Transport Workers' Union of Australia v Cobham Aviation Services Engineering Pty Ltd T/A Cobham Aviation Services Engineering
[2022] FWC 2114
•12 AUGUST 2022
| [2022] FWC 2114 |
| FAIR WORK COMMISSION |
| REASONS FOR DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
Transport Workers' Union of Australia
v
Cobham Aviation Services Engineering Pty Ltd T/A Cobham Aviation Services Engineering
(B2022/1192)
| COMMISSIONER PLATT | ADELAIDE, 12 AUGUST 2022 |
Proposed protected action ballot of employees of Cobham Aviation Services Engineering Pty Ltd T/A Cobham Aviation Services Engineering – request for extended notice.
The following reasons for decision relate to my decision to issue a protected action ballot order[1] on Tuesday, 9 August 2022.
On 8 August 2022, an application (the Application) was made by the Transport Workers’ Union of Australia (TWU) seeking a protected action ballot order (PABO) pursuant to s.437 of the Fair Work Act 2009 (the Act) in relation to employees of Cobham Aviation Services Engineering Pty Ltd T/A Cobham Aviation Services Engineering (Cobham Aviation) to determine whether eligible employees wish to engage in specified protected industrial action for a proposed enterprise agreement.
On 8 August 2022, the Respondent advised the Commission that the Application was not opposed, but that they wished to be heard on the issue of whether exceptional circumstances existed such that the period of notice required could be extended to up to 7 days as per s.443(5) of the Act.
The matter was originally listed for conference on 8 August 2022. The parties sought an adjournment on the basis that they were due to meet in the morning of 9 August 2022 to discuss the issue of extended notice. I agreed to adjourn the matter to allow the parties to conciliate amongst themselves but informed them that in the event that they were not able to come to an agreement, the matter would be listed for Hearing at 4.00pm on 9 August 2022. The parties did not resolve the issue at their meeting, and as such, the Hearing commenced at 4.00pm on 9 August 2022.
The TWU was represented by Mr Simon Russell and Cobham Aviation was represented by Mr Michael Eleftheriou. The Applicant filed written submissions but did not file witness evidence. The Respondent filed written submissions and witness statements from Mr Glen Erskine (Director of Operations for Surveillance Australia Pty Ltd), Mr Robin Furber (Director of Engineering for National Jet Express Pty Ltd) and Mr Tim Pirga (Director of Business Development and Acting Director of Operations for Regional Services).
There was no submission that the requirements of s. 443(1), s.437(2A) or s.440 of the Act had not been met, and there was evidence on file that the Australian Electoral Commission had been served by email.
The only issue for determination was the topic of extended notice as outlined in s.443(5) of the Act.
Legislation
Section 443 of the Act governs when the Commission must make a protected action ballot order. Section 443(5) governs when a protected action ballot order may specify an extended notice period. It provides:
“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.”
In NTEIU v Charles Darwin University,[2] a Full Bench of the Commission provided the following guidance to the proper interpretation and application of s 443(5) of the Act:
“[20] The exercise of a discretion under s.443(5) results in an interference with the right of a bargaining representative to otherwise give three working days’ written notice of industrial action that is to be organised and engaged in by employees in support of a proposed agreement. That this right should not lightly be curtailed by the imposition of a longer period of notice is evident in the grant of power itself. There must be “exceptional circumstances” in relation to the proposed industrial action the subject of the order justifying a longer period.
[21] The meaning of “exceptional circumstances” in the context of s.463(5) of the Workplace Relations Act 1996 (WR Act) was discussed in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation.17 In the case, Lawler VP said:
‘[10] … 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.’
[22] Section 463(5) of the WR Act is in all material respects the same as s.443(5) of the Act. We consider the discussion extracted above is apposite to the phrase “exceptional circumstances justifying” in s.443(5).
[23] The determination of whether the circumstances in a particular case are ‘exceptional’ involves an evaluative judgement. A proper approach to the exercise of the Commission’s discretion under s.443(5) requires first that a member identify or make findings about the particular facts or circumstances in relation to the proposed industrial action which are said inform the evaluative judgement that such factors or circumstances are exceptional circumstances. The phrase “exceptional circumstances” carries its ordinary meaning.
[24] Secondly, there must be a consideration whether the identified exceptional circumstances are circumstances “justifying” a longer notice period. This also involves an evaluative judgement made on the basis of probative material. The use of the verb “justifying” in s.443(5) signifies that the identified exceptional circumstances must show or prove that it is reasonable or necessary or the circumstances warrant or provide good reason to require a longer period of written notice.
[25] Thirdly, if the member is satisfied there are exceptional circumstances justifying a longer period of notice, there must be a consideration of whether to exercise the discretion and, if so, the additional period of notice that should be given in the circumstances (noting the maximum period).”
In CEPU v DP World Sydney Ltd,[3] the Full Court of the Federal Court held (at [16]):
· “The Full Bench in National Tertiary Education Industry Union v Charles Darwin University was not suggesting that in order to properly discharge the statutory function the reasons for a decision had to be structured into three separate and distinct parts. The Full Bench was providing guidance on the statutory provision which provides that if the FWC is satisfied 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.”
The onus is on the Respondent to demonstrate that exceptional circumstances exist.
The Facts
The Respondent submitted witness statements from:
·Mr Robin Furber (Director Engineering National Jet Express Pty Ltd).[4]
·Mr Glen Erskine (Director Operations for Surveillance Australia Pty Ltd).[5]
·Mr Tim Pirga (Director Business and Director of Operations (Acting) for Regional Services).[6]
All of the witnesses gave evidence and were cross-examined.
The witness evidence is largely not in dispute and is summarised as follows:
· The work performed by Regional Services has three main parts:
1. FIFO services to energy and resources. These operations involve up to 100 flights a week for 18 clients, both onshore mining and offshore energy. The fleet for this part of the business comprises of eight Q400 and six E190 aircraft. All aircraft are operational at one time and there are no spare aircraft. For this fleet, heavy maintenance is done overseas and line maintenance is performed in Australia, including at the Adelaide base.
2. Overnight freight services for Qantas in support of their contract with Australia Post. Services operate out of Sydney, Melbourne, Adelaide, and Coolangatta. In Sydney, the Respondent is the only operator that flies during the noise curfew as a result of the use of the BAE-146-300 freighter aircraft. The Respondent operates a fleet of four BAE 146-300s and is contracted to operate all four aircraft. The Respondent is currently only operating three of the four aircraft on a regular basis due to maintenance and crewing issues impacting fleet availability.
3. Provision of FIFO services to PNG to service mining operations for Pacific Direct. The fleet for this part of the business is three Dash 8-100s.
· In certain circumstances, these services can be regarded as safety critical.
· Restrictions on the overnight freight services could result in delays.
· Mitigation measures for disruptions of greater than 12 hours could include the hiring of additional aircraft or reallocation of suitable aircraft from the fleet. The more notice that is available, the greater the potential for mitigation. Some of the mitigation measures could be put into place (such as entering into contractual arrangements to access additional aircraft from other suppliers) prior to any notice of protected industrial action.
· Surveillance Australia engages National Jet Express to provide engineering services. The heavy maintenance contract (which involves major maintenance and can take 4-8 weeks per aircraft) is performed in Adelaide. The work performed by Surveillance Australia involves two contracts:
1. A contract with Australian Border Force to assist with Australia’s medium range offshore maritime surveillance capability, which requires the use of Dash 8 aircraft on a dynamic basis and is subject to changes at short notice.
2. A 24/7 search and rescue contract from three bases across Australia.
· The unavailability of aircraft could compromise national security and/or public safety.
· Possible mitigation measures include those matters discussed under the three headings of Regional Services as outlined above, as well as the relocation of suitability qualified maintenance personnel which could take 24 hours (in an emergency) but would normally have a longer lead time. The internal reassignment of aircraft could be adversely impacted by changes in the Respondent’s intercompany structures from September 2022.
· The Respondent’s witnesses contended that seven days’ notice would assist in the mitigation of stoppages greater than 12 hours.
Consideration
The Respondent’s business depends on the availability of specialised expensive aircraft which does not generally allow for the retention of excess capacity. These aircraft require regular scheduled maintenance in addition to remedying defects as they occur. The maintenance can only be provided by suitably qualified personnel, who are difficult to replace. Any delays in the provision of maintenance can lead to aircraft unavailability, which impacts the provision of service. Whilst there is some capacity for internal transfers of employees and aircraft, this is largely a process of ‘robbing Peter to pay Paul’. Whilst there is some capacity to hire external employees, those employees would need to meet the relevant regulatory requirements, and alternative aircraft are in short supply. I accept that the circumstances are exceptional.
I now turn to whether those circumstances justify the extension of the default notice period.
The Respondent concedes that protected industrial action taken in respect of the Australian Border Force services would not have a material impact until the end of 2022.
In respect of the FIFO contract, medical emergencies would have access to emergency health providers such as the Royal Flying Doctor Service.
There is no evidence before me as to the union density and the number of employees who may be eligible to take protected industrial action and accordingly, I am unable to predict the impact of protected industrial action.
The Respondent’s witnesses advised of a number of mitigation measures that could commence immediately. This could also include communications with the Respondent’s clients.
The Respondent (and third parties) have access to a range of provisions to seek relief in relation to the consequences of protected industrial action. These include s.423 (significant economic harm), s.424 (endangering life etc.) and s.426 (significant harm to a third party) of the Act.
The witness evidence did not explain why a seven-day notice period is sought. It appears to be premised on the fact that from the Respondent’s perspective, any period greater than the default provides additional mitigation time and seven days is the maximum extension available under the Act. The potential to extend the notice period is not intended to mitigate all of the impacts of protected industrial action.
Having regard to all the facts and circumstances, my assessment is that the exceptional circumstances identified by the Respondent do not show or prove that it is reasonable or necessary to require a period of written notice beyond three working days, nor do they warrant or provide good reason to exercise the discretion conferred by s 443(5) to extend the notice period beyond three working days.
In light of my findings set out above, a protected action ballot order must be made pursuant to s 443(1) of the Act. I reject the Respondent’s application for an order specifying a longer period than three working days for the giving of notice of protected industrial action.
The Order [PR744638] was issued on Tuesday, 9 August 2022.
COMMISSIONER
Appearances:
S Russell for the Applicant
M Eleftheriou for the Respondent
Hearing details:
2022.
Adelaide (by teleconference):
August 9.
[1] PR744638.
[2] [2018] FWCFB 4011.
[3] [2019] FCAFC 99.
[4] Exhibit R1
[5] Exhibit R2
[6] Exhibit R3
Printed by authority of the Commonwealth Government Printer
<PR744642>
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