Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v YEM Technology Pty Ltd

[2019] FWC 5792

[2019] FWC 5792

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
YEM Technology Pty Ltd
(B2019/662)

COMMISSIONER YILMAZ MELBOURNE, 20 AUGUST 2019

Proposed protected action ballot of employees of YEM Technology Pty Ltd -– extension of notice period – whether exceptional circumstances.

[1] This is an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Applicant) made under s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot order in relation to certain employees of YEM Technology Pty Ltd (the Respondent) who are to be covered by the proposed enterprise agreement and are represented by the Applicant.

[2] Both the Applicant and Respondent provided material detailing the action taken to reach agreement. Based on the materials provided I am satisfied that both parties have been, and are genuinely trying to reach agreement.

[3] On 19 August 2019, the Respondent advised the Commission that it did not object to the application for a protected action ballot order, but sought an amendment to the draft order provided by the Applicant to provide a period of seven business days’ written notice before commencement of any industrial action pursuant to s.443(5) of the Act.

[4] The matter was listed before me for hearing on 20 August 2019. At the conclusion of the hearing I indicated that I would make the protected action ballot order and that I would not extend the written notice period provided in s.443(5) of the Act. These are the reasons for my decision.

Evidence and submissions

[5] The Respondent submits that there are exceptional circumstances for the Commission to specify a period of seven business days’ written notice for industrial action consistent with ss.414(1) and (2) (a) and (b).

[6] The Respondent submits the grounds requiring seven business days’ notice relate to:

•  The Respondent has a contract with a client to provide electrical and mechanical maintenance/breakdown services and improvement projects at its SINO Iron site, a fly in fly out site, approximately 100km from Karratha, which runs 24 hours a day every day of the year. Industrial action would therefore impact the client’s business and their other contractors onsite. 1

•  Given the remote nature of the operations, the Respondent cannot implement contingency plans including the deployment of employees performing the specialist tasks within three days. 2

•  Before deploying an employee, the individual must undertake a pre-employment medical, drug and alcohol screen and a ‘mask fit test’ to ensure their health and safety onsite. 3

•  In addition, the Respondent would have difficulty in arranging a flight to site and accommodation within three days. The Respondent submits flights are only available between Monday afternoon and Thursday afternoon. 4

[7] In support of the Respondent’s submissions, the SINO Iron Project Travel Procedure 5 was tendered which states that a minimum of three business days is required to process charter and intrastate travel and seven business days for interstate travel. The Respondent also tendered the YEM Recruitment Process chart6 which provides that 24 to 72 hours should be allowed for receipt of medical results.

[8] The Applicant in response submits that the Respondent must satisfy the Commission that there are “exceptional circumstances” justifying a notice period for industrial action of seven business days. The Applicant submits that the purpose of s.443(5) of the Act is not to enhance the opportunity for the employer to protect itself, and that the right to take protected action is a legitimate tactic that a union may engage in to strengthen its bargaining position. 7

[9] The Applicant opposes the application for an extension of the notice period. Further, it submits that the Respondent has not discharged its obligation to demonstrate exceptional circumstances. 8 In this respect, the Applicant submits:

•  that the Respondent is not the only contractor at the SINO Iron Project engaged to deliver electrical and mechanical maintenance/breakdown services and improvement projects; 9

•  that the SINO Iron Project Travel Procedure indicates that flight requests can be accommodated within a minimum of three business days; 10

•  that there are alternate flights that are available to Karratha where the Respondent has historically transported workers to the SINO Iron Project. 11

•  that the three working days’ notice period is sufficient for a pre-employment medical to be performed in accordance with the YEM Recruitment Process chart. 12

[10] The Applicant submits that the Respondent has ample time to plan and initiate contingencies in preparation for industrial action concerning recruitment and travel while ensuring the safety of employees deployed to the site.

Consideration

[11] Section 437 of the Act enables a bargaining representative who will be covered by a proposed agreement to make an application to the Commission for a protected action ballot order. It is not in dispute that the requirements of s.437 have been met.

[12] The Commission must make an order in relation to employees who will be covered by the proposed agreement in the circumstances set out in s.443. The relevant provisions of s.443 are:

“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.”

[13] It is not in dispute, and I am satisfied on the basis of the evidence and other material before me that:

(i) The Applicant is eligible to bring the application and has done so under s.437 of the Act.

(ii) The application specifies the group of employees to be balloted and the questions to be put to the employees.

(iii) A copy of the application was given to the Respondent within 24 hours of the making of the application.

(iv) The nominal expiry date of the applicable agreements has passed.

(v) The Applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted

[14] Section 443(5) of the Act provides that if the Commission is satisfied that there are exceptional circumstances justifying an extension of time of the written notice to take protected action, the ballot order may specify a period of time up to seven business days.

[15] The Full Bench in National Tertiary Education Industry Union v Charles Darwin University 13 considered the exercise of the discretion of the Commission under s.443(5) to grant an extension to the three business days’ notice period for protected action. The Bench said:

“[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.

[21] The meaning of “exceptional circumstances” in the context of s.463(5) of the Workplace Relations Act 1996 (WR Act) was discussed in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation. In the case, Lawler VP said:

“[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.

[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.”

[22] Section 463(5) of the WR Act is in all material respects the same as s.443(5) of the Act. We consider the discussion extracted above is apposite to the phrase “exceptional circumstances justifying” in s.443(5).

[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).” (Citations omitted)

[16] The Respondent submitted that the three-day notice period is insufficient to meet their obligations to their client and ensure the safety of their employees. In adopting the approach taken by the Full Bench in National Tertiary Education Industry Union v Charles Darwin University, I consider that there was little evidence submitted to satisfy me that there are exceptional circumstances and that the Respondent’s circumstances justify an extension to the period of notice. I have decided not to exercise the discretion to extend the period of notice pursuant to s.443(5) of the Act.

[17] On the basis of the submissions before me, including the statutory declaration of Mr Alister Robinson of the Applicant setting out the steps taken by it in bargaining with the Respondent and that it has been, and is, genuinely trying to reach agreement with the Respondent, I am satisfied that there is a notification time in relation to the proposed agreement and that the requirements in s.443(1) of the Act have been met.

[18] An order has been separately issued in PR711520.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR711519>

 1 Respondent’s Outline of Submissions filed 15 August 2019 at [17].

 2   Ibid.

 3   Ibid.

 4   Ibid.

 5   SINO Iron Project Travel Procedure filed 19 August 2019.

 6   YEM Recruitment Process – RACI Chart filed 19 August 2019.

 7 Applicant’s Outline of Submissions filed 20 August 2019 at [26].

 8 Ibid at [29]; [31].

 9 Ibid at [34].

 10   Ibid.

 11   Ibid.

 12   Ibid.

 13   [2018] FWCFB 4011.