Construction, Forestry, Mining and Energy Union v SRG Building (Northern) Pty Ltd
[2015] FWC 5733
•24 AUGUST 2015
| [2015] FWC 5733 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
Construction, Forestry, Mining and Energy Union
v
SRG Building (Northern) Pty Ltd
(B2015/767)
COMMISSIONER RIORDAN | SYDNEY, 24 AUGUST 2015 |
Proposed protected action ballot of employees of SRG Building (Northern) Pty Ltd.
[1] This decision relates to an application by the Construction, Forestry, Mining and Energy Union (CFMEU) to the Fair Work Commission (FWC) under s.437 of the Fair Work Act, 2009 (the Act) seeking a protected action ballot order of employees of SRG Building (Northern) Pty Ltd(SRG).
[2] SRG is a sub-contractor in the Building and Construction Industry. SRG performs work in relation to the tensioning and testing of recently poured concrete slabs. SRG currently employ approximately 85-90 workers throughout NSW.
[3] SRG does not oppose in its entirety the protected action ballot order sought by the CFMEU but seeks to amend two provisions of the proposed Order:
1. The Respondent seeks that the protected action ballot be held by postal vote rather than by attendance due to the disparity of the Respondent's sites both within the Sydney metropolitan area and regionally, which spread from the Central West of NSW to the Central Coast; and
2. The Respondent seeks 4 days' notice of industrial action where it is intended to take protected industrial action on the Barangaroo site that extends for 48 hours or more.”
[4] The CFMEU opposes the two amendments that are sought.
[5] The relevant statutory provisions of the Act in relation to this application 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.”
“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.
(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.”
[6] I was taken to a number of authorities by the CFMEU which highlighted the issue of the significance of the work to be undertaken in order to qualify under the definition of “exceptional circumstance” as well as the voting method and process to be utilized by the AEC.
In The Australian Workers’ Union v Alcoa Portland Aluminium Pty Limited 1 Lewin, C said:
“[28] In my view, having the responsibility for the logistical issues involved in the conduct of the ballot, in accordance with the terms of the order, will enable the AEC to make a more finely tuned judgement of the most appropriate method of voting in all the circumstances than the Commission.”
[7] In Transport Workers’ Union of Australia 2 Lewin, C made the following comments in relation to the proposed extension of the relevant notice period:
“[18] It is unexceptional that protected industrial action will usually involve adverse economic effects upon a business in respect of which it operates. Accordingly, it is not necessary for me to consider whether or not the circumstances relied upon by the respondent in this respect are sufficient to justify an extension of the notice period otherwise prescribed by the legislation. To adopt a contrary approach would involve the Tribunal extending the relevant notice period not for the purpose of dealing with exceptional circumstances, within the meaning of those words as indicated by the decisions mentioned above, but rather for the purposes of minimising the impact of the protected industrial action on the business and profitability of the respondent. Likewise, it is more probable than not that there will be collateral effects upon the customers of a business where protected industrial action operates. It would be necessary for the respondent to demonstrate that such effects may be properly characterised as exceptional circumstances.”
[8] In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corportation 3, Vice President Lawler reviewed the meaning of the phrase “exceptional circumstances” and quoted the decision of Rares J in Ho v Professional Services Review Committee No 2954 in providing an appropriate definition for the phrase:
“27 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’ in s 106KA(2) 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. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.”
[9] His Honour, Vice President Lawler went on to say:
“[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.
[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.”
[10] SRG is currently engaged on a number of sites around Sydney and Regional NSW, one of which is Barangaroo. SRG advised the FWC of a unique method of slab testing which only exists at the Barangaroo site, where the “final test” of the concrete slab is undertaken on the fourth day after the concrete pour. Mr Lewis Bone, the Divisional Manager Post-Tension NSW/ACT for SRG, testified that the final test is of significant importance in relation to the on-going veracity and suitability of that slab. Failure to test the slab in the correct time frame could lead to increased cracking of the concrete and functional deficiencies. I have taken this into account.
[11] I agree with the view of Commissioner Lewin that the very concept of protected industrial action is that such action will provide inconvenience and have a possible adverse effect on SRG and obvious collateral ramifications for its customers.
[12] However, in the normal course of events, protected industrial action provides notice to an employer of an upcoming industrial event. It allows employers to make arrangements in relation to the industrial action whether that be to mitigate any possible losses or make use of alternative provisions of the Act to bring the dispute to a conclusion. However, in the case of the work being performed by SRG at Baranagroo, a three day notice period provides a retrospective element to the protected industrial action which is an unintended consequence of the Act. Such a consequence, in reality, submits SRG to the industrial outcome of a wildcat strike, whereby 3 days’ notice could be given at the conclusion of a concrete pour which, in effect, means that the final test would not be conducted in the appropriate timeframe. This outcome could result in a large proportion of that work to be faulty or unsatisfactory. I have taken this into account.
Conclusion
[13] I have taken into account all of the evidence and submissions of the parties.
[14] Whilst I accept that the FWC has the power to issue an Order in relation to the conduct of the Australian Electoral Commission (AEC) ballot, I am not convinced of the need or desirability of such an Order in this circumstance.
[15] The AEC has conducted thousands of ballots of this nature for subcontractors in the building industry over many years. The professionalism and integrity of the AEC is beyond reproach. I am confident that it will conduct this ballot in the most appropriate manner.
[16] In relation to the appropriate notice period to be provided before protected industrial action can take place, I find that the operational scenario of SRG at Barangaroo does constitute and justify an exceptional circumstance in accordance with section 427(3) of the Act. I make this finding not on the economic considerations of any industrial action or any inconvenience that might flow to the principal contractor as a result of any protected action but due to the retrospective ramifications of a three day notice period. I do not believe that this extension of the notice period will have an adverse effect on the effectiveness of the CFMEU’s bargaining position on behalf of its members, nor does it provide the employer with any advantage or improved bargaining capacity.
[17] As such, I approve the application of SRG to extend the notice period to four days. Such an extension does not remove the capacity of the employees to participate in industrial action. It simply gives the employer notice that if it wishes to continue with a planned concrete pour the day after the provision of the notice, then the consequences of such a decision are well known to both the employer and its customers.
[18] For the reasons stated above I have issued the attached Order.
COMMISSIONER
1 [2014] FWC 2289
2 [2012] FWA 133
3 [2007] AIRC 848
4 [2007] FCA 388
Printed by authority of the Commonwealth Government Printer
<Price code A, PR570997>
0
2
0