Construction, Forestry, Maritime, Mining and Energy Union v BAE Systems Australia Limited T/A BAE Systems Australia
[2023] FWC 2980
•15 NOVEMBER 2023
| [2023] FWC 2980 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.437—Protected action
Construction, Forestry, Maritime, Mining and Energy Union
v
BAE Systems Australia Limited T/A BAE Systems Australia
(B2023/1240)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 15 NOVEMBER 2023 |
Proposed protected action ballot of employees of BAE Systems Australia Limited
BAE Systems Australia Limited T/A BAE Systems Australia (BAE) has been negotiating for an enterprise agreement to replace the BAE Systems Australia Limited (Henderson) Enterprise Agreement 2020-2023 (BAE Agreement),[1] since in or around May 2023. It is not in dispute that the nominal expiry date of BAE Agreement has passed.
An application has been brought by the Construction, Forestry, Maritime, Mining and Energy Union (the CFMMEU) under s 437 of the Fair Work Act 2009 (Cth) (the Act) for a protected action ballot order (PABO) in relation to certain employees of BAE.
The application was lodged with the Commission on 10 November 2023 and was initially allocated to Deputy President Hampton. The Commission’s Bargaining Team sought a response from BAE which was forthcoming on the afternoon of 13 November 2023. In its initial response, BAE confirmed that it proposed to object to aspects of the application and sought to be heard in respect of the application, including in relation to the notice period pursuant to ss 414(2)(b) and 443(5) of the Act.
Section 441 of the Act states that the Commission must, as far as practicable, determine an application under s 437 within two working days after the application is made. The application was allocated to my chambers on 14 November 2023. I listed the application for hearing on 15 May 2023.
In accordance with the directions issued on 14 November 2023, BAE advised the Commission that if the Commission considered it was required to make the PABO there were exceptional circumstances that justified an extension to the standard three working days’ notice period in respect of the following ballot questions:
a) Questions 1–5, which all referred to work stoppages of various durations;
b) Questions 9–12, which would ban key functions critical to docking and undocking; and
c) Question 14, which could amount to a stoppage of almost all work on site depending on which ‘plant’ or ‘machinery’ is intended to be captured by this question.
BAE therefore sought an extension of the notice period from three working days to five working days.
Further, in respect to questions 8, 10, 11, 12, 13 and 14, BAE held the view that the questions as drafted did not meet the criteria set out in s 443(3)(d) of the Act, and as such should not be included in any PABO.
Prior to the hearing, the CFMMEU provided to BAE a revised draft of the proposed questions. Having engaged in a period of conferral, the parties asked for the Commission’s indulgence to continue to confer with a view to arriving at a consent position concerning the issues raised by BAE. The issues also included an extension of time in respect of the ballot period from 14 days to 28 days. A consent position was arrived at in respect of the extension of the notice period and the perceived issues regarding the proposed questions. BAE informed the Commission that it no longer pressed an extension to the ballot period, and the parties indicated that based on the materials filed, they were content for the Commission to determine the matter on the papers in the absence of a hearing. In light of the above, I considered that an appropriate course to adopt.
Background
The operations of BAE
Mr Blake Pilgrim, Head of Operations at BAE’s Henderson site, gave evidence on behalf of BAE. Having been employed since 2019 and occupying a role that assumed responsibility for the site operations, workforce and infrastructure of the facility for both ‘Maritime Sustainment’ and ‘Commercial Repair’ work, he appeared qualified to talk to BAE’s business at the site.
The Henderson site is said to occupy a 14.5 hectare waterfront, vessel berthing, and docking, lay down and fabrication areas located within the Australian Marine Complex (AMC). The AMC provides infrastructure and support to Defence, local marine and mining and mineral industries.[2]
Mr Pilgrim explained that the docking arrangements for the vessels on the site were highly specialised,[3] noting:
“Docking” refers to bringing in a vessel from a wet water location to a dry land location, using BAE’s Synchro-Lift. Conversely, “undocking” refers to removing the vessel from a dry land location, and placing it into a wet water location. “Docking” is critical to all of the work done on vessels on site, because it is necessary to lift the vessel from the water to the dock to perform the necessary works at the site. I estimate that 98% of all work at the facility is conducted on “docked” vessels.
BAE has a 8000 tonne Synchro-Lift on site, which can lift vessels up to 150m long with a beam of up to 24.5m beam and a draft (ie. underwater depth) of 9.4m, out of the water. The Synchro-Lift at the Henderson Site (used to lift the vessels out of the water) requires specialised training. It is my understanding that this is the only lift of this kind in Western Australia. The BAE employees who perform this work are covered by the Agreement are required to have completed specific training on the Synchro-Lift (which takes months) as well as having developed necessary experience over a period of (typically) 4 years.[4]
Mr Pilgrim said that there were three categories of BAE employees on site who were covered by the BAE Agreement and were eligible to be represented by the CFMMEU, namely the:
a) docking crew;
b) crane crew; and
c) painting crew.[5]
The docking crew could be further broken down into two sub-groups.[6] The first, line handlers, who handled the ropes (lines), which secured the vessel when it was being ‘tied up’ alongside a wharf and who assisted in the ‘let go’ (meaning ‘released’) from alongside the wharf, or who otherwise guided a vessel onto and off a lifting platform.[7] The second, operators of the Synchro-Lift, who operated that highly specialised piece of machinery.
According to Mr Pilgrim, BAE’s Synchro-Lift operators at the Henderson site were the only operators in Western Australia qualified to use the Synchro-Lift.[8] Mr Pilgrim explained that this meant if these employees ceased performing their duties, BAE did not have any ability to bring in other workers from Western Australia to cover this work, and was unlikely to have any ability to bring in any workers from elsewhere around Australia for that purpose.[9]
Regarding the crane crew, these employees operated cranes which lifted equipment on to and off vessels which were dry docked on the hardstand or wet-berthed at the wharf. The crane crew were the only crew on the Henderson site to have a Verification of Competency (VOC) to operate the cranes on site.
Mr Pilgrim said that cranes were operated throughout the majority of the day, each day, at the Henderson site and in the vast majority of cases, ships that were being worked on at Henderson were brought out of the water, and then positioned in the relevant work location on the hardstand.[10] Because vessels were elevated off the ground, every piece of equipment that was required to be used on the vessel (including equipment required to perform the relevant work, and any components that need to be installed on the vessel) needed to be lifted onto the vessel using the crane.[11]
Mr Pilgrim noted that if BAE could source sufficiently qualified third party workers, it could engage contractors to perform the work that is typically performed by its crane crew and/or painting crew if the crane and/or painting crew stopped work. However, this could not be done immediately because even if candidates were available, it was likely that there would be a delay due to the on-boarding process, which often took weeks or months, and caused disruption of work on site.[12]
In relation to the work performed by the docking crew, Mr Pilgrim said that BAE would not be able to bring on additional resources to perform the docking crew work. BAE’s broader workforce in Australia did not include any employees who have the necessary qualifications and experience to operate the Synchro-Lift.[13] Mr Pilgrim added that there was no ability to redeploy employees from BAE’s other sites throughout Australia to the Henderson site to perform this work.[14] While there are other Synchro-Lift operators residing elsewhere in Australia, BAE stated that it is not aware of any other organisations having workers who are verified as competent to operate the unique control system installed at BAE Systems Henderson.[15]
It appeared uncontroversial that many of the commercial vessels serviced at the Henderson site were associated with the mining and minerals industry in the North West Shelf of Western Australia. Typically, these were said to consist of offshore supply and other vessels, such as feeder container vessels, tugs and other harbour craft.
However, a significant focus of BAE’s work on site related to repair or maintenance of Defence vessels to Defence specifications. These vessels were, according to Mr Pilgrim’s evidence, required to be operational and available to Defence at particular points in time, which involved complex logistics and planning to meet these deadlines and comply with Defence requirements.
Mr Pilgrim gave evidence that additional considerations arise in respect of Defence Navy vessels. The Royal Australian Navy (RAN) uses the BAE Henderson site exclusively for the completion of major upgrades and maintenance work on the ANZAC fleet (which is comprised of 8 ships), plus holding ships in a state of readiness for immediate and short-term deployment.[16] This type of work is under contract until 2026. BAE were said to currently have one vessel located at Henderson on operational ‘stand by’, and a second vessel coming to the end of its upgrade program, at which point it would commence transition to operational status.[17] The RAN is said to have a complicated staffing program which sees ships staff moving around the country to support operational uptime of their ANZAC fleet; this staffing program hinges around docking and undocking dates and RAN operational demands.
Mr Pilgrims said that generally, the Defence schedules are programmed to ensure that vessels are available when needed for operational requirements. Delays could compromise the ability of a vessel to be made available to Defence as and when required, affecting the capacity of the Navy to deploy vessels when needed.[18]
Mr Pilgrim gave evidence that BAE’s Henderson site is only one of four locations that can take a Navy ANZAC vessel out of the water. The other locations included the following:
a)the Common User Facility (CUF) nearby Henderson, which is owned by the State Government of Western Australia and operated by Ventia;
b)Osborne Naval Shipyard in Adelaide; and
c)Captain Cook Graving dock in Sydney.[19]
Mr Pilgrim observed there was a much more significant impact on Defence when compared to the other vessel owners and operators given the limited number of locations that were available for these vessels, and the specialised nature of the work that must be performed (including the security requirements that apply to such work). Mr Pilgrim explained that Defence vessels must go through a ‘safety preparation phase’ which includes removal/replacement of specialist Defence equipment at an operational Defence base prior to docking and any subsequent maintenance or repair work being carried out. This means that any alternate docking/undocking location must have access to a suitable operational Defence base.
Mr Pilgrim gave evidence that if a vessel is arriving at the Henderson site and needs to re-route to one of the few sites that could accommodate it when Henderson cannot, there were only three alternative sites that could be used for Defence, one of which was in Adelaide (which is 3–4 calendar days away from Henderson) and one of which was in Sydney (which is 6–7 calendar days away from Henderson).[20]
Mr Pilgram further said that having 5 working days of notice (instead of 3 working days of notice) could provide the Defence vessel with enough time to travel from Henderson to either Adelaide or Sydney if it needed to do so. Having only 3 working days’ notice would be insufficient. Having a longer notice period would also enable Defence to plan for the deployment of their personnel on board that vessel depending on what is being done with the vessel and potentially making suitable arrangements for additional staff to relieve those on board during any period of delay.
That said, said Mr Pilgrim, even with contingency planning, delays in docking, servicing, and undocking active vessels scheduled for services in the upcoming months could mean that Defence vessels that are planned for redeployment by the Navy would not be available for use when planned.[21]
If BAE receives only three days’ notice of industrial action, it is highly likely that a vessel will already be on its way to Henderson before it is able to be informed of the disruption to the docking schedule at the Henderson site, stated Mr Pilgrim.[22] Mr Pilgrim continued that this meant that the vessel would need to make arrangements to dock elsewhere from an offshore location, without the benefit of planning travel during a suitable weather window. It also would likely result in delays in getting the ship’s staff safely ashore, and attending to repair works which may be urgent and/or critical.
Bargaining
Evidence in support of the application was provided by Mr Will Tracey, Union Organiser for the CFMMEU.
On or around 17 May 2023, BAE issued a Notice of Employee Representational Rights (NERR) for a replacement agreement.[23]
The CFMMEU, according to Mr Tracey, initiated the process of bargaining to replace the BAE Agreement by providing BAE with its ‘BAE Log of Claims’ on 16 June 2023.[24]
Since the issuance of the NERR, the parties have met on the following dates:
a) 31 May 2023
b) 16 June 2023;
c) 6 July 2023;
d) 27 July 2023;
e) 14 August 2023;
f) 30 August 2023;
g) 13 September 2023;
h) 27 September 2023;
i) 4 October 2023; and
j) 10 October 2023.
Mr Tracey gave evidence that over the course of those meetings, the parties had exchanged claims and had their claims costed.[25] Mr Tracey added that the CFMMEU had reduced claims, amended other claims and considered BAE’s claims over that time.[26] On 4 October 2023, the CFMMEU provided BAE with a revised copy of its ‘Log of Claims’.[27]
Legislative Framework
Section 443 of the Act outlines the circumstances in which the Commission is obliged to issue a protected ballot order:
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.
As can be seen, s 443(1)(a) requires that an application has been made under s 437. That section relevantly provides:
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.
(2A) Subsection (1) does not apply unless there has been a notification time in relation to the proposed enterprise agreement.
Note: For notification time, see subsection 173(2). Protected industrial action cannot be taken until after bargaining has commenced (including where the scope of the proposed enterprise agreement is the only matter in dispute).
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) If 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.
There are certain circumstances that must be satisfied before a PABO can be granted. In the context of this application, those circumstances are that: (a) there has been an application made under s 437; and (b) the CFMMEU has been and is genuinely trying to reach an agreement with BAE.[28]
Turning to the latter point, I am satisfied that the CFMMEU has been and is genuinely trying to reach an agreement. BAE does not argue otherwise. Furthermore, the application has been properly made. There has been a ‘notification time’ in relation to the proposed agreement and there was no dispute that both BAE and the ballot agent received the application within the requisite statutory period.[29]
However, s 443(3) stipulates that a protected action ballot order must specify, amongst other things, the question or questions to be put to the employees who are to be balloted. This includes the nature of the proposed industrial action (see subsection 443(3)(d)).
Questions - compliance with s 443(3)(d) of the Act
BAE argued that the proposed questions 8, 10, 11, 12, 13 and 14, as drafted, do not meet the criteria set out in s 443(3)(d) of the Act, and should therefore not be included in any PABO.
The questions in issue included:
8. An unlimited number of bans on the performance of shift work?
Yes [ ] No [ ]
10. An unlimited number of bans on the docking of vessels?
Yes [ ] No [ ]
11. An unlimited number of bans on the tie up of vessels?
Yes [ ] No [ ]
12. An unlimited number of bans on the let-go of vessels?
Yes [ ] No [ ]
13. An unlimited number of bans on the use of hand tools?
Yes [ ] No [ ]
14.An unlimited number of bans on the operating or use of plant and machinery?
Yes [ ] No [ ]
In National Tertiary Education Industry Union v Curtin University (NTEIU)[30], the Full Bench stated at paragraph [37]:
The Commission’s power to make a protected action ballot order under s 443 of the FW Act is not discretionary in nature. Section 443(1) imposes a duty on the Commission to make an order if two conditions have been met: first (in paragraph (a)), that an application for such an order has been made under s 437 and, second (in paragraph (b)), that the Commission is satisfied that each applicant for an order has been, and is, genuinely trying to reach an agreement with the employer of the employees to be balloted. If these conditions are not met, then the Commission is prohibited from making an order: s 443(2).
The Full Bench further clarified that under s 443 the Commission first determines whether there is an obligation to make an order under s 443(1) and then determines the content of the order in conformity with ss 443(3)–(5). As to what is necessary to satisfy the requirement in s 443(1)(a), which operates as a condition precedent to the duty to make an order, the Full Bench said at paragraphs [40]–[41]:
It may be accepted that for an application to have been made “under” s 437, it must have been made in conformity with s 437. That proposition is implicit in all the previous authorities relating to protected action ballot orders and was not contested by the NTEU in this case. That means that the application must specify the matters in s 437(3). We note at this point that, unlike s 443(1)(b), the jurisdictional prerequisite in s 443(1)(a) is not expressed in terms of the Commission’s satisfaction as to the requirement. Therefore, whether an application has been made under s 437, including whether it specifies the matters in s 437(3)(b), must be regarded as a matter of jurisdictional fact.
The Full Bench decision in John Holland has generally been regarded as authoritative in relation to what is necessary for compliance with s 437(3)(b), and it was not suggested by either party before us that we should not follow it. In that case, the employer contended that the application for a protected action ballot order was not valid “because the question to be put to the employees was ambiguous and did not adequately specify the nature of the industrial action for which the endorsement of the employees was sought”…
Of course, in John Holland Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (John Holland) the Full Bench stated, in respect of the proper construction of s 437 that in its statutory context, ‘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.’[31] Subsequent Full Bench decisions of this Commission following John Holland have endorsed that approach.[32]
In NTEIU, the Full Bench expressed at paragraphs [54] and [55] that it did not consider the Commission has a general discretion to determine the questions which will be included in the order, or to simply exclude valid questions, independent of what has been applied for:
[54] As earlier stated, s 443(1) imposes a duty on the Commission to make a protected action ballot order if the requirements of paragraphs (a) and (b) of the subsection are met. The mandatory nature of s 443(1) is the most important factor governing the construction of s 443 as a whole. It should not therefore be considered that, in respect of a valid application for a protected action ballot order, the Commission is at large as to the terms of the order to be made subject to satisfaction of the content requirements in the section. The inference to be drawn from the mandatory nature of s 443(1) is that the order required to be made is one which gives effect to an application validly made under s 437. Thus, in respect of s 443(3)(d), we do not consider that the Commission has a general discretion to determine the questions which will be included in the order, or to simply exclude valid questions, independent of what has been applied for.
[55] That is not to say that the Commission is compelled, in making an order, to reproduce the questions in precisely the same terms as applied for. Section 599 of the FW Act provides that, except as provided by the FW Act, the Commission is not required to make a decision in relation to an application in the terms applied for, and there is no reason to think that anything in s 443 ousts the operation of s 599. If there is some adjustment which can be made to the text of a question in order to more clearly express what the applicant proposes, then that may be done in discharging the requirements of s 443(1) and (3)(d). In rare cases, there may also be applications which, while they contain a number of questions which meet the requirements of s 437(3)(b) and are thus validly made under s 437, contain a question which is so lacking in meaning that it is incapable of being answered. In that circumstance, unless the drafting of the question can be rectified in a way consistent with the applicant’s intent, it may be necessary to make an order pursuant to s 443(1) which excludes that question. (footnotes omitted).
As identified in NTEIU, the Commission is not compelled, in making an order, to reproduce the questions in precisely the same terms as applied for. In this case the parties have conferred and have consensually agreed to adjustments regarding the text of questions in issue, in order to more clearly express what the CFMMEU proposes. As a consequence, the revised questions have been included in the PABO, in line with the request of the parties. Those proposed questions are:
1. An unlimited number of stoppages of work of one hour duration?
2. An unlimited number of stoppages of work of 2 hours duration?
3. An unlimited number of stoppages of work of 4 hours duration?
4. An unlimited number of stoppages of work of 12 hours duration?
5. An unlimited number of stoppages of work of 24 hours duration?
6. An unlimited number of bans on the performance of overtime?
7. An unlimited number of bans on the performance of weekend work?
8. An unlimited number of bans on the performance of day shift work?
9. An unlimited number of bans on the performance of afternoon shift work?
10. An unlimited number of bans on the use of cranes?
11. An unlimited number of bans on the docking of vessels? For the avoidance of doubt, this includes docking and undocking, wet berthing and dry docking. The ban applies to the full docking evolution including:
(a) building a cradle, bringing the lift facility online and preparing the lines;
(b) throwing the lines, lifting the vessel and positioning it on the cradle; and
(c) pulling the vessel into place.
12. An unlimited number of bans on the tie up of vessels (including for the purpose of docking as that term is explained in Q11 above)?
13. An unlimited number of bans on the let go of vessels (including for the purpose of undocking, as that term is explained in Q11 above)?
14. An unlimited number of bans on the use of unpowered hand tools?
15. An unlimited number of bans on the operating or use of plant and machinery? For the avoidance of doubt “plant and machinery” means specifically bulldozers, EWPs, forklifts and scissor lifts.
Notwithstanding the above, please note that under s 415(1) of the Fair Work Act 2009 (Cth) industrial action will not be legally protected if the industrial action has involved or is likely to involve:
(a) Personal injury;
(b) Wilful or reckless destruction or damage to, property; or
(c) The unlawful taking, keeping or use of property.
The MUA and the Employer agree that no person should allow any imminent risks to safety that involve, or is likely to involve, personal injury.
Extension of the notice period
Regarding whether the circumstances warrant an extension to the notice period, I have found that they do in respect of the nature of the proposed industrial action in Questions 1–5, 11–13 and 15. For the following reasons, five working days’ notice will be provided for in respect of the nature of the proposed industrial action in questions 1–5, 11–13 and 15. For the sake of clarity, it is noted that where reference is made to ‘exceptional circumstances’, it is done so in the context of the aforementioned questions (1–5, 11–13 and 15).
Section 443(5) of the Act provides that the Commission can require a longer period of notice to be given where it is satisfied that there are exceptional circumstances justifying this. The onus is on BAE to provide evidence that would satisfy the Commission that there are exceptional circumstances in this instance. To warrant an extended period of notice, the Commission must be satisfied both as to the existence of exceptional circumstances and the fact that these justify the granting of the extended notice.
As to whether a different notice period can be ascribed to the nature of some proposed industrial action in comparison to others, the answer appears to be in the affirmative. In Community and Public Sector Union v G4S Custodial Services Pty Ltd (G4S),[33] consideration was given to whether the power in s 443(5) of the Act pertained only to ‘the proposed industrial action’ generally (that is, if a longer period of notice is specified, it must apply to all of the forms of action listed in the ballot order); or whether the power could be exercised in relation to any one or more of the particular types of industrial action contemplated in the order. It was concluded that Division 8 of Part 3-3 plainly contemplated the possibility of a multiplicity of questions appearing on protected action ballots (see s 443(3)(d)) and that the framework contemplated that employees might authorise some forms of action but not others. The Deputy President in G4S considered that it was consistent with this framework that the power of the Commission to prescribe a longer notice period under s 443(5) was referrable to particular types of action.[34]
Evidence bearing on the question of exceptional circumstances was provided by Mr Pilgrim. His evidence was uncontested and there is no reason to believe that his account was not representative of BAE’s circumstances.
It is evident that within the BAE workforce there is a group of employees who possess particular skills to operate equipment that is essential to BAE’s provision of services to vessel operators. In this respect, I refer to the docking crew, and particularly the Synchro-Lift operators. Mr Pilgrim gave evidence that this group of employees were the only operators in Western Australia qualified to use the Synchro-Lift.[35] Mr Pilgrim further explained that this meant if these employees ceased performing their duties, BAE did not have any ability to bring in other workers from Western Australia to cover this work, and was unlikely to have any ability to bring in any workers from elsewhere around Australia for that purpose.[36]
That in and of itself does not establish, in my view, exceptional circumstances. However, when consideration extends to one of the third parties impacted, namely Defence, and the steps that would be required to be taken to ameliorate such impact, the circumstances become out of the ordinary course, unusual, special or uncommon.
In Construction, Forestry, Maritime, Mining and Energy Union v DP World Brisbane Pty Ltd, it was expressed that on no basis could it be said that the simple fact that protected industrial action has effects upon third parties requiring ameliorative steps to be taken is ‘out of the ordinary course’, ‘special’, ‘rare’ or ‘uncommon’ such as to constitute the requisite exceptional circumstances.[37] Were it otherwise, said the Full Bench, extensions to the standard notice period under s 443(5) would be granted as a matter of course.[38]
However, the evidence before me is such that the employees in question, that is members of the docking crew (operators of the Synchro-Lift), perform work that is so highly specialised that they are not able to be simply replaced by contract labour, and while crane operators may be able to be replaced for a period, before doing so BAE would need to ensure verification of VOC. When these facts are considered against the backdrop of one of the vessel operators being Defence and that BAE’s Henderson site is one of only four locations nationally that can take a Navy ANZAC vessel out of the water there is clearly a much more significant impact on Defence when compared to the other vessel owners and operators given the limited number of locations that are available for these vessels. Of course, complicating matters further is the specialised nature of the work that must be performed before a Navy vessel docks at the Henderson site, including the security requirements that apply to such work. Mr Pilgrim stated that Defence vessels must go through a ‘safety preparation phase’ which includes removal/replacement of specialist Defence equipment at an operational Defence base prior to docking and any subsequent maintenance or repair work being carried out. This means that any alternate docking/undocking location must have access to a suitable operational Defence base.
The expression ‘exceptional circumstances’ was considered by Lawler VP in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation (Australia Post),[39] and in National Tertiary Education Industry Union v Charles Darwin University, the Full Bench concluded that the Vice President’s discussion was apposite to the phrase ‘exceptional circumstances justifying’ in s 443(5).[40] At paragraphs [23]–[25], the Full Bench stated in respect of 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).
With respect to whether there are exceptional circumstances, for the aforementioned reasons, I consider that to be the case. In my view, the exceptional circumstances so explained, are inclusive of the indubitable fact that if a Navy vessel arriving at the Henderson site needs to re-route, it can only do so at one of the limited sites that could accommodate the vessel when Henderson cannot. With there being only three alternative sites that could be used by Defence, one of which is in Adelaide (which is 3–4 calendar days away from Henderson) and one of which is in Sydney (which is 6–7 calendar days away from Henderson),[41] the impact on Defence in addition to the other factors mentioned constitute exceptional circumstances and justify the extended notice period of five working days.
To the extent the interests of the employer and third parties is weighed against a possible diminution of employee bargaining power (see Australia Post at [21]), the balance here lies comfortably with the grant of an extension. Here, the effectiveness of the industrial action as against BAE will not be materially diluted or reduced by extending the notice period for those forms of industrial action for which it is sought. In this respect, I refer to the uncontested evidence of Mr Pilgrim at paragraphs [35] and [36] of his witness statement:
35. BAE will be unable to continue its scheduled work on vessels, and will suffer a variety of negative consequences, which include (among other things) financial penalties applicable under the Alliance Agreement, disruption to its own operations, lost revenue for breaches of its commitments to its clients. Additionally, BAE may experience flow on effects such as reputational damage, which could affect BAE’s capacity to secure work in the future.
36. The period of notice provided for the industrial action will not materially affect this, given that BAE has no capacity to bring on any replacement workers to perform docking work, and that any replacement crane or painting crew workers will take some time to be sourced and on boarded, or avoid the need for such work to be performed.
It is open to find that the industrial action will impact BAE regardless of an extension of time. The only significant benefit will be to provide third parties, such as Defence, with the opportunity to act to protect their interests.
In my view, the circumstances so described in the witness statement of Mr Pilgrim, justify the extension of the notice period up to five working days. I have therefore extended the notice period accordingly, observing that the parties were agreeable to such course.
Conclusion
It is uncontroversial that the CFMMEU is a bargaining representative of at least some of the employees who will be covered by the proposed agreement. Those employees are all members of the CFMMEU employed by BAE whose employment will be covered by the terms of the proposed agreement.
Briefly stated, I have concluded that the CFMMEU has been, and is, genuinely trying to reach agreement with BAE, and I am further satisfied that the requirements in ss 440, 443(1) and 437 of the Act have been met.
The ballot is to be conducted by the Democratic Outcomes Pty Ltd T/A CiVS (CiVS). CiVS has been approved as an eligible protected action ballot agent under s 468A of the Act[42] and consequently is authorised to conduct the ballot.
For the purposes of s 443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is fourteen days from the ‘Commencement Date’ as that term is defined in clause 8.2.1 of the Order.[43] This also establishes the ballot period for the purpose of s 448A(2) of the Act.
An Order has been separately issued in PR768275.
This matter will shortly be listed for a s 448A compulsory conciliation conference. An Order will be issued requiring the attendance of all bargaining representatives involved in the proposed enterprise agreement at the conference. Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.
DEPUTY PRESIDENT
Matter determined on the papers.
[1] AE513255.
[2] Witness Statement of Blake Lachlan Pilgrim, [4] (Pilgrim Statement).
[3] Ibid [5].
[4] Ibid [5], [6].
[5] Ibid [22].
[6] Ibid [23].
[7] Ibid [23(a)].
[8] Ibid.
[9] Ibid.
[10] Ibid [24].
[11] Ibid.
[12] Ibid [19].
[13] Ibid [30].
[14] Ibid.
[15] Ibid.
[16] Ibid [10].
[17] Ibid.
[18] Ibid [11].
[19] Ibid [14].
[20] Ibid [31(c)].
[21] Ibid [47].
[22] Ibid [32].
[23] Form F34B – Declaration in support of an application for a protected action ballot order, question 2.1 [1].
[24] Ibid question 2.1 [3].
[25] Ibid question 2.1 [5].
[26] Ibid question 2.1 [6].
[27] Ibid.
[28] Fair Work Act 2009 (Cth) s 443.
[29] Ibid s 440.
[30] (2022) 320 IR 70.
[31] (2010) 194 IR 239, 246 [19].
[32] See, eg, National Tertiary Education Industry Union v RMIT University (2013) 237 IR 264; Trade Workers’ Union of Australia v Prosegur Australia Pty Ltd[2021] FWCFB 1562.
[33] [2020] FWC 1106.
[34] Ibid [28].
[35] Pilgrim Statement (n 2) [23(a)].
[36] Ibid.
[37] [2019] FWCFB 1150, [18].
[38] Ibid.
[39] (2007) 167 IR 4.
[40] [2018] FWCFB 4011, [20]–[21].
[41] Pilgrim Statement (n 2) [31(c)].
[42] Democratic Outcomes Pty Ltd [2023] FWC 1400.
[43] PR768275.
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