Transport Workers' Union of Australia v Hornibrook Transit Management Pty Ltd T/A Hornibrook Group of Companies

[2016] FWC 7696

[2016] FWC 7696

FAIR WORK COMMISSION

DECISION

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

Transport Workers' Union of Australia
v
Hornibrook Transit Management Pty Ltd T/A Hornibrook Group of Companies; Hornibrook Bus Lines Pty Ltd T/A Hornibrook Group of Companies
(B2016/1022)

COMMISSIONER SPENCER BRISBANE, 22 NOVEMBER 2016

Proposed protected action ballot of employees of Hornibrook Transit Management Pty Ltd, Hornibrook Bus Lines Pty Ltd – 5 working days’ notice – Protected Industrial Action; switching on but driver not signing in to Go Card Machine – exceptional circumstances not made out

Introduction

[1] This Decision relates to an application pursuant to s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot order in relation to members of the Transport Workers’ Union of Australia (the TWU/Union/Applicant) employed by Hornibrook Transit Management Pty Ltd T/A Hornibrook Group of Companies; Hornibrook Bus Lines Pty Ltd T/A Hornibrook Group of Companies (the Respondent).

[2] The Respondent is a route and school bus service operator, providing services to Government, Non-Government and Special Schools under contract to the Queensland Government.

[3] Directions were set in line with the requirements in s.441 of the Act for the Respondent to confirm whether they objected to the application and if so, on what grounds. The Respondent has objected to the Commission making the order in the terms sought.

[4] The TWU, in the draft order filed with the application, had consented to an extended notice period of 5 working days with respect to Questions 2, 3, 4, 5 and 6. In the draft order, 3 working days was to be provided with respect to Questions 1, 7, 8, 9 and 10.

[5] The Respondent’s only objection to the draft order was that it sought that the period of notice to be provided in respect of (protected industrial action in relation to) Question 9 in the proposed order, be extended to 5 working days’ notice, instead of 3 working days. The TWU did not consent to the extended notice period sought by the Respondent in respect of Question 9 and instead proposed an amended Question 9, providing a changed form of the proposed industrial action. The TWU provided an amended draft order including the amended Question 9. This is set out below.

[6] The Respondent still pressed the extended period of notice (to 5 working days) in respect of the amended Question 9. The TWU elected to proceed with the amended Question 9 and opposed the 5 working days’ notice. This Decision deals with the notice period in relation to the amended Question 9. The amended Question 9 is as follows:

“In support of reaching an enterprise agreement with your employer, do you support the taking of protected industrial action against your employer which involve one or more of the following taken separately or consecutively:

An unlimited number of periodic or indefinite bans on 'signing in' to Go Card machines, that is Go Card machines will be switched on, but drivers will not sign in?"

[7] The original Question 9 (not now pressed) had stated:

“In support of reaching an enterprise agreement with your employer, do you support the taking of protected industrial action against your employer which involve one or more of the following taken separately or consecutively:

An unlimited number of periodic or indefinite bans on the operation of Go Card machines, that is, Go Card machines to remain switched off?”

[8] Further Directions were set for the filing of material in respect of whether the notice period (pursuant to s.443(5) of the Act) should be extended from 3 working days to 5 working days, in respect of the amended Question 9. The matter was heard on Thursday 3 and Friday 4 November 2016 in Brisbane, with a video link to Sydney on Thursday 3 November 2016.

Legislation

[9] The application was made under s.437 of the Act, as follows:

“437 Application for a protected action ballot order

Who may apply for a protected action ballot order

(1) A bargaining representative of an employee who will be covered by a proposed enterprise agreement, or 2 or more such bargaining representatives (acting jointly), may apply to the FWC for an order (a protected action ballot order) requiring a protected action ballot to be conducted to determine whether employees wish to engage in particular protected industrial action for the agreement.

(2) Subsection (1) does not apply if the proposed enterprise agreement is:

(a) a greenfields agreement; or

(b) a multi-enterprise agreement.

(2A) Subsection (1) does not apply unless there has been a notification time in relation to the proposed enterprise agreement.

Note: For notification time, see subsection 173(2). Protected industrial action cannot be taken until after bargaining has commenced (including where the scope of the proposed enterprise agreement is the only matter in dispute).
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.

(4) If the applicant wishes a person other than the Australian Electoral Commission to be the protected action ballot agent for the protected action ballot, the application must specify the name of the person.

Note: The protected action ballot agent will be the Australian Electoral Commission unless the FWC specifies another person in the protected action ballot order as the protected action ballot agent (see subsection 443(4)).

(5) A group of employees specified under paragraph (3)(a) is taken to include only employees who:

(a) will be covered by the proposed enterprise agreement; and

(b) either:

(i) are represented by a bargaining representative who is an applicant for the protected action ballot order; or

(ii) are bargaining representatives for themselves but are members of an employee organisation that is an applicant for the protected action ballot order.

Documents to accompany application

(6) The application must be accompanied by any documents and other information prescribed by the regulations.”

[10] Section 443 of the Act sets out when the Commission must make a protected action ballot order:

“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.”

(emphasis added)

[11] Section 414 of the Act provides:

“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.

Notice of employee claim action not to be given until ballot results declared

(3) A notice under subsection (1) must not be given until after the results of the protected action ballot for the employee claim action have been declared.

Notice requirements—employee response action

(4) Before a person engages in employee response 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.

Notice requirements—employer response action

(5) Before an employer engages in employer response action for a proposed enterprise agreement, the employer must:

(a) give written notice of the action to each bargaining representative of an employee who will be covered by the agreement; and

(b) take all reasonable steps to notify the employees who will be covered by the agreement of the action.

(6) A notice given under this section must specify the nature of the action and the day on which it will start.”

Draft Order

[12] The amended draft order filed by the TWU includes the following under the heading Questions:

“6.QUESTIONS

[Insert ballot questions, including the nature of the proposed industrial action]

Note: Ballot questions should be sufficiently clear so employees can make an informed choice. The questions should indicate what work would and would not be done and the implications for employees while at work.

In support of reaching an enterprise agreement with your employer, do you support the taking of protected industrial action against your employer which involve one or more of the following taken separately or consecutively:

Question 1

An unlimited number of periodic or indefinite bans on working of overtime?

Question 2

An unlimited number of stoppages of work for 2 hours?

Question 3

An unlimited number of stoppages of work for 4 hours?

Question 4

An unlimited number of stoppages of work for 8 hours?

Question 5

An unlimited number of stoppages of work for 24 hours?

Question 6

An unlimited number of indefinite stoppages of work?

Question 7

The wearing of badges or clothing or hats with TWU branding
and/or TWU EBA campaign message instead of, or in addition to,
the employer’s uniform either periodically or indefinitely?

Question 8

The provision to passengers of information flyers relating to the
Claims that are the subject of the protected action either periodically or
indefinitely?

Question 9

An unlimited number of periodic or indefinite bans on ‘signing in’ to
Go Card machines, that is, Go Card machines will be switched on but
Drivers will not sign in?

Question 10

An unlimited number of periodic or indefinite bans on the collection
of fares?

(emphasis added)

[13] The TWU included the following under the heading “Notice” in their amended draft order:

“5. NOTICE

Pursuant to s. 443 (5) of the Fair Work Act 2009, being satisfied that there are exceptional circumstances justifying the period of written notice referred to in s. 414 (2) (a) of the Act being longer than three (3) working days, the Fair Work Commission specifies that the TWU is to provide at least five (5) working days written notice to the Employer of the intention to take protected industrial action in accordance with Questions 2, 3, 4, 5, and 6 below, and three (3) working days written notice of the intention to take protected industrial action in accordance with Questions 1, 7, 8, 9 and 10 below.”

(emphasis added)

[14] The Respondent sought that the notice period be amended in the amended draft order as follows:

“Pursuant to s.443 (5) of the Fair Work Act 2009 being satisfied that there are exceptional circumstances justifying the period of written notice referred to in s. 414 (2) (a) of the Act being longer than three (3) working days, the Fair Work Commission specifies that TWU is to provide at least (5) working day’s written notice to the Employer of the intention to take protected industrial action in accordance with Questions 2, 3, 4, 5, 6 and 9 below, and three (3) working days written notice of the intention to take protected industrial action in accordance with Questions 1, 7,8 and 10 below.”

(emphasis added)

Summary of the Respondent’s Submissions

[15] The Respondent submitted that (as stated) the Applicant sought to amend Question 9 in their application for a protected action ballot order to the following Question:

“An unlimited number of periodic or indefinite bans on signing into Go card machines, that is, Go Card machines will be switched on but Drivers will not sign on.”

[16] The Respondent submitted that exceptional circumstances existed with respect to this amended Question 9 (in addition to those which the TWU had already consented to a longer notice period) which would require a longer period of notice of five (5) working days as the Respondent is a route and school bus service operator, providing services to Government, Non-Government and Special Schools, under contract to the Queensland Government.

[17] The Respondent relied upon the Affidavit of Mr Rolf Mitchell, State Manager, Queensland Bus, of 10 October 2016, to support the proposition in s.443(5) of the Act. Mr Mitchell stated that the additional notice, to 5 working days rather than 3 working days, is required and set out as follows:

“The issue is clearly whether a driver not signing onto the Go Card system places both the driver and the vehicle in harm’s way and consequently members of the public to warrant special circumstances to extend the notice period to 5 days.

I say that there are special circumstances from my experience with the operation of the Go Card System which has not been fully understood by Ms Cerrato in her email to me of 21 September 2016…

The features which will also not be available, if the Applicant’s members do no sign into the Go Card system include:

(i) Not being able to track the bus
(ii) Not being able to record when or if the journey has been completed
(iii) Not having direct texting communication with the driver and to the depot
(iv) Inability for Trans Link, the Respondent or the Applicant’s member to access the journey planner which is information which is also available to the public
(v) Preventing the elderly, frail and school student from locating the bus and its timetabled arrivals.”

[18] The Respondent submitted that it believed the Applicant did not fully understand the effect of a member not signing on to the Go Card system. In light of this, the Respondent stated that it considered not signing into the system has a much greater effect, than just not collecting fares. The Respondent submitted that not signing on to the Go Card system, placed both the driver and the public at some risk, because the bus can no longer be tracked and the public are no longer able to receive real time information about the whereabouts of the bus. At the same time, neither the driver nor the Respondent is able to have text communication with the vehicle.

[19] The Respondent further submitted that the Applicant had already recognised the special circumstances applicable to the passenger transport industry by consenting to, of its own volition, a proposed draft order providing an extended period of notice in respect of Questions 2, 3, 4, 5, and 6 but also, when the Respondent challenged Question 9 in the first draft order, which sought to turn the Go Card system off completely, by the Applicant providing an amended Question 9. The Applicant sought to maintain the 3 working days’ notice in respect of Question 9.

[20] The Respondent submitted that, in the case of Transport Workers Union of Australia v Bus Queensland 1(TWU v Bus Queensland), the Commission as currently constituted had acknowledged the importance of public transport, especially where school children are carried and the confidence required in the communication system to ensure parents, passengers and other users are appropriately notified.2

[21] The Respondent submitted that the passenger transport industry, in which the Respondent operates is an important service involving the public and as a consequence has a high duty of care for the safety of the public. It was submitted that this importance to the mobility of communities is the exceptional circumstance which would trigger support for the Respondent’s submission to vary the draft order to provide for the extended notice in respect of the amended Question 9.

[22] Furthermore, the Respondent stated that the circumstances of the proposed interference with the Go Card system on the vehicle provided to the Applicant’s member would have a significant impact across the Respondent’s network of route services, school services and special education services across a large network. Furthermore, the impact that short notice of 3 working days would have upon the consumer, based on the disruption to those services, is a significant event which satisfies the requirements of s.443(5) of the Act.

[23] The Respondent had set out that the parties that would need to be notified to justify the extended notice were as follows:  3

• Translink Media



• Translink contract planning



• Translink network planning



• Staff at each of the depots



• The local Moreton Bay Regional council



• The many schools which form part of the network stretching Into Brisbane City



• Neighbouring translink operators to see if tasks could be assigned to them.



• Multiple Schools that are serviced by Hornibrook Transit Management and Homibrook Bus Lines in the following regions of the Radcliffe Peninsula, Sandgate, Shorncliffe, Rothwell, North Lakes, Kallangur, Petrie, Strathpine, Bald Hills, Bracken Ridge, Zillmere, Talgum, Geebung, and areas surrounding Toombul.

[24] The Respondent stated for these reasons, the extra 2 working days of notice was justified.

Summary of the Applicant’s Submissions

[25] In response to the Respondent’s reliance on the Decision in TWU v Bus Queensland 4, the Applicant submitted that a longer period of notice (to five working days) has been considered the ordinary standard when it comes to “strikes” involving public transport buses, but that it did not follow that an extended period of notice was warranted in relation to other forms of protected industrial action. The TWU noted that the Decision in TWU v Bus Queensland referred exclusively to strikes, not bans on turning on Go Card machines and submitted that each case must turn on its own circumstances.

[26] The TWU referenced the following extract from the TWU v Bus Queensland Decision:

“[38] As stated above, I consider that public transport is an important service, and furthermore, given that the services involve the carriage of school children, confidence is required in the communication system, to ensure notification to parents, passengers and other users, to provide for their safety. Such a response and adequate time period is in line with the Queensland Government’s “no child left behind” policy. The evidence by the Applicant sought to test implementing a proposed 3 day process, involving developing a communication strategy, advising the State Government and then providing paper flyers across the remainder of the 2 day period. This process did not provide a satisfactory communication plan or timeframe to ensure passengers were properly informed in order that there was some certainty that passengers across the week received the information.”

(emphasis added)

[27] Concerning the ‘communication system’ mentioned in the above Decision extract, the Applicant submitted the system being referred to is that which informs the public that there would be no services at all, for example, by notification by radio, flyers etc and notification that commuters would need to make alternative arrangements. The Applicant submitted it was rather ‘egregious’ for the Respondent to attempt to conflate the phrase ‘communication system’ from that Decision extract to the present circumstances that deal with communication systems emanating from Go Card machines, and not a situation where the bus services are disrupted.

[28] The Applicant submitted that the Respondent failed to present evidence on the following critical aspects of the case; how long the Hornibrook Group have been running bus services in these areas, how long services were provided during this time without the “next bus” or “My Translink”, “GPS” or “Go Card” technology, what forms of communication between buses and the depot were used prior to Go Card machines and whether such communication methods are still able to be used, how often services run on time to timetable, in percentage terms, how many commuters using these transport services, broken down into age groupings, actually possess smartphones or android devices, how many commuters using these services have downloaded and use the “My Translink” app, and, if the extension was granted, what the Hornibrook group of companies and Translink propose to do with the additional time (2 working days) , that cannot be done within the normal timeframes (3 working days) given, the industrial action that it is facing, it is not a strike but the loss of the GPS tracking of its buses.

[29] The Applicant referred to paragraph 12 of the Affidavit of Mr Mitchell as follows:

“12. The Applicant had always acknowledged that 'special circumstances' prevailed with their application in that all of the Applicant's draft orders include paragraph 5 which states:

“Pursuant to s. 443 (5) of the Fair Work Act 2009 being satisfied that there are exceptional circumstances justifying the period of written notice referred to in s. 414 (2) (a) of the Act being longer than three (3) working days, the Fair Work Commission specifies that TWU is to provide at least (5) working day’s written notice to the Employer of the intention to take protected industrial action in accordance with Questions 2, 3, 4, 5, and 6 below.”

[30] The Applicant submitted that paragraph 5 of the draft order simply states that where strikes are concerned, and on the basis of the Decision in TWU v Bus Queensland, the TWU conceded that “special circumstances’ exist and a longer period of notice (five working days) has been considered the appropriate standard when it involves strikes involving public transport buses.

[31] The Applicant submitted that it had sensibly recognised in its draft order that on the basis of previous cases, parts of the order that they were seeking may be characterised as raising special circumstances and for other parts, the TWU did not accept there were special circumstances such as the amended Question 9 presented.

Consideration

[32] An issue to be taken into account is that, where the interests beyond that of the immediate parties may be significantly impacted by the taking of industrial action, the tendency is for an extension of the notice period to be provided. In this regard the Decision of Commissioner Lewin in Transport Workers’ Union of Australia 5, is extracted as follows: (citations omitted)

“[17] Decisions of Fair Work Australia ... which have granted an extension of the relevant period of notice beyond that prescribed by s414(2)(a) of the Act have all involved circumstances where a broader public interest to those of the parties immediately concerned with the protected industrial action existed. Such circumstances are the conjunctive circumstances of the employer and third parties referred to by Vice President Lawler. Those circumstances included: the national interest in the operation of the Australian Customs and Border Protection Services; the availability of public transport services in a capital city; and a particular form of industrial action involving risks to public safety from prisoners of a State and access to medical services within a State prison, in which case the period of notice was extended from three to five working days but limited to a particular form of protected industrial action, among others, which might be taken by employees of the employer responsible for the management of the prison.”

[33] The Commission has, in a number of cases, increased the notification period, generally in relation to essential services important to the public interest, such as health services 6, public transport services7, correctional8 and fire9 services, the provision of power10 and airport security11, and customs and border protection services12. Between five and seven working days were granted for notice periods in these cases.

[34] The following is an extract from the Decision of Vice President Lawler in CEPU v Australia Postal Corporation 13, which concerned s.463(5) of the Workplace Relations Act (the mirror provision of s.443(5) of the Act), which referred to the Decision of Justice Rares in Ho v Professional Services Review Committee No 29514:

“[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.”

[35] The Respondent contended that the present matter was one where exceptional circumstances existed and such circumstances have been examined in line with the definition in CEPU v Australia Post 15, in relation to the impact that the proposed industrial action would have on the Respondent, in endeavouring to inform its customers and the public.

[36] As per the consideration of exceptional circumstances in CEPU v Australia Post, it is necessary for the Commission to balance the statutory entitlement to take protected industrial action and whether exceptional circumstances exist, which warrant a longer notice period for the industrial action. The following two paragraphs of the CEPU v Australia Post decision are relevant to the determination of exceptional circumstances:

“[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.

[22] The first example provided in Davids Distribution provides an illustration of where exceptional circumstances may justify an extension of the required notice period. A sophisticated piece of plant, such as a smelter, may take many days to shut down without damage. The employer is exposed to wholly disproportionate damage if it is prevented by too limited a notice period from undertaking an orderly shutdown of the plant. A further example may be afforded by a strike by teachers where the school needs to be able to notify parents of the strike so as to give them an opportunity to make alternative arrangements for the care of their children on the days of the strike. Typically, three working days will be insufficient for this purpose…” 16

Conclusion

[37] The Respondent’s claim, seeking the extended notice period of five working days, has been considered against the Applicant’s statutory entitlement to take the protected industrial action. The circumstances of the amended Question 9 have also been considered, in that the bus services will be undertaken as scheduled, however, given that the drivers will only be switching on and not signing into the Go Card system, the Respondent will not be able to sell tickets on the services and no electronic information generated through the 'apps' or technological systems (that provide live information on the timing of the bus along its service) will be available.

[38] The Respondent relied on my considerations in the case of TWU v Bus Queensland, however those circumstances can be distinguished in that the protected industrial action under consideration involved stoppages of services for school bus and other services. In those circumstances, it was deemed that time was required to appropriately communicate to the users of those services, in particular, schools, that the services would not be conducted. In that case, particular evidence was provided of the detail in relation to the plan required to ensure the proper communication was made to ensure the parents of school children and other users of the services could be made aware that the services would not run and they could make alternative transport arrangements.

[39] In TWU v Bus Queensland, I determined that:

“[36] It is recognised, on the evidence, that industrial action will cause communication difficulties and disruption to the provision of the full services provided by the Respondent. It is recognised that taking protected industrial action is a statutory entitlement and the length of the notice period is not designed to deliver a period in which the Respondent can take such defensive strategies, such that the effect of the industrial action on the Respondent’s business is significantly reduced or voided.

[37] The circumstances of the current matter are similar to that considered by the Commission as currently constituted in TWU v Linfox Armaguard Pty Ltd. where the particular nature of the work with considerations for safety, security and the impact of some forms of the potential industrial action were recognised. The transport business and the potential repercussions on the business, customers and the public are commensurate with exceptional circumstances, whilst five working days in that case was considered appropriate (based on the exceptional circumstances) for the notice period, five days is currently sought (for Questions 1 to 4).

[38] As stated above, I consider that public transport is an important service, and furthermore, given that the services involve the carriage of school children, confidence is required in the communication system, to ensure notification to parents, passengers and other users, to provide for their safety. Such a response and adequate time period is in line with the Queensland Government’s “no child left behind” policy. The evidence by the Applicant sought to test implementing a proposed 3 day process, involving developing a communication strategy, advising the State Government and then providing paper flyers across the remainder of the 2 day period. This process did not provide a satisfactory communication plan or timeframe to ensure passengers were properly informed in order that there was some certainty that passengers across the week received the information.

…

[42] On the evidence, to accommodate the imposition the protected industrial action (in relation to Questions 2 and 3) and the impact it may have on these transport services, particularly where children and members of the public rely on such, I cannot be confident that three working days’ notice is sufficient to allow for proper communication of the disruption to services. I am satisfied that exceptional circumstances exist to justify the extension to five days for Questions 2 and 3.” 17

[40] In this current matter, there was an absence of evidence in relation to the contractual implications of not being able to sell tickets and how this impacts on the requirement for additional notice of the action.

[41] In addition, there was no specific persuasive information provided on what alternative communication was necessary or could be provided to passengers to inform them that the bus communication systems would not be operational, but that the bus services would still be conducted. There was also an absence of information with regard to how the technological systems with Translink, or the Respondent, could be used to inform passengers of a bus service to reduce any potential inconvenience. There was also an absence of evidence as to how an additional two working days was necessary in relation to this practice.

[42] The evidence was that, whilst consideration had been made of the possibility (of drivers not signing into the Go Card machines), no specific plan of action had been made nor had particular consultations or discussions been undertaken with Translink, as to alternative technological methods that might be able to be utilised in terms of communicating with passages via the webpage or other electronic means, to indicate that the buses were running, but that the Go Card system was to be switched on but drivers would not sign in. 

[43] The effect of the proposed action in relation to the amended Question 9 was not a stoppage or "strike" action. It was protected industrial action whereby, given that the Go Card machine was not signed into, tickets could not be purchased, electronic updates of the buses movements would not be available and messaging between the Respondent and the vehicle would be affected.

[44] In regard to the timetable, however, in relation to this particular industrial action, bus services would be conducted as per the timetable.

[45] The evidence of Mr Mitchell, on behalf of the Employer, in explaining the effect of having drivers switch on but not sign in to the Go Card system, was as follows:

“PN214
But what is your understanding for coming to the Commission and seeking a longer notice period of industrial action from three working days to, in this case, five working days? My understanding of what has been requested is the three days from the TWU. We have obviously requested - we wish to see that as five due to the complexity of the ticketing system that we operate. If I could say 10 years ago we didn't have the technology that we do now across our passengers that we carry. The passengers that we carry now have a high degree of access through tablets, through Smartphones, to access information about the performance of the - sorry, not the performance, the delivery of service on a daily basis from the operator. My point is that there is an expectation from the travelling public that if they turn up at a bus stop and they wish to board a bus, they have real time technology stating where that bus is. The issue is the notification period of communicating with all stakeholders that the DCU system may not be functional, is the key point and that needs time and resources to advise people.
PN215
So it's advising - I don't want to misquote you, because the only thing that you referred to in that answer that could be said to be a defensive step was advising people that certain features and functionalities would not be available. Is that correct? Well, features, function and also information.
PN216
Information. All right? To the travelling public.
PN217
So you would agree with that? In principle, yes.
PN218
Do you have a plan there - - -? Yes.
PN219
- - - that demonstrates that you can't do it in three days? It is all about resourcing, Mr Norris. It's about communicating with our stakeholders. We have many stakeholders, not just TransLink. We have the local community; we have our contract management team within TransLink; we have TransLink media; we have all the schools; we have the local council. The list is quite large. The issue is bringing those resources internally together to make sure there is a strong communication plan on advising that the functionality of the real time information system will not be available potentially.
PN220
You can't show us that that can't be done within three working days, can you? My estimate - and it's an estimate in my mind that it is - with the resources that we have at Hornibrook Bus Lines, I need quality time to put the communication plan together and the action plan together if that approach was taken. I think five days for the travelling public would be - suffice to get that information across.
PN221
Just to summarise that last answer, you haven't actually done a plan yet of what defensive steps you intend to take. You haven't done that plan, have you? We have a continuance plan in place for the general business, but for this exercise we do have a list of contacts that we have internally within the business. It's extensive and our view is it will take greater than three days to make sure the information is out correctly.
PN222
You haven't actually pulled that together though, have you? It doesn't appear as an annexure in your affidavit, does it? No, it doesn't.
PN223
Can I suggest to you that the reason it doesn't is because it would not show that you need five days? That's your opinion, Mr Norris.
PN224
You agree or disagree? I think it will take the best part of five days. As a manager of the business and knowing what resources I have at my disposal, I believe it will take five days.”

[46] Mr Mitchell indicated in his evidence that, in not logging in to the system, no data is recorded against that bus on its travel movements for the day. Mr Mitchell indicated that he had not had discussions with Translink about the implications that this data would not show that the service had been conducted. He could not provide evidence as to whether Translink would accept alternative information that provided evidence that the services had in fact been conducted but not registered in the electronic service.

[47] The evidence in relation to this was:

“MR NORRIS: I take it from your affidavit that generally there will be a range of problems that you say will occur as well? That is correct. So by not signing on to the actual shift and the nominated trip, then that flows through to the TransLink journey planner, and then that means the travelling public have no idea of when the bus is going to arrive.
PN260
Am I correct in saying this: NextBus, it will work in this fashion - a GPS signal will be sent, the bus will be tracked and then an algorithm will predict when the bus is going to arrive at about four or five stops where the patron with their smartphone is tapping in trying to get information, is that correct? No. There's a number of items that need to be referenced there. We have a scheduled time on the timetable, which is reflected in our shifts, and the calculation that is done, the bus will pick up a geofence as it goes past a bus stop; it will then - you are incorrect in saying that it'll do a recalculation, because it knows the next geofence at the bus stop may take five minutes or it might take seven minutes. It will do a recalculation. That information is then sent to the MyTransLink app, which the general public then referenced to know when the bus is due to arrive. So there's a scheduled time and then there's a physical arrive time.

PN261
So the issue you take with what I just said is that there will be updates along the way? Basically that's how the MyTransLink app works if the driver is signed on. If the driver is not signed on, that information is null and void.
PN262
But if between two stops, which are seven minutes apart, the driver runs into roadworks or an accident or has an accident themselves, nothing in the TransLink network is going to be able to advise patrons of what's going on, is it? No, that's not correct. If you are signed on with your driver on the DCU for that particular trip the MyApp application will tell you that, you know, this trip is now 10 minutes late or it's now 15 minutes late, okay? So the passenger will know that that bus is running late. It doesn't send them a formal text to say that there is delay due to road works or an accident but it will indicate that the bus is running late.
PN263
MR NORRIS: It'll update me with the obvious; that the bus is running late? That is correct.”

…

“MR NORRIS: Can you tell us how getting five days' notice of this industrial action instead of three working days' notice is going to solve that problem for you? So, Mr Norris, what if - again, it's resources. The issue there is then we have to send our resources to nominated stops with agreeance, possibly, with TransLink in the network to sit there and validate that we have passed those inspection points so that we have commenced and completed or run through that geofence. So we will have to present documentation. The onus of proof will be on us to prove that we actually ran that shift at the nominated timing points.
PN297
All right. And you've had no contact with TransLink as of today's date, inquiring as to whether or not they can make those people available to you, have you? No, no, I'll clarify that. That is our responsibility as the operator, not TransLink. TransLink don't send out operational staff to validate. That used to be the old manual process. When the 3G ticketing system came in that TMR staff used for inspecting sampling, that's the – our process. That no longer exists. It's now up to the operator to validate that they have delivered on their contractual requirement.
PN298
Well, your answer as that you couldn't do it in three working days because you needed to have TransLink people sitting at stops, I presume, TransLink people sitting at stops, I presume, to validate that you've done the trip? I didn't say that, Norris.
PN299
MR MACDONALD: I don't think he said that.
PN300
MR NORRIS: Well, can you just repeat - - -? Yes. Sorry, I'm talking about our own internal operational staff from our bus depot, so I'm talking about operational staff at Hornibrook Bus Lines, that we will have to deploy through the network to record and validate trips that have been run. To give you an idea, we have 600 trips a day. We have 40 school runs, morning and afternoon. I have a team of eight people.
PN301
And you can't roster them and potentially some other people, in three working days, as opposed to five working days? Mr Norris - - -
PN302
I put it to you that that's plainly a misrepresentation? Mr Morris, we operate from 4 o'clock in the morning till 1.30 the following morning. The staff that we employ have a primary duty in the ops room to assist drivers putting rosters together and making sure the daily function of the ops team works, as also delivering services. So I would go as far as to say, of those eight people there would be at least four, if not five people, committed to that pure requirement alone, just in the ops room. So that potentially only leaves me maybe three or four people spare to work a plan to how we can validate at key attractor points of our services being delivered.
PN303
THE COMMISSIONER: Just so I understand that, that process of validation is in order to honour your contractual obligations? That is correct, Commissioner.
PN304
All right, so the question is, that we're talking about, question 9, "an unlimited number of periodic or indefinite bans on signing in to go card machines. That is, go card machines will be switched on but drivers will not sign in". So your evidence in relation to that last question was that you have eight staff, a team of eight people, is that correct? That is correct.
PN305
And they normally work in the operations room? Through the day, and - - -
PN306
Right, and responsive to drivers? Yes.
PN307
And in order to honour your contractual obligations, and the contractual obligations that we're talking about are that you have an obligation to TransLink to ensure to them that your bus services have run their rostered rounds? That is correct.
PN308
And so what you say is that four some 600 trips per day, you are going to have to deploy your team of eight people - - -? To known points within our network to validate the services being delivered. If I could go back one step, Commissioner, the issue that will come up, because the TransLink review, the delivery of services through NextBus – if NextBus is not functional and the driver has not signed on, basically there is a potential there that they're going to have a number of trips where they're going to come back to the operator and say, "These weren't' delivered, please prove that they were delivered".
PN309
Have you had correspondence with TransLink as to whether this system, or some other communication to them that the bus routes that were conducted will be sufficient to discharge your contractual obligations? I haven't had that phone call with the contract manager but I do know that it will be a requirement. We will have to – the onus of proof will be on us, on our monthly return that they will say we have missed all these trips. So we need to counter-prove that to say that these trips were validated and we need to be at the actual – I'll give – if I could use an example. North Lakes interchange where a number of our services cross through for the travelling community, we will be using that as a nominated point to validate that the scheduled time was X and the pass through time was Y.”

[48] It is acknowledged in the circumstances that the Nextbus System may not be operational and that this may cause inconvenience for passengers but, as stated by the Applicant, the buses, without this communication of such, will still be dispatched during period in accordance with the timetable, however, delays or adjustments would not be able to be electronically communicated. However, as advocated by Mr Norris, it is within the scheme of protected industrial action that it is to have an impact on an employer and only in exceptional circumstances where additional notice is required to take particular defensive action, should the time period of the notification be extended.

[49] Mr Norris referred to the Decision in CEPU v Australia Postal Corporation 18, in this regard, where the Decision of the Full Court of the Federal Court in Davids Distribution Pty Ltd v National Union of Workers19 was relied on as follows:

“[12] The predecessor of s.441 of the current Act was s.170MO of the pre-reform Act. A majority of the Full Court of the Federal Court in Davids Distribution Pty Ltd v National Union of Workers3 held that s.170MO of the pre-reform Act and, in particular, s.170MO(5)

“...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.”

[50] The evidence does not support a finding of exceptional circumstances for the provision of five working days’ notice in relation to the protected industrial action proposed by Question 9 of the amended draft order. A case has not been made out that exceptional circumstances exist warranting the 2 extra working days of notice.

[51] For the aforementioned reasons, the protected action ballot order will issue on that basis, with 3 working days’ notice provided for Questions 1, 7, 8, 9 and 10 and 5 working days’ notice for Questions 2, 3, 4, 5 and 6.

[52] A separate Order [PR587659] will issue.

COMMISSIONER

Appearances:

Mr L Norris, Legal Officer, for the Transport Workers’ Union of Australia

Mr I MacDonald, National IR Manager, Australian Public Transport Industrial Association, for Hornibrook Group of Companies

Hearing details:

2016.

Brisbane and Sydney (via videolink):

3 November.

2016.

Brisbane:

4 November.

 1   [2016] FWC 3347.

 2   Transport Workers Union of Australia v Bus Queensland [2016] FWC 3347 at [38].

 3   Annexure D to the Affidavit of Rolf Mitchell.

 4   Transport Workers Union of Australia v Bus Queensland [2016] FWC 3347 at [38].

 5   [2012] FWA 133.

 6   HSU v Victorian Institute of Forensic Mental Health[2012] FWA 4633; Australian Nursing Federation v Victorian Hospitals Industrial Association[2011] FWA 7198.

 7   TWU and AMWU v the Chief Executive of the ACT Internal Omnibus Network(ACTION) on behalf of the Australian Capital Territory[2010] FWA 3355.

 8   CPSU, the Community and Public Service Sector v G4S[2011] FWA 2115.

 9   United Firefighter’s Union of Australia [2013] FWC 5360.

 10   Construction, Forestry, Mining and Energy Union (EnergyAustralia) [2013] FWC 2748; AMWU v Clyde Babcock-Hitachi (Australia) Pty Ltd[2011] FWA 2291.

 11   TWU v ISS Security Pty Ltd[2012] FWA 7141.

 12   CPSU, the Community and Public Sector Union v Commonwealth Government - Australian Customs and Border Protection Service[2011] FWA 3919.

 13   [2007] AIRC 848.

 14 [2007] FCA 388 (27 March 2007).

 15   [2007] AIRC 848.

 16   Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation [2007] AIRC 848.

 17   Transport Workers Union of Australia v Bus Queensland [2016] FWC 3347.

 18   [2007] AIRC 848.

 19 (1999) FCA 1108.

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