Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v WICET Services Pty Ltd
[2023] FWC 2179
•4 SEPTEMBER 2023
| [2023] FWC 2179 |
| 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
WICET Services Pty Ltd
(B2023/899)
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
WICET Services Pty Ltd T/A WICET Services Pty Ltd
(B2023/903)
Construction, Forestry, Mining and Energy Union
v
WICET Services Pty Ltd T/A WICET Services Pty Ltd
(B2023/910)
| Coal export terminals | |
| DEPUTY PRESIDENT WRIGHT | SYDNEY, 4 SEPTEMBER 2023 |
Proposed protected action ballot of employees of WICET Services Pty Ltd
On 30 August 2023, the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (Australian Manufacturing Workers’ Union or AMWU) made an application under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of WICET Services Pty Ltd (WICET or Employer). On 31 August 2023 the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) made a related application under s.437 of the Act (B2023/903). On 1 September 2023 the Construction, Forestry, Maritime Mining and Energy Union (CFMMEU) also made a related application under s.437 of the Act (B2023/910).
On 31 August 2023, the Commission was advised that WICET did not object to the Applications brought by the AMWU and the CEPU but sought that the notice period be extended to five days and that the orders include a safety exemption clause. WICET provided written submissions in support of this position.
The matters were listed for hearing on 1 September 2023. I determined the matters and issued orders on 1 September 2023 and now issue my Decision in relation to the matters.
The AMWU provided written submissions and a witness statement from Mr Philip Golby prior to the hearing. WICET advised the Commission at the hearing that it had not received the application made by the CFMMEU so the matter was adjourned for a short period to facilitate the provision of this application to WICET. Following the adjournment, WICET advised that it did not object to the Application brought by the CFMMEU but sought that the notice period be extended to five days.
The written submissions provided by the AMWU indicated that it was willing to meet with WICET during or after the balloting period to discuss any specific safety concerns arising from workers taking protected industrial action. The AMWU also stated that it was willing to offer an undertaking in all written notices of industrial action and that this together with the proposed meeting are sufficient to address any concerns WICET may have regarding safety during a period of protected industrial action.
WICET advised the Commission during the hearing that on the basis of the AMWU making an undertaking in the terms expressed in the AMWU’s written submission, WICET was no longer seeking that the order sought by the AMWU be amended to include a safety exemption clause. Accordingly, the following undertaking was made by Mr Mitchell Perry on behalf of the AMWU during the hearing:
The AMWU undertakes to ensure that in an emergency situation where there is a risk to personal health or safety and where no other workers are available, AMWU members will be available to perform work. AMWU members will not engage in industrial action that would endanger the life, personal safety, health or welfare of the population or part thereof.
Following the hearing, WICET’s representative contacted my Chambers to advise that WICET and the CEPU had reached an agreement to vary question 14 of the CEPU’s ballot questions and that the CEPU would make an undertaking to the Commission in agreed terms. On the basis of this agreement, WICET is no longer seeking that the order sought by the CEPU be amended to include a safety exemption clause. The CEPU advised my Chambers that it provides the following undertakings:
The CEPU undertakes to ensure that in an emergency situation where there is a risk to personal health or safety and where no other workers are available, CEPU members will be available to perform work. CEPU members will not engage in industrial action that would endanger the life, personal safety, health or welfare of the population or part thereof.The CEPU undertakes to ensure that minimum manning of two HV Electricians at the direction of the Employer will be available on standby onsite to respond to HV isolation and access requirements. In these circumstances the Employer will provide the employee’s base salary and roster payment.
What remains to be determined is WICET’s request that notice period be extended from three to five days.
If granted, this would apply to all of the ballot questions. The ballot questions in the order sought by the AMWU are:
In support of reaching an Enterprise Agreement with your employer, do you endorse the taking of any and all protected industrial action which is authorised by this ballot, separately, concurrently and/or consecutively in the form of:
1.An unlimited number of stoppages of work, including consecutive stoppages of work, for one (1) hour in duration?
2.An unlimited number of stoppages of work, including consecutive stoppages of work, for two (2) hours in duration?
3.An unlimited number of stoppages of work, including consecutive stoppages of work, for four (4) hours in duration?
4.An unlimited number of stoppages of work, including consecutive stoppages of work, for six (6) hours in duration?
5.An unlimited number of stoppages of work, including consecutive stoppages of work, for twenty-four (24) hours in duration?
6.An unlimited number of indefinite or periodic bans on the performance of irregular overtime except in an emergency situation or to make safe?
7.An unlimited number of indefinite or periodic bans on the utilisation of skills and/or the performance of tasks associated with high-risk tickets and/or licences, except in an emergency situation or to make safe?
8.An unlimited number of indefinite or periodic bans on the operating of Dozers?
9.An unlimited number of indefinite or periodic bans on the performance of higher duties?
10.An unlimited number of indefinite or periodic bans on working with, or providing instruction or direction to, Contractors?
11.An unlimited number of indefinite or periodic bans on flexibility relating to the staggering of scheduled breaks?
12.An unlimited number of indefinite or periodic bans on performing work related to the change out of rollers on belt systems, except in an emergency situation or to make safe?
The ballot questions in the order sought by the CEPU are:
In support of reaching an Enterprise Agreement with your employer, do you endorse the taking of any and all protected industrial action which is authorised by this ballot, separately, concurrently and/or consecutively in the form of:
1.An unlimited number of stoppages of work, including consecutive stoppages of work, for one (1) hour in duration?
2.An unlimited number of stoppages of work, including consecutive stoppages of work, for two (2) hours in duration?
3.An unlimited number of stoppages of work, including consecutive stoppages of work, for four (4) hours in duration?
4.An unlimited number of stoppages of work, including consecutive stoppages of work, for six (6) hours in duration?
5.An unlimited number of stoppages of work, including consecutive stoppages of work, for twelve (12) hours in duration?
6.An unlimited number of stoppages of work, including consecutive stoppages of work, for twenty-four (24) hours in duration?
7.An unlimited number of indefinite or periodic bans on the performance of irregular overtime except in an emergency situation or to make safe?
8.An unlimited number of indefinite or periodic bans on the utilisation of skills and/or the performance of tasks associated with high-risk tickets and/or licenses, except in an emergency situation or to make safe?
9.An unlimited number of indefinite or periodic bans on the operating of Dozers?
10.An unlimited number of indefinite or periodic bans on the performance of higher duties?
11.An unlimited number of indefinite or periodic bans on working with, or providing instruction or direction to, Contractors?
12.An unlimited number of indefinite or periodic bans on flexibility relating to the staggering of scheduled breaks?
13.An unlimited number of indefinite or periodic bans on training or up skilling, except where it is a regulatory requirement (LVR/CPR)?
14.An unlimited number of indefinite or periodic bans on HV switching operations, except in an emergency or to make safe?
The ballot questions in the order sought by the CFMMEU are:
| In support of reaching an Enterprise Agreement with your employer, do you endorse the taking of any and all protected industrial action against your employer which is authorised by this ballot, separately concurrently and/or consecutively in the form of: 1. An unlimited number of stoppages of work of between one (1) and eight (8) hours in duration? |
2.An unlimited number of stoppages of work of twelve (12) hours in duration?
3.An unlimited number of stoppages of work of twenty-four (24) hours in duration?
| 4. An unlimited number of bans on the working of non-rostered overtime? 5. An unlimited number of bans on the hot seating of fixed / mobile plant and equipment? 6. An unlimited number of actions in the form of the taking of meal breaks (crib) at a common, designated time? 7. An unlimited number of bans on the utilisation of skills and/or the performance of tasks associated with high‐risk tickets and/or licences, except in an emergency? 8. An unlimited number of bans on performing work on, or to, rollers on belt systems, except in an emergency? 9. An unlimited number of bans on performing duties of a trainer assessor? 10. An unlimited number of bans on performing higher duties? |
Submissions
WICET requests that the Orders sought be amended to provide for a notice period of five (5) working days as exceptional circumstances are generally regarded for port terminals which operate on tight schedules and present difficulties to enter and exit the site. WICET relied on the decisions of the Full Bench in Construction, Forestry, Maritime, Mining and Energy Union v DP World Brisbane Pty Ltd (DP World)[1] and Deputy President Binet in Construction Forestry, Maritime, Mining and Energy Union v Patrick Stevedores Holdings Pty Ltd[2] and asserted that its workers are working in conditions substantially the same as those in these decisions and that the same exceptional circumstances exist in relation to WICET’s employees that warrant the extension of the notification period.
WICET further submitted that, given the nature of the operational requirements of the site and customer relations, there are exceptional circumstances that warrant the extension of the notification period. Delays caused to ship loading can result in:
(a) ships missing sailing windows which can result in the ship not being able to leave until the next tide which may not occur for a number of days;
(b) Shippers incurring demurrage costs at a rate of US$800 to US$1000 per hour for delaying the ship;
(c) impact on incoming ships being able to berth at WICET’s wharf;
(d) Impacts on shipping movements in Gladstone Port managed by the Gladstone Harbour Master that disrupt other ports and terminals using Gladstone Harbour;
(e) WICET having to reschedule high risk activities involving third party contractors for tie up and let go of ships;
(f) Impact on deballasting activities whilst the ship is at berth which has a negative economic and safety impact;
(g) WICET incurring additional overtime costs where loading of vessels is delayed and occurs over a number of shifts;
(h) planned maintenance and shutdown activities that are scheduled around shipping having to be delayed and rescheduled.
The AMWU submitted that the principles to be applied in relation to an extension of the notice period for engagement in employee claim action are set out in the Full Bench’s decision in National Tertiary Education Industry Union v Charles Darwin University[3]. The Full Bench sets out a three-step decision-making process to determine whether there should be an extension to the notice period pursuant to s 443(5) of the FW Act as follows:
(a) the Commission identify or make findings about the particular facts or circumstances in relation to the proposed industrial action which are said to inform the evaluative judgement that such factors or circumstances are ‘exceptional circumstances’.
(b) the Commission consider whether the circumstances are circumstances justifying a longer notice period. The identified exceptional circumstances must show or prove that it is reasonable or necessary in the circumstances to warrant a longer period of written notice.
(c) if the Commission is satisfied there are exceptional circumstances justifying an extension, they must consider whether to exercise the discretion and, the additional notice that should be given in the circumstances.[4]
The discretion to interfere with the right of a bargaining party to otherwise provide three
working days’ written notice of industrial action should be exercised lightly and must be justified by ‘exceptional circumstances’. The requirement for exceptional circumstances calls for the particular facts and circumstances of a case to be considered and an evaluative judgement to be made.
The AMWU rejects the assertion that workers engaged under the Agreement are working in the same particular circumstances as the workers considered in DP World. WICET operates a terminal with a different clientele and operational needs to the terminal considered in DP World, meaning the facts and circumstances relevant to the industrial action can be distinguished from those considered in DP World. Specifically, the WICET’s terminal is solely for the loading of ships for the export of coal. WICET’s terminal only contains a single berth and that berth is not always occupied.
The difference means that ships are not unloaded and reloaded at the Terminal, and ships are not expected to load and unload at multiple ports across a voyage. Instead, coal is loaded onto the ship, separated by mine source, and the ship travels to unload at an export market. This also means that the nature and acute impact of delays in Australia have differing flow on effects to the nature and acute impact of delays in DP World’s operation.
Evidence
The AMWU relied on evidence from Mr Golby who is employed by the AMWU as an Organiser and has had responsibility for representing the industrial interests of AWMU members employed by WICET at the Wiggins Island Coal Export Terminal (the Terminal) for approximately eight years. Mr Golby is a qualified boilermaker and has previous experience working in coal loading facilities including the Gladstone Port, the now defunct Barney Point Wharf and also has substantial experience working in the coal mining sector. Mr Golby understands that the Terminal only operates for the loading of coal for export, with the Terminal servicing coal mined from three separate mines which is loaded and stored separately on ships. In Mr Golby’s experience, the Terminal is not busy compared to other port terminals engaged in similar endevours. The Terminal has only one berth and Mr Golby has seen the berth occupied a quarter of the time.
If port traffic is delayed by industrial action, ships will be in demurrage at the front of the Terminal. Ships are able to enter and leave the port with the high tide. Mr Golby believes that missing a tide will not result in a delay longer than 12 hours (the time taken for the tide to change) after the loading of the ship unless there are issues obtaining tugs. Mr Golby believes that the departure of multiple ships carrying LPG is the only event that would delay access to a tug as those ships take priority over ships carrying other cargo. Mr Golby does not believe that the length of delay caused by protected industrial action would result in a ship needing to omit a port. Delays are taken into account when planning for voyages, and Mr Golby believes this planning would absorb most of the impact of any protected industrial action at the terminal, especially if the employer has been given three working days’ notice. Mr Golby also disagrees that deballasting would be delayed by protected industrial action. Deballasting usually takes place during the loading of the ship and is the responsibility of the ship’s crew. If the loading is delayed by protected industrial action, the ship would deballast as usual when it was eventually loaded and would not lead to delays to the ship’s departure.
WICET relied upon evidence from Mr Kent Whitehouse, WICET Execution Lead. Most of Mr Whitehouse’s evidence was relevant to the safety exemption clause which is no longer pressed. However, Mr Whitehouse also gave evidence that five days’ notice of industrial action is preferable to three days operationally for reasons including the scheduling of vessels and the provision of sufficient notice to contractors for maintenance work to avoid delays.
Consideration
Section 414 of the FW Act provides:
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) subject to paragraph (b):
(i) if subparagraph (ii) of this paragraph does not apply—3 working days; or
(ii) if the proposed enterprise agreement is a multi‑enterprise agreement—120 hours; 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.
Note: For a proposed cooperative workplace agreement, see subsection 413(2).
Notice of employee claim action not to be given until ballot results declared
(3) A notice under subsection (1) must not be given until after the results of the protected action ballot for the employee claim action have been declared.
Notice requirements—employee response action
(4) Before a person engages in employee response 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.
Notice requirements—employer response action
(5) Before an employer engages in employer response action for a proposed enterprise agreement, the employer must:
(a) give written notice of the action to each bargaining representative of an employee who will be covered by the agreement; and
(b) take all reasonable steps to notify the employees who will be covered by the agreement of the action.
Notice requirements—content
(6) A notice given under this section must specify the nature of the action and the day on which it will start.
Section 443 of the FW Act provides:
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) 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;
(e) the person or entity that the FWC decides, under subsection 444(1A), is to be the protected action ballot agent for the protected action ballot;
(f) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.
(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.
(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 or 120 hours (whichever is applicable), 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.
Sections 414(2) and 443(5) work in conjunction with each other in relation to the requirement that before a person engages in employee claim action for a proposed enterprise agreement, an employee bargaining representative must give written notice of the action to the employer. The required notice period is three working days (if the proposed enterprise agreement is not a multi‑enterprise agreement). The required notice period may be extended up to a maximum period of seven working days provided the Commission 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 being longer than three working days.
The particular facts and circumstances relied upon by WICET to seek an extension of the notice period to five days are the unique operational environment of the port terminals in Australia including the specialised nature of the work performed, safety considerations and logistical issues. The uncontested evidence of Mr Golby presented on behalf of the AMWU is that the Terminal only operates for the loading of coal for export, the Terminal is not busy compared to other port terminals engaged in similar endeavours and that the Terminal has only one berth and Mr Golby has seen the berth occupied a quarter of the time. This is to be contrasted with the workplace conditions in DP World which were described in evidence before Deputy President Bull at first instance as involving both import and export containers; customers that included shipping lines whose services call at Australian ports to be discharged and loaded; delays in a particular port having a cascading effect contributing to delays in the subsequent ports of call; and industrial action necessitating the engagement of subcontractors requiring 6 to 7 days’ notice.[5] Ultimately Deputy President Bull determined that three working days’ notice was an insufficient period where DP World planned to subcontract out the stevedoring in an attempt to mitigate the potential disruption to shipping schedules of third parties and that there were exceptional circumstances justifying an extension to the period of written notice from three working days to five days.
In upholding Deputy President’s decision on appeal, the Full Bench said:
The requirement for exceptional circumstances calls for the particular facts and circumstances of a case to be considered and an evaluative judgment to be made. When the Decision is read in the way we have identified, it does not have any wider implications beyond the particular circumstances of the current negotiations between the parties, nor does it represent any precedent generally or for the stevedoring industry. It cannot even stand as a precedent for DP World itself, noting that in respect of protected industrial action in past enterprise bargaining rounds at DP World there has not even been an application for an extension of the notice period. There can be no doubt that one of the factors to be weighed by the Commission in determining whether exceptional circumstances justify an extension of the written notice period is the impact of the industrial action proposed to be put to a ballot upon the interests of third parties. Plainly, the magnitude of the impact and its ramifications will be a matter of degree in each case, depending on a range of factors, inter alia, the nature, extent of, and duration of the proposed industrial action. This is a matter which may be taken into account together with a range of other relevant factors including but not limited to the direct effect upon the employer, the effect of an extension upon the bargaining power of employees, the range of mitigative strategies which an employer may adopt within the standard notice period, and the capacity of the employer to take protected response action. (citations omitted)[6]
It is clear from the Full Bench decision that WICET cannot rely upon the decision as supporting a principle of general application that exceptional circumstances will always be established for protected action ballots involving port terminals. Rather, I need to consider the particular facts and circumstances of the case and make an evaluative judgment as to whether exceptional circumstances exist.
In the current application before me, WICET has submitted that the delays in ship loading will cause various operational problems, issues and increased costs. However, WICET has not provided any evidence or submissions which enable me to determine whether each specific form of industrial action itemised in the ballot questions sought by each union considered in isolation or collectively will cause these delays or otherwise constitute exceptional circumstances. In the absence of this evidence, I am unable to identify or make findings about the particular facts or circumstances in relation to the proposed industrial action which are said to inform the evaluative judgement that such factors or circumstances are exceptional circumstances.
I am therefore not 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.
Conclusion
On the basis of the material before me, including the declarations of Mr Philip Golby, AMWU Organiser, Mr Jeffrey Scales, CFMMEU District Vice-President, and Mr Shawn Higgins, CEPU State Organiser, setting out the steps taken by the relevant unions in bargaining with the Employer and that they have been, and are, genuinely trying to reach agreement with WICET, I am satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in s.443(1) of the Act have been met.
The ballots are 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[7] and consequently is authorised to conduct the ballot.
For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 15 September 2023.[8] This also establishes the ballot period for the purpose of s.448A(2) of the Act.
Orders have been separately issued in PR765691, PR 765786 and PR765730.
These matters will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference. That Member will issue an Order requiring the attendance of all bargaining representatives involved in the proposed enterprise agreement 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.
DEPUTY PRESIDENT
[1] [2019] FWCFB 1150
[2] [2020] FWC 3751
[3] [2018] FWCFB 4011
[4] Ibid, [23]-[25].
[5] [2019] FWC 908, [18]-[21].
[6] [2019] FWCFB 1150, [20].
[7] Democratic Outcomes Pty Ltd T/A CiVS [2023] FWC 1400
[8] This is, in effect, ten (10) working days from the date effect of the Order.
Printed by authority of the Commonwealth Government Printer
<PR765690>
0
5
0