Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v BR & I Pty Ltd

[2021] FWC 2961

[2021] FWC 2961

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); Construction, Forestry, Maritime, Mining and Energy Union; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
BR & I Pty Ltd
(B2021/342)

DEPUTY PRESIDENT BEAUMONT PERTH, 24 MAY 2021

Proposed protected action ballot of employees of BR & I Pty Ltd - whether applicant genuinely trying to reach an agreement – whether ballot questions sufficiently specific – whether employees to be balloted are identified – whether extension of time for notice of action under s 414(2) justified

1 Introduction

[1] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU); and the Construction, Forestry, Maritime, Mining and Energy Union; Communications (CFMMEU), and the Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) have applied under s 437 of the Fair Work Act 2009 (Cth) (the Act) for a protected action ballot order. The application is in relation to certain employees of the Company who are members of the AMWU, CFMMEU and CEPU (collectively the Unions).

[2] The Unions have been bargaining with BR&I Pty Ltd (the Company) for an enterprise agreement to supersede the BR & I Enterprise Agreement 2016, 1which has a nominal expiry date of 28 March 2021. The proposed agreement is to cover those employees of the Company engaged to undertake maintenance activities at the BP Kwinana Oil Refinery in the State of Western Australia (Kwinana Refinery).

[3] The Company objected to the application on several grounds:

a) the draft order referred to the employees of the Company and as such was of broader scope than those employees who work at the Kwinana Refinery and who will be covered by the proposed agreement;

b) the draft order contains a vague description of the proposed industrial action to be taken;

c) whilst the parties had reached agreement on several matters the Company held the view that two matters had not remained unresolved prior to the last vote and it should be given the opportunity to clarify the span of hours, namely:

i. the span of ordinary work hours had been settled based on the proposal of 38 hours per week to be completed Monday to Friday;

ii. income protection and severance provisions had been rejected by the Company and had not been raised again by the Unions since that rejection; and

d) the industrial action specified will affect the safe operation of the facility.

[4] The matter was allocated to Chambers on 21 May 2021 and heard on 24 May 2021. The application was properly made by bargaining representatives for the proposed agreement, 2 and at the time of making the order, there had been a ‘notification time’ in relation to the proposed agreement. Further, there was no dispute that both the Company and the Australian Electoral Commission received the application within the requisite statutory period. I reserved my decision, informing the parties that they would be notified shortly thereafter.

[5] Having considered all materials filed and the evidence given in this matter, as well as the submissions of the parties, I concluded that the requirements for the making of a protected action ballot order had been met. My reasons follow.

2 Background

[6] Mr Van Der Burgt, People & Capability Business Partner, gave evidence on behalf of the Company. The Company did not file a witness statement. However, Mr Van Der Burgt was provided with the opportunity to give evidence during the hearing, a course which was not objected to by the Unions.

[7] Mr Rushworth, lead organiser for the AMWU, and Mr Woodage, organiser for the CEPU, gave evidence on behalf of the Unions. Their evidence was unchallenged by the Company.

2.1 Operations

[8] While Mr Van Der Burgt was provided with the opportunity to give evidence at hearing, his account did little to illuminate the operations of the Company or the work undertaken at the site. Although, he noted it was a major hazard facility. Mr Rushworth, however, gave evidence about the Kwinana Refinery and the Company’s operations. I have relied upon his evidence, which in short encompassed the following set out below.

a) In October 2020, BP announced the Kwinana Refinery would stop fuel production and would be converted into an import terminal.

b) Fuel production at the Kwinana Refinery ceased in April 2021. This means that there is no longer any active processing or refining of fuel on site.

c) Fuel import is understood to be handled by direct employees of BP.

d) The Company is not the only maintenance contractor at the Kwinana Refinery. UGL and Contract Services also provide maintenance services on the site, in similar areas to the Company’s workers.

e) The Company’s employees are currently performing work on shutdowns, a ‘de-oil, de-energise and isolate’ process (which involves the shutting down of the Kwinana Refinery in preparation of demolition), maintenance on the tank farm and ad hoc construction projects.

f) The Company employees work a 40-hour week roster, with ordinary hours spread over Monday to Friday. They do not work a 24-hour, 7-day a week basis. They are not on call.

g) The Company employees were stood down from 1-5 February 2021 following a notice of the lockdown in Perth, Western Australia, on 31 January 2021. To the best of Mr Rushworth’s knowledge, there were no damaging safety issues or consequences from the stand-down. 3

2.2 Bargaining

[9] The Company issued a notice of employee representational rights for a proposed enterprise agreement, the BR& I BP Kwinana Maintenance Enterprise Agreement 2020, on 25 February 2020. The new agreement is proposed to ‘cover employees that are engaged to undertake maintenance activities at the BP Kwinana Oil Refinery in Western Australia’. The scope is not contested.

[10] Mr Rushworth said that during the course of negotiations with the Company for the proposed agreement, 12 meetings had been scheduled and attended. The meetings commenced on 18 March 2020 and extended to 14 April 2021, with each meeting being of 1-2 hours duration. A representative from each of the three Unions had been present at all bargaining meetings.

[11] During the bargaining period, the Company had put a draft agreement to the vote three times. On all three occasions, the draft agreement was voted down. Since the last vote in May 2021, Mr Rushworth had asked the Company to resume negotiations.

[12] According to Mr Rushworth, the Company and the Unions had reached an in principle agreement on some clauses of the proposed agreement but were still engaged in bargaining for several others. The outstanding clauses included: (a) the span of hours; (b) overtime penalties; (c) the provision of income protection; (d) severance provisions; and (e) wages and allowances.

[13] Mr Rushworth expressed that the Company appeared to believe that the claims concerning the span of ordinary hours, income protection and severance provisions had been settled. However, Mr Rushworth said that in the first week of May 2021, he had informed Company representatives that the Unions did not agree with aspects of their proposed ordinary hours of work clause.

[14] Mr Adam Woodage, an organiser for the CEPU, gave evidence on its behalf, similarly outlining the bargaining meetings held to date. 4 Mr Woodage noted that the notice of employee representational rights for the proposed agreement had been issued on 25 February 2020.5 Concerning the Company’s approaches to the employees to vote up the proposed agreement, Mr Woodage clarified that this had occurred in November/December 2020, March 2021 and May 2021.6 Mr Woodage’s evidence concerning outstanding claims aligned with that of Mr Rushworth.

[15] The position of the Unions was that they had been genuinely trying to reach agreement and would continue working with the Company to reach a new enterprise agreement.

3 Legislative Framework

[16] Pursuant to s 443, the Commission is obliged to issue a protected ballot order only in the following circumstances:

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.

(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.

[17] Section 437 of the Act relevantly provides 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.

(2A) Subsection (1) does not apply unless there has been a notification time in relation to the proposed enterprise agreement.

Note: For notification time, see subsection 173(2). Protected industrial action cannot be taken until after bargaining has commenced (including where the scope of the proposed enterprise agreement is the only matter in dispute).

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) If 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.

4 Consideration

4.1 The Unions have not identified the group of employees as required by s 437(3)(a)

[18] The Company advanced that the draft order had not specified the group or groups of employees who are to be balloted, because it was of broader scope than those employees who work at the BP Refinery. The draft order read:

The employees to be balloted are those employees of BR & I Pty Ltd who will be covered by the proposed enterprise agreement and who are members of, or eligible to be members of the AMWU, CFMMEU and/or CEPU.

[19] The Company submitted that if the following wording was adopted by the Unions, it would prove acceptable to it:

1. PROTECTED ACTION BALLOT TO BE HELD

The AMWU, CFMMEU and CEPU are to hold a protected action ballot of employees of BR & I Pty Ltd (employer) as described under clause 3 of this Order.

3. GROUP OR GROUPS OF EMPLOYEES TO BE BALLOTED

The employees to be balloted are those employees of BR & I Pty Ltd who are members of the AMWU, CFMMEU and/or CEPU who are engaged to work at BP Kwinana Import Fuel Terminal (also known as the BP Kwinana Refinery) and would be covered by the proposed agreement.

[20] The Unions adopted the wording proposed by the Company, and an amendment to the draft order was permitted.

4.2 Whether proposed ballot questions sufficiently clear

[21] With regard to the proposed ballot questions, it is clear that what is required is that the questions should describe the industrial action in such a way that employees are capable of responding to them. 7 To be able to respond, the application should propose a question and contain other details about the industrial action and other relevant matters, that will permit employees to make an informed choice on whether to authorise the particular action specified in the question.8 A question which is ambiguous or does not permit such a result does not comply with the requirements for a valid application.

[22] The Company has submitted that Question 1 of the proposed ballot is ambiguous and may lead to a dispute about what amounts to protected in comparison to unprotected industrial action. It continued that the Question 1 was too vague and did not provide an adequate description whereby the Company could prepare to deal with the effect of the industrial action. Question 1 reads:

1. An unlimited number of stoppages of the performance of work between 30 minutes and up to and including 24 hours?

Yes [ ] No[ ]

[23] In the recent decision of the Full Bench in Transport Workers' Union of Australia v Prosegur Australia Pty Ltd 9(Prosegur), the Full Bench cited with approval the approach taken the Full Bench in John Holland Pty Ltd v AMWU which said, in relation to s 437(3)(b):

Moving now to the construction of s.437 itself, seen in its statutory context, all that the section requires is that the questions should describe the industrial action in such a way that employees are capable of responding to them. If the questions are ambiguous or lack clarity, there may be consequences for the bargaining representative and the employees if reliance is placed on the result of the ballot in taking industrial action. If the question or questions give rise to ambiguity, the conclusion may be reached that the industrial action specified in a notice under s.414 was not authorised by the ballot and that the action is not protected for the purposes of s.409(2). It is true that ambiguity or lack of clarity in the description of the industrial action is undesirable, but these are matters more appropriate for consideration under other provisions. It follows that in most cases the drafting of the questions will be a matter for the applicant.” (underlining added)

[24] The Full Bench expressed that the decision in John Holland made it clear that it will not normally be the proper role of the Commission to interfere in the drafting of questions to appear in a protected action ballot order. Hence, as noted above, if the questions describe the nature of proposed industrial action in a sufficiently clear way such that employees are capable of responding to them, then there is no basis for the Commission not to include them in a protected action ballot order that it is required to make under s 443(1). 10

[25] It was further explained in Prosegur that there may nonetheless be some cases in which the Commission will not be satisfied that the condition in s 443(3)(d) are met. For example, the employer who has objected to the application may present evidence or other material which demonstrates that, because of the nature of the work that employees perform or some other relevant circumstance, a considered response might not be able to be given by employees to a particular question.

[26] The Unions submitted that the voting cohort will understand Question 1 and will understand that the nature of the action is to stop the performance of work. It was the Unions’ view that a single question authorising stoppages of work for varying time periods did not make the question vague.

[27] Referring to the Company’s objection that Question 1 does not ‘provide an adequate description where BR & I can make preparations to deal with the effect of the industrial action’, the Union referred to the requirement that any industrial action must meet the notice requirements in s 414, which includes specifying the nature of the action and the day on which it will start.

[28] Referring to what was expressed in Prosegur, the Unions submitted that the language of s 443(3)(d) and s 414(6) is different: s 443(3)(d) refers to the nature of ‘proposed industrial action’, whereas s 414(6) refers to the specification of the nature of ‘the action’. 11 The difference between the two sections was aptly described in the Full Bench decision of Mornington Peninsula Shire Council v Australian Municipal Administrative Clerical and Services Union,12 where it was said:

It should immediately be apparent that the specificity with which “the action” is to be described in a notice might not be the same as a requirement that a question in a ballot include “the nature of” the proposed industrial action. Both concern describing action that is industrial action as defined in s.19 of the FW Act. However, the specificity with which the action needs to be described seems to us to be different. It seems to us that the structure of the differing legislative requirements, contemplates that at the time that a member of the Commission comes to consider whether to make a protected action ballot order, the context and manner in which employees might subsequently choose to take proposed industrial action, the nature of which is described in the question, may not be clear. However, different considerations will apply once a ballot has been conducted, the nature of the industrial action has been approved, and a bargaining representative gives notice of the action that will be taken by employees. When the notice is given, greater clarity about the context and manner in which employees will take industrial action, will doubtless be apparent and so greater clarity in describing the action to be taken will be required. 13

[29] The Unions continued that should its order be granted and a ballot authorising industrial action successfully voted up, the Company will be informed of the specifics of any proposed industrial action in the notice under s 414 and should it have concerns regarding unprotected industrial action after a notice is served, recourse for relief could be pursued under s 418.

[30] On any objective level, it is not difficult to discern that the number of stoppages is unlimited, that the stoppage is on the performance of work, and that each stoppage may fall between 30 minutes up to and including 24 hours in duration.

[31] There was no evidence led by the Company that would suggest that Question 1 was problematic in the terms described by Prosegur. As such, there was no proper basis for concluding that Question 1 did not sufficiently describe the nature of the proposed industrial action as contemplated in s443(3)(d).

4.3 Genuinely trying to reach agreement and unresolved matters

[32] Section 443(1)(b) requires that, before a protected action ballot order can be issued, the Commission must be satisfied that the applicant union has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

[33] It follows that there are two temporal components to s 443(1)(b): the applicant must have been genuinely trying to reach an agreement and must be genuinely trying to reach an agreement. 14

[34] Whilst the parties have reached agreement on several matters, the Company identified that some matters did not remain unresolved prior to the last vote. The Company noted that a bargaining meeting was planned for Tuesday, 25 May 2021, where it should be given the opportunity to clarify the span of hours and to consider the re-introduction of claims prior to an order being given on the matter.

[35] There is some difficulty in trying to ascertain the basis of the objection in light of s 443 of the Act.

[36] The Unions submitted that it has been the Commission’s approach when determining whether an applicant is genuinely trying to reach an agreement, to assess all of the circumstances of the particular case. 15 They continued that the Full Bench of the Fair Work Commission in Total Marine noted that an assessment of the relevant circumstances will frequently involve considering the extent of the progress in negotiations and the steps taken in order to try and reach an agreement.

[37] In this regard, the Unions submitted that they have been genuinely trying to reach an agreement, noting there had been 12 meetings since negotiations commenced, and all representatives from the AMWU, CFMMEU and CEPU had attended either all or most of the bargaining meetings. The Unions noted each union had articulated claims at the start of the negotiations, and they had engaged with the Company throughout the process. On this basis, said the Unions, they have been, and are, genuinely trying to reach an agreement with the Company.

[38] Concerning the two claims and the unresolved issue, the Unions agreed with the Company that the appropriate forum for such matters to be discussed is at the bargaining table, observing that the Company’s concerns in this respect should not impact the granting of a protected action ballot order.

[39] I accept what has been said by the Unions regarding the unresolved matters, noting that the submissions of the Company did little to advance its case, if it is in fact pursuing one on the basis that the Unions are not genuinely trying to reach an agreement.

[40] It is clear on the evidence that the negotiations have been ongoing for at least a year. The terms of the proposed agreement appear to have been discussed at many enterprise bargaining meetings, with an agreement reached on some claims. Further, evidence was led that a further meeting is to take place on 25 May 2021. There was no argument to the contrary. Considering the evidence, I am satisfied that the Unions have been and are genuinely trying to reach an agreement with the Company.

4.4 The industrial action specified will affect the safe operation of the facility

[41] The Company opposed the industrial action items contained in the draft order on the basis it will affect the safe operation and the safety of personnel of a major hazard facility. It continued that it was paramount that ‘Top Priority, Integrity Critical and mandatory maintenance activities are continued to be carried out for the safety and wellbeing of all personnel working at the terminal and the surrounding community’.

[42] Because of the safety concerns held by the Company, it sought, in circumstances where the protected ballot action order was approved, to preclude industrial action where:

a) work is required to be performed on an urgent basis to avert and/or respond to a safety risk that has arisen and it was not reasonably foreseeable that the safety risk would arise;

b) any duties to ensure the facility’s Safety Critical Elements (SCE), including safety critical equipment and systems are in a safe condition including performance of all Safety Critical Activities;

c) any work that is required to be undertaken in accordance with any order or direction given by the regulator, DMIRS/WA Worksafe, under applicable legislation; and

d) any reactive maintenance work relating to life critical amenities, but not including routine or scheduled maintenance.

[43] The Unions submitted that the Commission’s role when it comes to assessing ballot questions is in the context of whether they meet the requirements in ss 437(3)(b) and 443(3)(d). Both sections require a protected action ballot order to specify the questions to be put to the ballot cohort and the nature of the industrial action. Where questions do not meet this requirement, it is entirely within the Commission’s remit to remove those questions from the order. 16

[44] However, it was the Unions’ view that the process of assessing the ballot questions against the Act does not extend to re-drafting or amending questions that do meet the statutory requirements.

[45] The Unions observed that while not explicitly stated in the Company’s submission, it had assumed that the Company was seeking to insert the exclusions (see paragraphs [42] (a)-(d) of this decision) into the draft order’s proposed questions (the carve outs). To the extent that the Company had submitted evidence to lend support to the exclusions sought, the Unions submitted no such evidence had been led.

[46] The Unions stated that the carve outs appeared to have adopted the use of defined terms but provided no ‘definitions’ of the same. Mr Van Der Burgt acknowledged that the carve outs had been sourced from other protected ballot action orders where the companies involved included ‘Inpex’ and ‘Chevron’. In this respect, while not specific to the workplace, the carve outs were specific to the type of work environment, said Mr Van Der Burgt. Insofar as Mr Van Der Burgt was familiar with the Safety Case for the site, he acknowledged that he was not.

[47] The Unions advanced that the relevant employees can clearly leave their jobs without deleterious safety risks. By way of example, the Unions noted that they do so every day when they go home from work, and do not remain on-call for safety risks or issues.

[48] A further observation made by the Unions was that there was recent precedent whereby the Company stood down its workforce for five days on 24-hours’ notice during the February 2021 COVID-19 lockdown. It did so, said the Unions, on the basis that the workers were not considered essential workers. According to the Unions, there were no damaging safety issues or consequences. No evidence was led to the contrary.

[49] In all of the circumstances, there is simply insufficient evidence before me to suggest that the carve outs are warranted. Therefore, it has proved unnecessary to determine whether the Commission is empowered to ‘re-draft’ or ‘amend’ the draft ballot questions to meet the statutory requirements. Albeit, it is observed that the Commission has previously granted leave for a party to amend or otherwise re-draft a question in a draft protected action ballot order. 17

[50] In the decision of National Union of Workers—New South Wales Branch v FreshExchange Pty Ltd, 18 the Vice President concluded that a question on the draft protected action ballot order was not expressed in sufficiently clear terms and therefore the requirements of s 437 were not met. However, whilst he declined to make the order in the form sought, the Vice President expressed that if the defects identified were remedied, he would otherwise grant the application. The Vice President thereafter noted that the union should provide an amended draft order.

4.5 Extension of the three-day period

[51] If it can be justified, the Commission can require a longer notice period if satisfied there are exceptional circumstances. 19 The onus sits with the Company to provide evidence that would satisfy the Commission that there are exceptional circumstances in this instance.

[52] The approach to exceptional circumstances, in this context, was discussed by Vice President Lawler in CEPU v Australian Postal Corporation, 20 which concerned an equivalent provision of the Workplace Relations Act 1996:21

[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.

[53] The Vice President went on to state:

[21] Essentially, what is required in determining whether exceptional circumstances justify an extension of the required notices [sic] 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.

[54] To summarise, 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. This requires a weighing up of the opportunity for the Company to take appropriate defensive action against the diminution of the effectiveness of the Unions’ members’ bargaining power that is contemplated by the scheme of the Act. 22 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.23

[55] The Company submitted that if the Commission was moved to grant the protected action ballot order, then the order should be varied to extend the written period of notice of industrial action, as referred to in s 414(2)(b) of the Act.

[56] The Unions highlighted that the Company had not led any evidence in support of its claim, and absent such evidence, the Commission could not be satisfied that exceptional circumstances exist. Furthermore, the Unions referred to the evidence that the Company can, and has, stood down its workforce on short notice, with no damaging safety consequences.

[57] I accept the Unions’ submissions. The circumstances at present are not out of the ordinary course, unusual or special, or unprecedented. I am not satisfied that a longer notice period of seven days should be provided in respect of all the industrial action identified within the draft ballot orders. The request for an extension of time is therefore declined.

5 Conclusion

[58] I am satisfied the requirements in s 443(1) of the Act have been met. Accordingly, on 24 May 2021, a protected action ballot order was issued. The order 24 was based on the draft order proposed by the Unions in their applications.

DEPUTY PRESIDENT

Appearances:

Ms. Pearl Lim, for the AMWU;
Mr. Kivraj Singh, for the CFMMEU;
Mr. Adam Woodage, for the CEPU;
Mr. Lee Van Der Burgt, for the Respondent.

Hearing details:

Perth (Video using Microsoft Teams);
21 May;
2021.

Printed by authority of the Commonwealth Government Printer

<PR730101>

 1   [2017] FWCA 1785.

 2   Fair Work Act 2009 (Cth), s 176.

 3   Witness Statement of Simon Rushworth dated 23 May 2021 (Rushworth Statement) [9] – [17].

 4   Form F34B Declaration in support of an application for a protected action ballot order Adam Woodage (Woodage Statement) [5].

 5 Woodage Statement [4].

 6 Woodage Statement [9].

 7   John Holland Pty Ltd v Automotive, Food, Metals Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU)[2010] FWAFB 526 [19].

 8   National Union of Workers—New South Wales Branch v FreshExchange Pty Ltd [2009] FWA 221 [10].

 9   Transport Workers' Union of Australia v Prosegur Australia Pty Ltd[2021] FWCFB 1562 (‘Prosegur’).

 10 Ibid [33].

 11 Ibid [38].

 12   [2017] FWCFB 4740.

 13   Ibid [44]

 14   Esso Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union[2015] FWCFB 210 [54].

 15   JJ Richards & Sons Pty Ltd v Fair Work Australia [2012] FCAFC 53 (Jessup, Tracey and Flick JJ) (JJ Richards); Total Marine Services Pty Ltd v Maritime Union of Australia [2009] FWAFB 368, [31] (Watson VP, Hamberger SDP and Roberts C) (Total Marine); CEPU v Kraft Foods Ltd [2010] FWA 4404 [29] (Hampton C); Esso Australia Pty Ltd v AMWU, CEPU and AWU [2015] FWCFB 210 (Esso).

 16   TWU v Prosegur; “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v The Fremantle Foundry and Engineering Company Proprietary Limited [2020] FWC 4356 [67].

 17   National Union of Workers—New South Wales Branch v FreshExchange Pty Ltd [2009] FWA 221.

 18   [2009] FWA 221.

 19   Ibid; Fair Work Act 2009 (Cth), s 443(5).

 20   Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation[2007] AIRC 848.

 21   Workplace Relations Act 1996 (Cth), s 463(5).

 22   Australian Federation of Air Pilots v Alliance Airlines Pty Ltd T/A Alliance Airlines[2017] FWC 6748 [12].

 23   Ibid.

 24   PR730116.