Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v KDR Gold Coast Pty Ltd T/A Keolis Downer Gold Coast
[2020] FWC 5134
•25 SEPTEMBER 2020
| [2020] FWC 5134 |
| FAIR WORK COMMISSION |
REASONS FOR 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
KDR Gold Coast Pty Ltd T/A Keolis Downer Gold Coast
(B2020/549)
COMMISSIONER HUNT | BRISBANE, 25 SEPTEMBER 2020 |
Proposed protected action ballot of employees of KDR Gold Coast Pty Ltd T/A Keolis Downer Gold Coast.
[1] On 17 September 2020, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the ETU) made an application pursuant to s.437 of the Fair Work Act 2009 (the Act) seeking a protected action ballot order in relation to certain employees of KDR Gold Coast Pty Ltd T/A Keolis Downer Gold Coast (Downer). The employees are technicians servicing the Gold Coast light rail network.
[2] The ETU filed a declaration of Mr Beau Malone, Union Organiser of the ETU, in support of the application.
[3] On 18 September 2020, Downer filed submissions opposing the making of the order on the basis that the ETU has not been genuinely trying to reach agreementas required under s.443(1)(a) of the Fair Work Act 2009 (the Act).Downer also submitted that should the order be made, it seeks an extension in the period of written notice for the taking of employee claim action from 3 working days to 7 working days pursuant to s.443(5) of the Act on the basis that there are exceptional circumstances justifying an increase in that period. As such, the matter was allocated to my chambers for determination.
[4] On allocation to my chambers I issued directions for the filing of further materials by both parties in preparation for hearing on 24 September 2020.
[5] On 22 September 2020, Downer filed and served the below materials:
• An outline of submissions;
• A witness statement of Ms Emily Burt, Head of Human Resources;
• A witness statement of Mr Joel Gabauer, Infrastructure Manager;
• The most recent draft of the proposed enterprise agreement;
• A copy of the most recent correspondence between the parties; and
• Minutes from a bargaining meeting on Tuesday, 15 September 2020.
[6] On 23 September 2020, the ETU filed and served the below materials:
• An outline of submissions;
• A further witness statement of Mr Beau Malone; and
• Copies of the most recent correspondence between the parties.
[7] Following the filing of material by both parties, the ETU sent correspondence that it believed the matter of genuinely trying to reach agreement had been adequately addressed by it in the materials filed, and stated that it was willing to consent to an extension of the notice period to either five working days or seven calendar days due to the added dimension of COVID-19 and the uncertainty it creates for Downer to find contract labour in the event members of the ETU elect to take protected industrial action.
[8] Downer advised in reply that it accepted the ETU’s position of offering 7 calendar days’ notice of taking protected action, and on a without prejudice basis it withdrew its remaining objection relating to whether the ETU has been and is genuinely trying to reach agreement. Downer advised that on that basis it consented to the application for a protected action ballot order.
[9] Following consideration of the correspondence received as set out in paragraphs [7] – [8] above, I advised the parties that the hearing was vacated and that I would issue an order. On 24 September 2020 I issued an order [PR723044]. These are my reasons for issuing the order.
Legislation
[10] Section 443 of the Act sets out when the Fair Work Commission (the Commission) must make a protected action ballot order. Section 443 states:
“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.”
[11] Relevantly, s.414 of the 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) 3 working days; 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.”
Consideration
[12] Based on the materials before me, I am satisfied that there has been a notification time in relation to the proposed agreement and that bargaining has commenced. Pursuant to s.443(1)(b) of the Act, and having regard to the materials filed by the ETU and the withdrawal of the objection by Downer, I am satisfied that the ETU has been, and is, genuinely trying to reach an agreement with Downer.
[13] The remaining matter for determination is whether, pursuant to s.443(5) of the Act, the protected action ballot order in these proceedings should specify an extended period of written notice of employee claim action.
Whether exceptional circumstances justifying the period of written notice being longer than 3 working days
[14] In Construction, Forestry, Maritime, Mining and Energy Union v DP World Brisbane Pty Ltd and Others (DP World), 1 a Full Bench of the Commission endorsed the principles to be applied in relation to considering whether an extension of the notice period for engagement in employee claim action should be granted, that were stated in the Full Bench decision in National Tertiary Education Industry Union v Charles Darwin University (NTEU).2 In relation to s 443(5) generally, the Full Bench in NTEU observed:
“[20] The exercise of a discretion under s.443(5) results in an interference with the right of a bargaining representative to otherwise give three working days’ written notice of industrial action that is to be organised and engaged in by employees in support of a proposed agreement. That this right should not lightly be curtailed by the imposition of a longer period of notice is evident in the grant of power itself. There must be “exceptional circumstances” in relation to the proposed industrial action the subject of the order justifying a longer period.”
[15] In relation to the meaning of the expression “exceptional circumstances”, the Full Bench in NTEU quoted and applied a decision of the Australian Industrial Relations Commission 3 relating to the equivalent provision in the Workplace Relations Act 1996 as follows:
“[10] … 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.”
[16] The Full Bench in NTEU then set out a three-step decision-making process required in order to determine whether there should be an extension to the notice period pursuant to s.443(5) of the Act:
“[23] The determination of whether the circumstances in a particular case are ‘exceptional’ involves an evaluative judgement. A proper approach to the exercise of the Commission’s discretion under s.443(5) requires first that a member identify or make findings about the particular facts or circumstances in relation to the proposed industrial action which are said inform the evaluative judgement that such factors or circumstances are exceptional circumstances. The phrase “exceptional circumstances” carries its ordinary meaning.
[24] Secondly, there must be a consideration whether the identified exceptional circumstances are circumstances “justifying” a longer notice period. This also involves an evaluative judgement made on the basis of probative material. The use of the verb “justifying” in s.443(5) signifies that the identified exceptional circumstances must show or prove that it is reasonable or necessary or the circumstances warrant or provide good reason to require a longer period of written notice.
[25] Thirdly, if the member is satisfied there are exceptional circumstances justifying a longer period of notice, there must be a consideration of whether to exercise the discretion and, if so, the additional period of notice that should be given in the circumstances (noting the maximum period).”
[17] Downer submitted that there are exceptional circumstances justifying an increase in the period of notice required from 3 working days to 7 calendar days, relying on the evidence of Ms Burt and Mr Gabauer, based on the following reasons: 4
• There are 11 Technicians employed by Downer to perform maintenance work, including responding to emergent or emergency work, on the Gold Coast Light Rail network in Queensland;
• Downer provides essential public services in the form of public transport on the light rail network. This network services Gold Coast schools, Griffith University, Gold Coast Private Hospital, Gold Coast University Hospital, numerous other Medical specialists and connects the Gold Coast to heavy rail in Helensvale, Queensland. Any disruption to services may adversely affect students at the university and staff and patients at the hospital;
• The potential disruption presented by the forms of protected industrial action will have significant safety implications for work performed;
• This work is often time-sensitive. Downer’s maintenance work is generally performed in narrow windows to plan for the work and minimise impacts on operations;
• The forms of protected industrial action will be disruptive to the time sensitive nature of the work performed and may adversely affect the operation of the light rail network;
• The only meaningful response the company has to respond to employees engaging in protected industrial action is to engage a contract workforce to provide the critical services needed;
• While it can obtain contract labour, contract labour may not be able to adequate to rectify emergent or emergency issues. This has the potential to affect safety of patrons of the light rail network both at stations and on trams;
• Due to Gold Coast Light Rail being the only light rail network in Queensland, there are niche assets on the network that simply can’t be serviced by external Queensland contractors. With current COVID-19 border restrictions this makes it very difficult to bring in experienced contractors from Victoria or New South Wales;
• If Downer is unable to arrange suitable contract labour before the commencement of protected industrial action, this may lead to delay and disruption of the whole light rail network;
• The effect of any disruption is significant for Downer as there will be limited ability to meet its contractual obligations in the event it is unable to complete work on schedule;
• The potential for disruption and delay has flow on effects for third parties, including users of the light rail services;
• Downer may be exposed to liability under the liquidated damages provisions of the contract if it is unable to take steps to mitigate the effect of employees engaging in protected industrial action;
• Once notified of the particular form of industrial action employees propose to engage in, Downer requires time to implement and communicate new controls and procedures to its client, employees and potentially the public who may be impacted by delays; and
• These procedures will need to be responsive to the particular work performed by employees in the period of notified protected action, and will need to be developed with input from Downer’s client to ensure that work can be ceased while preserving the integrity of the plant and machinery and the public transport services.
[18] On the uncontested evidence before the Commission and the consent position of the ETU I am satisfied that it is appropriate that the period of written notice be extended beyond three working days. It is not clear to the Commission what a working day is, given it appears that the employees are rostered to work ordinary working hours on four days per week. It is not clear if a working day extends to the fifth, sixth or seventh day in the week, however it appears that work other than ordinary work may be performed on those days and if that is so, would constitute a working day.
[19] There is greater clarity in a period of seven working days over a period of up to seven working days. I am satisfied that a period of seven calendar days cannot be any more than seven working days and it is therefore appropriate that the period be seven calendar days and not seven working days.
[20] Having regard to the specific and technical work performed by the particular employees, and some of the restrictions on Downer to engage replacement contract workers during a period of time where there are limits placed on workers travelling between Australian states, I am satisfied that there are exceptional circumstances warranting the exercise of my discretion to increase the period of written notice.
Conclusion
[21] As I have concluded above based on the materials before me, I am satisfied that there has been a notification time in relation to the proposed agreement and that bargaining has commenced. I am also satisfied that the requirements in ss.443(1)(a) and (b) of the Act have been met and that an order must be made. Exceptional circumstances warrant the exercise of my discretion to increase the period of written notice to seven calendar days.
[22] I informed the parties that presently the Australian Electoral Commission (AEC) requires a period of 30 working days to conduct a ballot, and therefore the order is for a period of 30 working days for the AEC to conduct the ballot, not 20 working days as sought by the ETU.
[23] Order PR723044, based predominantly on the draft provided by the ETU was issued on 24 September 2020.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
<PR723045>
1 [2019] FWCFB 1150
2 [2018] FWCFB 4011.
3 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Services Corporation [2017] AIRC 848.
4 Respondent’s Outline of Submissions, 22 September 2020, Paragraph [20].
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