National Union of Workers v Aspen Pharma Pty Ltd

[2015] FWC 597

[2015] FWC 597

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

National Union of Workers
v
Aspen Pharma Pty Ltd
(B2015/241)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 22 JANUARY 2015

Proposed protected action ballot of employees of Aspen Pharma Pty Ltd.

[1] The National Union of Workers applied for a protected action ballot order to enable members of the NUW employed by Aspen Pharma Pty Ltd at the Dandenong site to take protected industrial action. Aspen oppose the granting of the order on the grounds that the NUW is not genuinely trying to reach an agreement. If a ballot order is granted, Aspen submitted that the notice period for any industrial action should be seven working days instead of three working days. 1

[2] Mr Andrew Reily, an NUW organiser, gave evidence about the bargaining process. Mr Stephen Vanni gave evidence to support Aspen’s submission that the notice period should be extended.

[3] Mr Reily gave evidence that a log of claims had been provided to Aspen in early November 2014. Aspen had subsequently provided a log of claims in mid November. The parties’ respective claims had been fully explained at the three meetings that had been held. In December 2014, Aspen’s proposal was put to a mass meeting of NUW members and was rejected. Aspen had also been advised that the NUW was maintaining its current position. Mr Reily said the NUW was genuinely trying to reach an agreement.

[4] Aspen did not call any evidence about the bargaining nor did it cross-examine Mr Reily. Mr Boulton for Aspen submitted that the application by the NUW was premature. He submitted that bargaining had only just started and that little had occurred except for the parties explaining their respective logs. He submitted that unlike what had been stated in the application, the NUW had not altered its position. So much was confirmed by Mr Reily. However Mr Bolton accepted that Aspen’s best offer had been put to the employees in December 2014 and had been rejected. He submitted that the NUW had not explained to Aspen the reasons for the rejection and that was to be discussed at the meeting to be held in late January.
[5] I do not accept the submissions of Aspen that NUW was not genuinely trying to reach an agreement. Aspen relied upon the decision of the Full Bench in Total Marine Services Pty Ltd v MUA 2 to support its submission. In that matter the Full Bench said:

“[32]......At the very least one would normally expect the applicant to be able to demonstrate that it has clearly articulated the major items it is seeking for inclusion in the agreement, and to have provided a considered response to any demands made by the other side. Premature applications, where sufficient steps have not been taken to satisfy the test that the applicant has genuinely tried to reach an agreement, cannot be granted.”

[6] I do not accept that this quote properly reflects the import of the Full Bench decision. The Full Bench made it clear that:

“[31] In our view the concept of genuinely trying to reach an agreement involves a finding of fact applied by reference to the circumstances of the particular negotiations. It is not useful to formulate any alternative test or criteria for applying the statutory test because it is the words of s 443 which must be applied. In the course of examining all of the circumstances it may be relevant to consider related matters but ultimately the test in s 443 must be applied.” 3

[7] In this case, on Aspen’s own submissions, its best offer had been put to the employees in December and had been rejected. Aspen clearly considered that the negotiations had reached a stage where it was in a position, having considered the NUW’s claim, to put its offer to employees for their consideration at a mass meeting. It cannot be said in those circumstances that the application was premature. I accept the submissions of the NUW that parties do not have to not reach an impasse in negotiations or to have exhausted negotiations before a ballot application can be made.

[8] I am satisfied on the material before me that the statutory requirements in s.437 of the Act have been met and that the NUW is genuinely trying to reach agreement.

[9] Section 443(5) of the Act provides the Commission with the discretion to extend the period of written notice that must be given before employees can take protected industrial action to longer than three working days. The maximum notice period is seven working days.

[10] Mr Vanni gave detailed evidence about the nature of the products manufactured at the Dandenong plant and the production process. 4 While Mr Vanni was cross-examined on that evidence no evidence to the contrary was called.

[11] Mr Vanni gave evidence of the significant role Aspen played in the pharmaceutical industry. It was the sole or major supplier of some S8 and S4 drugs. He gave evidence of the strict regulatory environment in which Aspen operated. It was his evidence that given the nature of the industrial action proposed to be taken that there would be an interruption to the supply chain which could result in a shortfall of some products. He accepted that the impact would depend on the production schedule when the industrial action was to occur as well as stock levels and the type of industrial action taken.
[12] It was his evidence that production process cannot be stopped mid way through due to Therapeutic Goods Administration rules and some products had a limited shelf life between production and packaging. If product had to be discarded this could lead to shortages of supply. Because of the training requirements for production operators they cannot be easily substituted and the production schedule would need to be adjusted to take account of the industrial action.

[13] It was submitted that no product could leave the site without the appropriate paperwork required by the TGA. One of the proposed bans, being an indefinite ban on all paperwork, would lead to shortages of product. As would a ban on loading trucks. It was submitted that product could not simply be relocated to other sites because the other sites do not have appropriate storage facilities and because of the regulatory requirements of the TGA.

[14] It was submitted that requiring the NUW to give seven working days’ notice will not affect the impact of any industrial action on Aspen but will reduce the risk of shortages and the subsequent risk to public health and safety.

[15] The NUW opposed the extension of the notice period as it submitted that Aspen had sufficient stock in hand. Further the NUW submitted that the extra notice would undermine the effectiveness of the industrial action. It was further submitted that there were no exceptional circumstances warranting the extension of the notice period. The NUW relied on the decision of Vice President Lawler in CEPU v Australian Postal Corporation 5 and submitted that should the industrial action impact the supply of vital medicine then Aspen could apply to terminate or suspend the industrial action. Further, the NUW submitted that it would ensure that vital medical supplies were available.

[16] The NUW also relied upon the decision of Deputy President Kovacic in NUW v Hospira  6. In that case the Deputy President ordered that the period of notice be extended to seven days.7 Unlike the situation in Hospira where drugs could be sourced from elsewhere, here the evidence was that for some drugs manufactured, Aspen was the only supplier and alternative sources cannot be obtained at short notice.

[17] I agree with Vice President Lawler when he said:

[21] Essentially, what is required in determining whether exceptional circumstances justify an extension of the required notices 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 diminution 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. 8

[18] On the evidence before me I am satisfied that there are exceptional circumstances warranting an extension to the notice period. This is because of the potential impact on patients. Had the NUW included in its proposed ballot a mechanism to give effect to its submission, that it would ensure that vital medical supplies were available, I would not have exercised my discretion to extend the notice period.

[19] Aspen submitted that the notice period should be seven working days. Given the evidence that Aspen regularly works overtime on weekends, and those days are not working days, 9 I consider that the appropriate notice is five working days.

Conclusion

[20] As I am satisfied that the requirements of s.443(1) of the Act have been satisfied I must issue the order. For the reasons outlined above I will order that the notice period for any industrial action be extended to five working days.

DEPUTY PRESIDENT

Appearances:

Ms. E. Barrett appearing on behalf of NUW.

Mr. A. Boulton appearing on behalf of Aspen Pharma Pty Ltd.

Hearing details:

2015;

Melbourne:

21 January.

 1 S.443(5) of the Fair Work Act 2009.

 2  [2009] FWAFB 368 at [32].

 3 Ibid at [31].

 4   Exhibit R1.

 5   [2007] AIRC 848 at [31].

 6   [2014] FWC 1836.

 7 Ibid at [24].

 8 Op cit. at [21].

 9 Section 12 of Fair Work Act 2009.

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