Transport Workers Union of Australia v Ampol Aviation Pty Ltd

[2024] FWC 1619

[2024] FWC 1619

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Transport Workers Union of Australia

v

Ampol Aviation Pty Ltd

(B2024/780)

DEPUTY PRESIDENT SLEVIN SYDNEY, 20 JUNE 2024

Proposed protected action ballot of employees of Ampol Aviation Pty Ltd

1. This is an application by the Transport Workers Union of Australia (TWU) made on 18 June 2024 under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Ampol Aviation Pty Ltd (Ampol).

1. The application sought a ballot of the employees who are members of the TWU who work at Ampol’s depot at Sydney Airport. The ballot is to gauge the support of those employees to engage in industrial action. The application proposed the ballot pose 11 questions each of which described a different form of action.  

1. On 18 June 2024, the Commission was advised that Ampol raised objections to the application. It objected to 3 of the questions. The TWU agreed to amend the application by removing one of the ballot questions and amending two others. I granted the application to amend and the orders I make reflect those amendments.

1. Ampol also sought, in accordance with s 443(5), an extended notice period of seven working days for eight of the proposed forms of industrial action. Section 441 requires the Commission to determine an application for a protected action ballot within 2 working days after the application is made. The application, along with Ampol’s application under s443(5), was heard today. Ampol sought to be legally represented and I granted permission for this to occur because I was satisfied that the matter was sufficiently complex and I would be assisted by legal representation to determine, in particular, Ampol’s application.

1. In relation to the TWU’s application, on the basis of the material before me, including the declaration of Craig Curran, Union Official, setting out the steps taken by the TWU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with it, I am satisfied that there is a notification time in relation to the proposed agreement and that all of  the requirements in s.443(1) of the Act have been met.

1. The ballot is to be conducted by Democratic Outcomes Pty Ltd (CiVS). CiVS has been approved as an eligible protected action ballot agent under s.468A of the Act and consequently is authorised to conduct the ballot.

1. For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 5 July 2024.  This also establishes the ballot period for the purpose of s 448A(2) of the Act.

Ampol’s application – s 443(5)

1. In relation to Ampol’s application under s 443(5) I am not satisfied that exceptional circumstances justifying an extended period of written notice for the purposes of s.414(2)(b) of the Act exist.

1. Ampol’s application under s 443(5) was supported by evidence from Sean Hong Mangkuweroo. Mr Mangkuwerdojo provided a statement and was cross examined. His evidence was that Ampol has 68 employees at its Sydney Airport; 23 are engaged full-time, 33 are part time, and 12 are casual employees. The work performed is the refuelling of aircraft. No qualifications are required for refuelling aircraft but training to do so can take 7 to 9 weeks. A qualification is needed to drive on airport tarmac and refuellers typically have that qualification and drive themselves to the point of refuelling. An aviation security identification card is also required.

1. Mr Mangkuwerdojo also stated that there are four companies providing aircraft refuelling services at Sydney Airport. Ampol is the biggest provider of the service. Around 50% of aircraft flying in to and out of Sydney airport are refuelled by Ampol. Aircraft typically carry enough fuel for a single leg meaning that each aircraft landing in Sydney needs to refuel. In some cases aircraft can “fly heavy” which is to say they carry enough fuel to fly more than a single leg and may not need to refuel when landing in Sydney.

1. Ampol has not been the target of protected industrial action in the past. It does have experience however with disruptions to its operations through events such as bad weather and airport closures. Arising from that experience Mr Mangkuwerdojo was able to assess the impact of the proposed industrial action and the measures that would be required to mitigate the adverse impact of that action.

1. Mr Mangkuwerdojo described the steps necessary to prepare for the action. He said the company would need to contact its employees to ascertain who would be engaging in the action. He is unaware how many employees are members of the TWU and would be eligible to engage in the action. It would then approach its part time and casual workforce to determine who could work in place of those taking action. He would then consider the availability of Ampol’s management team both in Sydney and other ports who may be available to do the work. He was concerned that there are only a limited number who could do the work or would be available to do it. Next, he would seek assistance from other firms to provide labour, especially those with the qualifications to drive on Sydney tarmac. He said he could also consider using labour hire firms to source labour to perform the work.

1. Mr Mangkuwerdojo said that if sufficient labour could not be mustered by Ampol to perform the work he would advise the airlines who use Ampol’s services of the shortage of labour and seek assistance from the airlines where possible to have their aircraft fly heavy thus avoiding the need to refuel in Sydney. Mr Mangkuwerdojo described a further measure that could be used which was to seek assistance form the other companies offering refuelling services in Sydney to have them perform the work. A combination of the measures described above could be used to address the disruption that may occur from the proposed industrial action.

1. Mr Mangkuwerdojo also provided evidence of the potential impact of the industrial action. It included disruption to passengers both in Sydney and elsewhere arising from delays in aircraft leaving Sydney. The delays went beyond simply the period of the action but also delays occasioned by the flow on effect of the action such that a 1 hour stoppage would typically result in a 2 hour delay.

1. The principles to be applied in applications under s 443(5) were set out by the Full Bench in NTEU v Charles Darwin University [2018] FWCFB 4011. I was also taken to several first instance decisions applying those principles. Importantly each application is to be considered on its own facts and so while the latter decisions provided useful guides, I did not find any particularly persuasive. The exercise requires first a consideration of whether there are exceptional circumstances. Such circumstances may be out of the ordinary course, unusual or uncommon.

1. Here I find that the circumstances surrounding Ampol’s business in Sydney are uncommon in that the cessation of refuelling in Sydney has the potential to adversely impact the running of the aviation industry generally. I consider those circumstances to be exceptional for the purposes of s 443(5). I do not however consider them to justify the extension of the notice period under s 414(2)(a). Mr Mangkuwerdojo’s evidence demonstrated that there were many measures that could be taken by Ampol to ameliorate the impact of the industrial action. Preparation for some of those steps could be taken before any notice is given. Ampol employees could be asked about their intention to take action before notice of any action is given. Replacement labour could be sourced and readied before actual notice is given. Mr Mangkuwerdojo’s evidence was that some steps had already been taken. Further steps could also be taken in preparation for the action. Customers and competitors could be contacted before the action is notified and asked to be ready if assistance if such measures are needed to be taken.     Further, while Mr Mangkuwerdojo referred to the time it would take to put those measures in place his evidence did not provide sufficient detail to satisfy me that an extension of the notice period was justified.

1. The TWU contended that in any event I would not exercise the jurisdiction to extend the notice period given the impact it may have on the bargaining position of the employees and the effectiveness of the industrial action. I am inclined to that view. Mr Mangkuwerdojo’s description of the effect the action would have on the business does not set Ampol apart from any business facing industrial action. The business will be inconvenienced by any action. This is to be expected. I would not exercise the discretion in s. 443(5) simply to save Ampol that inconvenience.

1. An Order has been separately issued in PR776256.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR776254>