Transport Workers' Union of Australia v dnata Airport Services Pty Limited

[2022] FWC 2009

[2022] FWC 2009

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Transport Workers' Union of Australia
v

dnata Airport Services Pty Limited

(B2022/1144)

DEPUTY PRESIDENT DEAN CANBERRA, 5 August 2022

Proposed protected action ballot of employees of dnata Airport Services Pty Limited.

1. This is an application by the Transport Workers’ Union of Australia (TWU or Union) made under s.437 of the Fair Work Act 2009 for a protected action ballot order (PABO) in relation to certain employees of dnata Airport Services Pty Limited (dnata or Respondent).

1. The application seeks to ballot employees of the Respondent who are members of, and represented by, the TWU for a proposed enterprise agreement (Relevant Employees). The Relevant Employees are presently covered by the danata Ramp and Cargo Enterprise Agreement 2018 which has a nominal expiry date of 30 June 2020.

1. The Respondent described its business in the following terms:

“3.Dnata provides passenger, ramp handling and cargo handling services to domestic and international airlines in Australia’s airports in Sydney, Melbourne, Brisbane, Adelaide, Darwin and Perth.

4. The employees to be covered by the proposed replacement enterprise agreement provide ramp handling and cargo handling services in domestic and international airports in Sydney, Melbourne, Brisbane, Adelaide and Darwin. There are 768 employees providing ramp and cargo handling services across these airports.

5. Relevantly for the purposes of the Application:

(a) ramp handling services include inter alia:

(i)operation of specialised ground services equipment to load and unload baggage and cargo from inbound and outbound flights;

(ii) transportation of cargo and baggage to the required points around the airfield;

(iii) aircraft tows and pushback;

(iv) allocation and sorting of passengers outbound/inbound baggage by category as determined by client carrier policy and procedure;

(v) safety flight checks on Unit Load Devices (ULDs) to ensure dangerous good, weights, serial numbers, gauge/profile, and serviceability is in line with safe operating limits;

(vi) ensuring loading and restraint (locks and hold versions) requirements are following in line with aircraft manufacturers and that the aircraft is loaded strictly to the weight and balance plan;

(vii) provision of marshalling, ground power and preconditioned air services;

(viii) ground to cockpit communications and coordination during arrival and departure phases of the turn, including proper placement of wheel chocks, cones and where required, wing tip clearance;

(ix) servicing of aircraft waste and potable water;

(x) specialised freighter tasks such as panel and main deck loader operations; and

(xi) reporting of safety or services related issues, performance, and safety of flight related reporting (load instructions confirmation etc);

(b) cargo handling services include inter alia:

(i) operation of Materials Handling Equipment including hoists, elevated transport vehicles, forklifts etc.;

(ii) unloading cargo from ULD's, and storing cargo in warehouses;

(iii) staging outbound cargo;

(iv) operation of cargo systems to ensure cargo documentation and reporting is completed to Australian Border Force and client carrier requirements;

(v) acceptance of cargo for buildup (loading on pallets or into containers) on behalf of our customers;

(vi) acceptance of shipper loaded units (pre-loaded by freight forwarders in or on units) for transport;

(vii) checks of lodged cargo including dangerous goods, documentation, dimensions and weight, explosive trace detections etc. to ensure client carrier, IATA/ICAS and government regulations in relation to the safe acceptance and carriage of air cargo are complied with;

(viii) coordination of trucking services to ensure delivery of import cargo either direct to customers or to our import’s facility from breakdown and sorting;

(ix) coordination of special handling cargo including pharmaceuticals, live animals, vaccines, medical isotopes, urgent medical shipments (including blood), radioactive materials (including radioactive medical isotopes), dangerous goods, valuable goods and cool chain goods;

(x) liaison with client carriers and freight forwarders to resolve issues in billing, delivery etc.; and

(xi) management of ULD stocks for client carriers.”

1. The Respondent did not oppose the making of the PABO but sought an extension of the notice period required for the taking of the industrial action from 3 working days to 7 working days.

1. The matter was listed for a conference on 29 July 2022, and was listed for hearing on 4 August 2022. Mr P Boncardo of Counsel appeared for the TWU and Mr M Minucci of Counsel appeared for the Respondent. Evidence was given for TWU by Mr Troy Rogers. Mr Albert Bollard (Airport Services Manager) and Mr Samuel Maybury (National HR Manager) gave evidence for the Respondent.

1. There is no dispute and I find that the preconditions to the making of a PABO under s443(1) are satisfied. The only issue for determination is whether there are exceptional circumstances justifying an extension to the notice period and that is the issue determined in this decision.

1. Given the time requirements for the Commission to deal with these types of applications, this decision is brief.

1. Section 443(5) of the Act provides in effect that if there are exceptional circumstances justifying the period of written notice referred to in s.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.

1. There have been a number of decisions of the Commission in which exceptional circumstances justifying a longer notice period have been considered.

1. In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation[1], Vice President Lawler held:

“[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.”

1. The Commission has, in a number of cases, found that exceptional circumstances exist justifying an extended notice period.

1. The Respondent contended that the following justified a finding that exceptional circumstances exist to warrant an extension to the notice period:

a.The Respondent is facing a critical labour shortage, exacerbated by the closure of the international border at the peak of the COVID pandemic; a winter spike in COVID, influenza and other illnesses fuelling absenteeism;

b.The aviation industry has been one of the worst hit industries during the COVID pandemic, being the first industry to close and the last to re-open. During the pandemic, over 15,000 jobs were lost at Sydney Airport alone;

c.There is a shortage of migrant workers available in Australia, and the aviation industry is reliant on migrant workers;

d.There has been an increased flying demand since around June 2022; and

e.Some airports, such as Sydney Airport, still require workers to be vaccinated against COVID to work at the airport.

1. The Respondent contended that these forces have converged to create substantial issues for the Respondent and its operations.

1. The evidence relied on by dnata went to the matters canvassed in paragraph 12 above, and included that:

a.   it had made significant efforts to secure additional labour but those efforts had been largely unsuccessful;

b.   it currently has 196 vacancies within its Sydney ramp and cargo business and 149 vacancies in its Melbourne ramp and cargo business and has been unable to fill these vacancies directly and/or via labour hire. This means 45.4% of its roster lines are vacant in Sydney and 53.9% of its roster lines are vacant in Melbourne. Overtime is used where possible to fill some of these vacancies.

1. In addition, dnata’s witnesses also gave evidence as to the timeframe necessary to secure appropriate licences (eg ASIC security clearance and an airside driving permit, referred to as an ADA) before a person is allowed to work airside. This evidence was challenged in cross examination, but it was clear that at a minimum, 5 days would be required to obtain the necessary ASIC permit and ADA.

1. The evidence given by dnata supports its submissions that if the proposed industrial action came into effect within 3 working days, it would be almost impossible for the Respondent to be able to source alternative labour in the circumstances that currently exist, and given the already critical shortages in labour availability.

1. Mr Bollard in his evidence summarised the potential effects of stoppages of work, which are not repeated here. However, it is noted that some of these effects would include flights being cancelled, and passenger baggage not being loaded or unloaded. By way of example, if a stoppage of work meant dnata could not provide its normal services for one day, there would be approximately 8,400 passengers and 57 flights affected in Melbourne, and approximately 15.400 passengers and 97 flights affected in Sydney. This will have an obvious significant impact not only on the Respondent’s clients, but on Australian domestic and international travel more broadly.

1. The evidence called by the Union, including the evidence adduced through cross examination of the Respondent’s witnesses, in part went to both the timing of new workers obtaining necessary licences, and the Respondent’s Business Continuity Plan (BCP) which contemplated it having 3 working days’ notice of protected industrial action rather than a longer period.

1. It is not surprising in my view that a BCP would work on the worst case scenario for the Respondent, given there is no guarantee at all that an extension to the notice period could be obtained. Further, the BCP looks to have been prepared without taking account of the impacts of the COVID pandemic on availability of labour. Accordingly, I do not consider the Commission should rely on the BCP to determine whether exceptional circumstances exist.

1. In my view, it is clear that in the circumstances currently faced by the Respondent, the potential implications for it if employees were to take protected industrial action go well beyond mere inconvenience and additional costs because of the critical labour shortages and the highly regulated nature of aviation.

Consideration as to extension of notice period

1. The evidence, considered as a whole, sets out a basis for a finding there are exceptional circumstances. I am satisfied that this is not simply a case of adverse consequences affecting the Respondent. The critical labour shortages that are already being experienced by the Respondent are not common, having been caused in large part by the COVID pandemic and the response to same, including effectively shutting down the aviation industry for many months. Further, it is clear that a period of more than 3 days is necessary to obtain licences etc for new employees to be able to perform work airside. The combination of these circumstances are in my view exceptional in that they are out of the ordinary, unusual and uncommon.

1. Further, I am satisfied that the evidence sets out a basis for a finding that the exceptional circumstances justify a longer notice period. Assuming the Respondent can source labour, which is by no means guaranteed, it will need longer than three days to arrange for the necessary ASIC card and ADA for those employees. Alternatively, it will need to work with its clients to potentially reschedule flights etc.

1. I am also satisfied that an increase in the notice period will not adversely impact employee bargaining power or diminish the effectiveness of protected action. Given the critical labour shortages faced by the Respondent now, any industrial action at any time will clearly exert a great deal of pressure on the Respondent.

1. For these reasons, I am satisfied that there are exceptional circumstances which justify an extension of the notice period to five working days.

Conclusion

1. Having made the above findings, and on the basis of the material before me, including the declaration of Troy Rogers of the TWU made on 25 July 2022 setting out the steps taken by it in bargaining with the Respondent and that it has been, and is, genuinely trying to reach agreement with the Respondent, I am satisfied that there is a notification time in relation to the proposed agreement and that the requirements in s.443(1) of the Act have been met.

1. The Applicant sought that Mr Greg Mitchell of the Vero Engagement & Voting Solutions Pty Ltd be appointed as the ballot agent for the protected action ballot. I am satisfied that Mr Mitchell is a fit and proper person to conduct the ballot and that the requirements prescribed by Regulation 3.11 of the Fair Work Regulations 2009 are met. Accordingly, Mr Mitchell is to be the protected action ballot agent to conduct the ballot.

1. An Order has been separately issued in PR744321.

DEPUTY PRESIDENT

Appearances:

P Boncardo of Counsel for the Transport Workers’ Union of Australia.
M Minucci of Counsel for dnata Airport Services Pty Ltd.

Hearing details:

2022.
By video:
August 4.

[1] [2007] AIRC 848.

Printed by authority of the Commonwealth Government Printer

<PR744320>