Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Chubb Fire and Security Pty Ltd T/A Chubb Fire and Security
[2018] FWC 178
•9 FEBRUARY 2018
| [2018] FWC 178 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.437—Protected action
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Chubb Fire and Security Pty Ltd T/A Chubb Fire and Security
(B2017/1200)
| DEPUTY PRESIDENT MASSON | MELBOURNE, 9 FEBRUARY 2018 |
Proposed protected action ballot by employees of Chubb Fire and Security Service Pty Ltd - whether additional notice of proposed industrial action required - whether exceptional circumstances exist warranting an extension - exceptional circumstances not found - extension not granted
Background
The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) made an application for a protected action ballot order (PABO) under s 437 of the Fair Work Act 2009 (the Act) on 18 December 2017. The PABO was sought in relation to bargaining for a proposed enterprise agreement concerning employees of Chubb Fire and Security Service Pty Ltd (Chubb).
While not opposing the PABO application, Chubb advised the Fair Work Commission (the Commission) on 19 December 2017 that it was seeking an extension to the period of notice to be provided by the CEPU in relation to certain forms of industrial action that were set out in the proposed ballot questions.
Directions were set for the filing of submissions and materials and a Hearing was programmed for 10 January 2018. That Hearing was adjourned and the matter was relisted for a Hearing on 5 February 2018.
Context in which ballot order was sought
The employees to be covered by the proposed Agreement are employed by Chubb and are engaged in the servicing, maintaining and repair of fire detection and fire evacuation systems in buildings and plants in Victoria.
The CEPU is a bargaining representative for at least one of the employees to be covered by the proposed enterprise agreement. Bargaining commenced in September 2016 upon Chubb agreeing to bargain. Several meetings have been held between the bargaining representatives. 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
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.
(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.”
There is no contest that the CEPU is eligible to bring the application and that it has been, and is, 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
Chubb sought that written notice of seven working days be required in relation to three 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.
The approach to exceptional circumstances in this context was discussed by Vice President Lawler in CEPU v Australian Postal Corporation[1](CEPU), which concerned an equivalent provision of the Workplace Relations Act 1996[2] 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.”
The exceptional circumstances relied upon in this case relate to the impact of foreshadowed bans and stoppages on the maintenance and repair of fire detection systems and fire evacuation systems operating in buildings and plants, which if not ameliorated, would lead to an increased risk to the safety of persons, property and equipment due to faulty or inoperable fire detection and evacuation systems.
The forms of potential industrial action for which Chubb has sought to obtain the additional notice were:
·Question 1 - An unlimited number of indefinite stoppages on the performance of all work;
·Question 2 - An unlimited number of indefinite and/or periodic bans on overtime;
·Question 3 - An unlimited number of indefinite and/or periodic bans on call-outs; and
The forms of industrial action where additional notice was not sought involved one other form of industrial action, that being:
·Question 4 – A ban on starting and finishing each work day at any location other than the employee’s designated depot.
In order to warrant an extended period of notice, the Commission must be satisfied both as to the existence of exceptional circumstances and that these justify the granting of the extended notice.
As made clear in CEPU above, this also requires a weighing up of the opportunity for Chubb to take appropriate defensive action against the diminution of the effectiveness of the CEPU 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.
In this case, Chubb relied upon the following factors to demonstrate exceptional circumstances that warranted an extended period of notice of seven days in respect of three forms of industrial action[3]:
·The inability of Chubb to effectively respond to the proposed forms of industrial action within a three day period, thus limiting their ability to ameliorate the impact of the proposed industrial action on the provision of maintenance and repair of fire detection systems and fire evacuation systems in buildings and plants.
·The critical role that functioning fire detection and fire evacuation systems play in the maintenance of public safety and in the protection of buildings, plant and equipment.
·The serious potential consequences of faulty and/or inoperable fire detection and fire evacuation systems to public safety and to the integrity of buildings, plant and equipment.
·The absence of suitable alternative and available subcontractors that would be able and prepared to do the critical repair and maintenance work in circumstances of protected industrial action being taken by Chubb employees.
·The capacity of Chubb, with increased notice, to partially mitigate the impact of the proposed industrial action through the sourcing of employees from its interstate operations to cover critical work and by the provision of reasonable notice to its customers to enable them to put alternate arrangements in place.
Chubb led evidence from Mr Troy Palin, General Manager Victoria/Tasmania Chubb Fire. Mr Palin gave evidence including the following:
·Chubb’s customers are commercial and industrial building owners and managers which include office buildings as well as hospitals, aged care centres, oil and gas refineries, power generators, supermarkets and Qantas.[4]
·Employees of Chubb, of which approximately twenty eight would be covered by the proposed enterprise bargaining agreement (EBA) in Victoria, are engaged in servicing, maintaining and repairing fire detection and fire evacuation systems.[5]
·The purpose of fire detection and evacuation systems is to allow building and/or plant evacuation and for fire-fighting activities to start as soon as possible. Any delay can make evacuation and firefighting more problematic and risky as it becomes much harder to fight fires once they are more established.[6]
·A failure to detect or repair a fault in a system in a building or plant could lead to serious consequences in terms of the increased risk of injury and death and/or damage to buildings, plant and equipment. Additionally, gas and energy infrastructure or other facilities could be shut down due to issues arising from faulty or inoperable fire detection systems.[7]
·Without an exemption from the industrial action for repairs, failures and emergency call-outs, Chubb would need to make alternate arrangements to cover the work. Two options available to Chubb are that of the relocation of appropriately qualified and experienced interstate employees and/or engaging suitably qualified and experienced sub-contractors.[8]
·The engagement of sub-contractors is not regarded as a viable option due to the likely unwillingness of a sub-contractor workforce to do the work that was the subject of industrial action. The other factor that would militate against this option was that of the prospect that sub-contractors would have other jobs and commitments that would prevent them from responding quickly in supporting Chubb.[9]
·In relocating Chubb employees from interstate, three days’ notice of industrial action “was not much time to organise this”[10] and regard would need to be had to covering such employees in their home location as well as considering employees’ family and other personal commitments that would impact on their availability.[11]
·Mr Palin stated that the number of employees that would be required to be mobilised from interstate was small, in the order of two to three employees, to cover the potential industrial action.[12] However the pool of available employees with the necessary skills and experience was also small.[13]
·Depending on the type of fault, a fire detection system could become totally inoperable. Examples of issues that could lead to that were motherboard failures, loop card failures, power supply failures and monitoring device failures.[14]
·Although fire suppression systems operated independently of fire detection and evacuation systems, those suppression systems could trigger alarms by reason of the electrical devices attached to the suppression systems. Employees that would be covered by the EBA also carried out work on the electrical components connected to fire suppressions systems.[15]
·Fire detection and suppression systems maintained by Chubb were normally located throughout refineries in areas including process plant equipment, storage tanks, switch rooms and truck fill stands.[16]
·The potential consequences of an inoperable fire detection system was that occupants and fire services may not be alerted until a fire had become more established making evacuation and/or firefighting more dangerous than would be the case if the fire detection and evacuation systems were operating.
Under cross-examination by the ETU, Mr Palin gave the following evidence:
·That Chubb operates within a competitive environment and that other contractors have similar skills.[17]
·In the event of the industrial action proceeding customers could put alternate arrangements in place with a “few days’ notice.”[18]
·The incidence of critical failures that would lead to full systems becoming inoperable was rare.[19] Most ‘out of hours’ issues dealt with by Chubb employees were for more trivial faults.[20]
·A fault in a system that prevented communication of the fault to the fire services would still indicate to Chubb’s monitoring system that there was an issue because of the interruption to the pulse that occurs every thirty seconds to a minute from an operating system.[21]
The CEPU opposed the contention that additional notice should be provided on the following basis:
·Chubb was a provider of equipment maintenance services, not a provider of emergency services, nor were they an essential service or first responders in the event of a fire emergency.
·There was no evidence of risk or dislocation to the community that would justify an extension to the notice period.
·Chubb operated in a highly competitive environment in which customers could easily access alternate service providers in the event of industrial action impacting Chubb’s service delivery. They relied on a witness statement of Ms Abbey Kendal[22] in relation to this contention.
·Chubb’s own evidence indicated that an extension of the notice period would enable it to assemble an alternate workforce to nullify the effect of the protected industrial action.
·Even where exceptional circumstances exist, a decision to extend the notice period needed to balance the diminutive impact it would have on the employees’ bargaining power.
·The circumstances facing Chubb were not so exceptional as to justify an extension of the notice period to seven days.
The CEPU filed a witness statement from Ms Abbey Kendal which Chubb elected not to cross examine Ms Kendal on. The ETU also led evidence from Mr Joe Carabott who gave the following evidence:
·Mr Carabott is a Fire Technician employed by Chubb Fire and Security Pty Ltd where he has worked for twelve years. Prior to that he worked for Wormald for ten years doing the same work and prior to that he worked in the petrochemical industry for twenty one years which included roles as a fire officer for ten years.[23]
·In response to Mr Palin’s evidence, Mr Carabott stated that a fire protection system is made up of smoke, flame and heat detectors (components) which report back to a fire panel and that where there is a fault in one component of the system it does not cause the rest of the system to become inoperable.[24] Further, the systems are installed in buildings to alert occupiers and in most cases the fire services of the existence of a potential fire hazard.
·Of the systems that Mr Carabott worked, on he stated that 80% of the systems were addressable systems which in simple terms meant that if one component failed the rest of the system would continue to operate.[25]
·While Chubb repair and maintain fire detection and evacuation systems, they do not respond to fire emergencies or hazards as these are dealt with by the fire brigade. Following an emergency, Chubb staff may be called in to reinstate the system or repair damage after the fire services have attended.[26]
·Mr Carabott stated that the workgroup that would be covered by the EBA do not work on fire sprinkler systems but he was aware that those systems had their own alarms that operated separately to the detection systems that his workgroup worked on.[27]
·Mr Carabott stated that his work involved inspections and test work as well as “do and charge” work. It also involved participation in a call-out roster which required attendance after hours to address faults.[28]
·Mr Carabott stated that attendance to system faults that would render a system inoperable were rare and unpredictable.[29] Those circumstances included motherboard failures, loop card failures and power supply failures. Monitoring device failures were more frequent; however such failures did not render whole systems inoperable.
·A fire detection system would still operate unless there was a motherboard or loop card failure. If there were a loop card failure however, no one would be aware of the fault.[30]
Under cross examination by Chubb Mr Carabott gave the following evidence:
·Fire detection systems and maintenance and repair of such systems were very important as they (fire detection systems) were intended to protect property and lives. A failure to properly maintain and repair systems could lead to injury, loss of life and property damage.[31]
·A critical failure was rare, such that a whole fire detection system was inoperable, although it was not possible to predict where or when such a failure would occur.[32] If the system was not working, then there would be less warning to occupants and the fire services.[33]
·A delay in the fire services attending would potentially allow a fire to take hold, which would make firefighting more difficult although fire suppression systems would still be likely to be operating.[34]
·Mr Carabott stated that if Chubb employees were asked to do the work of another contractor’s workforce taking protected industrial action, he probably would not do the work. This was due to his reluctance to do the work of striking employees. He accepted that such a view, if held similarly by others, was likely to make it more difficult for Chubb or its customers to arrange an alternate service provider in circumstances of industrial action.[35] He stated, when pressed, that there were unlikely to be many but “some” people in the market prepared to work through the industrial action if Chubb employees took action.[36]
In addition to the CEPU case both parties referred to a number of other decisions of the Commission that were contended as relevant to the consideration of the present matter. Some of the relevant points to emerge from those decisions included:
·In Transport Workers’ Union of Australia v Scotts Agencies Pty Ltd t/a Scott Petroleum (Scott Petroleum)[37], the fact that the company, while a fuel service provider to emergency services, was not a sole provider was a relevant consideration to whether the circumstances in that case were exceptional such as to justify an extension of the notice period. The extension sought was not granted.
·In Transport Workers’ Union of Australia v Linfox Armaguard Pty Ltd (Armaguard)[38], a relevant consideration was that of the public interest. In this case an extension of the notice period enabled Armaguard to put “contingency measures in place to minimise the security risks for its employees, its clients, its clients’ employees and the broader public and to mitigate the impact of disruption to the collection and distribution of cash.”[39] An extension of the notice period was granted in respect of certain forms of industrial action.
·In Application by United Firefighters’ Union of Australia[40], community protection was found to be an exceptional circumstance such as to justify an extension of the notice period in respect to certain forms of industrial action.
·In United Firefighters’ Union of Australia v Transfield Services (Australia) Pty Ltd (UFUA v Transfield)[41], it was found that Transfield’s work as an essential service provider to the Department of Defence air operations, in particular in terms of its firefighting, was an exceptional circumstance justifying an extension of the notice period.
·In Health Services Union v Victorian Institute of Forensic Mental Health (HSU)[42], it was found that the disruption to the delivery of specialised mental health care to patients, in circumstances where it was difficult to obtain appropriately qualified replacement staff, would put patients at risk as well as others in the community. This was sufficient to establish exceptional circumstances justifying an extension of the notice period.
·In Australian Education Union v State of Victoria (Department of Education & Early Childhood Development)[43], it was found that not all industrial action affecting an essential service could be regarded as an exceptional circumstance. However, in the circumstances of education workers servicing the needs of children, and particularly those with special needs, it did establish exceptional circumstances justifying an extension of the notice period.
While each of the cases referred to by the parties involved the application of the principles summarised by Vice President Lawler in the CEPU case, it is clear that each turned on their own unique factual circumstances. So to in the present case it is necessary to consider the particular factual circumstances in applying the relevant principles.
Consideration
I am satisfied that the evidence of both Mr Palin and Mr Carabott support a conclusion as to the critical role that fire detection and evacuation systems play in the protection of public safety, buildings, plant and equipment.
It was also clear from the evidence of both Mr Palin and Mr Carabott that faulty or inoperable fire detection and evacuation systems can delay an alarm being raised to occupants or to the fire services, allowing a fire to become more established. This creates greater risks in terms of both the safe evacuation of occupants as well as for the fire services in their firefighting activities. While Mr Carabott appeared initially reluctant to concede the point, he did accept that faulty or inoperable fire detection and evacuation systems could increase the risk of injury and death from fires. I am consequently satisfied that faulty or inoperable fire detection and evacuation systems are likely to increase the risk to public safety and to the integrity of buildings, plant and equipment.
I am further satisfied that the evidence of the parties confirmed the role played by Chubb in respect of their fire emergency role. Specifically, they are not a first responder to fire emergencies but would be required to attend shortly after an incident to repair or restore a system that may have been disabled or damaged during a fire event.
Mr Carabott and Mr Palin agreed that the incidence of critical faults that would render an entire system inoperable, through events such as motherboard or loop card failures, were rare but it could not be predicted when such faults might occur. Call-outs and out of hours attendance of Chubb employees to address faults were more likely to involve routine non- critical faults.
The evidence in relation to fire suppression systems supports a conclusion that, while Chubb employees that would be covered by the EBA do not work on the mechanical components of such systems, they do maintain and repair the electrical components that were attached to the suppression systems. Fire suppression systems are in some circumstances linked back to the alarm system panel, but in any event will operate independently of the alarm systems if the alarm system is faulty. That is by reason of the particular form of activation of the suppression system which is not dependent on the operability of the fire detection and evacuation system.
The evidence of Mr Palin was clear in relation to the nature of the market in which Chubb operates. While Chubb took issue with the weight that should be attached to the company search conducted by Ms Kendall, Mr Palin conceded that Chubb operated in a competitive environment. That evidence was supported by Mr Carabott who also has considerable experience having worked in the industry for at least twenty years. I am consequently satisfied that Chubb is not a sole or unique service provider. I am satisfied on the evidence that that there are alternate providers in the industry.
While there may be alternate providers available in the market, an important consideration is that of their practical availability. A theoretical availability is not the same. Mr Palin was clear in his belief that other contractors would not undertake the work affected by Chubb employee industrial action, this being due to the unwillingness of a contractor to do such work in circumstances of an industrial campaign. Mr Carabott reinforced this evidence when pressed, as to his own attitude to do doing the work of other contractors impacted by industrial action.
While not putting it so highly that it would be impossible to sub-contract the affected work, I am satisfied that it is unlikely that Chubb could quickly or easily sub-contract the impacted work due to the likely industrial implications for a contractor in doing such work on a sub-contracted basis. The perceived industrial relations barrier to the sub-contracting of the work is aside from the practical ability of a sub-contractor to re-arrange its work priorities to undertake the relevant work within the necessary time frame.
Mr Palin in his evidence was far more sanguine at the prospects of an affected client being able to secure an alternate contractor directly in circumstances of Chubb being affected by industrial action. Mr Palin’s evidence was that this could be done fairly quickly, i.e. “within a few days”. This view was reinforced by Mr Palin’s evidence that Chubb operates in a competitive market.
Mr Palin also felt that a direct client to alternate contractor arrangement would be less problematic from an industrial relations perspective although Mr Carabott’s attitude to this potential was less conclusive. In any event Mr Carabott conceded that there would be “some people” prepared to do the work even though he personally would be reluctant to do so in such circumstances. I am consequently satisfied that given the competitive environment that Chubb operates in it is likely that an alternate provider could be secured directly by Chubb’s affected clients within a short period of time. While the evidence on the exact time frame was limited I accept Mr Palin’s evidence that it could be done within a “few days”.
Mr Palin gave evidence as to Chubb’s ability to transfer employees from interstate to cover work impacted by the industrial action. While suggesting that three days “was not much time to organise this”, he did not provide detailed evidence on how long it would take to mobilise interstate employees, the skills and qualification profile requirements and the size of that source labour pool having regard to the skills and qualification profile requirements. When questioned on the numbers that might be required in circumstances of industrial action, Mr Palin conceded that the numbers required would be “small” and that two to three would be adequate.
There was insufficient evidence to satisfy me that the challenge for Chubb, which is a large organisation, of relocating small numbers of employees from interstate was such that three days was inadequate from a notice perspective.
There are a number of factors in this present case which in combination I regard as unique and special. Those factors include the critical role that functioning fire detection and evacuation systems play, combined with the consequence of increased risk to the safety of occupants, the safety of first responders and the integrity of buildings and plant where faulty or inoperable fire detection and evacuation systems delay evacuation or firefighting activities. I accept that the incidence of faulty or inoperable alarms that would require out of hours response may be rare but it is the unpredictably of such events that renders it so important that staff are available to respond to such faults.
For reasons of public safety and the protection of property, plant and equipment as outlined above, I am satisfied that there are exceptional circumstances. I now turn to consider whether they are such as to justify an extension of time as sought by Chubb. In considering that I must weigh the interests of the employer and third parties against the diminution of the bargaining position of employees that might flow from an extension in the notice period.
In reaching my conclusion on this point, I have had regard to the evidence that Chubb operates in a competitive environment, that there are alternate contractors available and that on Chubb’s own evidence, its clients would be able to secure such alternate contractors within a “few days”. Further, there was insufficient evidence to satisfy me that a small number of qualified and experienced staff that would be required could not be mobilised quickly from Chubb’s interstate operations.
In the circumstances, I am not satisfied that when balanced against the legitimate bargaining rights of employees, that the capacity of Chubb to respond by way of sourcing interstate employees and also by providing its clients with notice to enable them to take defensive steps is so limited that additional notice is justified. Consequently, I am not satisfied that the circumstances are exceptional such as to justify an extension of the notice period as sought by Chubb.
Conclusion
I am therefore not satisfied that a longer notice period of seven days should be provided in respect of those forms of industrial action identified within the CEPU draft Ballot Order at questions one, two and three.
Form of ballot order
I have issued the ballot order in the terms sought by the CEPU. I have nominated a closing date for the ballot which represents 20 working days after the order, given the arrangements with the AEC and the requirements of s 443(3A) of the Act.
DEPUTY PRESIDENT
Appearances:
Mr S. Riches for the Applicant.
Mr G. Jolly for the Respondent.
Hearing details:
2018
Melbourne
10 January and 5 February
[1] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation (2007) FWC 6831, at paragraph 49.
[2] Section 463(5) of the Act.
[3] See paragraph [12].
[4] Exhibit A1, Statement of Mr. Troy Palin, dated 20 December 2017 at paragraph [8].
[5] Ibid at paragraphs [3]-[4].
[6] Ibid at paragraph [14].
[7] Ibid at paragraphs [13], [14] and [17].
[8] Ibid at paragraph [18].
[9] Ibid at paragraph [21].
[10] Ibid at paragraph [19].
[11] Ibid at paragraph [20].
[12] Transcript at PN107.
[13] Ibid at paragraph [20].
[14] Exhibit A2, Supplementary statement by Mr. Troy Palin, dated 25 January 2018 at paragraph [2].
[15] Ibid at paragraph [10].
[16] Ibid at paragraph [12].
[17] Transcript at PN41-42.
[18] Transcript at PN43-44.
[19] Transcript at PN49.
[20] Transcript at PN72.
[21] Transcript at PN137.
[22] Exhibit R2, Witness Statement of Ms Abbey Kendall, dated 9 January 2018.
[23] Exhibit R1, Witness Statement of Mr. Joe Carabott, dated 9 January 2018 at paragraph [3]-[4].
[24] Ibid at paragraphs [6]-[8].
[25] Ibid at paragraph [16].
[26] Ibid at paragraph [26].
[27] Ibid at paragraph [28].
[28] Ibid at paragraph [18].
[29] Transcript at PN163-166, PN275.
[30] Transcript at PN332.
[31] Transcript at PN184-194.
[32] Transcript at PN206.
[33] Transcript at PN208.
[34] Transcript at PN217-224.
[35] Transcript at PN240-245.
[36] Transcript at PN356-360.
[37] [2010] FWA 1988.
[38] [2016] FWC 1275.
[39] Ibid at Paragraph [38].
[40] [2012] FWC 5360.
[41] [2015] FWC 6922.
[42] [2012] FWA 4633.
[43] [2012]FWA6168.
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