National Union of Workers v Sigma Company Limited

[2014] FWC 5968

[2014] FWC 5968

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

National Union of Workers
v
Sigma Company Limited
(B2014/1191)

DEPUTY PRESIDENT MCCARTHY PERTH, 28 AUGUST 2014

Proposed protected action ballot of employees of Sigma Company Ltd - extension of the period of written notice for industrial action.

[1] This matter concerns an application by the National Union of Workers (the NUW) for a protected action ballot order pursuant to s.437 of the Fair Work Act 2009 (the FW Act).

[2] The application states that the group of employees to be balloted are those employees of Sigma Company Limited (the Respondent) who are members of the NUW and who would be covered by the proposed enterprise agreement. The Employees are currently covered by Sigma (Western Australia) Enterprise Agreement 2012-2014 (the Agreement). The nominal expiry date for the Agreement has past.

[3] On 11 August 2014, the NUW advised that the parties had reached an agreement for an extension of the written notice period from three workings days as prescribed by s.414(2)(a) of the FW Act to five working days. The NUW submitted that the order could be issued by way of consent if the Fair Work Commission (the FWC) considered it appropriate. On 12 August 2014, the Respondent confirmed the NUW advice.

[4] The powers of the Fair Work Commission (the FWC) for an extension of the notice are provided in s.443(5) of the FW Act as follows:

“(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.”

[5] As the FWC is required to be satisfied that there are exceptional circumstances to justify an extension of the written notice period I requested that the parties provide me with submissions as to what the exceptional circumstances were.

[6] The Respondent submitted that:

“there are exceptional circumstances which are “unusual, special or uncommon” in relation to the NUW application. These exceptional circumstances arise from the nature of [the Respondent’s] business, its market share, the obligations under arrangements with the Commonwealth Government to supply particular medicines, exclusive supply arrangements it has with particular customers.”

[7] The Respondent further submitted that:

“10. The NUW Application identifies seven different forms of industrial action which are reflected in the questions which are to be subject to the ballot. Should each element of the ballot be successful, NUW members could engage in a variety of partial work bans, strike action or a combination of actions. The type of action or actions engaged in will dictate what defensive action [the Respondent] might be able to take in response. Three working days notice is unlikely to provide sufficient notice to allow [the Respondent] to implement contingency planning which will allow it to continue to supply to its Western Australian pharmacies.

...

12. Whilst not binding on the Commission as presently constituted, [the Respondent] notes that similar applications under section 443(5) have been made by Symbion Pty Ltd. Symbion is one of the other two CSO distributors that service the Western Australian market. (See B2010/2507 National Union of Workers v Symbion Pharmacy Services Pty Ltd (Decision of SDP Kaufman on Transcript 8 January 2010).

13. [The Respondent] also submits that the impact of protected industrial action and the inability for [the Respondent] to adequately implement contingency plans with only three working days notice as contemplated by section 414(2)(a), is well known to the NUW and [the Respondent’s] employees ...

[8] The NUW advised that:

“The Applicant agreed to [the Respondent] only seeking an extension of the notice period to five days in lieu of the minimum notice period of three working days prescribed by section 414(2)(a). The NUW has agreed that in light of the submissions of the Respondent in this particular circumstance and at this particular site, there are exceptional circumstances which support the making of the order sought by [the Respondent].”

[9] Having considered the submissions of both parties I find that exceptional circumstances exist and that they justify an extension of the period of written notice from three working days to five working days. I therefore will extend the time required for the notice period for industrial action to five working days.

DEPUTY PRESIDENT

Final written submissions:

Applicant, 27 August 2014.

Respondent, 27 August 2014.

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