Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Flinders Operating Services Pty Ltd T/As Alinta Energy
[2011] FWA 1440
•4 MARCH 2011
[2011] FWA 1440 |
|
DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Flinders Operating Services Pty Ltd T/As Alinta Energy
(B2011/2610)
AND
Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union
v
Flinders Operating Services Pty Ltd T/As Alinta Energy(B2011/2608)
DEPUTY PRESIDENT BARTEL | ADELAIDE, 4 MARCH 2011 |
Proposed protected action ballots by employees of Alinta Energy
[1] These reasons for decision relate to applications pursuant to s.437 of the Fair Work Act 2009 (the Act) by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union (CEPU) and the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) for protected action ballot orders in relation to employees of Flinders Operating Services Pty Ltd T/As Alinta Energy (Alinta Energy).
[2] Alinta Energy sought leave to be represented by a lawyer pursuant to s.596 of the Act. The application was opposed by both the CEPU and the AMWU. I granted leave on the basis that evidence was to be led from Ms Joanne Jones, Acting Human Resources Manager, and it was my view that the proceedings would be conducted more efficiently if Ms Jones was not required to be both witness and advocate.
[3] In accordance with s.442 of the Act and by consent of the parties both applications were dealt with at the same time. The draft orders sought are in identical terms save that the description of the group of employees to be balloted reflects the relevant union and there is a minor difference in the questions to be voted upon.
[4] Alinta Energy does not oppose the granting of a protected action ballot for the respective employees but seeks a variation to three substantive aspects of the orders proposed by the CEPU and AMWU. Firstly, that the ballot be conducted by postal vote, secondly, that the ballot closes 30 business days from the date of the order and thirdly, that the CEPU and AMWU each give 7 business days written notice of the industrial action. The CEPU and AMWU consented to the vote being conducted by postal ballot and accordingly two issues remain for determination.
The evidence and submissions
[5] The protected action ballot order relates to two sites, the Port Augusta Power Station located 250kms from Adelaide and the Leigh Creek Coalfields, located 650kms from Adelaide. The grounds for seeking an extension to the period in which the ballot is to be conducted relate to the remote nature of the Leigh Creek site coupled with the roster arrangements for some employees whereby they may have extended days off and leave the area of the local community. Ms Jones gave evidence that a period of 30 business days would ensure that more employees would be in a position to receive and return the ballot within the allotted time frame.
[6] In relation to the extended notice of industrial action, Ms Jones evidence focussed on the consequences of a breakdown in equipment and the time that would be required to diagnose and rectify the problems. The problem of breakdowns going unattended was addressed in the context of the electricity market in South Australia where Alinta Energy contributes 36% of that market. A breakdown in the excavators at the coalfields or the plant at the power station was said to have significant consequences if not rectified. Ms Jones stated that unlike other states that had access to several interstate providers through the national electricity grid, South Australia had only two connectors, both to Victoria.
[7] Ms Jones stated that a breakdown requires that the supplier of the equipment is brought to the worksite. As a result of the age of the plant and equipment there are a limited number of people who have the necessary expertise to diagnose the problems. In addition, the relevant personnel may be located interstate or possibly in other regional or remote sites, with a consequent delay in their presentation at the work site. Ms Jones indicated that a period of 7 calendar days was necessary in order to get relevant personnel to the worksite and consequently 3 business days notice of industrial action was inadequate.
[8] Ms Jones also gave evidence that the company uses contractors at both sites and such contractors would be stood down in the event of a breakdown. She stated that Alinta Energy would wish to give as much notice as possible to these contractors.
[9] Neither the CEPU nor the AMWU sought to cross-examine Ms Jones and her evidence is accepted. A statement from Derek Thomas, CEPU Organiser 1 and Derek Winter, AMWU Organiser2 were admitted by consent. Those statements were directed to the course of negotiations between the parties.
[10] Ms Smith, of counsel, on behalf of Alinta Energy, submitted that Ms Jones’ evidence substantiated that exceptional circumstances exist that justify the imposition of a greater period of notice of industrial action, and that 7 business days was appropriate and should be ordered in accordance with s.443(5) of the Act. Ms Smith also referred to the extended notice of industrial action provided in the protected action ballot order in respect to employees of another electricity provider, Pelican Point Power.
[11] Mr Thomas for the CEPU, opposed the 30 business day period for the conduct of the ballot on the basis that that the CEPU had already agreed to increase the ballot period to 20 business days in the draft protected action ballot order. He stated that a previous protected action ballot order obtained by the CEPU for employees engaged at a more remote location than the Alinta Energy sites had a 20 business day ballot period and that this had been adequate for the purpose.
[12] Mr Thomas advanced two arguments in opposition to the extended notice of industrial action sought by Alinta Energy. He submitted that the issue of extended notice as argued for by the employer only assisted in a situation where a breakdown occurred on the first day of the notice period, and that the extended notice period would not deliver the benefit sought by Alinta Energy if a breakdown occurred on any other day of the notice period. In addition, he noted that the CEPU had taken the decision to modify the forms of industrial action that were the subject of the ballot questions so that the most serious action was a 48 hour stoppage. This was said to be in contrast to more extended stoppages which normally formed the basis of the questions to be put in other protected action ballot orders that had been sought. Mr Thomas submitted that the unions had taken a considered and responsible approach to the nature of the order sought, in view of the circumstances of the employer.
[13] Mr Winter, for the AMWU, supported the submissions of Mr Thomas.
Consideration
[14] Section 447(2) of the Act provides that a protected action ballot agent may apply to FWA to vary the protected action ballot order to change the date by which voting in the ballot closes.
[15] The submission in support of an extended ballot period requires that I weigh up the likelihood of the ‘standard’ 20 business day period being insufficient. If I form the view that it is likely to be insufficient, then it is appropriate that the order reflect the extended period. If I form the view that it is likely that the standard period will be sufficient to conduct a postal ballot that provides for an appropriate level of participation by employees, then the standard period will be included in the order. Section 447 of the Act is able to be accessed by the protected action ballot agent (or the applicant can seek to vary the order under s.447(1) of the Act) in the event that the closing date of the ballot needs to be extended.
[16] I consider that the extended absences from work as a result of the roster arrangements should be able to be accommodated within the standard 20 business day period. Ms Jones referred to a previous ballot of employees which had a ballot period of 20 business days and a low number of votes were returned. I do not regard this evidence as sufficient to draw the conclusion that there was a correlation between voter turnout and the ballot period. The ballot will close 20 business days from the date of the order.
[17] In relation to the extended notice of industrial action, s.443(5) of the Act is in the following terms:
“If FWA 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.”
[18] It has been held that the notice requirements are an important part of the scheme of the Act relating to industrial action and “... provide the employer with an opportunity to take defensive action as may be appropriate to protect its business and custom.” 3 The extended notice requirements included in the protection ballot order at Pelican Point Power, as referred to by Ms Smith, were granted to enable the company to minimise the potential for interruption to electricity generation which could impact on the community at large.4 Similarly, extended notice of industrial action was provided in TWU and AMWU v ACTION on the basis that that it would give ACTION more time to warn passengers about the effect on services of any forthcoming industrial action.5
[19] The basis of the extended notice sought by the employer in the present matter is not to protect its business and custom against the effects of the industrial action but to provide an opportunity to take remedial action in the event of a breakdown in plant or equipment. The distinction is an important one. The extended notice period sought by Alinta Energy would provide some protection for the business of the employer and the customers it serves in the event of a breakdown in the first or second day of the notice period. Aside from that unlikely occurrence the employer has not provided evidence as to how the extended notice period would provide an opportunity to take steps to protect its business and custom from the impact of the industrial action.
[20] The significant community impact of Alinta Energy’s operations, the remote location of the coalfields and the limited availability of qualified personnel to diagnose plant and equipment failures, in combination, may constitute an exceptional circumstance. 6 Section 443(5) of the Act requires that the exceptional circumstances justify the extended notice of industrial action. In my view, the circumstances highlighted by Alinta Energy are not sufficiently connected to the extended period of notice of industrial action sought.
Conclusion
[21] The protected action ballot order will not provide for extended notice of industrial action for the reasons outlined above. As discussed earlier, I have decided that 20 business days should be sufficient for the conduct of the ballot by the Australian Electoral Commission and this will be reflected in the order. Ms Smith raised some drafting and format issues in relation to the draft orders provided by the unions, which were accepted by the unions and which will be reflected in the orders, save that the form of the questions to be put to employees will be as per the respective draft orders of the CEPU and AMWU. The protected action ballot orders will be issued with this decision.
DEPUTY PRESIDENT
1 CEPU 1
2 AMWU 1
3 Boral Resources (NSW) Pty Ltd [2010] FWAFB 1771 at PN 14
4 Australian Municipal, Administrative, Clerical and Services Union v Pelican Point Power Limited [2010] FWA 3571
5 Transport Workers’ Union of Australia and Anor v The Chief Executive of the ACT Internal Omnibus Network (ACTION)[2010] FWA 3355 at PN 5 and 6
6 CEPU v Australia Post PR979157
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