Transport Workers' Union of Australia v Broadspectrum (Australia) Pty Ltd T/A Broadspectrum

[2016] FWC 1328

[2016] FWC 1328

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

Transport Workers' Union of Australia
v
Broadspectrum (Australia) Pty Ltd T/A Broadspectrum
(B2016/323)

DEPUTY PRESIDENT BULL SYDNEY, 2 MARCH 2016

Proposed protected action ballot of employees of Broadspectrum (Australia) Pty Ltd trading as Broadspectrum, application to extend minimum period of notice, “exceptional circumstances”

[1] On 26 February 2016, an application pursuant to s.437 of the Fair Work Act 2009 (theAct) was filed by the Transport Workers’ Union of Australia (TWU) for a protected action ballot order in relation to certain employees of Broadspectrum (Australia) Pty Ltd trading as Broadspectrum (the employer respondent/Broadspectrum).

[2] The originating application (Form F34) named “Transfield Services trading as Broadspectrum” as the employer. The employer subsequently advised the Commission that the correct legal name of the employer respondent is “Broadspectrum (Australia) Pty Ltd trading as Broadspectrum”. Pursuant to s.586 of the Act, the name of the respondent has been amended to reflect the correct employer.

Employees to be balloted

[3] The employees to be balloted are those employees of Broadspectrum who are:

1. Engaged as:

a. aircraft refuelers;

b. airfield support operators; and

c. runway sweeper operators;

2. In the states of:

a. Victoria;

b. New South Wales;

c. Queensland; and

d. South Australia; and

3. Who would be subject to the proposed enterprise agreement; and

4. For whom the TWU is the bargaining representative.

[4] Broadspectrum did not oppose the application subject to requesting an extension to the notice period of 3 working days as required under s. 414(2) of the Act to 7 days before taking protected industrial action pursuant to s. 443(5) of the Act.

[5] The TWU’s application; which was filed by Ms. Therese Walton, National Negotiator for the TWU, stated that a number of negotiations and discussions have been attempted between the employer and the TWU with the intention of reaching an agreement. Ms. Walton stated that negotiations commenced on 11 May 2015 via teleconference with representatives from Broadspectrum. However, the TWU’s attempts for arrangement of further discussions were unsuccessful with Broadspectrum. In early August 2015, the TWU filed a s.437 application for protected action ballot orders, which were ultimately withdrawn when Broadspectrum undertook to arrange further negotiations with respect to a proposed enterprise agreement.

[6] A meeting was held on 8 December 2015 and 19 January 2016. At the 19 January 2016 meeting, Broadspectrum undertook to advise the TWU of its position in relation to matters pertaining to hours of work, overtime and the hourly rate structure by 5 February 2016. It was agreed between the parties that further meetings would be fruitless until Broadspectrum had determined its position in relation to the matters in contention. Ms. Walton stated that the TWU has not received any contact from Broadspectrum since the last meeting.

[7] For the purposes of s.443(1)(b) of the Act, I am satisfied on the basis of the unchallenged position of the TWU, that the TWU has been and is, genuinely trying to reach an agreement with the employer, being Broadspectrum.

Longer period of notice

[8] Section 414(2) of the Act requires that written notice of any action to be taken must be provided at least 3 working days prior to the action occurring. Section 443(5) allows the Commission to specify a longer period of up to 7 working days where the Commission is satisfied that there are exceptional circumstances justifying the minimum period of notice being longer than 3 working days.

[9] Broadspectrum sought a notice period of 7 days on the basis that there were exceptional circumstances in accordance with s.443(5) of the Act in the nature of their business which justified the order of an extension of time.

[10] Broadspectrum states that the employees covered by the proposed agreement perform aircraft refuelling services for the Department of Defence. The refuelling is performed at RAAF bases at East Sale (Victoria) and Woomera (South Australia) as well as army bases used by the RAAF at HMAS Albatross (New South Wales), Oakey (Queensland).

[11] The RAAF operates significant and critical operations out of these bases including search and rescue operations. A failure to perform the aircraft refuelling services by Broadspectrum may impact the ability of the RAAF to conduct their operations including but not limited to search and rescue operations out of the above listed RAAF bases.

[12] On this basis, it is submitted that the additional days are required to ensure that public safety is safeguarded and constitutes as an exceptional circumstance contemplated by the Act. By extending the notice time to 7 days, more notice may be provided to the Department of Defence to allow the Department and Broadspectrum to put in place contingencies to allow for the continuation of critical operations.

[13] The TWU opposed the extension of the notice period to 7 days, but accepts an extension to 5 days, which Broadspectrum has in turn also accepted.

[14] Despite the agreement between the TWU and the employer on the terms of the draft order incorporating an extended notice period, the Commission is still required to be satisfied that there are exceptional circumstances justifying the period of written notice being longer than 3 working days, pursuant to s.443(5) of the Act.

[15] The proper interpretation and application of the words ‘exceptional circumstances’ has been considered in a number of decisions of the Commission. In Transport Workers’ Union of Australia 1 it was noted that the uniform approach adopted by this Commission is that of Vice President Lawler in CEPU v Australia Post2 which cites with approval the decision of Rares J of the Federal Court of Australia in Ho v Professional Services Review Committee No 2953:

“[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.”

[16] The Vice President went on to state:

“[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.”

[17] The Commission adopts this approach in the current application. I have had regard to the reasons put forward by Broadspectrum relating to the extension of the notice period. I am of the view that such reasons are beyond the immediate interests of the employer and the employees concerned and extend to the interests of third parties. This being the Department of Defence and the critical operations it performs, which may be affected by the ability of Broadspectrum to carry out refuelling work. The critical work carried out by the Department of Defence may in turn extend to the interests of public safety. As such, I find that the requirements for exceptional circumstances put forward by the employer are relevant in order to vary the period of notice.

[18] In accordance with s.443(5) of the Act, I am satisfied that there are exceptional circumstances justifying an extension to the period of written notice contained in paragraph 414(2)(a) of the Act from 3 working days to 5 days.

Order to be made

[19] Having regard to the evidence before me, I am satisfied that the requirements in s.443(1) of the Act have been met and that, accordingly, the order must be made.

[20] An order [PR577549] based on the draft order provided by the TWU is issued in conjunction with this decision.

DEPUTY PRESIDENT

 1   [2012] FWA 133.

 2   [2007] AIRC 848.

 3 [2007] FCA 388.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR577548>