"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Transit (NSW) Services Pty Ltd

[2016] FWC 1707

[2016] FWC 1707

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
Transit (NSW) Services Pty Ltd
(B2016/40)

DEPUTY PRESIDENT BULL SYDNEY, 18 MARCH 2016

Proposed protected action ballot of employees of Transit (NSW) Services Pty Ltd, application to extend minimum period of notice, “exceptional circumstances”

[1] On 17 March 2016, an application pursuant to s.437 of the Fair Work Act 2009 (theAct) was filed by the "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the “Australian Manufacturing Workers” Union (AMWU) for a protected action ballot order in relation to certain employees of Transit (NSW) Services Pty Ltd (the employer/Transit NSW).

[2] The employees to be balloted are those employees of Transit NSW who are:

1. employed in New South Wales; and
2. who are members of the AMWU; and
3. who would be subject to the proposed enterprise agreement; and
4. for whom the AMWU is the bargaining representative.

[3] Transit NSW did not oppose the application subject to an extension to the notice period as required under s. 414(2) of the Act that a bargaining representative must provide 5 working days before taking protected industrial action pursuant to s. 443(5) of the Act.

[4] In support of its application, the AMWU filed a statement made by Sean Morgan NSW Vehicle Division Secretary of the AMWU. Mr. Morgan’s statement advised that the AMWU had met with the employer on a number of occasions for the purposes of negotiating a new enterprise agreement. These include meetings being held on:

1. 8 October 2015
2. 22 October 2015;
3. 29 October 2015;
4. 25 November 2015;
5. 14 January 2016;
6. 29 January 2016; and
7. 2 February 2016.

[5] For the purposes of s.443(1)(b) of the Act, I am satisfied on the basis of the unchallenged position of the AMWU, that the AMWU has been and is, genuinely trying to reach an agreement with the employer.

Longer period of notice

[6] Section 414(2) of the Act requires that written notice of any action to be taken must be provided at least 3 working days prior to the action occurring. Section 443(5) may specify a longer period of up to 7 working days where the Commission is satisfied that there are exceptional circumstances justifying the minimum period of notice being longer than 3 working days.

[7] Transit NSW sought a notice period of 5 working days on the basis that there were exceptional circumstances related to the nature of their business which justified the order of an extension of time. In particular it is submitted that the applicant’s operation involves public transport bus services in the greater Sydney metropolitan area; and the employees who are to be balloted (members of the AMWU) are involved in the maintenance and repair of the buses and their work is important to the continuity of the service provided to the public.

[8] On this basis, it is submitted that the applicant provides an important mode of transport, and therefore it is vital that Transit (NSW) are able to put contingency plans in place to ensure continuity of service in the event of protected action that includes a withdrawal of labour. On this basis, it is submitted that the additional days are required to ensure that public service is safeguarded and constitutes as an exceptional circumstance contemplated by the Act.

[9] The AMWU advised the Commission that it did not oppose the extension of the notice period sought by Transit NSW. Despite the agreement between the AMWU and the employer on the terms of the draft order incorporating an extended notice period, the Commission is still required to be satisfied that there are exceptional circumstances justifying the period of written notice being longer than 3 working days, pursuant to s.443(5) of the Act.

[10] The proper interpretation and application of the words ‘exceptional circumstances’ has been considered in a number of decisions of the Commission. In Transport Workers’ Union of Australia 1 it was noted that the uniform approach adopted by this Commission is that of Vice President Lawler in CEPU v Australia Post2 which cites with approval the decision of Rares J of the Federal Court of Australia in Ho v Professional Services Review Committee No 2953:

“[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.”

[11] The Vice President went on to state:

“[21] Essentially, what is required in determining whether exceptional circumstances justify an extension of the required notice 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 diminutions 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.”

[12] The Commission adopts this approach in the current application. I have had regard to the reasons put forward by Transit NSW relating to the extension of the notice period. I am of the view that such reasons are beyond the immediate interests of the employer and the employees concerned and extend to the interests of third parties, being the general public who may be reliant on the employer for transportation. As such, I find that the requirements for exceptional circumstances put forward by the employer are relevant in order to vary the period of notice.

[13] In accordance with s.443(5) of the Act, I am satisfied that there are exceptional circumstances justifying an extension to the period of written notice contained in paragraph 414(2)(a) of the Act.

Order to be made

[14] Having regard to the evidence before me, I am satisfied that the requirements in s.443(1) of the Act have been met and that, accordingly, the order must be made.

[15] An order [PR578117] based on the draft order provided by the AMWU is issued in conjunction with this decision.

DEPUTY PRESIDENT

 1   [2012] FWA 133.

 2   [2007] AIRC 848.

 3 [2007] FCA 388.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR578116>