Construction, Forestry and Maritime Employees Union v Paper Australia Pty Ltd T/A Opal Australian Paper
[2024] FWC 3464
•13 DECEMBER 2024
| [2024] FWC 3464 |
| FAIR WORK COMMISSION |
| REASONS FOR DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
Construction, Forestry and Maritime Employees Union
v
Paper Australia Pty Ltd T/A Opal Australian Paper
(B2024/1609)
| COMMISSIONER WILSON | MELBOURNE, 13 DECEMBER 2024 |
Proposed protected action ballot of employees of Paper Australia Pty Ltd - Reasons for decision
This is an application by the Construction, Forestry and Maritime Employees Union (CFMEU or Applicant) made under s.437 of the Fair Work Act 2009 (FW Act) for a protected action ballot order in relation to certain employees of Paper Australia Pty Ltd (Opal or Respondent).
The application was made on Friday 6 December 2024. On Monday, 9 December 2024 in the course of dealings with the application by the Chambers of the National Practice Leader, the Commission was advised that Opal objected to the application. The file was then transferred to me on the same day and was the subject of a hearing by me on Tuesday, 10 December 2024.
Opal’s objection to the making of the order relates to the content of each of the questions and whether they are ambiguous, lack clarity or have other grammatical failings. Opal also argues that the evidence warrants an extended notification for any proposed industrial action that may follow the ballot.
Opal initially objected to the content of the CFMEU’s draft order, that would have required the Respondent to allow access to the ballot agent’s website from the Respondent’s computer network, for employees to complete their ballot. The CFMEU accepted the objection on this matter and withdrew the disputed wording prior to these proceedings being programmed for hearing.
At the hearing on 10 December 2024, Mr Paris Nicholls, Senior National Industrial Officer appeared for the CFMEU, and its members, Jason van Gelderen and Wayne Pollard gave evidence on behalf of the union. Mr Jospeh Hyde, Legal Counsel – Workplace Relations appeared for Opal, with Mike Carter, Manufacturing Manager, Power and Recovery at the Maryvale Mill giving evidence on behalf of Opal.
At the conclusion of the hearing, I advised the parties that I would grant the application with the ballot questions sought by the CFMEU, while continuing to consider the matter of an extended notification period. The following day, I advised the parties I was satisfied there was cogent evidence to grant an extended period of notification for any proposed industrial action which may result from an approval by employees of any of the protected action ballot questions. I advised the parties that an order relating to my decision would be issued as soon as possible and that reasons for decision would also follow.
This decision then deals with two matters; the content of the questions to be put to balloted employees and the notification period for proposed industrial action, should any of the questions be approved in the protected action ballot.
By way of background, the application relates to bargaining for a replacement enterprise agreement to cover Opal, the CFMEU and its members at the Maryvale Paper Mill in Maryvale, in Victoria’s Gippsland. There will be approximately 265 employees covered by the proposed Opal Australian Paper Maryvale Mill Production Agreement 2025.[1]
The CFMEU’s application proposes three questions;
“In support of reaching an enterprise agreement with your employer, do you authorise the taking of the following protected industrial action (separately, concurrently and/or consecutively)?
1. An unlimited number of stoppages of the performance of all work for a period of 1 minute to 24 hours in duration;
Yes [ ] No [ ]
2. An unlimited number of indefinite or periodic bans, limitations, and/or restrictions on the manner in which work is undertaken (e.g. a ban on the use of certain plant or substances) and/or on the type of work undertaken (e.g. a ban on wash-ups; hand overs or overtime)?
Yes [ ] No [ ]
3. Interrupting work for an indefinite period and/or for specified periods, in order to:
a. wear or display on your person union and/or industrial campaign material;
b. distribute union and/or industrial campaign material by any means;
c. attach union and industrial campaign material to outgoing mail, emails, and adding it to employer materials and displays;
d. provide information, in any form, concerning the views of employees about any aspect of the bargaining campaign to any members of the public, including the media.
Yes [ ] No [ ]”
Opal’s objections to the questions are;
That Question 1 is too ambiguous regarding the duration of stoppages, with it being said that an employee voting to approve a stoppage of one minute is in a vastly different situation to an employee voting to approve a stoppage of 24 hours.
That Question 2 is ambiguous and lacks clarity. Opal submit that the question fails to describe the nature of the proposed industrial action, with the ambiguity arising as a result of the content of the question. It is put that there is ambiguity as to whether the bans, limitations or restrictions will be indefinite or periodic. There is no clarity as to what bans will be in place or which work will not be undertaken other than the examples given in parenthesis in the question. It is also ambiguous as to whether such a ban in relation to the type of work to be undertaken would be put in place in combination with industrial action in relation to the manner in which work is to be undertaken. Opal argue that the ambiguity and lack of clarity within the question limits employees’ capacities to make an informed choice at the time they are called upon to vote for or against the question.
Opal relies upon the Full Bench decision in Transport Workers' Union of Australia v Prosegur Australia Pty Ltd[2] (Prosegur) in support of its case. Opal notes the case involved the construction of a not dissimilar question to that involved in this matter. , Opal submitted that a question arose from that decision as to whether “an unfettered right to ban any work practice could include safety critical work practices”.[3] That subject in turn raised the question of whether an employee voting for the question could do so in a properly informed manner as, “an employee voting on this question might be willing to take action which bans non-safety critical work practices, but might be unwilling to take action which exposes themselves, their colleagues, the environment and the broader community to a risk of harm”.[4]
As to Question 3, Opal argues that the question fails to describe the nature of the proposed industrial action, with the question being ambiguous as to whether the interruption of work would be indefinite or for a specified period. It also argues that the activities which are the subject of the question and its elements “do not on their face necessitate “an indefinite period””.[5]
Opal’s submissions in relation to Question 2 relied upon reasoning in the Full Bench decision in Prosegur. In considering a question framed as “Question 12: An unlimited number of periodic or indefinite partial work bans”, the Full Bench held the question did not sufficiently describe the nature of proposed industrial action;
“[34] In this case, Prosegur adduced evidence which, we consider, demonstrated that question 12 was problematic. Prosegur operates a cash transportation business which is, for obvious reasons, a potential target for criminal attack, and in those circumstances the security of the cash being carried and the safety of employees are paramount considerations. There are a range of work procedures that are adopted for security and safety reasons, including requirements upon employees as to the mode of delivering and picking up cash, the wearing of body armour and the carrying of firearms. In that specific context, there was a proper basis for concluding that question 12 did not sufficiently describe the nature of the proposed industrial action by simply referring to “partial work bans”. That language is ambiguous as to whether it encompasses bans on the type of security and safety measures referred to, and we accept that an employee voting upon question 12 might not understand whether bans of that type were included.”[6]
With respect to the period of notice required for proposed industrial action, should any of the questions put to employees in the protected action ballot be approved, Opal argues that an extended notification period of seven days is warranted. Opal’s reasoning for this is that, because actions taken under any of the questions were capable of bringing the Maryvale Mill to a halt, coupled with the need to ensure worker safety and avoid damage to the plant and equipment, that the Commission should be satisfied there were exceptional circumstances within the meaning of s.443(5) of the FW Act that would warrant an extended notification period.
In response to Opal’s contentions, the CFMEU rely upon the Full Bench’s findings in John Holland Pty Ltd v AMWU (John Holland) which held that 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”[7] and that “all that the section [s.437 of the FW Act] requires is that the questions should describe the industrial action in such a way that employees are capable of responding to them”.[8]
With respect to Question 1, the CFMEU argue there is no ambiguity, putting forward that Opal’s objection is instead about the potential implications of the actions which may flow from the question, which in any event are not included within the question.
Further, the CFMEU submit that there is no requirement that a question explain all implications and potential consequences of industrial action. Instead, all that is required is that the proposed question be clear enough that it is capable of being responded to. Further, the CFMEU argues that the contention an employee may not realise the implications of the question is not supported by any evidence and is only speculation on the part of Opal. The CFMEU also argues the form of Question 1 has been repeatedly approved by the Commission, providing citations in support of the submission.
In relation to Questions 2 and 3, the CFMEU again submits that Opal’s objections to those questions go to the impact of the action, rather than the content of the questions themselves, which is the requirement in s.437 of the FW Act. It also argues with respect to these questions that a consequential shutdown of the Maryvale Mill is unsupported speculation on Opal’s part. The union again notes the form of the questions has been approved in other PABO orders issued by the Commission. It proposed the inclusion of different words at the end of each question should the Commission find in favour of Opal for any of the questions, clarifying that employees were being asked to authorise industrial action that may result in the Mill being shut. The CFMEU also restated its commitment to workplace health and safety and that it was willing to undertake that, during any protected industrial action, its members would not leave plant or equipment in an unsafe state.
CONSIDERATION
Ambiguity or lack of clarity; informed choice
Opal argue each of the questions is either ambiguous (Questions 1, 2 and 3) or that there is a lack of clarity within the question (Question 2).
The objections arise in the context of the Commission’s consideration of s.437(3)(b), which requires an application for a protected action ballot order to specify “the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action”.
Opal’s contentions in respect of Question 1 include that the wide possibilities of the language used mean that employees voting in the ballot are faced with “vastly different” forms of possible protected industrial action. With respect to Question 2, Opal put forward that it fails to describe the “nature of the proposed industrial action” as required by section 44(3)(d) of the FW Act, as it is ambiguous;
a. “whether the bans, limitations or restrictions (bans) will be indefinite or periodic;
b. regarding what the bans on the manner in which work is undertaken, means other than providing the ambiguous example of “a ban on the use of certain plant or substances”;
c. whether the bans on the type of work undertaken will be in combination with bans on the manner in which work is undertaken, or not;
d. regarding what the bans on the type of work undertaken means other than the examples of “a ban on wash-ups; hand overs or overtime”;”[9]
Opal submit that the consequence of these forms of ambiguity is that “employees would be unable to make an informed choice whether or not to vote for or against the proposed action”.[10] (underlining added)
With respect to Question 3, Opal contends that there is ambiguity as to whether the indicated interruptions to work will be for an indefinite time or for a specified period of time. Its oral submissions put forward the concern that, depending on the nature of any notified interruption pursuant to a question approved by a ballot, the interruption or an accumulation of interruptions may lead to a plant shut down.
The Commission has repeatedly held about the requirement of s.437 that, “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”.[11]
The Full Bench in National Tertiary Education Industry Union v Curtin University (Curtin University) expressly rejected “the employer’s submission that perceived ambiguity in a specified question constitutes a basis to find that an application does not comply with s 437(3)(b)”.[12] The same Full Bench also rejected the proposition that the Commission must consider whether there is “informed consent” in its analysis or, as is the invitation in this matter, “informed choice”, however, at the same time, reinforcing that the questions to be put to employees need be “specific enough”;
“[44] The test posited by the Full Bench for compliance with s 437(3)(b) in the underlined part of paragraph [19] quoted above is that the questions must describe the industrial action in a way that employees are capable of responding to them. The Full Bench did not adopt the employer’s proposition of “informed consent” as bearing upon the analysis. This test has been followed and applied in subsequent Full Bench decisions. In NTEU v RMIT University,[13] the Full Bench said:
“[25] It is not the case that the nature of the action as identified in the PABO requires a high level of specificity. The Act clearly provides that the PABO must include ‘the nature of the proposed industrial action’ and the Full Bench guidance in John Holland makes clear that the questions should be specific enough such that ‘employees are capable of responding to them’.””[14] (footnote in original)
With respect to the Commission’s consideration of whether a question is capable of being responded to, the Full Bench in Curtin University affirmed the reasoning in John Holland, setting forward that the earlier decision had “adopted a high bar for concluding that a question is incapable of being responded to: it must contain language that “deprive[s] the question of meaning”, or be “meaningless” or “nonsensical”. Further, the Full Bench eschewed a “technical and pedantic approach””.[15]
Importantly, and with respect both to the application of s.437(3)(b) and that the principle of “informed consent” should not be followed,[16] NTEU v Curtin University held;
“[53] In summary, therefore, an application for a protected action ballot order will comply with the requirement in 437(3)(b), and thus will have been “made under section 437” for the purpose of s 443(1)(a), if it specifies a question or questions, capable of being answered “yes” or “no” by the employees participating in the ballot, which propose(s) action of an identified character, kind or sort capable of constituting industrial action within the meaning of s 19(1). A question which meets these requirements can be expressed and understood in ordinary industrial English, and there is no requirement for legalism, technicality or pedantry in the drafting or analysis of such questions. In our view, the proposition that, beyond these requirements, the questions must be interrogated to identify ambiguity in aid of enabling “informed consent” goes beyond the text of the provision and constitutes a gloss on the statute. The concept of “informed consent” is inapposite to a protected action ballot since, unlike a vote to approve an enterprise agreement, there is no requirement for genuine agreement[17] and those voting are not bound by the result (in the sense there is no requirement for any employee to actually take industrial action which has been authorised by a ballot and for which a s 414(1) notice has been issued[18]). We therefore affirm that paragraph [19] of the decision in John Holland states the correct approach to the construction and application of s 437(3)(b). The statements of principle in FreshExchange are not consistent with that approach and should not be followed.” (footnotes in original)
Curtin University also reinforced that the subject of the Commission’s consideration is “the nature of the industrial action” within a ballot question, as well as to distinguish between that which is needed for a protected action ballot order and that which must be specified in an employee claim action notice;
“[50] Section 437(3)(b) also requires that the question(s) must include specification of “the nature of the industrial action”. In context, this is to be read as meaning that the “the nature of the industrial action” must be the subject of the question - that is, it must be the matter for which a “yes” or “no” answer is sought. The word “nature” is one of high generality, and in context refers to the “character, kind or sort” of the industrial action. The proposed action specified in the question must be something that is capable of constituting “industrial action” within the meaning of the definition of that expression in s 19(1) of the FW Act. However, it is not necessary that the specified action constitute industrial action in all conceivable circumstances, for the reasons stated by the Federal Court (Tracey J) in Ambulance Victoria v United Voice:
“Fair Work Australia and its successor have, understandably, been reluctant, when dealing with applications made under s 437 of the Act, to find that proposed action can never constitute industrial action within the meaning of s 19. The terms in which the proposed action is described for the purposes of the ballot may lack legal precision and, more significantly for present purposes, may or may not constitute industrial action depending on the manner in which the action is performed. It will often be difficult for the Fair Work Commission to anticipate, at the time it makes an order under s 437, the context and manner in which union members might choose to take the proposed action. Once a ballot has been conducted and the action is imminent or has occurred greater clarity will often be present.”
(underlining added)
[51] The above passage points to the need to distinguish between what must be specified pursuant to s.437(3)(b) in an application for a protected action ballot order and what must be specified in a notice of employee claim action under s.414(1). In respect of the latter, s.414(6) requires that the notice “specify the nature of the action and the day on which it will start”. As stated in Prosegur (2) albeit by reference to s.443(3)(d) rather than s.437(3)(b):
“[38] … Sections 443(3)(d) and s 414(6) use different language and are concerned with different subject matters. The former provision requires specification of the nature of the ‘proposed industrial action’ in a question in a protected action ballot. It is thus concerned with the identification of categories of industrial action that might be taken in the future, with the statutory purpose being for employees to be able to understand the type of industrial action that they are being asked to authorise. By contrast, s 414(6) requires specification of the nature of ‘the action’ - that is, identification of industrial action which employees are actually going to undertake. In that circumstance, the precise form of the industrial action to be taken will be known to the bargaining representative. The provision’s purpose is to allow the employer an opportunity to take defensive measures in response to the industrial action. In that context, a greater degree of particularity may be required than under s 443(3)(d).”
[52] In a similar vein, the Full Bench in Total Marine Services said that “the precise timing and length of the action is not determined at the stage of authorisation.”[19] (footnotes omitted)
Applying these principles leads to the determination that none of the questions put forward by the CFMEU are incapable of being responded to or are put in a form that deprives them of meaning, is meaningless or nonsensical.
Question 1 is straightforward; while widely constructed as to the possibilities of notified proposed industrial action, there is nothing within its phrasing that would cause the Commission to intervene. I am satisfied that the question amply describes the nature of the foreshadowed industrial action: there may be stoppages of the performance of all work for any length of time from 1 minute to 24 hours. Those stoppages may be separate, concurrent or consecutive with other similar stoppages. There is no ambiguity within the question.
Question 2 is challenged on the grounds of ambiguity and lack of clarity, with the challenge being supported by the principle of “informed consent” as well as that the potential safety implications of some, but not all possible formulations of proposed industrial action envisioned by the Question gives rise to ambiguity and lack of clarity within the question, because of the possible safety implications of certain forms of the proposed industrial action.
The matter of informed consent has been disavowed by the Full Bench in Curtin University as a consideration in determination of s.437 and I take that matter no further.
As to the argument concerning the ambiguity created by the possible safety implications of certain forms of proposed industrial action that may be authorised by Question 2, I am not satisfied that the question could reasonably be construed as ambiguous for that reason. The reasoning of the Full Bench in Prosegur is highly contextual and unlikely to stand for the general proposition that, because any forms of contemplated industrial action may result in critical safety issues while others do not, it must be presumed that employees do not know what they are authorising.
As was made clear in Prosegur, the impugned question followed others that had been specific as to the bans to be applied, whereas this one did not. The nature of the questions meant that if an employee votes “no” to question 11, which referred to a specific ban and “yes” to question 12, which was general, would the employee have authorised bans on the specific content of question 11?[20] That specific context is not evident in the questions before me.
I note as well that Question 2 is drafted with two illustrative elements as follows (underlined by me): “An unlimited number of indefinite or periodic bans, limitations, and/or restrictions on the manner in which work is undertaken (e.g. a ban on the use of certain plant or substances) and/or on the type of work undertaken (e.g. a ban on wash-ups; hand overs or overtime)?”
While the question may be critiqued from a desirable communications perspective, that is not the test that must be applied. Instead, the test is whether it sufficiently describes the nature of the foreshadowed industrial action. I am satisfied it does. The nature of the proposed industrial action is clear, with two possibilities before those voting: an unlimited number of indefinite or periodic bans, limitations, and/or restrictions, first on the manner in which work is undertaken and second either separately, or in conjunction with the first, on the type of work undertaken. In each case, those voting are given an illustration of the forms of possible industrial action: first, as to the manner in which work is undertaken there may be a ban on the things such as the use of certain plant or substances, second as to the type of work undertaken, there may be a ban on activities such as wash-ups; hand overs or overtime.
The parenthetical illustrations within Question 2 assist a reader to understand what is being asked of them and assist the voter in deciding the question. An ordinary employee reading the question would likely have sufficient understanding of how the plant works to know that certain types of bans, limitations and/or restrictions of particular durations may reasonably lead to the plant having to be shut down and that such requires time.
Question 3 is also straightforward and capable of being responded to by employees. I am satisfied that the question amply describes the nature of the foreshadowed industrial action: employees are being asked to support interruptions to their work for indicated purposes, with those interruptions being either for a specified duration (which may be short or long) or indefinite. Plainly, interrupting work for a lengthy or indefinite period, for any of the indicated purposes would potentially require the plant to be shut down. There is nothing inherently ambiguous in a question that allows such a situation and employees would be in a position to evaluate the wisdom of voting for such a question.
Exceptional circumstances – extended notification period
Section 443(5) permits extensions to be made by the Commission to the notification period for the commencement of protected industrial action in exceptional circumstances, with the section in the following terms;
“(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 or 120 hours (whichever is applicable), the protected action ballot order may specify a longer period of up to 7 working days.”
The steps required to be taken by the Commission in consideration of applications to extend the protected industrial action notification period under s.443(5) and the ascertainment of exceptional circumstances were set out by the Full Bench in National Tertiary Education Industry Union v Charles Darwin University[21] (Charles Darwin) in the following way;
“[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).”[22]
The “exceptional circumstances” put forward by Opal are that the Maryvale Mill cannot be safely shut down in a period of less than 7 days. Its evidence on these matters was from Mike Carter, its Manufacturing Manager, Power and Recovery at the Maryvale Mill.
Mr Carter related his experience to the Commission, including his approximate 25 years in the pulp and paper industry. In his description of the Mill, he notes the work of the boiler, which runs at very high pressure, about 60 bar. That fact, coupled with its extreme operating temperature, leads him to describe it as a “very dangerous piece of equipment”[23] with him giving an example of why that is so;
“If water were to get into the furnace area of the boiler, there is the potential for the whole thing to blow up as the liquid rapidly expands into steam. To protect against this from happening, the Recovery boiler (Boiler) has a series of interlocks, burner management systems, and other protections. The Australian Standards require that the Boiler is always manned given its energy outputs, size, and potential for harm.”[24]
In another description, he puts forward that “Every part of the site is interconnected, like an ecosystem, and when one piece fails it often leads to other pieces falling, like dominoes”.[25]
Some forms and some lengths of protected industrial action would require Opal to shut down the site’s plant. In its submissions relating to Question 3, but which apply as much to the other questions, Opal submits that, “depending on the team who interrupt their work (whether safety or otherwise critical to other plant), and the period their work will be interrupted for, this action may cause the Respondent to shut down the whole site or whole parts of the site”.[26]
Mr Carter’s evidence is that there are both scheduled major shutdowns of the plant, generally for the purposes of maintenance, as well as unscheduled shutdowns. He stated that, in his opinion “it would take at least seven days to safely shut down the Mill at short notice of the required shut down date. This would normally allow us enough time to position levels appropriately and diligently shut down plant and equipment, ensure worker safety, and ensure environmental safety”.[27] After detailing the steps required and time taken for each of the steps to safely shut the plant down, Mr Carter estimated a safe shut-down would take not less than 98 hours;
“48. All up, the times I have estimated equate to approximately 98 hours of end-to-end labour, which is over 4 days straight. The reason I have suggested 7 days is because time is required to position tank levels correctly before shutdown and to try get the surge basin level down to reduce environmental risk. Another consideration is that if a piece of plant is broken down, it would need to be repaired to get up and running to enable tank levels to be suitably positioned for shutdown - this all takes time, and it would be dangerous to not factor in allowance for these contingencies.
49. Then there is also the possibility of having to deal with items we may not have even considered yet. Additionally, employees required to perform shut down tasks require overtime as the large volume of work requires additional labour. If you can’t get people to come in on overtime, then tasks take longer and may have to be put off until the next shift.
50. An unplanned shut will see staff employees taken off their usual tasks, split into appropriate teams, briefed, and probably trained to some degree before they can commence the first steps. Employees will also need to sleep between shifts, and depending on the relative skills mix, we may need to rely on some team members more than others. I therefore consider that 98 hours of end-to-end work could be more realistically and safely portioned over 7 days.”[28]
Mr Carter’s evidence was also that the plant could not be operated by employees other than those who are the subject of this application and that, similarly, it could not be brought to a safe state other than by those same employees. His evidence was also that all plant operators employed by Opal at the Maryvale Mill are members of the CFMEU and covered by the bargaining which is the subject of this application. That is, there is no capacity to run the mill with management or contractor labour, or with employees from a different operational group, subject to some other enterprise agreement.[29]
The CFMEU disputed Mr Carter’s evidence on the subject of the time required to bring the plant to a safe and shutdown state, bringing forward two of its members, Jason van Gelderen and Wayne Pollard, whose experience with shutdowns was that they could be brought about in a much shorter period. While Mr Carter gave evidence that there had recently been shorter shut-down periods, such was not desirable, giving this response in cross-examination by Mr Nicholls;
“I mean, and so really, it wouldn't take more - none of those recent shuts required more than 48 hours at most to actually shut the equipment down, did they?---No, but that is really not a state you want to leave your plant in before trying to walk out because you haven't shut down properly.”[30]
While accepting there had been shut-downs of 48 hours in the past, Mr Carter questioned the safety of those events;
“THE COMMISSIONER: Mr Carter, can I bring you to the question you were asked which was that - it was a fairly precise question - I don't think you answered it - which was that the - the CFMEU asked you the question of whether any of the shutdowns in the past year had taken more than 48 hours, and then you talked about best practice. So can you come back to the question which is whether or not they were able to shut down in 48 hours in the past year?---They were, but I wouldn't consider them a safe shutdown. You have - they've sort of been a half shutdown state. They've still got to take (indistinct) - - -
And why not safe?---Well, you've got operators monitoring them all the time, and so they're basically in a half state ready for startup. If you wanted to shut down properly and have people walk offsite, you would take a little bit more time and make sure tanks are empty and vessels are all empty”[31]
In relation to the question of “exceptional circumstances”, the relevant circumstances are the matters associated with the inherent dangers of the plant; the need to spend significant time of indeterminate length to bring the plant to a safe shut-down; the fact that only the group of employees subject to this agreement have the requisite skills to safely shut down the plant; and the fact that there are widely varying estimates of the length of time required for a safe shut-down. These matters in combination are demonstrably “out of the ordinary course, or unusual, or special, or uncommon” while not “unique, or unprecedented, or very rare”.[32]
I also take into account, in assessing exceptional circumstances overall, that there is no clear or agreed threshold of time in the event of a withdrawal of labour that would trigger the need to initiate a shut-down. While the evidence is clear that a short period of, say, 30 minutes would not initiate a shut-down, the upper point is not clear.
Faced with any particular notice of proposed industrial action, at least in respect of Questions 1 and 2, Opal would need to assess its contents; decide the likely impact and duration of the action; confirm the availability of any employer response action; and then decide whether to initiate a plant shut-down. Necessarily, in the context of Opal’s Maryvale Mill, those decisions will likely require expert consideration at the time the notification is given. The differences in evidence given about the length of time for a shut-down to be completed illustrate that Opal’s response will vary, not only according to the type of proposed industrial action, but also according to the state of the plant at the time of the notification.
I am satisfied as well that these exceptional circumstances justify a longer period of notice. Unlike many workplaces at the time of notification of proposed industrial action, Opal at its Maryvale Mill will be in a highly uncertain state. In particular, it will have to undertake the assessments set out above and then determine its forward course. If that path forward involves shutting down the plant, Opal will face uncertainty as to whether the target of safe shut-down can be achieved in 3 working days. That uncertainty is both inherent as well as situational: inherent in the sense that the time associated with the various stages of shut-down as described by Mr Carter may vary; situational in the sense that the length of time to shut-down parts of the plant will depend on what those parts may be processing at the time the shut-down directive is given.
Counter to these matters are the contentions of the CFMEU and its witnesses, Mr Pollard and Mr van Gelderen, about the length of time required to achieve a safe shut-down and that the CFMEU has stated it “is committed to workplace health and safety and is willing to undertake that during any protected industrial action it will not leave plant or equipment in an unsafe state”.
I accept the generality of the statements of each of the witnesses and accept that Mr Pollard and Mr van Gelderen see the shut-down time very differently to Mr Carter. For example, Mr Pollard considered the plant could be shut-down in 24 hours,[33] although conceding in cross-examination that such was contingent on elements of the plant having “the right level”.[34] Mr van Gelderen’s evidence disputed some of Mr Carter’s estimates of time, as well as not recalling a time when it has taken longer than 48 hours to shut the mill down, considering Mr Carter’s estimates to be “a little bit exaggerated”.[35] In rebuttal evidence Mr Carter noted the importance of time as a mitigator of risk;
“MR CARTER: Yes. So Commissioner, I would say my real is really down at the effluent plant, and you never know what position you're really going to be in before you get notice to shut down. And I just think the more notice we have, the better position we can have to shut down and mitigate our risk. Everything leaks on site. You have chemicals, leaks (indistinct) pumps and that, and with no air, everything just runs down the drain and lands up in the effluent treatment plant. And it's a big unknown, as to what you're really going to end up, you know, with the whole site being shut down and all the CFMEU off site. That is really my concern. And given that the effluent plant is right next to the La Trobe River, yes, I suppose that's the biggest stress point, from my perspective.”[36]
While respectful of their views, the CFMEU witnesses though do not carry the duties carried by Mr Carter, to operate the plant safely and in accordance with environmental standards. I accept that Mr Carter’s evidence was given with him cognisant of his responsibilities and those of Opal. I accept that the various stages of a shut-down are prone to variation and that, in certain circumstances, could be shorter than his estimates. Those matters though do not mean the evidence is not reliable, but rather highlights the overall difficulty in making an accurate prediction of the time required for a safe shut-down of the plant.
While taking into account the CFMEU’s safety commitment in forming a view about the justification for an extended period, I do not consider it to curtail the need for an extended notification period. The commitment, set out above, is short and general. Were it a formal, detailed commitment, setting out the circumstances in which it applied, the number and type of employees who would remain at work and for how long, it may be that the commitment obviated the potential justification for an extended notification period. In the context of the disagreement between the parties as to the time it may take to safely shut-down the plant, it is likely that adoption of the commitment without an extended notification period would simply shift or extend the dispute into the post-notification realm as well. That is, it is foreseeable there may well be disputation about the elements within the foreshadowed commitment and especially as to what may be meant by the phrase, “leave plant or equipment in an unsafe state”.
For these reasons, I consider the exceptional circumstances justify a longer notice period.
As to the exercise of a discretion about an additional period of notice, I take into account that if there were no extension, Opal would, if faced with the fact of a shut-down that could not take place within 3 working days, need to either prevail upon the CFMEU to maintain employees at the site, or would need to take urgent action in the Commission to suspend or terminate the protected industrial action. Neither eventuality is satisfactory in the overall circumstances of the case, and especially where the operator of the plant expresses the critical safety views put forward by Mr Carter. Those factors weigh in favour of extending the notice period.
Against that proposition is that, by extending the notice period, the CFMEU will be deprived of an early start to protected industrial action and the element of uncertainty, both in respect of the actual impact of industrial action and the responses that may be needed.
On balance though, I consider the circumstances weigh in favour of an extension.
Section 443(5) allows for the statutory notification period of 3 working days to be extended to “a longer period of up to 7 working days”. Necessarily an extension does not have to be 7 working days and could be an extension of any amount beyond 3 working days. In this matter and after considering Mr Carter’s evidence about the length of time needed to execute a safe shut-down, I am of the view that the extension of the statutory notification period should be the maximum permitted by the section, that is 7 working days.
Returning to the other matters requiring consideration, I am satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in s.443(1) of the FW Act have been met and that the CFMEU has been, and is, genuinely trying to reach agreement with Opal. In these regards I take into account all the material before me, including the declaration of Denise Campbell-Burns, Secretary of the Pulp & Paper Workers District and President of the Manufacturing Division, setting out the steps taken by the CFMEU in bargaining with the employer.
Being satisfied that the requirements in s.443(1) have been met, I must proceed to make a protected action ballot order. For the reasons set out above, the ballot order will include the three questions sought by the CFMEU and my order will also extend the notification period for the commencement of protected industrial action to 7 working days.
The ballot is to be conducted by Fair Vote Services Pty Ltd (FVS). FVS has been approved as an eligible protected action ballot agent under s.468A of the FW Act and consequently is authorised to conduct the ballot.
For the purposes of s.443(3)(c) of the FW Act, the Commission has determined that the date by which voting is to close is 20 December 2024. This also establishes the ballot period for the purpose of s.448A(2) of the FW Act.
An Order consistent with the foregoing has been separately issued in PR782257.
COMMISSIONER
Appearances:
Mr P. Nicholls, for the Applicant.
Mr J. Hyde, for the Respondent.
Hearing details:
10 December.
2024.
[1] Exhibit Opal 1, Witness Statement of Mike Carter, [31].
[2] [2021] FWCFB 1562.
[3] Opal objection to application, 9 December 2024.
[4] Ibid.
[5] Ibid.
[6] Transport Workers' Union of Australia v Prosegur Australia Pty Ltd[2021] FWCFB 1562, [34].
[7] John Holland Pty Ltd v AMWU[2010] FWAFB 526, [19], as summarised in Transport Workers' Union of Australia v Prosegur Australia Pty Ltd[2021] FWCFB 1562, [15].
[8] [2010] FWAFB 526, [19].
[9] Opal objection to application, 9 December 2024.
[10] Ibid..
[11] John Holland Pty Ltd v AMWU[2010] FWAFB 526, [19],
[12] [2022] FWCFB 204, [43].
[13] [2013] FWCFB 9549.
[14] National Tertiary Education Industry Union v Curtin University[2022] FWCFB 204.
[15] National Tertiary Education Industry Union v Curtin University[2022] FWCFB 204, [47].
[16] As articulated in NUW - NSW Branch v FreshExchange Pty Ltd[2009] FWA 221.
[17] See ss 186(2)(a) and s 188.
[18] Boral Resources (NSW) Pty Ltd [2010] FWAFB 1771 at [13]-[14]
[19] National Tertiary Education Industry Union v Curtin University[2022] FWCFB 204
[20] Transport Workers' Union of Australia v Prosegur Australia Pty Ltd[2021] FWCFB 1562, [35].
[21] [2018] FWCFB 4011.
[22] Ibid.
[23] Exhibit Opal 1, [16].
[24] Ibid, [18].
[25] Ibid, [25].
[26] Opal objection to application, 9 December 2024.
[27] Exhibit Opal 1, [39].
[28] Ibid.
[29] Transcript, PN 63 – 64.
[30] Transcript, PN 100.
[31] Transcript, PN 103 – 104.
[32] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation, [2007] AIRC 848, [10].
[33] Transcript, PN 214.
[34] Transcript, PN 232
[35] Transcript, PN 160 – 161.
[36] Transcript, PN 321.
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