Transport Workers' Union of Australia v Linfox Armaguard Pty Ltd

[2014] FWC 7558

[2014] FWC 7558

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

Transport Workers’ Union of Australia
v
Linfox Armaguard Pty Ltd
(B2014/1408)

COMMISSIONER GREGORY MELBOURNE, 11 NOVEMBER 2014

Proposed protected action ballot of employees of Linfox Armaguard Pty Ltd.

Introduction

[1] Linfox Armaguard Pty Ltd (“Armaguard”) and the Transport Workers’ Union (“TWU”) are negotiating a new Enterprise Agreement. As part of that process the TWU has made application for a protected action ballot order.

[2] The order proposes that employees be asked to vote on four types of proposed protected industrial action, which might be taken “separately, concurrently and/or consecutively.” They are:

“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 on consecutive occasions.

4. Indefinite Stoppage – Employees will cease work for an indefinite period.” 1

[3] Armaguard does not oppose the application. It submits it is for the Commission to determine whether or not an order should be made. However, it also submits there could be “serious security consequences” if it is not able to put appropriate contingency arrangements in place in response to some of the proposed protected industrial action. 2

[4] It submits the Commission should therefore exercise the discretion available to it to extend the written notice period to be provided before protected industrial action of the type authorised by questions 2, 3 and 4 is taken. It submits the period should be extended from the normal 3 days to 7 working days.

[5] This discretion is conferred on the Commission by s.443(5) of the Fair Work Act 2009 (Cth) (“the Act”). It states:

“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.”

[6] The proposal to extend the notice period is opposed by the TWU. It submits the submissions and evidence do not indicate the existence of any “exceptional circumstances” to warrant an extended notice period.

The Issue to be Determined

[7] Are there are “exceptional circumstances” in relation to the proposed industrial action that is the subject of the protected action ballot?

[8] If so, do those circumstances justify the required period of written notice being longer than 3 days?

[9] In the event that the above questions are answered in the affirmative then two further issues arise. Firstly, what longer period of time should be provided for, and should that extended period apply in respect of each of the forms of action proposed in Questions 2, 3 and 4 of the ballot?

The Submissions and Evidence

[10] Linfox does not oppose the application for the making of a protected action ballot order and submits it is for the TWU to satisfy the Commission that the requirements of s.443 have been satisfied. However, it submits the notice period in s.414(2)(a) should be extended to 7 working days in respect of any industrial action authorised by questions 2, 3 and 4 of the ballot.

[11] It submits:

“Specifically, the exceptional circumstances relate to the impact that the stoppages of work by Road Crew employees will have on Armaguard, its customers and potentially the public. Armaguard will need to put into place contingency arrangements to minimise cash holdings on clients' premises. This is necessary due to the inherent risks to client staff with large cash holdings on site. This is also necessary to maintain a constant availability of cash to the major financial and retail institutions along with tens of thousands of ATM's nationally.” 3

[12] It submits these do constitute “exceptional circumstances,” and points to a recent decision handed down by Commissioner Hampton, 4 involving similar circumstances in South Australia, which came to the same conclusion. In that matter the notice period was extended to 5 working days.

[13] Mr Mark Nichols is the National Security Operations Manager for Armaguard and has been employed in that role for just on 2 years. He previously worked in a security role with Telstra, and prior to that worked with the Victoria Police for 17 years.

[14] He said Armaguard is the industry leader in terms of safe and secure work and operational practices, and its Road Crews have to adhere to strict safety and security operational procedures and requirements.

[15] He said the stoppages of work contemplated by questions 3 and 4 would result in excess cash being stored on client’s premises, and this was unacceptable for several reasons. Firstly, many clients do not have safe storage for excess amounts of cash. Secondly, there is an inherent risk for clients in storing cash on their premises. Thirdly, Armaguard has “a unique insurance policy,” which requires that the amount of cash stored at a client’s premises is limited. 5 Excess cash storages would not be covered by this insurance and the client would have to bear the cost of any loss. Mr Nichols also indicated in cross-examination that these insurance arrangements mean Armaguard is not able to bring in other contractors to service its clients because it would mean these insurance arrangements are invalidated.

[16] He also stated if stoppages occur and prevent cash deliveries or collections to and from ATMs, financial institutions, and retailers then cash would not be available to the public through ATMs or eftpos cash outs. He also said it was not clear what kind of action might be contemplated by the work bans proposed in question 2, but if normal work duties were subject to significant bans this could have the same effect as a stoppage of work.

[17] Mr Nichols also stated that unless Armaguard received timely notification from the TWU about the action to be taken, and how long it would last, it would be difficult to implement its business continuity plans, which are necessary to ensure contingency arrangements are put in place safely and in a manner consistent with Armaguard’s obligations under State and National codes of practice. It is also difficult to anticipate how many business continuity staff are required to maintain operations in a safe and secure manner. This concern was heightened because those staff are required to be licensed and appropriately trained in both security requirements and the use of firearms.

[18] He said Armaguard required more than 3 working days to put these contingency arrangements in place because of the number of staff required to be licensed to perform cash in transit duties in Victoria. It had also been advised that processing temporary work permits for employees coming from interstate would require at least one week’s advance notice, and a further five days to process the applications.

[19] The scale and complexity of its operations in Victoria also means careful route planning needs to be carried out to ensure the safety of road crews, clients and members of the public. His witness statement concluded by indicating:

“The effect of not being given adequate time, to implement the BCP and receive mutual recognition to work in Victoria, could be that we are not able to collect cash from financial institutions, retailers and service the ATM network. It could also mean that financial institutions and retailers do not have appropriate levels of cash to manage their business, and the (sic) meet expectations of the public. For the reasons outlined above, this will be very disruptive to business and raises serious safety concerns.” 6

[20] Mr Nichols also indicated in cross-examination it was not possible to “just parachute people in to operate our trucks in the processes that we want to operate.” 7 He indicated it took time to ensure staff are properly trained and aware of the relevant requirements in respect of banks, supermarkets and other customers who rely on cash deliveries and collections every day. He also expressed his concern in cross-examination about the potential impact of work bans impacting on the operations related to technical equipment like ATMs, intelligent deposit machines, and cash dispensing and receiving machines. He also indicated in cross-examination he was not able to comment on the operations of other businesses because he did not have an intimate knowledge or understanding about the way they operated. However, he believed Armaguard’s employees are better trained and better equipped than anyone else in the industry, and this meant they were more difficult to replace.

[21] He also indicated in response to a question from the Commission that his recommendation about the need for a 7 day notice period was based on the particular circumstances in Victoria. He said:

“My assessment was based on our ability to be able to get the people into Melbourne, but also to train them, to ensure that they have the appropriate access to the vehicles. I’m not going to - as we spoke about before, I don’t think there’s any need to talk about the individual security requirements of our vehicles, but needless to say, access to our vehicles is strictly controlled and all of these things take time to implement in this type of business continuity plan.” 8

[22] Armaguard continued to submit:

“The logistics of putting in place contingency arrangements for 20,000 site visits a week, 300 cash-in-transit operators’ jobs having to be dealt with and catered for, is a much more logistically difficult exercise than the smaller operations in South Australia. The upshot of that is it takes longer to put those things in place because it is more complex and you need to bring more people in. You need more people to be licensed and everything else that goes with it.” 9

[23] It also submitted that the fact protected action ballot orders have been made in respect of other businesses in the industry with a three day notice period are not relevant to the present matter. Many of those businesses involve much smaller operations. In addition, Armaguard’s operations involve standards of security and safety not shared by others in the industry.

[24] Armaguard also made reference to various authorities in support of its submissions. It, firstly, made reference to the decision of Vice President Lawler in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation 10 and submits it is authority for what is required to find “exceptional circumstances” exist. It notes the decision indicates the Commission is not only required to find exceptional circumstances exist; it must also be satisfied they act to justify a longer notice period being specified.

[25] It also referred to a decision of the Full Court of the Federal Court in David’s Distribution Pty Limited v National Union of Workers 11 to submit that while the TWU has a right to take protected industrial action the scheme of the legislation also anticipates, through the requirement to give notice, that an employer has a right or ability to be able to take appropriate defensive action to protect its business. It submits that an employer is not required to assume a worst-case scenario in terms of the potential impact of protected industrial action, but is instead entitled to understand what the proposed industrial action involves.

[26] It also submits that in the various decisions handed down by the Commission that have provided for additional written notice the interests of the general public and safety considerations have been influential in determining whether the 3 day notice period should be extended.

[27] It continued to refer to a number of those decisions. It, firstly, made reference to the recent decision of Commissioner Hampton dealing with an application in regard to Armaguard’s road crews in South Australia. It submits Commissioner Hampton extended the notice period in regard to stoppages of work in circumstances that are similar to the present matter. However, it also sought to distinguish the decision on the basis that the questions to be put to the ballot in that matter were more expansive and gave a clearer indication of the nature of the intended industrial action. It submits that in the present matter the questions do not provide the same clear indication and, accordingly, the extended notice period should be seven days, rather than five days, as determined by Commissioner Hampton. It also notes that in the application Armaguard made in respect of its operations in South Australia it sought an extended notice period and, in its view, a period of between seven and 10 days was required to enable it to put appropriate contingency plans in place in response to the proposed industrial action. Its approach in that matter was accordingly consistent with its approach in this application.

[28] As indicated, it also made reference to a number of other Commission decisions in which exceptional circumstances have been found to warrant an extended notice period being provided. These included decisions dealing with:

• the operation of power generation plants and, in particular, the requirement to be able to safely shut down the plant over a period of days (Construction, Forestry, Mining and Energy Union v Loy Yang Power Management Pty Ltd 12; Construction, Forestry, Mining and Energy Union General Division and Others v Macquarie Generation13),



• customs operations (The Community and Public Sector Union v Commonwealth Government – Australian Customs and Border Protection 14),



• airborne surveillance operations (Australian Licensed Aircraft Engineers Association v Cobham Aviation Services Engineering Pty Ltd T/A Cobham Aviation Services Australia – Engineering 15),



• the operation of the municipal bus network in the Australian Capital Territory (Transport Workers Union of Australia v the Chief Executive of the ACT Internal Omnibus Network (ACTION) on behalf of the Australian Capital Territory  16),



• airport aviation screening operations (Transport Workers Union of Australia v ISS Security Pty Ltd 17),



• The public school system and the potential disruption to school classes which would make it difficult for parents to make alternate arrangements (Australian Education Union v State of Victoria (Department of Education & Early Childhood Development 18).

[29] The TWU, firstly, referred to the statutory declaration of Mr John Parker, a Senior Organiser with the Union, in support of its application for the making of a ballot order. It also referred to the statutory declaration to detail the attempts made to genuinely reach agreement with Armaguard. It submits there have been a series of meetings between the parties since July of this year and these discussions are ongoing.

[30] The TWU also called Mr Parker as a witness to provide evidence in support of its objection to the application for an extended notice period. He said he has been involved in organising members employed by Armaguard for more than 11 years and has been involved in discussions about a wide range of matters to do with the business in that time. This has particularly involved the road crew operations and the carriage of notes and coins. It has also included issues to do with the introduction of new technologies and enhanced safety measures. He indicated he had also been assisted in his understanding of the business by the detailed knowledge of the employee delegates. He also acknowledged Armaguard is an industry leader in terms of its business operations, although its dominance in the market has diminished in recent times, along with the emergence of many small businesses now operating in the sector.

[31] He did not believe the present situation involved exceptional or unique circumstances and in the recent past there have been protected action ballot orders made with other businesses operating in the same industry, with the normal three day notice period. He also indicated that if Armaguard was unable to fulfil its contractual obligations there would be other operators available to pick up that work.

[32] He also said he was not aware, in any detail, of the contingency plans to be put in place by Armaguard in response to industrial action but said, “I would think that they would have some managerial staff trained up to perform some of our functions that our members would perform and they would be capable of performing that function.” 19 In addition, a number of employees in the management team and in other operational areas had previously been drivers and operators of cash in transit vehicles, and had the ability to take on these roles again.

[33] He also said much of the work in preparing cassettes for ATM machines was carried out by the cash room. Those employees operate under a different industrial agreement and were not part of the current dispute. He acknowledged he did not have a detailed understanding of the licensing requirements to do with firearms, but found Armaguard’s submissions about the need for training and permits to be “farfetched.” 20

[34] Mr Parker also acknowledged in cross-examination he had not worked as a Manager in the industry, and had not been directly involved in the preparation of contingency plans in response to potential industrial action. He also acknowledged safety is a critical factor in the performance of cash in transit work, and Armaguard is an industry leader in this regard.

[35] The TWU continued to submit that much of Armaguard’s submissions involved “motherhood statements” that lacked specific detail. 21 It also questioned the evidence of Mr Nichols because he has only been employed by Armaguard for 2 years, and had no previous experience in the industry. For example, it submits he was not able to point to any incidents involving safety or security concerns in situations where protected industrial action had been taken on the basis of a three day notice period. It also questioned his evidence suggesting work bans should be treated in the same way as an indefinite stoppage in terms of the potential contingency requirements, and the related security and safety concerns.

[36] The TWU also submits there is nothing in the legislation, or in previous decisions of the Commission, that requires the questions to be put in a ballot application having to indicate to the employer specifically what action was going to be taken. It also highlighted another recent protected action ballot order, involving another employer in the same industry, where the same questions were contained in the ballot. It also submitted there are a range of options open to an employer in response to protected industrial action, including the potential to lock out employees.

[37] It also submits there has been no evidence put about how the perceived risk to Armaguard varies or increases, depending on the period of notice provided, and no evidence indicating a three day notice period had led to an incident, or a potential incident, that threatened to compromise security or safety. It accordingly submits there is insufficient evidence before the Commission to suggest an extended notice period would make a material difference.

[38] The TWU submits the application is simply about attempting to minimise the inconvenience to Armaguard, rather than being a response to a significant risk, and there are no unique features impacting on the business that are not present for other businesses in the industry in the same circumstances.

[39] In response to a question from the Commission about the relevance of the recent decision handed down by Commissioner Hampton the TWU submitted it did not set a precedent, but was determined on the facts of that matter. It also noted the evidence in the matter was given by a more senior member of Armguard who “is probably more qualified to give evidence in these matters as opposed to Mr Nicholls (sic), who has only been with the company for two years.” 22

[40] It also submits the various decisions relied upon by Armguard are each different and involve different industry areas. While it did not intend to devalue or underestimate the importance of cash in transit work, it submits the issues confronting Armaguard are different from those involving, for example, the shutdown of a power plant, guarding a prison, or the operation of the public transport system.

Consideration

[41] Both parties acknowledge that the decision of Vice President Lawler in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation 23 is an often cited authority in terms of the meaning of “exceptional circumstances” that justify an extension of the 3 working day period provided for in s.414(2). It was concerned with similar provisions in the Workplace Relations Act 1996 and involved submissions by the Respondent that the period of written notice should be extended to the maximum permissible 7 day period because of the potential consequences stemming from the possible disruption of postal services.

[42] The Vice President indicated in the decision:

“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.” 24

[43] He continued to indicate it was not just a question of whether those exceptional circumstances existed but whether their existence justifies an extension of the required notice period:

“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.” 25

[44] He suggested this involved a weighing of the respective interests, stating at paragraph 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.” 26

[45] He finally concluded that “exceptional circumstances” did exist as a consequence of the potential disruption to mail services, however, he also decided they did not justify an extension of the written notice period.

[46] As indicated, Armaguard also made reference to a number of decisions in support of its application. They clearly confirm, on the one hand, that the Commission has been prepared to extend the written notice period in a variety of different circumstances. However, they also indicate the extended notice periods have varied in length, and in some cases have been limited to certain types of industrial action only. In addition, in some matters the applications were not opposed. The circumstances involved, and the decisions in each case, can be summarised on the following basis.

[47] In CPSU, The Community and Public Sector Union v Australian Customs and Border Protection Service 27 the application was not opposed and an extension of the notice period from 3 to 7 days was granted. Commissioner Deegan indicated:

“The exceptional circumstances relate to the nature of the work carried out by Customs employees and the implications for the national interest if such work were to be disrupted by industrial action taken at short notice.” 28

[48] In Australian Licensed Aircraft Engineers Association v Cobham Aviation Services Engineering Pty Ltd T/A Cobham Aviation Services Australia - Engineering 29 the period of written notice was again extended to 7 days in circumstances where the application was again not opposed. The Vice President accepted the submissions by the Respondent that its Special Mission service involves gathering intelligence for Customs and other agencies, including the Australian Federal Police, Department of Defence, Department of Transport and the Australian Quarantine Service, and the types of industrial action specified had the capacity to have a significant detrimental impact on those services.

[49] In Transport Workers’ Union of Australia v ISS Security Pty Ltd 30 the employees were involved in airport screening at the Adelaide airport. The application for an extended notice period was opposed by the TWU, however, Deputy President Bartel held, “the reasons given by the employer justify the extended period of notice sought. The relocation of workers from interstate may take some time to effect, depending on the circumstances of the workers concerned. The potential consequence of not being able to introduce replacement labour is significant disruption to the travelling public. Aviation screening operates for passengers of all airlines and alternative modes of transport are unlikely to be a viable option for many of them. In my view this constitutes an exceptional circumstance warranting an extension of the notice period.”31 However, the extended 7 working days notice period was only applied to proposed stoppages of work. The standard 3 day notice continued to apply to the other forms of industrial action being put to the ballot.

[50] In Construction, Forestry, Mining and Energy Union v Loy Yang Power Management Pty Ltd 32 Commissioner Bissett granted an extended notice period of 7 days in respect to proposed industrial action, which the evidence indicated would have an immediate effect on the capacity to generate electricity or safely operate or shut down the generator units. The proposed action involved stoppages and/or a ban on higher duties and/or a ban on overtime. The other forms of proposed action remained subject to the three day notice period. Commissioner Bissett concluded:

“On the evidence before me a failure to properly control the shutdown of the generator units may pose some significant risk to LYP not just in terms of the cost of loss of production but in potential adverse effects on the generator units themselves. The evidence is clear that a safe shutdown of a unit takes up to seven straight calendar days.

The potential impact and cost of an improper shut down on equipment should the employees take industrial action that means the units cannot be safely operated is high. The position of LYP with respect to the industrial action is not much different to that envisaged by the Federal Court in the decision in Davids Distribution as set out above. That is the notice period will allow LYP to safely operate or shut down as required the generator units. However, three days is not sufficient to do so given the complexity of the shut down and the requirements of the Agreement. The generator unit is a ‘sophisticated item of equipment [that] will be damaged if precipitately shut down.’ I find that this alone provides justification to extend the written notice period of the intent to take industrial action with respect to questions 1, 2 and 3 to seven working days as defined in s.12 of the Act.” 33

[51] In Construction, Forestry, Mining and Energy Union General Division and Others v Macquarie Generation 34 an application by the employer to extend the written notice period to 7 days was opposed by the CFMEU on the basis that there was sufficient surplus energy capacity on the grid to maintain energy requirements and prevent the disruption of energy supply to customers. However, Hamberger SDP determined there were “exceptional circumstances” existing that justified an increase in the notice period. He concluded:

“The proposed industrial action could mean that the respondent would need to shut down one or more of its turbine generator units. While there was some debate before me about how long it takes to shut down a unit it is clear that the process involved is complex and takes some considerable time. There are risks to safety both of the equipment and the staff. Increasing the period of notice that the applicants must give the respondent of their intention to take industrial action would minimise those risks.

In addition, the respondent is responsible for producing a very large proportion of all the electricity used in New South Wales. Any significant industrial action would almost certainly reduce the amount of electricity the respondent contributes to the NEM. There would be a risk of power blackouts. Giving AEMO the maximum notice possible of any industrial action would assist in managing this risk.” 35

[52] In Transport Workers Union of Australia v ACT Government as represented by the Territory and Municipal Services Directorate T/A ACTION (Australian Capital Territory Internal Omnibus Network) 36 the TWU did not oppose an application for an extension of the written notice period to 7 working days, and the application was granted without detailed reasons being provided.

[53] In the most recent decision in Transport Workers Union of Australia v Linfox Armaguard Pty Ltd 37 Commissioner Hampton granted an extension of the notice period to 5 days in relation to the potential industrial action involving bans in relation to the performance of two-man crewing, work stoppages for periods of between 4 and 24 hours, and bans on ATM servicing. (Additional notice was not sought in regard to the proposed action involving bans on overtime, working to rule, and work stoppages of less than four hours.)

[54] The TWU opposed the application on a number of grounds. It submitted the “exceptional circumstances” previously found to exist by the Commission in other matters, in large part, involved public service activities. It also challenged the evidence provided in relation to Armaguard’s capacity to put in place contingency arrangements, and argued it was simply seeking to reduce the potential costs and inconvenience of the industrial action.

[55] Armaguard initially submitted that between 7 and 10 days notice were required, particularly to ensure mutual recognition of existing licence holders. However, it subsequently acknowledged some reasonable contingency arrangements could be put in place which would reduce this period. It also submitted the “exceptional circumstances” relied upon related to the impact of work stoppages by road crews, given the nature of their role, and the impact on the risks to safety and security for its employees, its customers, and the general public. It argued the contingency arrangements it would need to put in place to minimise those risks required a longer notice period.

[56] In coming to his decision Commissioner Hampton noted he was required to weigh up the opportunity for Armaguard to take appropriate defensive action against the diminution of the effectiveness of the TWU members’ bargaining power. He stated, “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.” 38 However, he concluded (references omitted):

“[24] In this case, the particular nature of the work, the extent of the cash transit business in South Australia conducted by Armaguard, the implications of some forms of potential industrial action for the business, their customers and potentially the public, are all significant factors that support a finding of exceptional circumstances. In particular, the capacity for the employer to make reasonable contingency arrangements for the collection of money and the servicing of ATM’s is impacted by the nature of that work and the regulatory and security environment in which it is performed.

[25]Additional notice is warranted in relation to those actions that most directly put the safety and security of the employees and client businesses involved, and potentially the public, at risk. In those cases, the additional notice will permit appropriate contingency arrangements to be put into place that will mitigate those risks. The particular arrangements include the opportunity for Armaguard to arrange the licensing of appropriate contingency staff, from non-operational and interstate sources, under South Australian law. Further, the ban on ATM services and two-man crewing represent significant limitations on the operations of Armaguard in the context of its South Australian operations with identifiable security and safety implications.

[26]These exceptional circumstances do justify an extended period of notice in relation to some but not all of the proposed industrial action.” 39

[57] In summary, it is clear from these decisions that in determining this matter it is necessary, firstly, to consider all the circumstances. They need not be unique or unprecedented, but must be uncommon or out of the ordinary course, and not something ordinarily encountered.

[58] It is also clear that exceptional circumstances must not only be found to exist. They must also provide the justification for determining that a longer notice period be provided. The decision making process also involves weighing the respective interests of the parties, and the fact that exceptional circumstances are required to be found to exist means ordinarily there will be no extension granted.

[59] Armaguard argued in broad terms that the Tribunal should firstly give consideration to the nature of the industry sector involved, and the resulting consequences of protected industrial action being taken. To some extent it does seem inevitable that these considerations come into sharper focus in this industry, given the “cargo” being transported, and the associated safety and security issues for employees, customers, and the general public.

[60] It also made reference to the impact of disruption to its cash delivery and collection services. The submissions and evidence of the parties in regard to these matters have already been set out in some detail and are not restated now. However, having considered the submissions and evidence, and the authorities referred to, I am satisfied there are exceptional circumstances existing in the context of this matter. In coming to this conclusion I am not suggesting those circumstances are necessarily unique or unprecedented. However, I am satisfied they are out of the ordinary course, and are not something ordinarily encountered when the consequences of taking protected industrial action are considered.

[61] I have had particular regard to the following matters in coming to this conclusion. Firstly, the nature of the industry in which Armguard operates, and the nature of what is being transported, raises safety and security issues for its employees, customers, and the general public, that are not present in many other areas of business activity. Those safety and security issues must accordingly be anticipated and planned for.

[62] Secondly, I have had regard to the impact on banks, retailers, and other businesses, that would result from disruption to the collection and supply of cash from those locations. I am again satisfied this impact is potentially significant, as well as being different from the impact of protected industrial action on many other business operations. In coming to this conclusion I am mindful of the submissions of the TWU that Armguard is no longer the dominant player in the market it once was, and therefore disruption to its activities will not have the same impact it might once have had. Those submissions are acknowledged, nevertheless the evidence indicates Armaguard still provides services to one of the major banks, as well as many large retailers and other business operations, and it also services a significant number of automatic teller machines.

[63] I have also had regard to the issues associated with having appropriate contingency plans in place. On the one hand the evidence provided on behalf of the TWU suggests there are now a plethora of operators in the industry who can be called upon if Armaguard is unable to service its customers. However, apart from the obvious reluctance of Armaguard to expose its customers to another provider, it also pointed to its particular insurance policies which provide cover for cash held on a customer’s premises, and would be invalidated if another provider was involved in cash collection and delivery to that customer.

[64] The industry is also distinct from many others in that employees are required to be appropriately licensed. Armaguard made reference to these licensing issues which need to be anticipated and planned for if employees are to come from interstate to cover for those involved in taking protected industrial action. The evidence also indicates there are different requirements existing in different States, and it takes time to gain appropriate licences to operate in Victoria. In terms of contingency planning Armaguard also referred to the number of collections made by its teams on a daily and weekly basis that are required to be covered in the development of any contingency plans.

[65] I have also had regard to the fact that both Armaguard and the TWU acknowledge that Armaguard is an industry leader in terms of its procedures and operations, particularly in regard to issues associated with safety and security. On the one hand it might be suggested that as the industry leader it has the most developed and sophisticated contingency plans in place. This might be so. However, I am also satisfied this commitment to best practice also means a more complicated and involved process is required to be planned for and put in place when normal operations are disrupted by the taking of protected industrial action, or when the potential for that outcome exists.

[66] In coming to the conclusion that there are exceptional circumstances existing in the circumstances of this matter I am aware that the relevant authorities indicate this requires consideration of all the circumstances. I have endeavoured to adopt this approach. However, I have also had regard to other decisions of the Tribunal, which have provided examples of the circumstances that can be considered to be exceptional, and warrant an extension of the notice period. In this regard I have given particular consideration to the recent decision of Commissioner Hampton, which involves the same employer in the same industry, albeit in a different location.

[67] It is acknowledged, as the TWU submits, that the decision does not set a precedent for the industry and was determined on its facts. The TWU also submits that the evidence in that matter indicated an extended notice period would make a material difference to Armaguard, but similar evidence does not exist in this matter.

[68] It is acknowledged that the circumstances before Commissioner Hampton were different. All parties acknowledged, for example, that Armaguard has a much smaller operation in South Australia. However, in coming to his decision it is also noted that Commissioner Hampton identified a number of factors that I have also found to exist in this matter including, in particular, the nature of the work and the fact that notes and coins are being transported, the safety and security issues for employees, customers and the general public, and the potential consequences of disruption to these services.

[69] However, in finding that exceptional circumstances exist I must also be satisfied that their existence provides justification for a longer notice period to be provided. I am satisfied this justification exists. The evidence of Mr Nichols, in particular, detailed the requirement for replacement staff to be appropriately licensed to work in Victoria, and the period of time required to enable this to occur. He also provided evidence about the number of deliveries and collections that are part of Armaguard’s daily operations, and the planning involved in maintaining this service. It also appears Armaguard is not in a position where it can readily sub contract or otherwise have other providers take on this work, even if it wanted to. I am accordingly satisfied these reasons provide justification for an extended notice period to be provided.

[70] However, like the conclusion reached by Commissioner Hampton, I have decided that the 3 day written notice period will be extended to 5 days, rather than 7 days as sought by Armaguard. As Commissioner Hampton noted in his decision a “working day” in the Fair Work Act 2009 does not include a Saturday, Sunday, or public holiday. This means that any period of 5 or more working days includes a weekend, and therefore provides an extended period of time in any case. I am also aware that Armaguard sought to distinguish the circumstances of the present matter from those before Commissioner Hampton on the basis that the nature of the proposed industrial action was more clearly specified in that case. However, I am not satisfied this is necessarily so. The proposed action in the matter before Commissioner Hampton involved various bans and work stoppages. Similar action is proposed in the present matter

[71] I am also satisfied that this outcome provides an appropriate balance between the intention of the legislation to enable protected industrial action to be taken in order to put pressure on an employer during the course of bargaining for an enterprise agreement, while also enabling the employer to take appropriate defensive action.

[72] I have also decided that this extended notice period will only apply to the action proposed to be put to the ballot in questions 3 and 4. Mr Nichols in his evidence suggested the action taken under question 2, dealing with work bans, could be as significant as the stoppages of work foreshadowed in questions 3 and 4. However, this evidence was inconclusive, and not supported by or elaborated on in other submissions. I have accordingly decided the extended notice period will not apply to action taken in accordance with proposed question 2 in the ballot.

[73] In conclusion, an order will be issued in conjunction with this decision which reflects, in large part, the terms of the order proposed by the TWU. However, it will include the extended written notice period to be provided in regard to the action proposed in questions 3 and 4.

COMMISSIONER

Appearances:

Mr. B Baarini of the Transport Workers’ Union of Australia appeared on behalf of the Applicant.

Mr. R West of Minter Ellison appeared on behalf of the Respondent.

Hearing details:

2014.

Melbourne:

23 October.

 1   Copy of Draft Order submitted with F34 Application on 25 September 2014 at page 2

 2   Exhibit W1 at para 9

 3   Ibid

 4   [2014] FWC 1753

 5   Exhibit W2 at para 14(c)

 6   Ibid at para 25

 7   Transcript at PN182

 8   Ibid at PN260

 9   Ibid at PN298

 10   [2007] AIRC 848

 11 [1999] FCA 1108

 12   [2012] FWA 3042

 13   [2012] FWA 7590

 14   [2011] FWA 3919

 15   [2012] FWA 6293

 16   [2010] FWA 3355

 17   [2012] FWA 7141

 18   [2013] FWC 1959

 19   Ibid at PN71

 20   Ibid at PN77

 21   Ibid at PN315

 22   Ibid at PN340

 23   [2007] AIRC 848

 24   Ibid at [10]

 25   Ibid at [11]

 26   Ibid at [21]

 27   [2011] FWA 3919

 28   Ibid at [9]

 29   [2012] FWA 6293

 30   [2012] FWA 7141

 31   Ibid at [9]

 32   [2012] FWA 3042

 33   Ibid at [33]-[34]

 34   [2012] FWA 7590

 35   Ibid at [14]-[15]

 36   [2013] FWC 5852

 37   [2014] FWC 1753

 38   Ibid at [23]

 39   Ibid at [24]-[26]

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