in a timely manner arises from the understandable security clearance requirements in place for Defence Department sites. This factor weighs in favour of a finding of “exceptional circumstances”.

[30] It is however clear on Spotless’ own evidence, that it is not the only contractor engaged by the Defence Department to provide facilities management services within Australia as evidenced by the fact that the EMOS contract scope is confined to NSW and QLD. No evidence was adduced by Spotless as to the broader capability and resources that may be available to the Defence Department to mitigate the impact of industrial action by Spotless’ employees. Nor was there any evidence adduced as to what timeframes would be required by either Spotless or the Defence Department to mobilise alternate resources to mitigate adverse impacts. This weighs against a finding that “exceptional circumstances” exist.

[31] Tellingly, Spotless failed to provide any detailed analysis of the number and nature of security cleared sub-contractors; their particular levels of security clearance; their classifications and skills relative to the most critical infrastructure identified in the evidence of Spotless; the location of those contractor resources; and what practical mobilisation times would be required to re-locate or pre-locate those sub-contractor resources relative to the most critical infrastructure risks identified. This absence of evidence on the practical logistical challenges faced by Spotless and potential measures to mitigate those risks weighs against a finding of “exceptional circumstances”.

[32] With respect to the PPP Hospital contracts, it is evident that the presence of highly specialised plant and equipment used within the hospital system necessitates a well trained and experienced workforce, the replacement of which at short notice is likely to be challenging. The criticality of what are clearly life saving and support systems in the hospital setting, and the role of Spotless in providing maintenance support as described in Mr Blackwood’s evidence, weigh in favour of a finding of “exceptional circumstances”.

[33] Spotless acknowledged however that there are other contractors operating within the competitive environment within which it provides services under its PPP Hospital contracts, that of facilities management for public health and medical and trauma emergency service infrastructure. It also acknowledged that equipment located within the hospitals within which it provides facilities management services is not unique. This weighs against a finding that “exceptional circumstances” exist.

[34] Insufficient evidence was adduced as to potential alternate resources available to Spotless or its clients. Further, limited evidence was adduced as to the sub-contractors currently engaged by Spotless in terms of potential coverage of key equipment or what timeframes would be required by either Spotless or its clients to engage and mobilise alternate resources. General evidence as to Spotless having to potentially engage OEMs from interstate or overseas was of limited assistance in clarifying practical mobilisation timeframes. These factors weight against a finding that “exceptional circumstances” exist.

[35] I accept that the particular circumstances confronting Spotless regarding the impact of industrial action and the limited defensive measures available to it and its clients may be challenging. The contracted services provided to the Department of Defence and the PPP Hospitals are clearly intended to ensure a continuity of operations of defence, intelligence and public health services. It is not, in my view, sufficient however for an employer seeking to obtain an extension of the notice period to refer to defensive measures it may be required to take in general and non-specific terms. There must be some evidentiary basis presented by the employer to require seven days’ notice as opposed to three days or five days or six days for example. The rationale in the present case appeared to be no more than seeking the maximum period of notice available under the Act because of the expected difficulties Spotless and its clients may confront. More is required to warrant the consideration of an exercise of my discretion to determine a longer period of notice.

[36] Spotless have presented evidence in relation to the importance of the services they provide to the Department of Defence under the EMOS contract and to a number of hospitals under the PPP Hospitals contracts. They have, however, provided insufficient material as to the mitigative steps that may be taken by it or its various clients in responding to industrial action or the timeframes necessary to do so. In the circumstances, I am not persuaded that when balanced against the legitimate bargaining rights of employees that Spotless has demonstrated that the circumstances are exceptional such as to justify an extension of the notice period as sought.

Conclusion

[37] I am therefore not satisfied that a longer notice period of seven days should be provided in respect of all the industrial action identified within the CEPU and AMWU draft ballot orders.

[38] On the basis of the material before me, including the statutory declarations of Mr Andrew Sutherland of the CEPU and Ms Anne Donnellan of the AMWU, I am satisfied that the CEPU and AMWU, as bargaining representatives for the proposed agreement and applicants for a PABO, have been and are genuinely trying to reach an agreement. I am also satisfied that there is a notification time in relation to the proposed agreement and that all of the other requirements of s 443 of the Act have been met.

Form of ballot order

[39] I have issued the ballot orders in the draft terms agreed by the CEPU and AMWU and as reflected above. 20 I have nominated a closing date for the ballots which represent 28 days after the order, given the arrangements with the AEC and the requirements of s 443(3A) of the Act.

DEPUTY PRESIDENT

Appearances:

A Donnellan for the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU).

A Ambihaipahar for the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.

R McMahon for the Respondent.

Hearing details:

2018.

Melbourne.

August 8.

Printed by authority of the Commonwealth Government Printer

<PR609780>

 1   [2014] FWCA 2953.

2Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation (2007) FWC 6831, at paragraph 49.

3 Section 463(5) of the Act.

 4   Exhibit R1, Witness Statement of Ms Susan Lillehagen, dated 7 August 2018.

 5   Ibid at paragraph [2] –[6].

 6 Ibid at paragraph [7].

 7 Ibid at paragraph [10].

 8 Ibid at paragraph [12].

 9 Ibid at paragraph [13].

 10   Ibid at paragraph [20] – [21].

 11 Ibid at paragraph [8].

 12   Exhibit R2, Witness Statement of Mr. Keith Blackwood, dated 7 August 2018.

 13   Ibid at paragraphs [1] – [4].

 14   Ibid at paragraphs [14] – [16].

 15 Ibid at paragraph [3].

 16 Ibid at paragraph [12].

 17 Ibid at paragraph [19].

 18   [2018] FWC 178.

 19   [2010] FWA 1988.

 20 Paragraph [17].