Transport Workers' Union of Australia v ISS Facilitative Services T/A ISS Security

[2016] FWC 8006

[2016] FWC 8006

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
ISS Facilitative Services T/A ISS Security
(B2016/1156)

COMMISSIONER PLATT ADELAIDE, 7 NOVEMBER 2016

Proposed protected action ballot of employees of ISS Facilitative Services T/A ISS Security.

[1] This is an application made pursuant to s.437 of the Fair Work Act 2009 (the Act) by the Transport Workers’ Union of Australia (TWU), for a protected action ballot order, in relation to certain employees of ISS Facilitative Services T/A ISS Security (ISS).

[2] On 2 November 2016, my Associate provided copies of the proposed draft order to the parties. The TWU confirmed its agreement to the making of the order in the terms provided. ISS advised that it did not oppose the application, but wished to extend the written notice period for the intended action from 3 to 7 days pursuant to s.443(5) of the Act. The TWU opposed this request.

[3] A hearing was conducted by telephone on 3 November 2016. At the conclusion of the hearing I determined that pursuant to section s.443(5) of the Act, there were exceptional circumstances warranting the extension of the notice period to 5 days. My reasons for this decision follow.

[4] ISS submitted that:

● the employees subject to the proposed Agreement provide security services at the Adelaide Airport in accordance with the Aviation Transport Security Act 2004 (Cth) and the Aviation Transport Security Regulations 2005;
● ISS’s Adelaide workforce comprises solely of employees and it is not possible to supplement this workforce by access to casual and/or labour hire employees;
● any replacement employees would need to come from ISS’s interstate operations and would require mobilisation;
● the withdrawal of labour would prevent access to the secure portion of the Adelaide airport by outgoing passengers;
● three days would not be sufficient time to determine any employee shortfall and mobilise replacement labour from interstate; and
● a 7 day notice period was appropriate in the circumstances.

[5] The TWU contended that the withdrawal of labour was but one option and ISS should be able to mitigate the impact of any protected action within the 3 day minimum period.

[6] This is not a case where the impact of the proposed industrial action solely affects the employer. This would significantly impact the travelling public during the Christmas and New Year holiday period.

[7] I accept that it would not be practical for ISS to mitigate the impact of any withdrawal of labour within 3 days, particularly in light of the need to mobilise replacement employees from interstate.

[8] In CEPU v Australian Postal Corporation 1, Vice President Lawler discussed the
meaning of “exceptional circumstances,” stating:

“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.” 2

[9] While decided in a different statutory context, the approach taken in the above passage has been adopted by members of the Commission in the consideration of s.443(5) of the Act.

[10] Applying this approach to the facts in this matter, I find that exceptional circumstances exist within the meaning of s.443(5) of the Act and extend the notice period to 5 days.

[11] An order 3 was issued on 3 November 2016 in the terms agreed with the addition of the 5 day notice period.

COMMISSIONER

 1   [2007] AIRC 848.

 2 Ibid at [21].

 3  PR587155.

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