The Australian Workers' Union v Viva Energy Refining Pty Ltd

[2019] FWC 6006

[2019] FWC 6006

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

The Australian Workers’ Union
v
Viva Energy Refining Pty Ltd
(B2019/573)

COMMISSIONER GREGORY MELBOURNE, 29 AUGUST 2019

Proposed protected action ballot of employees of Viva Energy Refining Pty Ltd.

Introduction

[1] On 23 July 2019 the Australian Workers’ Union - Victorian Branch (“the AWU”) made application for a protected action ballot order under s.437 of the Fair Work Act 2009 (Cth) (“the Act”) in respect of its members employed by Viva Energy Refining Pty Ltd (“Viva”) at its Corio Refinery near Geelong. The application concerns those employees who are members of the AWU and would be subject to the proposed enterprise agreement being negotiated at the site.

[2] A Statutory Declaration from Mr Sam Wood, an Organiser with the AWU, accompanied the application. It details the steps taken to date by the parties in attempting to reach agreement on the terms and conditions of a new enterprise agreement. This has included nine meetings since February 2019.

[3] The draft order sought by the AWU seeks to have the employees approve twenty-five different forms of protected industrial action in the proposed ballot “which may be engaged in separately, concurrently and/or consecutively.” Viva does not oppose the order being made but submits that the following extended notice periods should be provided in respect of the industrial action proposed in the following questions.

•  Question 1 – 7 working days’ notice required.

•  Questions 2 – 7 inclusive – 5 working days’ notice required.

•  Questions 15 & 16 – 5 working days’ notice required.

•  Questions 17 – 20 inclusive – 7 working days’ notice required.

•  Questions 23 & 24 – 7 working days’ notice required.

[4] It otherwise accepts that the default period of 3 working days should apply in respect of the remaining forms of industrial action detailed in questions 8 – 14 inclusive, and questions 21 and 22. It is also noted that the AWU does not take issue with the proposal by Viva that 7 working days’ notice should be provided prior to the action foreshadowed in question 1 being taken.

[5] Viva also indicated in its application that it objected to the forms of action proposed in questions 2 – 8 inclusive as they do not constitute “industrial action” as contemplated by s.19 of the Act. However, it indicated at the commencement of the proceedings that it no longer sought to press this matter.

[6] Ms L. Aksu appeared on behalf of the AWU. Ms N. Gaspar from Herbert Smith Freehills sought permission to appear on behalf of Viva. The AWU objected to Viva being legally represented, however, the Commission granted permission for Ms Gaspar under s.596(2)(a) of the Act as the matter involved a degree of complexity and her involvement might enable it to be dealt with more efficiently. It is also noted that the application was initially referred into conference to explore whether it might be able to be resolved on some agreed basis, but no agreed resolution was able to be reached.

Relevant Legislation

“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.” 1

……………………..

“437 Application for a protected action ballot order

…

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.” 2

…………………….

“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.” 3

Viva – the Evidence and Submissions

Mr Glen Pasque

[1] Mr Pasque is employed by Viva in the role of Engineering Manager at the Geelong Refinery and has been in this position since February 2015. He has responsibility for the management of maintenance, reliability, turnarounds, projects, HSSE compliance and costs, and indicated in his evidence that the Refinery supplies approximately 55% of Victoria’s petroleum requirements, together with 20% of that used in South Australia. It also supplies 45% of the jet fuel used at the Melbourne airport, together with 100% of that used at the nearby Avalon airport. The Refinery is also responsible for the production of a significant number of additional products produced by Viva.

[2] The Refinery is also designated by WorkSafe as a major hazard facility for the purposes of Victoria’s occupational health and safety legislation, and is designated as critical infrastructure for the purposes of the State’s Emergency Management Act 2013. This acknowledges that it constitutes infrastructure of State significance and is critical to the continuity of the supply of essential services in Victoria.

[3] Mr Pasque indicated in his evidence that it was difficult to be precise about the likely impact of any of the proposed forms of protected industrial action because of the dynamic nature of the Refinery’s operations, and a precise assessment of the impact would only be able to be made at the time the action was taken. Relevant factors in this context would include:

•  the nature of the proposed action;

•  when it was taken;

•  the nature of the Refinery’s operations on that day, and the status of the particular operating units;

•  the stockpiles on hand at the time;

•  the nature of any specific product demands required to be generated and fulfilled;

•  any maintenance or other special operations being conducted at the time;

•  employee numbers and/or availability; and

•  the particular requirements of those third parties dependent on output from the Refinery.

[4] He also indicated that the nature of any impact would depend upon how often the protected industrial action was taken, and whether it was taken jointly or concurrently. A series of actions taken together had the potential to substantially increase the risk to the Refinery’s operations, meaning it might be unable to continue to operate in a safe manner, which would in turn jeopardise its ability to service customer demands.

[5] Mr Pasque’s witness statement continued to provide specific detail about the impact of each of the various forms of proposed protected industrial action. He also made reference to the potential impact on other parties, including LyondellBasell Australia Pty Ltd, who operate a polypropylene plant on land leased from the Refinery. He also detailed the potential impact of disruptions to production for its customers of diesel, gasoline and jet fuel products.

[6] He also made reference to the mitigation strategies that might be put in place, noting that these will vary significantly depending on the nature, duration, scope and effect of any action taken. He indicated in his evidence that it would generally take one or two days to assess the nature of any proposed action, and its implications, before deciding what type of mitigation strategy should be implemented. This could extend to a full or partial shutdown, which could take approximately three to five days to complete. Around seven days would then be required to restart the Refinery’s processes. It might also be able to mitigate the impact of any action by importing additional product, chartering additional vessels, or sourcing alternative labour. He continued to state:

“The refinery can deal with a one-off 24, possibly 48 hours. The real issue here is concurrently we would get into a situation where we would not be able to sustainably run the refinery. And in that case we would need to make decisions to shut certain units down if there was a concurrent ongoing level of action.” 4

[7] Mr Pasque indicated in conclusion that 3 working days’ notice of proposed industrial action would give Viva insufficient time to put in place any necessary alternative arrangements, especially if it was required to shut down the Refinery. A period of 5 or 7 working days would place it in a better position to be able to safely shutdown, if necessary, and to put contingencies in place in an attempt to minimise the disruption to customers stemming from shortfalls in production.

[8] He also confirmed in cross-examination that it was the concurrent nature of the various forms of action that was the principal cause of concern, and a combination of different forms of action could mean it was not safe to continue to operate or run the Refinery. However, he also acknowledged that none of the proposed forms of protected industrial action, apart from that detailed in question one, actually involved a shutdown of any process, and a decision to shut down any of the Refinery’s processes was one that could only be taken by Management, and would generally be a last resort response.

[9] He also acknowledged that each of the proposed forms of action had time limits attached to them, and the Refinery had contingency plans in place to deal with planned shutdowns and any emergency situation that might arise. He also indicated that the extra notice period would enable a proper assessment to be made about the impact of any action, and any decision about whether it was necessary to shut down a unit on safety grounds. He also acknowledged that the Refinery was already putting in place contingency plans in anticipation of action being taken, but again reiterated that the dynamic nature of its operations meant it was not possible to pre plan or anticipate every future situation. He concluded by indicating that he was confident the Refinery could “run through” 5 a one-off ban, but it was the potential combination of bans in different areas that created the potential of not being able operate the Refinery in a safe manner.

Viva’s Submissions

[10] Viva refers to s.443(5) of the Act which enables a longer notice period of up to 7 days to be provided if the Commission “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.” In its submission this two-stage test has been satisfied in this case. There are exceptional circumstances existing and they justify an exercise of the Commission’s discretion to provide for a longer notice period.

[11] It continues to refer to the often cited decision of Vice President Lawler in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation (“CEPU v AusPost”) 6 and submits that in deciding whether to exercise its discretion the Commission should have regard to the evidence concerning the nature of the work to be affected, the ability of the employer to take responsive action, and the nature and location of the particular site.

[12] In that context it emphasises that the Geelong Refinery at Corio manufactures a large amount of Viva’s products including petrol, diesel, jet fuel, bitumen, automotive and commercial LPG, propylene feedstock, specialty solvents, low-aromatic fuel and avgas. The Refinery’s fuel production amounts to 55% of Victoria’s total fuel supplies, as well as 20% of South Australia’s total fuel requirements.

[13] Its submissions continued to indicate (footnotes omitted):

“Although it is difficult to assess with any precision the likely impacts of any of the proposed types of action that form part of the Application (because of the dynamic nature of the Refinery’s operations means that the assessment of the impact needs to be taken at the time it is being applied), each of these forms of industrial action has the potential to shut down part or all of the Geelong Refinery’s operations, which involve a significant amount of time, planning and resources to enact in a safe manner. The natural consequence of this is an impact to production levels and the ability to produce finished product.” 7

[14] It also highlights the evidence of Mr Pasque and submits that it should be preferred to that of Mr Grimes as Mr Pasque is responsible for managing the Refinery’s operations on an ongoing daily basis, and the Commission should have particular regard to his evidence about the cumulative effect of any action taken jointly or concurrently.

[15] It continues to submit that these impacts extend beyond Viva, and any disruption to its production output will be felt by its customers, notably the retail service stations and airlines it supplies. It submits that in circumstances where interests beyond those of the immediate parties stand to be affected, “…the tendency of the Commission has been for an extension of the notice period to be provided.” 8 In addition, the nature of the Refinery’s operations and the significance of the product it supplies clearly differentiate it from many other types of businesses.

[16] In terms of whether the existence of exceptional circumstances justifies an extension of the notice period Viva submits that this must be considered in the context of the purpose of the notice requirement. It refers to the decision in Davids Distribution Pty Ltd v National Union of Workers 9 where a Full Court of the Federal Court held that the relevant period of notice “…was designed to ensure that industrial disputants who are to become affected by protected action, in relation to which their usual legal rights are significantly diminished, are at least able to take appropriate defensive action.”10 In its submission the decision confirms the entitlement of an employer to be able to take action in an endeavour to mitigate the impact of proposed protected industrial action.

[17] It continues to state (footnotes omitted):

“The evidence in this matter is clear. Whilst the Employer is able to take some steps to partially mitigate the effects of some forms of the proposed protected industrial action, such contingencies cannot be implemented immediately. Primarily, a significant number of the proposed forms of industrial action are capable of leading to full or partial shutdowns of the Refinery. Where a full shutdown is required to be implemented, this will take at least 6-9 days to implement safely. However, this assessment is somewhat aspirational and based on a significant number of potential variables. There is a real likelihood that it will take longer to implement in the circumstances, having regard to the production of the Geelong Refinery at the time, the state of operations, the amount of personnel available to assist with shutdown procedures, the extent and scope of ongoing monitoring and the availability of essential utilities. Even if the Employer were to shut down only one unit as part of the Refinery, depending on what unit this is, it could still take upwards of 5 to 6 days.” 11

[18] It also submits that a significant amount of additional time will be required to put in place measures designed to lessen the impact of any protected industrial action. It also submits that the safety implications stemming from protected industrial action should be considered, and in this context it refers to the decisions in Transport Workers’ Union of Australia v Linfox Armaguard Pty Ltd (“Linfox Armaguard”) 12 and CFMEU & Ors v Macquarie Generation (“Macquarie Generation”),13 where the Commission was satisfied that the process involved in shutting down the production processes was complex, and would take a considerable amount of time and potentially involved safety risks to both the equipment and the employees. It also refers to the decision in Phillips & Ors v BP Refinery (Kwinana) Pty Ltd (“BP Refinery (Kwinana)”)14 in support of its submission that the Commission has historically granted extended notice periods to employers in the power and energy industry.

[19] In addition, it submits that while the Refinery can be shut down quickly and in a safe manner, this was always a last resort option, and it was clearly preferable for any shutdown to be carried out in a controlled and deliberate manner.

The AWU – the Evidence and Submissions

Mr Scott Grimes

[20] Mr Grimes is a Senior Panel Operator in the RCCU / Utilities Unit, Process Areas South, at the Geelong Refinery and has been employed by Viva since August 2008.

[21] In regard to the proposed actions set out in ballot questions 2 – 7 inclusive Mr Grimes stated that none of these actions involved shutting down any of the units, and only concerned a reduction in feed, which means that the output from the unit will be equally reduced. He also indicated in his evidence that in terms of any action taken the overriding priority would be to run the unit in a safe and stable manner, and feed would continue to go into the unit safely, with the unit still running product down to storage units. The operators would not run the unit down to a level that was unstable or unsafe.

[22] He also indicated that the proposed action set out at question 8 does not involve the shutdown of a unit, but would instead reduce the quality of the product the unit makes with the intention that it not run to schedule.

[23] Mr Grimes also stated that apart from the action set out at question 1 it was not intended that the Refinery would be shut down as a result of industrial action being taken, and the focus was instead on reducing capacity. The 3 days’ notice period of any proposed action was accordingly more than enough time to enable the Refinery to respond appropriately. It already has to deal on occasions with power failures and other unplanned outages, and has backup plans in place to deal with these unexpected events which can happen with little or no notice. In his view the 3 days’ notice period was ample to put in place any contingency plans in response to any action taken, and the Refinery in proposing additional notice periods was simply wanting to frustrate and stall the ability of AWU members to take industrial action.

[24] He continued to indicate in his evidence that the actions proposed in questions 15 and 16 were bans that would be in place for limited periods of either 24 or 48 hours and the feed can be reduced as part of normal procedure in these cases with no need for a shutdown. Storage concerns could also be avoided by the normal practice of burning a quantity of these products, rather than storing them. The actions set out at questions 17 – 20 are also limited to either 24 or 48 hours in duration and a response in this case could also involve reducing feed to ensure that storage capacity is adequately managed.

[25] Mr Grimes indicated in conclusion that the proposed action was not intended to lead to the outcomes foreshadowed in the witness evidence of Mr Pasque, and it was not intended that they would cause the Refinery to shut down. He continued to state, “The operators are effectively in charge of making the call in the event of an uncontrolled event which leads to process unit upsets. They are the best placed to determine how to stabilise, slowdown or shutdown the process units safely.” 15

[26] He also refused to accept in cross-examination that the proposed industrial action taken in combination could result in the Refinery being shut down. He also took issue again with Mr Pasque’s evidence about the potential impact of the bans, although he acknowledged that they would inconvenience the business but that was what they were obviously intended to do.

The AWU Submissions

[27] The AWU submits that it has already attempted to respond to Viva’s concerns by proposing an alternative form of draft order. It continues to submit that Viva’s contentions are misguided and lack foundation and should be rejected. Its objections are also premature at this point in time because there is no guarantee the various forms of proposed industrial action detailed in the draft order will be approved when the ballot of its members is conducted.

[28] It also makes reference to the decisions in National Tertiary Education Union v Charles Darwin University 16 and CEPU v AusPost and submits that on the basis of these authorities it cannot be established that exceptional circumstances exist. However, even if they are found to exist they do not justify the period of notice being extended. It continues to submit, in summary, that it is only the action detailed at question 1 that has the potential to cause a complete shutdown of the Refinery, and the other forms of action only involve limitations on the performance of work and would not have a significant detrimental effect. It is also submits that there are a variety of contingency measures that Viva is able to put in place in each case. Relevant authorities have also established that mere inconvenience, or the potential for lost profits, is not an exceptional circumstance.

[29] In its submission the actions proposed are not new proposals, and have been implemented at other comparable sites without additional notice periods being prescribed. In addition, while the Refinery is a major hazard facility it has detailed contingency plans in place to respond to any emerging issues, and these circumstances are simply part of the nature of its normal business operations.

[30] It also points to Mr Pasque’s evidence which suggests that the Refinery can ultimately only make decisions based on the circumstances confronting it at the time, and additional notice periods would therefore not make a significant difference. Mr Grimes’ evidence also indicates that the operators will run the operation safely at all times, would not shut any processes down, and would ensure safe operations at all times. In addition, it will take time for the ballot to be conducted if an order is made, and this provides the Refinery with further time to put any necessary contingency plans in place.

[31] In its submissions a shutdown is only going to occur as a consequence of a decision taken by Management, and in all the circumstances this is an unlikely scenario. It submits, in conclusion, that Viva’s concerns are in reality based on the cost impact of any potential industrial action, rather than being based on genuine safety concerns, and it is simply seeking to delay for that purpose. The AWU has also been prepared to make concessions in regard to the proposed industrial action detailed at question 1, and nothing further is warranted on any ground related to the existence of exceptional circumstances.

Consideration

[32] Viva submits that exceptional circumstances exist and justify the written notice to be provided under s.414(2) to be extended beyond 3 working days in respect of various forms of the proposed protected industrial action to be voted on by employees in the protected action ballot. Section 443(5) enables a longer period to be specified if the Commission is satisfied there are exceptional circumstances justifying that outcome. The extension can be up to 7 working days.

[33] Both parties made reference to the decision of Vice President Lawler in CEPU v AusPost in considering whether “exceptional circumstances” exist to justify an extension of the minimum 3 working day period provided in s.414(2). It concerned similar provisions that existed in what was then the Workplace Relations Act 1996, and involved submissions by the Respondent that the notice period should be extended to 7 days because of the potential consequences stemming from the possible disruption to postal services. It was also argued that any such disruption could have an impact on the conduct of the forthcoming Federal election.

[34] The Vice President indicated in his decision:

“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.” 17

[35] He continued to indicate that it was not just a question of whether those exceptional circumstances exist, but whether they justify an extension of the required notice period:

“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.” 18

[36] He suggested this involved a weighing of the respective interests, stating at [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.” 19

[37] He finally determined that “exceptional circumstances” did exist, but concluded that they did not justify an extension of the written notice period. 20

[38] Other decisions of the Tribunal have made clear that the Commission is prepared to extend the notice period in a variety of different circumstances. Those extended periods have varied in length, and in some cases have been limited to certain types of industrial action only.

[39] The relevant authorities accordingly make clear that the Commission must first be satisfied that exceptional circumstances exist. It must then be satisfied that they justify an extended period of notice being granted. As the decision in CEPU makes clear this requires weighing up the ability of Viva to take appropriate defensive action in response to any protected industrial action taken against the reduction in bargaining power that would result for AWU members from any such extension of the notice period. I therefore turn, firstly, to consider whether exceptional circumstances can be said to exist. Viva essentially relies on two circumstances in support of this contention. Firstly, the proposed forms of protected action, particularly if taken jointly or concurrently, have the potential to shut down some or all of the Refinery’s operations. Secondly, the size and significance of its operations means that major consequences could stem from disruptions to supply to its customers. For example, its petroleum production amounts to 55% of Victoria’s total petroleum supplies and 45% of the supply of jet fuel to the Melbourne airport. It also submits that it would be difficult to locate alternative sources of supply if supplies are disrupted.

[40] Viva also makes reference to a series of a previous Commission decisions. The decision in Macquarie Generation concerned a State-owned corporation that operated two power stations in New South Wales and produced up to 40% of the electricity used in that State at the time. It sought to extend the notice period to 7 working days. Similar to the present matter evidence was provided respectively by the Acting General Manager Operations and by a Senior Operator. In granting the application Senior Deputy President Hamberger noted that the proposed industrial action could mean the business would have to shut down one or more of its turbine generator units in circumstances where it was responsible for producing a large proportion of the electricity used in New South Wales. The extended notice period would accordingly assist in managing the risk of blackouts.

[41] Viva also refers to the decision of Vice President Watson in BP Refinery (Kwinana). In a decision that contains only brief reasons the Vice President referred to evidence suggesting that 3 days’ notice was not sufficient to ensure BP could safely shut down the refinery without compromising the safety of employees. He also concluded that the outcome of any protected industrial action could have a significant impact on the Western Australian economy, and accordingly determined that the notice period should be extended to 5 working days. Viva also relies on the decision of Commissioner Hampton in Linfox Armaguard in which he extended the notice period in respect of some forms of the proposed protected industrial action to 5 working days. He did so on the basis that the proposed action potentially put the safety and security of employees, client businesses, and potentially the general public at risk, and these were exceptional circumstances that justified additional notice in order to enable appropriate contingency arrangements to be put in place to mitigate those risks.

[42] The AWU submits in response that exceptional circumstances cannot be said to exist, and the only action that might cause a complete shutdown of the Refinery would be from an outcome of the proposed industrial action described at question 1. However, it has already conceded that 7 days’ notice can apply in that case. It also acknowledges that while the site is a major hazard facility it has detailed contingency plans in place to deal with any emerging issues, and this is simply an essential requirement of the nature of its business operations.

[43] In considering whether it can be said that exceptional circumstances exist it is useful to again have regard to the decision of Vice President Lawler in CEPU v AusPost when he gave consideration to the evidence relied upon by the Respondent in that matter. He identified five circumstances that were relied upon, being:

“(a) The statutory obligation on Australia Post to provide a letter service as a monopoly provider and to meet service delivery standards mandated by regulation together with the general importance of a reliable letter service to community.

(b) The size of Australia Post and the number of sites and premises which may be affected by the proposed industrial action.

(c) The high mail volumes experienced each year in the October-December period.

(d) The fact of the forthcoming federal election and the role of the postal service in connection with enrolments, the distribution of electoral advertising and postal voting.

(e) The fact that Australia Post provides other significant services in connection with bill payment, passports and authentication of identity which, if disrupted, would cause inconvenience or hardship in the community.” 21

[44] He concluded in response at [24]:

“I am satisfied that the matters referred to in (a) and (d) are each exceptional circumstances. As to the matter in (b), it does not seem to me that the size of Australia Post and the number sites and premises that may be affected by industrial action is an exceptional circumstance in the relevant sense: there are many businesses in Australia that operate a large number of sites and premises. As to the matter in (c), the fact that there is a seasonal peak in the core business of Australia Post is not an exceptional circumstance: it is commonplace for employers to have seasonal peaks in their business. As to the matter in (e), the fact that Australia Post provides significant services, in addition to the letter service, which, if disrupted would cause inconvenience to the community is not, in my view, an exceptional circumstance when viewed in isolation. The provision of services the disruption of which would cause inconvenience to the community is a common incident of big business. It is true of banks, insurance companies and many other businesses. Nevertheless, the matters in (b), (c) and (e) should be considered in conjunction with the matters in (a) and (d) and, indeed, along with all the circumstances of the case, in determining whether there are exceptional circumstances justifying an extension of the required notice period because circumstances that are not exceptional when considered in isolation may combine with other circumstances that, when taken together, can be said to be exceptional.” 22

[45] I am satisfied, in conclusion, that the circumstances involving the operation and output of the Geelong Refinery can be said to constitute “exceptional circumstances” in the sense that they are not necessarily unique, or unprecedented, but can be said to be unusual, or uncommon, particularly when contrasted with those experienced by many other business operations. In coming to this conclusion I have had particular regard to:

•  the size and complexity of Viva’s Refinery operation at Geelong;

•  the operational nature of the business, acknowledged by its recognition as a major hazard facility;

•  the difficulties associated with obtaining alternative sources of supply if production from the Refinery was disrupted for a significant period of time; and

•  the scope of its production output, notably as the supplier of 55% of Victoria’s petroleum supplies and 20% of those in South Australia. It also provides 45% of the jet fuel used at the Melbourne airport, and 100% of that at the nearby Avalon facility. It also provides various other products which are important to the local economy, although not as significant in scale or importance as those referred to above.

[46] I now turn to consider whether it is appropriate for additional notice to be provided. Viva submits that while it has detailed contingency plans in regard to its operations, and could likely cope with the proposed industrial action if taken in isolation, it would be more difficult to determine the nature of its likely response to any action taken jointly or concurrently. That response could only be determined at the particular point in time. It continues to submit that a possible consequence of such concurrent actions could be the closure of part or all of its operations. While this could happen in a relatively short period of time it would be carried out in a safer and more efficient manner if additional time was available. An extended period of notice would also enable it to explore and possibly arrange alternative sources of supply to cover any shortfalls in production resulting from protected industrial action. It submits that this is of particular importance given the significance of the products it supplies to the Victorian economy and beyond.

[47] The AWU submits in response that the Refinery already has detailed contingency plans in place to cover all possible eventualities, including any that might arise from protected industrial action being taken. In addition, Viva is now on notice that its members want to be in a position to take protected industrial action at some point in the future, and with that understanding it has an additional ability in the meantime to put contingency plans in place.

[48] I have also had regard to the evidence of Mr Grimes, who is a Senior Panel Operator and has been employed at the Refinery since 2008. He indicated that apart from the action proposed in ballot question 1 it was not intended that the Refinery would ever be shut down as a result of protected industrial action being taken, and the focus was instead on reducing its capacity and output. He also indicated that it would always be a priority for the operators to ensure that the units were run in a safe and stable manner, and they would never reduce the feed to a level that was unstable or unsafe. Time limits of either 24 or 48 hours also apply in each case where extended periods of notice are sought. He also stated that the Refinery had detailed contingency plans in place to respond to all eventualities, and 3 days’ notice of any proposed industrial action was more than adequate to enable it to respond appropriately. He also denied that a combination of bans could cause the Refinery to shut down.

[49] In coming to a decision in this matter I have obviously had regard to the well-recognised requirement to weigh the interests of the employer, on the one hand, to be able to have a greater opportunity to take appropriate defensive action, with the potential diminution of effective bargaining power that might result for the AWU and its members if extended notice period are provided for.

[50] The decision in CEPU v AusPost again provides further guidance about what might be taken into account in deciding whether an additional notice period should be provided Vice President Lawler appears to have regard to the following matters in coming to his decision in that matter:

•  Detailed preparation in response to any protected industrial action could only be undertaken when Australia Post became aware of the precise form, location, and timing of any action taken.

•  The action taken against Australia Post had the potential to, in turn, impact on the forthcoming Federal election, but the magnitude of that impact was a matter of speculation.

•  However, in the event that significant disruption to the postal services did arise as a consequence of any action taken “there would be substantial prospects” 23 that this would provide the basis for a successful application under the relevant provisions in the Act to either suspend or terminate the bargaining period.

•  It was also difficult to quantify how any potential impact on the forthcoming Federal election would be reduced by extending the required notice period.

[51] In coming to his decision Vice President Lawler finally concluded that the competing factors weighed close to equally, however, he was ultimately not persuaded that the required notice period should be extended, despite finding that exceptional circumstances existed.

[52] In coming to a decision in this matter I have had particular regard to the evidence concerning the complex nature of the Refinery’s operations, and the significance of the products it produces. I have also had particular regard to the evidence concerning the uncertainties associated with more than one of the different forms of proposed industrial action being taken jointly/concurrently/at the same time. I have also had regard to the fact that an extended notice period of 7 days is not contested in respect of the action proposed in question 1 of the draft order, being “An unlimited number of indefinite and/or periodic stoppages on the performance of all work?” This is clearly the most significant of the different forms of action proposed and would involve AWU members at the Refinery site ceasing the performance of all work for various periods of time.

[53] I have also had particular regard to the evidence of Mr Grimes, who indicated that the action taken by AWU members would always stop short of posing a threat to the safety of the operation of the Refinery, and the intention was to inconvenience, rather than to do anything more significant. I am also satisfied that uncertainty about what might actually result from protected industrial action being taken, as recognised by Vice President Lawler in CEPU v AusPost, also exists in this matter.

[54] However, after having regard to the available evidence I have determined that the circumstances do justify some extended periods of notice being granted. This is again based primarily on the complexity of the Refinery’s operations and the significance of the product it produces. The extended periods of notice are accordingly intended to strike a balance between providing some protection for the employer in terms of being able to take appropriate defensive action, while at the same time not acting to reduce in a significant way the bargaining power that might be available to AWU members from taking protected industrial action.

[55] This outcome will be reflected in an Order that provides as follows in regard to the written notice periods to be given in advance of any of the various forms of protected industrial action, that might be authorised in the ballot, being taken.

•  A period of 7 working days’ notice will be required to be provided in respect of the proposed industrial action described in question 1.

•  A period of 5 working days’ notice will be required to be provided in respect of any of the proposed industrial action described in questions 2 – 25 inclusive in circumstances where any of that industrial action is taken jointly or concurrently. By way of further explanation this simply means that if more than one form of the proposed action described in any or all of questions 2 – 25 is taken at the same time as one or more of the others then this can only occur in circumstances where 5 working days’ notice has first been provided.

•  The default period of 3 working days’ notice will apply if any of the forms of action described in questions 2 – 25 inclusive are taken separately.

[56] In coming to this decision it is noted, in conclusion, that it requires an understanding of the terms “separately” and “concurrently.” However, protected action ballot orders generally make reference to these terms, and they are referred to in the draft order that has been proposed by the AWU in this case. There have been no issues raised in response about their intended meaning, and I am satisfied that it is reasonable to presume that the parties have a clear intention about what is intended by the use of these terms.

[57] An Order reflecting the terms of this decision is also now issued.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR711798>

 1   Fair Work Act 2009 (Cth) s 443.

 2   Fair Work Act 2009 (Cth) s 437(3).

 3   Fair Work Act 2009 (Cth) s 414.

 4   Transcript at PN89.

 5   Transcript at PN154.

 6   [2007] AIRC 848.

 7 Outline of Submissions on behalf of Viva Energy Refining Pty Ltd, dated 30 July 2019 at [21].

 8 Ibid at [23].

 9 (1999) 91 FCR 463.

 10 Ibid at [87].

 11 Outline of Submissions on behalf of Viva Energy Refining Pty Ltd, dated 30 July 2019 at [27].

 12   [2014] FWC 1753.

 13   [2012] FWA 7590.

 14   [2014] FWC 4127.

 15 Exhibit AWU2 at [56].

 16   [2018] FWCFB 4011.

 17   [2007] AIRC 848 at [10].

 18 Ibid at [11].

 19 Ibid at [21].

 20 Ibid at [33].

 21 Ibid at [23].

 22 Ibid at [24].

 23 Ibid at [29].