Transport Workers' Union of Australia v Kinetic (Melbourne) Pty Ltd T/A Kinetic
[2022] FWC 536
| [2022] FWC 536 |
| FAIR WORK COMMISSION |
| REASONS FOR DECISION |
Fair Work Act 2009
s.437—Protected action
Transport Workers’ Union of Australia
v
KINETIC (Melbourne) Pty Ltd T/A Kinetic
(B2022/180)
| COMMISSIONER HAMPTON | MELBOURNE, 18 MARCH 2022 |
Proposed protected action ballot of employees of KINETIC (Melbourne) Pty Ltd – union bargaining representative – whether genuinely trying to reach an agreement – whether additional notice of proposed industrial action is to be required – whether exceptional circumstances exist warranting an extension – valid application made – applicant union genuinely trying to reach agreement – exceptional circumstances found – extension granted for certain forms of action – ballot order issued.
Background and case outline
An application has been made by the Transport Workers Union of Australia (TWU) under s.443 of the Fair Work Act 2009 (Act) for a protected action ballot order (PABO) to be issued. The application was heard on Friday 11 March 2022, with some additional documentary evidence provided later that day.
The application is opposed by the employer, KINETIC (Melbourne) Pty Ltd (Kinetic) on the basis that one of the prerequisites for the granting of a PABO has not been met. Namely, that the TWU has not been and is not presently genuinely trying to reach a new enterprise agreement with them. In general terms, the basis of this objection is that the application has been made prematurely.
Further, Kinetic also seek that should the PABO be issued, an extended period of notice (beyond the 3 days specified in the Act) be required in relation to certain forms of industrial action proposed in the Order. This contention originally referenced those forms of industrial action that directly involved work stoppages. However, Kinetic later sought that the Commission also include overtime bans in light of a very recent decision[1] of the Commission. This claim requires consideration of whether there are exceptional circumstances, whether those circumstances warrant an exercise of discretion to require an additional period of notice, and if so, what further period up to a maximum total of 7 working days.
Having heard evidence[2] and submissions from each party and considered that material in the context of the requirements of the Act, I issued the PABO on 16 March 2022, with an order for extended notice to be given in relation to some of the proposed industrial action. In so doing I indicated that I would subsequently issue reasons for that decision.
The general context in which the ballot order was sought
Kinetic hold the contract with Public Transport Victoria (PTV) to conduct about 30 percent of the public bus transport services in Melbourne. This involves something in the order of 30,000 services each week with an expected daily average of approximately 40,000 passengers.
The Kinetic contract includes responsibility for 134 dedicated school services. School aged children and other passengers also utilise many other services, which in turn are part of the greater Melbourne bus transport network. Other parts of that network are conducted by other private providers. A significant tram and train network also operates in the greater Melbourne region.
Kinetic took over the contract on 31 January 2022. This change was announced in October 2021. The contract concerned had previously been operated by Transdev Melbourne Pty Ltd (Transdev). Upon commencing the contract, because of the transfer of business provisions in Part 2-8 of the Act, Kinetic also became covered by the Transdev Melbourne Pty Ltd Bus Driver Enterprise Agreement 2018-2021 (the 2018 Agreement). The 2018 Agreement reached its nominal expiry date on 1 December 2021.
The TWU had commenced negotiations with Transdev and the other providers of bus services in Melbourne during 2021. Upon becoming aware that Kinetic had won the contract in October 2021, the TWU provided a log of claims to Kinetic based upon an existing Transdev-based document and had some preliminary discussions with the incoming employer about a potential enterprise agreement.
On 4 February 2022, Kinetic issued the Notice of Employee Representational Rights required by s.173 of the Act where the employer agrees to bargain. The parties are, in effect, negotiating a replacement enterprise agreement for the 2018 Agreement.
Bargaining meetings have been conducted on 9, 16, and 24 February 2022 and 2 and 9 March 2022. Further regular meetings are planned.
PABOs have very recently been sought and issued by the Commission involving some other “Melbourne” and regional bus operators; namely, Ventura Bus Lines Pty Ltd[3], LC Dyson’s Bus Services Pty Ltd[4], Ivanhoe Bus Company Pty Ltd[5], Invicta Bus Services Pty Ltd[6], Peninsula Transit Pty Ltd[7], US Bus Lines Pty Ltd[8], Moorabbin Transit Pty Ltd[9]. These applications were not opposed by the respective employers and no additional notice of industrial action was apparently sought, and none was granted.
The requirements for the making of a ballot order
3.1The immediate statutory provisions
The Act provides relevantly 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.
438 Restriction on when application may be made
(1)If one or more enterprise agreements cover the employees who will be covered by the proposed enterprise agreement, an application for a protected action ballot order must not be made earlier than 30 days before the nominal expiry date of the enterprise agreement, or the latest nominal expiry date of those enterprise agreements (as the case may be).
(2)To avoid doubt, making an application for a protected action ballot order does not constitute organising industrial action.
…
440 Notice of application
Within 24 hours after making an application for a protected action ballot order, the applicant must give a copy of the application to the employer of the employees who are to be balloted, and:
(a)if the application specifies a person that the applicant wishes to be the protected action ballot agent—that person; or
(b)otherwise—the Australian Electoral Commission.
441 Application to be determined within 2 days after it is made
(1)The FWC must, as far as practicable, determine an application for a protected action ballot order within 2 working days after the application is made.
(2)However, the FWC must not determine the application unless it is satisfied that each applicant has complied with section 440.
…
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.”
It is common ground that a valid application has been made including that the relevant existing enterprise agreement has passed its nominal expiry date and that there has been a notification time under s.234(2A) of the Act.
3.2The role of the Commission in a PABO application
The role of the PABO, and consequently the role of the Commission in considering any such application, is established by the terms of the Act. Essentially, a PABO is a necessary step for a bargaining representative to ultimately seek the capacity to take protected industrial action in support of bargaining for a single enterprise agreement.
The PABO is part of the bargaining regime of the Act. The scheme of the Act is outlined in various decisions of the Commission including in John Holland v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and The Australian Workers’ Union[10] and by the Federal Court in J.J. Richards & Sons Pty Ltd v Fair Work Australia.[11]
The taking of protected industrial action by both employees and employers that is designed to advance claims and to persuade the other party to change their position, is part of that scheme. This must be undertaken in the context of the relevant party genuinely trying to reach an enterprise agreement.
Whether any proposed industrial action becomes protected will ultimately depend on compliance with the statutory parameters including whether a relevant question is supported by the ballot,[12] whether the action is notified in accordance with the requirements of the Act,[13] and whether it is industrial action within the meaning of the Act.[14] Further, an employer who is subject to threatened, impending or probable industrial action may seek to have such action suspended or terminated on various grounds including whether it endangers the life, the personal health or safety, or the welfare, of the population or of part of it or causes significant damage to the Australian economy or an important part of it,[15] or causes significant economic harm.[16] Industrial action that is not protected industrial action may be prevented.[17]
It is not presently the Commission’s role to determine whether industrial action is necessary or appropriate, or even whether the bargaining positions of the parties are reasonable, other than to the limited extent that this informs the statutory prerequisites for the issuing of a PABO, such as whether the applicant union is genuinely trying to reach an enterprise agreement.
Where the application meets all of the relevant requirements, the Commission is obliged under s.443 of the Act to issue a PABO, and if all of the requirements have not been met, is obliged not to do so.
Has the TWU been genuinely trying to reach an enterprise agreement with Kinetic and is it still doing so?
One of the prerequisites for the making of a PABO provided by s.443(1) of the Act is that the Commission must be satisfied that the applicant, in this case the TWU, has been and is genuinely trying to reach an enterprise agreement with the employer. This is in dispute.
Whether the TWU ‘has been, and is, genuinely trying to reach an agreement’ must be decided by reference to all of the circumstances of the bargaining that has occurred with Kinetic, including the nature and extent of the progress in the negotiations and the steps taken by the applicant union in order to try and reach agreement.
In Total Marine Services Pty Ltd v The Maritime Union of Australia[18] (Total Marine) the Full Bench of the Commission stated:
“[30] The requirement that an applicant for a ballot order genuinely try to reach an agreement and be continuing to do so at the time an application for a ballot order is made was a requirement in the Workplace Relations Act 1996. The wording of the relevant section has been altered because of the removal of a process of establishing a bargaining period during which protected action may be taken. The concept of genuinely trying to reach an agreement was dealt with in other parts of the Workplace Relations Act 1996, specifically in relation to the grounds for terminating a bargaining period.
[31] In our view the concept of genuinely trying to reach an agreement involves a finding of fact applied by reference to the circumstances of the particular negotiations. It is not useful to formulate any alternative test or criteria for applying the statutory test because it is the words of s 443 which must be applied. In the course of examining all of the circumstances it may be relevant to consider related matters but ultimately the test in s 443 must be applied.
[32] We agree that it is not appropriate or possible to establish rigid rules for the required point of negotiations that must be reached. All the relevant circumstances must be assessed to establish whether the applicant has met the test or not. This will frequently involve considering the extent of progress in negotiations and the steps taken in order to try and reach an agreement. At the very least one would normally expect the applicant to be able to demonstrate that it has clearly articulated the major items it is seeking for inclusion in the agreement, and to have provided a considered response to any demands made by the other side. Premature applications, where sufficient steps have not been taken to satisfy the test that the applicant has genuinely tried to reach an agreement, cannot be granted.”
The observations in [32] of Total Marine should be understood in the context of the later Full Bench in Esso Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers' Union (AMWU); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU); The Australian Workers' Union (AWU)[19] which stated:
“[35] For our part, for reasons we articulate later, we agree with the observations in paragraph [31] and the first three sentences of paragraph [32] of Total Marine, set out above. We note that the observations which follow the first three sentences in paragraph [32] are obiter and although we do not consider that they should be understood as attempting to establish any binding decision rule, nonetheless they are, with respect, somewhat inconsistent with the earlier expressed proposition (with which we agree) that it is not useful to articulate any alternative test or criteria to the words of s.443(1)(b). We note that similar reservations were expressed by the majority of the Full Bench in JJ Richards and Sons Pty Ltd v TWU (JJ Richards No.1) and by the Full Bench in Farstad Shipping (Indian Pacific) Pty Ltd v MUA (Farstad). (Footnotes omitted)
In approaching any such assessment, it must also be borne in mind that the expression “genuinely trying” in the present context is concerned with the genuineness of efforts by the relevant bargaining representative to achieve the goal of an enterprise agreement that meets the approval requirements of the Act. This will turn upon the applicant’s motivation; its intention, object or purpose.[20]
The TWU contended that it has been and remains genuinely trying to reach an enterprise agreement with Kinetic. Amongst other matters, it relied upon the history of the negotiations, the bargaining meetings that have been conducted to date, and its continuing efforts to secure an enterprise agreement with the employer.
Kinetic contended that the PABO application was premature. Amongst other matters, Kinetic relied upon the fact that it only took over the contract in late January 2022, that there had only been a limited number of bargaining meetings and had not had any response to its own log of claims that was soon to be provided. Kinetic also raised concerns about whether the application was motivated by a desire by the TWU to “leverage (Kinetic) employees in an attempt to settle a dispute with another bus operator”.[21] Mr Smith’s evidence[22] was also that Kinetic’s position was motivated, at least in part, by the view that negotiations had not reached an end point or an impasse.
The general context for the negotiations to date has been set out earlier in this decision. There was little direct dispute about the facts relevant to this aspect of the matter. The evidence reveals that there have been 5 bargaining meetings to date and that these have been meaningful. The parties have been working through the claims made by the TWU to, in effect, modify the terms of the 2018 Agreement. This has involved both initial, and in many cases, more developed responses from Kinetic. A number of claims have been agreed in principle, others are being resisted or rejected by Kinetic, and others remain the subject of further discussions. The parties have agreed to regular (weekly) bargaining meetings going forward and the TWU has committed to even more regular meetings if that would assist in reaching an early and appropriate agreement. The evidence of Mr Lean about the motivation, intention, and purpose of the TWU to seek an enterprise agreement was convincing.
The discussions to date have certainly not reached an impasse and it could not be said that it is presently necessary for the TWU to engage in industrial action to advance its position. However, for reasons outlined above, these are not necessary elements for a PABO to be issued. The relevant jurisdictional consideration is whether the evidence and the circumstances reveal that the TWU has been and continues to be genuinely trying to reach an enterprise agreement with Kinetic.
In all of the circumstances, I find that the TWU has been and continues to be genuinely trying to reach an agreement with Kinetic. The bargaining has been short in duration but sufficient to form a proper objective view about the intentions of the TWU. In the short period involved, the parties have met a number of times and the TWU log of claims has been subject to relatively detailed responses from Kinetic and as set out above, positions have been adjusted. The TWU has sought that future meetings be conducted on a regular basis and remain open to finalising an enterprise agreement, including consideration of any proposals that Kinetic wishes to advanced in its own right.
The fact that the TWU commenced informal discussions with Kinetic, and provided what amounts to an advanced version of its log of claims prior to the commencement of the contract and formal bargaining, is relevant, at least in a contextual sense. Those steps are also consistent with the view that I have formed that the TWU has been and remains genuinely trying to reach an enterprise agreement with Kinetic.
The fact that Kinetic has not yet provided its own “log of claims” is not determinative of the issue, particularly as there has been little that has prevented it from advancing such to date. The concerns about the alleged improper use of the PABO in terms of other Melbourne bus operators was not clearly articulated. It is common ground that there are other negotiations taking place and that PABOs have been sought and issued. In any event, it is not clear how this alleged motivation would operate and as outlined above, the TWU’s evidence as to its intentions in seeking the capacity to take protected industrial action, if approved by the members and subsequently required, against Kinetic in support of reaching an enterprise agreement with this employer, was convincing.
Accordingly, I am satisfied that the TWU has been, and is, genuinely trying to reach an agreement with Kinetic. This satisfies s.443(1)(b) of the Act.
Should an extended period of notice be required for some forms of proposed industrial action – section 443(5)?
The PABO as issued provides for the following questions seeking endorsement for industrial action by the employees:
1. Overtime Bans – employees will refuse to work outside of ordinary hours?
2. Work bans – Employees will refuse to perform part of their usual work duties?
3.Periodic Stoppages – An unlimited number of stoppages of the performance of all work for specified periods of between one (1) and seventy-two (72) hours. This action may be organised and/or engaged in on consecutive occasions?
4. Indefinite Stoppage – Employees will cease work for an indefinite period?
Kinetic sought that 5 days notice of industrial action be provided in the case of questions 1, 3 and 4. The basis for its position may be summarised as follows:
· The reliance placed upon public transport by the public in Melbourne as a major metropolitan city.
· The number of services operated to the public by Kinetic and the large number of schools, tertiary colleges and other service areas that need to be notified.
· The fact that the Respondent must discuss, take direction and seek approval for alternative strategies from the Regulator - PTV.
· The issue of exceptional circumstances relating to the bus industry has been canvassed by decisions of the Commission and an extended period of notice has been provided in various decisions.[23]
· The Respondent is a Public Transport operator providing an essential service to passengers who may otherwise be unable to travel. As we are still in the midst of the COVID pandemic, any restrictions on travel may create a risk to the health and safety of people and has the potential to impact the economic recovery of Melbourne. In particular, any restriction on travel may prevent people from seeking medical attention and/or essential shopping activities.
· Further, any services involving the transport of school children must be excluded from the any work bans in the interests of the welfare of school children who are dependent on them for travel. There is a real risk of harm created when children (of school age) are left behind or are forced to seek alternative methods of travel out of fear of missing school or being late.
· Many school children use regular route services as part of their travel to and from school. If a child is using more than one bus service, they may find that the interconnecting service has been cancelled due to the work stoppages (this may be run by Kinetic or another Bus Operator) and be “left alone in a location far from home and far from their destination”.[24]
· It is very possible that the TWU will seek to engage in industrial action across Melbourne at the same time, meaning that more work must be done to review and change bus services and liaise with PTV.
· Protected industrial action affecting public transport services in 2018 have disrupted the communities in Melbourne immensely. That was the intended purpose of the industrial action.
The TWU opposed that proposition and contended that there were no exceptional circumstances evident in relation to this matter. The basis for its position may be summarised as follows:
· There are no exceptional circumstances existing in the present application, or within the Melbourne bus transport sector more generally and previous PABOs in this sector had not specified more than 3 days notice of industrial action.
· There has never been an issue of public (or child) safety arising from previous industrial action in this sector and a 3-day stoppage and more limited stoppages were conducted in earlier rounds of bargaining and the employers were able to make appropriate arrangements to notify the travelling public.
· Exemptions from stoppages for services specifically for special needs schools was the norm with this branch of the TWU. The TWU supported steps to ensure that no child was left at a bus stop (where a service was running).
· Notices could be supplied to schools, Kinetic and the PTV (and others) could place notices on the bus stops of the affected routes and social media could be utilised to provide the necessary notice to the travelling public.
· Stoppages in the sector in 2018 did not provide any basis for a finding of exceptional circumstances.
The principles to be applied in relation to an extension of the notice period for engagement in employee claim action were comprehensively stated in the Full Bench decision in National Tertiary Education Industry Union v Charles Darwin University[25] (NTEIU v Charles Darwin). In relation to s 443(5) generally, the Full Bench observed:
“[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.”
The approach to exceptional circumstances in this context cited by the Full Bench in the above matter was as discussed by Lawler VP in CEPU v Australian Postal Corporation[26] (CEPU), which concerned an equivalent provision of the Workplace Relations Act 1996[27] where he concluded:
“[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.”
The Full Bench in NTEIU v Charles Darwin further set out the three-step decision-making process required in order to determine whether there should be an extension to the notice period pursuant to 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).”[28]
Accordingly, in order for an extended period of notice to be granted, the Commission must be satisfied both as to the existence of exceptional circumstances and the fact that these justify the granting of the extended notice.
As made clear in the authorities above, this also requires a weighing up of the opportunity for the employer to take appropriate defensive action against the diminution of the effectiveness of the TWU members’ bargaining power that is contemplated by the scheme of the Act. In that light, it would not be a relevant exercise of discretion to grant additional notice simply to allow the employer to neutralise the impact of the industrial action.
The exceptional circumstances relied upon in this case relate to the impact of work stoppages and overtime bans in relation to a significant part of the Melbourne metropolitan bus services, and the difficulties faced in that context. These difficulties included the time that would be necessary to put appropriate contingency arrangements in place, and most particularly the need to give sufficient notice to the travelling public of the cancellation of these services. Further, the special needs of some of the travelling public are also relevant here.
The fact that this matter involves a significant public transport service, with the implications for the more vulnerable of the travelling public, is clearly relevant but not by itself sufficient to lead to a finding of exceptional circumstances. However, in this case, it is the size and complexity of the network concerned with the contract, combined with the fact that industrial action may only involve part of what is an integrated bus network. The task of notifying the travelling public, including the parents and carers of school children and others with particular safety needs, is complex due to the nature and extent of the services provided including that the buses concerns all carry the same livery, there are over 10,000 bus stops and up to 1,000 schools in the Kinetic contract area, and the interconnection of bus routes conducted by various operators means that the potential for the travelling public to be left stranded part-way through their trip is significant. This creates the need to take extensive measures to ensure, as far as is possible, that the travelling public involved is advised from relevant sources precisely what routes are to be impacted. Ironically, whilst Kinetic was particularly concerned about a potential stoppage across the Melbourne bus network operators, and I accept that this would cause significant disruption, I would be less inclined to consider that there were relevant exceptional circumstances associated with the need to notify the public in that particular context. That is, the wide-spread cancellation of all or most city services would reduce the complexity and time necessary to notify the travelling public.
However, the ballot questions do not limit the circumstances in which the various forms of stoppage might take place if authorised by the ballot. I must therefore take them at face value and assess the circumstances in that context.
In terms of the 134 dedicated school services, if this was the total of the services impacting upon school children, I would not consider that this circumstance would justify additional notice. However, many of the services involved, including many which would impact upon school children and other more vulnerable members of the public, connect with those provided by other Operators and this increases the challenge to ensure that the travelling public (and their carers where appropriate) is aware of precisely what services are impacted by whatever industrial action is authorised by the ballot and notified by the TWU.
Questions 3 and 4 involve industrial action that is likely to lead to the need to cancel services and directly engage the above considerations.
The evidence[29] is that any significant overtime ban (question 1) would have the effect of leading to the cancellation of some services, particularly on weekends. This might include, depending upon the degree and length of any such ban, a major impact upon weekend routes from the Doncaster and North Fitzroy depots and this includes most of the routes in the city and the Doncaster area rapid transport services. This would represent significant disruption however the evidence does not clearly establish that overtime bans would lead to the significant cancellation of services during weekdays. Although the circumstances of the more vulnerable travelling public would also be impacted on weekends, the evidence does not support a conclusion that this would represent exceptional circumstances so as to justify an additional period of notice being required. Given that it is necessary[30] for Kinetic to demonstrate the basis of the exceptional circumstances and the appropriateness of the Commission requiring additional notice, I have not included question 1 in the extended notice provisions of the PABO.
In making the assessment required by s.443(5) of the Act, I have taken into account the capacity for Kinetic (and the PTV) to also use conventional and social media to advise the travelling public of route cancellations. However, Mr Smith’s evidence[31] about the difficulties and limitations with doing so, the limitations on the use of electronic signs in place at some of the bus stops, and the task of printing and posting signage at each (or most) of the 10,000 bus stops involved, was convincing. In that regard, whilst the contingencies associated with the COVID-19 pandemic and the need to cancel or reduce some services at short notice based upon driver unavailability is relevant,[32] the nature and potential impact of the industrial action contemplated by the PABO questions is of a different and broader import.
As would be clear, each party here has referred to various PABO decisions where the Commission has, or has not, provided for an exceptional circumstances extension to the notice required in the context of public bus services. I observe that are some case where the Commission has determined that such extensions should be provided based upon the consent of the relevant “branch” of the TWU, and in some limited cases, determined against the position advanced by the TWU. In other cases, including recent PABO’s issued in Victoria, the relevant employer has not sought an extended period of notice and none has been provided. As would be clear from the above, I have determined this matter in the specific context of this application and the circumstances arising from the evidence before the Commission.
I am satisfied that there are relevant exceptional circumstances, and these justify an extension of the 3 working days’ written notice referred to in s 414(2)(a) of the Act in relation to 2 of the 4 questions. I am also satisfied that it is appropriate to grant an extension of 2 additional working days in each case given the evidence about the use to which those additional days would be applied.
I should make it clear that the existence of exceptional circumstances in this matter does not reflect upon the strong commitment of the TWU not to leave children at bus stops. I also do not doubt the genuineness of the view of Mr Lean that the transport of special needs children has not in the past, or would not in the future, be disrupted. In this case, the concerns leading to the findings are much broader than reflected in these very appropriate approaches and there are no dedicated “special needs” school routes in the Kinetic contract.
In all of the circumstances of this matter, I was satisfied that a period of a minimum of 5 working days notice is warranted by the exceptional circumstances and appropriate in relation to the forms of industrial action outlined in questions 3 and 4. As a result, the PABO included a provision providing for the relevant extended period of notice of industrial action under s.443(5) of the Act.
Conclusions and orders
I found that the statutory requirements of s.443 had been met and that the proposed PABO as modified to reflect my decision should be issued.
Accordingly, I was obliged to, and did, issue the PABO[33] on 16 March 2022.
I also observe that should any of the parties in this matter seek the Commission’s assistance to deal with the bargaining dispute, an application may be lodged under s.240 of the Act.
COMMISSIONER
Appearances:
J Cooney with R Lean for the Transport Workers Union.
P Harris with D Head and G Smith for Kinetic (Melbourne) Pty Ltd T/A Kinetic.
Hearing details:
2022
March 11
Video Hearing.
[1] Transport Workers Union of Australia v Ingleburn Bus Services Pty Ltd T/A Interline Bus Services[2022] FWC 538, concerning a PABO for a New South Wales, that was handed down on 10 March 2022.
[2] Statement (exhibit TWU1) and oral evidence of Mr Robert Lean, Union Organiser TWU (Victoria/Tasmania) Branch and statement (exhibit Kinetic 1) and oral evidence of Mr Graham Smith, General Manager Service Delivery Kinetic.
[3] PR739114, PR739116, PR739122, PR739124.
[4] PR739138
[5] PR739102
[6] PR739097
[7] PR739104
[8] PR739111
[9] PR739108
[10] [2010] FWAFB 526.
[11] [2012] FCAFC 53.
[12] Sections 437, s 408 and 409 of the Act.
[13] Section 414 of the Act.
[14] Section 19 of the Act.
[15] Section 424 of the Act.
[16] Section 423 of the Act.
[17] Section 418 of the Act.
[18] [2009] FWAFB 368.
[19] [2015] FWCFB 210.
[20] Mermaid Marine Vessel Operations Pty Ltd v The Maritime Union of Australia [2014] FWCFB 1317 in citing the majority in J.J. Richards & Sons v Transport Workers’ Union of Australia[2010] FWAFB 9963. See also JJ Richards & Sons Pty Ltd v Fair Work Australia [2012] FCAFC 53 at 58.
[21] The evidence of Mr Smith – exhibit Kinetic 1 at 4.
[22] Transcript PN227.
[23] Transit Australia Pty Ltd v. Transport Workers Union of Australia[2011] FWA 3410; Transport Workers Union of Australia v. Westside Bus Company Pty Ltd atf Westside Unit Trust T/A Bus Queensland, [2016] FWC 3347; 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 [2016] FWC 7696; Transport Workers' Union of Australia v Transit Australia Pty Limited T/A Sunshine Coast Sunbus[2021] FWC 6245; Transport Workers' Union of Australia v Transit Australia Pty Limited T/A Marlin Coast Sunbus[2021] FWC 6246; Transport Workers’ Union of Australia v Ingleburn Bus Services Pty Ltd T/A Interline Bus Services, [2022] FWC 538.
[24] Kinetic written submissions.
[25] [2018] FWCFB 4011.
[26] [2007] AIRC 848.
[27] Section 463(5).
[28] See also Construction, Forestry, Maritime, Mining and Energy Union v DP World Brisbane Pty Ltd t/a DP World and Others[2019] FWCFB 1150.
[29] Mr Smith – transcript PN204 and PN205.
[30] See the approach in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Essential Energy[2021] FWC 6128.
[31] Transcript PN247 to PN255.
[32] Arising under cross-examination of Mr Smith – transcript PN251 to 256.
[33] PR739196.
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