Construction, Forestry, Mining and Energy Union

[2013] FWC 2748

[2013] FWC 2748

The attached document replaces the document previously issued with the above code on 13 May 2013.

In paragraph [21] the words ‘“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union’ have been removed. The sentence now reads as follows:

‘The Full Bench of Fair Work Australia in the case of John Holland v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), 1 addressed the approach to be taken to the issue of the form of questions to be put to employees subject to protected action ballot orders.’

Annalise Wood

Associate to Commissioner Lewin

Dated: 15 May 2013.

[2013] FWC 2748

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

Construction, Forestry, Mining and Energy Union
(B2013/800)

COMMISSIONER LEWIN MELBOURNE, 13 MAY 2013

Proposed protected action ballot by employees of EnergyAustralia Yallourn Pty Ltd - form of questions to be balloted - notice of industrial action.

Introduction

[1] This matter is an Application by the Construction, Forestry, Mining and Energy Union (the CFMEU) for a protected action ballot Order under s.437 of the Fair Work Act 2009, (the Act), in respect of employees of EnergyAustralia Yallourn Pty Ltd (EnergyAustralia).

[2] The relevant statutory provisions are set out below:

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.

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) 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.

[3] The Application was heard on Wednesday, 24 April 2013 and Thursday, 25 April 2013. At the hearing the CFMEU and Energy Australia were represented by Senior Counsel, with the permission of the Commission. When deciding to grant permission for such representation, pursuant to s.596, I considered that doing so would enable the matter to be dealt with more efficiently, having regard to certain issues which were foreshadowed by EnergyAustralia. Those issues concerned the appropriateness of the questions sought to be put to employees as a part of the Order proposed in the Application, in my view the issues have some complexity.

Ex Tempore Decision

[4] After hearing evidence and submissions in relation to the Application and the terms of the Order which might be made on the Application, I decided to make an Order. 2 At that time, I stated that I would publish further written reasons for doing so. These are those reasons.

The Application

[5] There was no challenge by EnergyAustralia to the validity of the Application. It was common ground that the CFMEU is a bargaining representative of employees of EnergyAustralia at its Yallourn Power Station in Victoria who will be covered by a proposed Enterprise Agreement. 3 The proposed Enterprise Agreement is not a greenfields agreement or a multi-enterprise agreement.4

[6] It was also uncontested that the Application specified the group of employees to be balloted, 5 the questions to be put to the employees to be balloted and included the nature of the proposed industrial action,6 although the adequacy and appropriateness of the text of several of the questions describing certain industrial action was contested.

[7] The Application provides for the protected action ballot to be conducted by the Australian Electoral Commission. 7

Issues for determination

[8] EnergyAustralia submitted that the form of several of the questions to be put to the employees to be balloted would not enable the employees to readily understand the nature of the industrial action sought to be approved by the ballot. In particular, it was submitted, several of the questions which the Application sought to be included in the ballot use the word ‘ban’ inappropriately.

[9] Additionally, EnergyAustralia submitted that the Commission should include in any Order it may make, a longer period of notice of some of the industrial action proposed than the period of three days prescribed as requisite notice of protected industrial action by s.414(2)(a) of the Act, by exercising its power under s.443 to prescribe a period of seven days notice. This greater period of notice was sought only in relation to the industrial action proposed by question one in the Order sought.

[10] The questions proposed to be balloted are as set out below:

QUESTION ONE

An unlimited number of stoppages of work, including consecutive stoppages of work of between one (I) and twenty-four (24) hours in duration?

Yes ☐ No ☐

QUESTION TWO

The imposition of an unlimited number of bans of one or more hours' duration on the operation of one or more of the generators at Yallourn Power Station in automatic generation control mode?

Yes ☐ No ☐

QUESTION THREE

The imposition of an unlimited number of bans of one or more hours duration commencing on or after 5am and finishing on or before midnight on any day, on the operation of one or more of the generators at Yallourn Power Station to generate more than 200 megawatts of power output per generator?

Yes ☐ No ☐

QUESTION FOUR

For an unlimited number of periods of one or more hours duration commencing on or after 5am and finishing on or before midnight on any day, operating one or more of the generators at Yallourn Power Station to generate no more than 200 megawatts of power output per generator in co-ordinated control mode?

Yes ☐ No ☐

QUESTION FIVE

The imposition of an unlimited number of bans of one or more hours duration commencing on or after midnight and finishing on or before 5am on any day, on the operation of one or more of the generators at Yallourn Power Station to generate less than 350 megawatts of power output per generator?

Yes ☐ No ☐

QUESTION SIX

For an unlimited number of periods of one or more hours duration commencing on or after midnight and finishing on or before 5.00 am on any day, operating one or more of the generators at Yallourn Power Station to generate no less than 350 megawatts of power output per generator in co-ordinated control mode?

Yes ☐ No ☐

Purpose of the ballot - statutory protection of Industrial Action - Notification requirements

[11] Subdivision B of Chapter 3 - Part 3-3 - Division 2 of the Act sets out the common requirements that apply for industrial action to be protected industrial action under the Act. 8 The purpose of the Application is to obtain by the Order sought and the ballot to be conducted pursuant to the Order such protection for any industrial action approved by the relevant employees participating in the ballot.

[12] S.414 of the Act sets out notice requirements for industrial action necessary to obtain such protection where industrial action of particular kinds has been approved in a protected industrial action ballot. Subsection (2) of s.414 is as follows:

414 Notice requirements for industrial action

Notice requirements—employee claim action

(1) Before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.

(2) The period of notice must be at least:

(a) 3 working days; or

(b) if a protected action ballot order for the employee claim action specifies a longer period of notice for the purposes of this paragraph—that period of notice.

Notice of employee claim action not to be given until ballot results declared

(3) A notice under subsection (1) must not be given until after the results of the protected action ballot for the employee claim action have been declared.

Notice requirements—employee response action

(4) Before a person engages in employee response 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.

Notice requirements—employer response action

(5) Before an employer engages in employer response action for a proposed enterprise agreement, the employer must:

(a) give written notice of the action to each bargaining representative of an employee who will be covered by the agreement; and

(b) take all reasonable steps to notify the employees who will be covered by the agreement of the action.

Notice requirements—content

(6) A notice given under this section must specify the nature of the action and the day on which it will start.

[13] Section 443(5) provides the Commission with power to specify a longer period of notice than referred to in s.414(2)(a) and is in the following terms:

443 When the FWC must make a protected action ballot order

(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.

[14] It will be observed that to specify a period of notice of protected industrial action longer than three days the Commission must be satisfied that there are exceptional circumstances in relation to the proposed industrial action. If it is so satisfied the Commission is empowered to exercise a discretion to extend the period of notice to which s.414 will apply up to a period of seven days.

[15] I will in due course return to this issue after considering the questions which the Application seeks to include in the protected action ballot Order.

Questions to be balloted

[16] Energy Australia does not take issue with the form of question one.

[17] Energy Australia says that there are two issues arising in respect of questions two through six inclusive.

[18] The first issue is the use of the word ban in these questions. The second is a compound of the first issue and reference in the questions to the result or consequences of the industrial action comprised of the various bans referred to in those questions.

[19] At the hearing on Wednesday, 24 May 2013, Energy Australia foreshadowed the calling of evidence directed to establishing that the employees to be balloted could not reasonably understand what the nature of the industrial action proposed by questions two to six would be comprised of. In particular, it was submitted, what would constitute a ban in the context of the relevant questions could not be properly understood by reference to the consequence or outcome of such bans as described in the questions, namely the effects on the output of the generators at the Yallourn Power Station.

[20] On the second day of the hearing Energy Australia advised that such evidence would not be called.

[21] The Full Bench of Fair Work Australia in the case of John Holland v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), 9 addressed the approach to be taken to the issue of the form of questions to be put to employees subject to protected action ballot orders. In paragraph [19] the following is stated:

[19] Moving now to the construction of s.437 itself, seen 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. 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. If the question or questions give rise to ambiguity, the conclusion may be reached that the industrial action specified in a notice under s.414 was not authorised by the ballot and that the action is not protected for the purposes of s.409(2). It is true that ambiguity or lack of clarity in the description of the industrial action is undesirable, but these are matters more appropriate for consideration under other provisions. It follows that in most cases the drafting of the questions will be a matter for the applicant.

(emphasis added)

[22] Having regard to the guidance provided by this decision I now turn to consider questions two to six which the CFMEU seeks be included in the ballot Order. I will turn first to the use of the word ban in those questions.

[23] What is meant by industrial action for the purposes of the Act is prescribed by s.19(1) as follows;

19 Meaning of industrial action

(1) Industrial action means action of any of the following kinds:

(a) the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work;

(b) a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee;

(c) a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work;

(d) the lockout of employees from their employment by the employer of the employees.

(emphasis added)

[24] It is clear that the word ban is not foreign to the statutory concept of industrial action. The legislation expressly provides for statutory protection against legal action 10 in respect of industrial bans by employees approved by a protected action ballot and for such bans to be the subject of the operation of wider provisions of the legislation in relation to the regulation of industrial action. It is also notable that the concept of a ban as industrial action is punctuated by a comma in the relevant context. So that it would seem that the legislature affords a straight forward and substantial meaning to an industrial ban, which may be conceived of distinctly. Alternatively, but not disjunctively, a ban is also comprehensively conceived of in s.19(b) as a component of a broader and extensive description of action by employees which will be industrial action for the purposes of the Act.

[25] It would therefore seem that there is an established concept of a ban on the performance of certain work, at the very least comprised of a ban on tasks, duties and responsibility for action on the part of an employee in the course of their work. Such a ban might include non attendance to irregular or unforeseen occurrences during the course of the performance of work, or other functions usually attended to in the course of an employee’s performance of their role. A ban could include, among other things, conduct of a limited or restricted range of behaviours and responses to direction to those usually expected and performed by employees in accordance with their contract of employment. This would involve an alteration of the range of discretionary effort of the employees at particular times or in particular circumstances or a refusal to perform some of the employee’s duties within the usual range of actions and behaviours of their work.

[26] However, if the word ban is used barely, simply and without more it would be difficult to comprehend the meaning of the word in the context of the full range of functions of an employee. A ballot question involving a ban would need more than just a ban on ‘work’. Such a simple question would immediately confuse the concept of a ban with a stoppage of all work. This and the fact that, among other things, a ban which will be industrial action will often be a ban on certain tasks or, the exercise of responsibilities or discretionary effort, while some if not much of the work is nevertheless performed, means that a question involving industrial action in the form of a ban may be in need of some explanatory text, for the purposes of an informed decision by employees in order that the employees can approve or not approve the nature of a ban as proposed in a ballot. Moreover, there is nothing inherently problematic or unreasonable in an employee being informed of the consequences of the ban for the purpose of their consideration of approval of a ban of a proposed kind.

[27] Examples of bans would be refusal to collect fares or a limitation of the amount of fares collected beyond a prescribed amount by a bus driver, a limit on the speed at which a bus might be driven, a ban on driving a bus to its full passenger capacity, or a ban on driving a bus longer than a certain distance, for more than a certain time or by a certain route. Such bans would not entail a complete ban on the driving of buses by employees who would usually do so, but would no doubt lead to the work of the drivers being performed very differently to the manner in which it would be customarily performed, with consequential restrictions on the performance of work by employees and the service normally provided by those bus drivers or the revenue raised by the operator of the service.

[28] Such circumstances of partial work performance because of a ban or bans are comprehended in Division 9 of Part 3-3 of Chapter 3 of the Act.

[29] The provisions of s.471 are illustrative of the point as follows;

471 Payments relating to partial work bans

Employer gives notice of reduction in payments

(1) If:

(a) an employee engaged, or engages, in protected industrial action against an employer on a day; and

(b) the industrial action is a partial work ban; and

(c) the employer gives to the employee a written notice stating that, because of the ban, the employee’s payments will be reduced by a proportion specified in the notice;

then the employee’s payments are reduced in accordance with subsection (2) in relation to the period (the industrial action period) referred to in subsection (5).

(2) The employee’s payments in relation to the industrial action period are reduced:

(a) by the proportion specified in the notice; or

(b) if the FWC has ordered a different proportion under section 472—by the proportion specified in the order;

and the modern award, enterprise agreement or contract of employment that applies to the employee’s employment has effect accordingly.

(3) The regulations may prescribe how the proportion referred to in paragraph (2)(a) is to be worked out.

Employer gives notice of non-payment

(4) If:

(a) an employee engaged, or engages, in protected industrial action against an employer on a day; and

(b) the industrial action is a partial work ban; and

(c) the employer gives to the employee a written notice stating that, because of the ban:

(i) the employee will not be entitled to any payments; and

(ii) the employer refuses to accept the performance of any work by the employee until the employee is prepared to perform all of his or her normal duties;

then the employee is not entitled to any payments in relation to the period (the industrial action period) referred to in subsection (5).

(4A) If:

(a) an employer has given an employee a notice under paragraph (4)(c); and

(b) the employee fails or refuses to attend for work, or fails or refuses to perform any work at all if he or she attends for work, during the industrial action period;

then:

(c) the failure or refusal is employee claim action, even if it does not satisfy subsections 409(2) and 413(4), if the related industrial action referred to in paragraph (4)(a) is employee claim action; or

(d) the failure or refusal is employee response action, even if it does not satisfy subsection 413(4), if the related industrial action referred to in paragraph (4)(a) is employee response action.

The industrial action period

(5) The industrial action period is the period:

(a) starting at the later of:

(i) the start of the first day on which the employee implemented the partial work ban; or

(ii) the start of the next day, after the day on which the notice was given, on which the employee performs work; and

(b) ending at the end of the day on which the ban ceases.

Form and content of notice

(6) The regulations may prescribe requirements relating to one or both of the following:

(a) the form of a notice given under paragraph (1)(c) or (4)(c);

(b) the content of such a notice.

Manner of giving notice

(7) Without limiting paragraph (1)(c) or (4)(c), the employer is taken to have given a notice in accordance with that paragraph to the employee if the employer:

(a) has taken all reasonable steps to ensure that the employee, and the employee’s bargaining representative (if any), receives the notice; and

(b) has complied with any requirements, relating to the giving of the notice, prescribed by the regulations.

Employer does not give notice

(8) If:

(a) an employee engaged, or engages, in protected industrial action against an employer on a day; and

(b) the industrial action is a partial work ban; and

(c) the employer does not give the employee a notice in accordance with paragraph (1)(c) or (4)(c);

then the employee’s payments for the day are not to be reduced because of the ban.

[30] It seems to me that questions two to six as proposed to be put to the relevant employees make clear that they would refrain from carrying out all of the responsibilities of their work by acting in a way such that they will impose a restriction and limitation on how they would customarily perform their work and respond to direction for the performance of that work. The consequence would be the performance of work in a manner different to that in which it would be customarily performed because of this ban. All of this is industrial action within the scope of s.19(1) as set out earlier and the material consequences described in questions two to six would seem to illustrate and explain the nature of the bans proposed, among other things.

[31] I consider that the use of the word ban in the questions two to six, of itself, raises no issue which could persuade me that the employees will not be able to generally understand what the nature of industrial action to be approved would be because of the use of this word.

[32] Accordingly, I now turn to consider whether, in the context of the questions two to six, the reference to the consequences of the bans referred to in the questions is such that the employees would not be able to readily understand what industrial action they would be asked to approve.

[33] Contrary to the submissions of EnergyAustralia, and in the absence of any evidentiary basis to persuade me otherwise, I judge that the reference to the consequences of the industrial action which is the subject of the proposed bans is likely to inform the employees about the nature of the proposed bans and how such bans would be manifest in the course of the work of the employees. It is impractical and unnecessary for questions to be put to employees which are encyclopaedic in nature and surgical in detail, cataloguing all practical eventualities where a ban might be approved. 11 What matters is that the description of the industrial action accords with what the Commission in its judgement, on the material before it, is satisfied the employees to be balloted can readily comprehend for the purposes of a discrete choice to approve or disapprove of the particular form of industrial action proposed in the ballot.

[34] Whether or not industrial action which is notified and taken, as a matter of fact, is industrial action which has been approved by the employees who take industrial action and is thus protected by s.414 will depend upon the action taken by the relevant employees and its contextual correspondence to the statutory provisions which extend protection to the industrial action so taken. That is a different matter to the text of questions which the employees are asked to answer by ballot.

[35] Whether a ban, as manifest, has any particular outcome or consequence may or may not be a relevant consideration for the operation of that statutory protection, however, that will be contingent upon relevant factual circumstances, in particular an industrial action actually taken and the requisite notification given pursuant to s.414 of the Act.

[36] I need not concern myself therefore with the material consequences for the employer of the bans the subject of questions two to six, except to the extent that I must consider whether the stated consequential object or outcomes of the bans inform the employees of what kind of bans are to be approved by them or not or, alternatively, gives rise to a misunderstanding so as to impair the understanding of the industrial action proposed by the questions.

[37] EnergyAustralia has chosen not to bring evidence which might convince me that the relevant employees’ capacity for understanding and interpreting the questions would be inadequate for proper comprehension on their part of what industrial action will or will not be approved of when answering questions two to six.

[38] I am not persuaded that the inclusion of a description of the consequence, object or potential outcome of the bans will prevent the relevant employees from comprehending what the industrial action proposed by the ballot questions will entail. It was conceded by EnergyAustralia that the employees are highly trained and the relevant work force is stable with little labour turnover. The employees have been operating the generators comprising the Yallourn Power Station for considerable time. The capacity of the employees to interpret the questions in the context of their work and the performance of their duties in its particulars must be considered. In these circumstances and on what is before me, I judge their capability to interpret the questions with appropriate knowledge and understanding of how a ban of the kind proposed in questions two to six would apply in the relevant circumstances to be adequate.

[39] For all of these reasons I decided that the questions two to six proposed by the CFMEU be included in a protected action ballot order.

Notice period

[40] I now turn to deal with submissions of EnergyAustralia that the period of notice in respect of the industrial action in question one, which deals with the employees approving an unlimited number of 24 hour stoppages, which may be contiguous, should be extended from the three days prescribed by s.414(2)(a) to seven days, pursuant to s.443(5).

[41] I was required to consider the approach to be taken by the Commission to the exercise of the discreationary power provided by s.443(5) of the Act in the case of Transport Workers’ Union of Australia. 12In the course of my Decision I referred to a number of Decisions of Fair Work Australia and in particular the decision of Vice President Lawler as referred to below:

[13] A number of decisions of Members of the Tribunal in relation to the operation of s443(5) of the Act have given consideration to the proper interpretation and application of the words ‘exceptional circumstances’ as they appear in the subsection 13. Those Decisions have uniformly followed the decision of Vice President Lawler, of the Australian Industrial Relations Commission, in CEPU v Australia Post14 which cites with approval the decision of Rares J of the Federal Court of Australia in Ho v Professional Services Review Committee No 29515. In the Court’s decision the expression ‘exceptional circumstances’ appearing in a Commonwealth Act was considered with reference to the relevant authorities.

[14] The Vice President stated the following with reference to the Decision of Rares J 16:

“[10] In this passage his Honour was concerned with the ordinary meaning of the expression “exceptional circumstances” and the approach identified is, in my view, equally applicable to the use of that expression in s.465(3). 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.”

[15] The Vice President went on to provide an informative discussion of the statutory purpose for the legal protection of industrial action in an enterprise bargaining system. At paragraph [21] of the Decision the Vice President stated the following 17:

“[21] Essentially, what is required in determining whether exceptional circumstances justify an extension of the required notice period is a weighing of the interests of the employer and third parties in the employer having a greater opportunity to take appropriate defensive action as against the diminutions in the effectiveness of the employees’ bargaining power that results from such an extension. The fact that the legislature has seen fit to condition the ordering of an extension of the required notice period on the presence of exceptional circumstances justifying it, as distinct from merely conferring a simple discretion to extend the required notice period, indicates that ordinarily there should be no extension.”

[16] The matter before the Vice President concerned an application by Australia Post that a protected action ballot order sought by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union (CEPU) which would affect the national letter service contain the maximum permissible notice period of seven working days, pursuant to the provisions of s443(5). The Vice President found that the statutory obligation on Australia Post to provide a national letter service according to mandated service delivery standards and an imminent Federal election in respect of which the role of the postal service was significantly implicated constituted exceptional circumstances. However, the Vice President nevertheless determined that those exceptional circumstances did not justify the extension of the relevant notice period from three to seven days in the protected action ballot order which was made, for reasons which were explained in that decision.

[17] Decisions of Fair Work Australia cited above which have granted an extension of the relevant period of notice beyond that prescribed by s414(2)(a) of the Act have all involved circumstances where a broader public interest to those of the parties immediately concerned with the protected industrial action existed. Such circumstances are the conjunctive circumstances of the employer and third parties referred to by Vice President Lawler. Those circumstances included: the national interest in the operation of the Australian Customs and Border Protection Services 18; the availability of public transport services in a capital city19; and a particular form of industrial action involving risks to public safety from prisoners of a State and access to medical services within a State prison20, in which case the period of notice was extended from three to five working days but limited to a particular form of protected industrial action, among others, which might be taken by employees of the employer responsible for the management of the prison.

[42] In this matter, I am satisfied that the breadth of interests in the conduct of the industrial action sought to be approved by question one, beyond the immediate interests of the employees concerned and EnergyAustralia, is sufficient to satisfy the requirement for exceptional circumstances to exist in order to vary the period of notice.

[43] The Yallourn Power Station generates a significant amount of electricity for Victoria. Mr Pearson the Executive Manager at Yallourn for EnergyAustralia gave evidence of possible risks to the generators posed by the full extent of industrial action contemplated by question one 21, if it proved necessary to shut down any of the generators. The evidence went to the desirability of an extended period beyond three days to prepare for such eventuality.

[44] Under cross examination Mr Pearson conceded that during recent events of 24 hour stoppages no such risks eventuated. However, in my judgement, those experiences do not encompass the range of possible industrial action which would be available and protected if question one were to be approved by majority of the employees to be balloted, as proposed.

[45] The approval of the industrial action proposed by question one will extend to complete stoppages of work for 24 hours by employees responsible for operating the generators, for an unlimited or indefinite and continuous period. Consequently, recent limited experience of the risks from 24 hour stoppages is not a complete answer to the issues raised by Mr Pearson’s evidence and the appropriate notice of the potential industrial action which could be approved under question one.

[46] In the matter of Keith Clark v IPM Operation & Maintenance Loy Yang Pty Ltd 22Commissioner Bissett was required to deal with not dissimilar circumstances. Loy Yang is another power station generating electricity for Victoria and the national electricity grid situated not far from the Yallourn Power Station. The questions to be considered by the Commissioner and put to the employees in that matter were as follows:

QUESTION ONE

Do you for the purposes of advancing claims in the negotiation of an enterprise agreement with IPM Operation and Maintenance Loy Yang Pty Ltd, authorise industrial action in the form of stoppages of work, including consecutive stoppages of work, of between one (1) and twenty-four (24) hours in duration?

Yes ☐ No ☐

QUESTION TWO

Do you, for the purposes of advancing claims in the negotiation of an enterprise agreement with IPM Operation and Maintenance Loy Yang Pty Ltd, authorise industrial action in the form of bans on the working of higher duties?

Yes ☐ No ☐

QUESTION THREE

Do you, for the purposes of advancing claims in the negotiation of an enterprise agreement with IPM Operation and Maintenance Loy Yang Pty Ltd, authorise industrial action in the form of bans on the working of overtime?

Yes ☐ No ☐

QUESTION FOUR

Do you, for the purposes of advancing claims in the negotiation of an enterprise agreement with IPM Operation and Maintenance Loy Yang Pty Ltd, authorise industrial action in the form of bans limiting the output of individual generators?

Yes ☐ No ☐

[47] The Commissioner decided to extend the notice period in relation to industrial action approved pursuant to a protected action ballot order to seven days as follows;

[6] ‘I am satisfied that the requirements in s.443(1) of the Act have been met and that, accordingly, the order must be made. Being satisfied that there are exceptional circumstances justifying the period of written notice referred to in s.414(2)(a) of the Act being longer than three days, pursuant to s.443(5) of the Act, I specify that a seven calendar day period of written notice of industrial action be given in relation to industrial action to be taken in accordance with questions 1, 2 and 3.’

[48] For these reasons, I conclude that in the event of the full extent of the industrial action proposed by question one in this matter being taken the risks of potential damage to the generators at Yallourn Power Station and the potential consequences for persons and businesses in Victoria are exceptional circumstances, which warrant an extension of the notice of such industrial action beyond three days.

[49] The CFMEU suggested, not without cogency, that the extension of the notice period should only apply where more than one 24 hour stoppage was to be taken pursuant to approval of question one. I have considered that submission. However, in this case, for reasons of comity, I intend to accord with the judgement of Commissioner Bissett, which I consider was given in not dissimilar circumstances and in close geographic and industrial proximity to the matter now before me and exercise my discretion accordingly.

COMMISSIONER

Appearances:

H. Borenstein QC and G. Harding for the Construction, Forestry, Mining and Energy Union (CFMEU).

S. Wood SC and R. O’Neill for Energy Australia Yallourn Pty Ltd

Hearing details:

2012

Melbourne

April, 24 and 25.

 1   [2010] FWAFB 526.

 2   Transcript PN 321

 3 S437(1) Fair Work Act 2009.

 4 S437(2) Fair Work Act 2009.

 5 S437(3)(a) Fair Work Act 2009.

 6 S437(3)(b) Fair Work Act 2009.

 7 S.441 Fair Work Act 2009.

 8 S408 Fair Work Act 2009.

 9   [2010] FWAFB 526.

 10 S415 Fair Work Act 2009.

 11   Communications, Electriacal, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Postal Corporation [2007] AIRC 848.

 12   [2012] FWA 133

 13 S443(5) Fair Work Act 2009.

 14 [2007] AIRC 848.

 15 [2007] FCA 388.

 16   CEPU v Australia Post [2007] AIRC 848 at [10] - [11].

 17 Ibid at [21].

 18   CPSU, the Community and Public Service Sector v Commonwealth Government - Australian Customs and Border Protection Service.

 19   Transport Workers Union of Australia v the Chief Executive of the ACT Internal Omnibus Network (ACTION) on behalf of the Australian Capital Territory; Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU) v the Chief Executive of the ACT Internal Omnibus Network (ACTION) on behalf of the Australian Capital Territory [2011] FWA 3355.

 20   CPSU, the Community and Public Service Sector v G4S [2011] FWA 2115.

 21   M Pearson 2nd witness statement.

 22   [2012] FWA 10630

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