Transport Workers' Union of Australia v Linfox Armaguard Pty Ltd

[2014] FWC 1753

[2014] FWC 1753

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
Linfox Armaguard Pty Ltd
(B2014/584)

COMMISSIONER HAMPTON ADELAIDE, 17 MARCH 2014

Proposed protected action ballot by employees of Linfox Armaguard Pty Ltd - whether application properly made - whether official had authority to sign and lodge the application - valid application found - whether additional notice of proposed industrial action - whether exceptional circumstances existed warranting an extension - exceptional circumstances found - extension granted for certain forms of action - ballot order issued.

1. Background

[1] The Transport Workers’ Union of Australia (TWU) has made an application for a protected action ballot order (the ballot order) under s.437 of the Fair Work Act 2009. The ballot order is sought in relation to bargaining for a proposed enterprise agreement concerning employees of Linfox Armaguard Pty Ltd (Armaguard).

[2] During the course of the hearing conducted in relation to this application on 13 March 2014, Armaguard opposed the granting of the proposed order. The employer contended, in particular, that the application was not properly made, and in the alternative, sought an extension to the period of notice to be provided by the TWU in relation to certain forms of industrial action to be included in the ballot. There was however no contest that the TWU was otherwise eligible to bring this application and was genuinely trying to reach an enterprise agreement with Armaguard.

[3] Having considered the matters arising from the application, I issued the ballot order 1 on Friday 14 March 2014 in a modified form, which included granting an extended notice period in relation to certain forms of proposed industrial action. In so doing, I indicated that I would subsequently issue reasons for that decision.

2. The general context in which the ballot order was sought

[4] Armaguard is Australia’s largest cash-in-transit security company and the proposed agreement would cover the road crews in South Australia who undertake the cash transit and ATM servicing for the company in that State. The employees concerned currently fall under the scope of the Armaguard and Transport Workers Union Road Crew (South Australia) Union Collective Agreement 2011.

[5] The TWU is a bargaining representative for many of the employees to be covered by the proposed enterprise agreement. Bargaining commenced in October 2013 and since that time there has been the provision of a TWU log of claims and various meetings between the bargaining representatives (including Armaguard). Despite those discussions, there is no agreement between the representatives on the terms of the proposed enterprise agreement.

3. The requirements for the making of a ballot order

[6] 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.

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.”

[7] Leaving aside whether there is a proper application, there is no contest that the TWU is eligible to bring the application and that it has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted. The evidence before the Commission is also sufficient to lead to satisfaction that the requirements of s.443(1)(b) of the Act have been met. 2

[8] The application sought the appointment of the AEC and otherwise met the requirements of the Act set out above.

5. Was the application properly made?

[9] Armaguard has contended that the Commission needed to be satisfied that the application was properly authorised. This arose in the context of an earlier application, which had been made in the name of the Transport Workers’ Union of Australia (SA/NT) Branch and signed by Mr Edward Lawrie, who also appeared in that matter. That application was withdrawn and this present application was then almost immediately made, this time in the name of the TWU, but again signed by Mr Lawrie.

[10] The issue raised by Armaguard concerns the authority for Mr Lawrie to sign and lodge the application on behalf of the TWU given that organisation’s rules. In terms of the need for a proper application at the time it was lodged, the employer relies upon the decision of the High Court in Re: Construction, Forestry, Mining and Energy Union, Ex parte WJ Deane & Sons Pty Limited and Others 3(Deane).

[11] I accept that the application must be validly made by the TWU in order for the requirements of s.437, and as a consequence, s.443(1)(a) of the Act, to be met. The TWU accepts that the application must have been authorised by the National Secretary or a person authorised to act on his behalf. 4

[12] The TWU contended that Mr Lawrie was authorised to lodge the application and relied upon a number of supporting propositions to justify that position. These included the fact that it regularly lodges applications in that form without controversy and that Mr Lawrie held a written authority 5 provided by Mr Michael Kaine, Assistant National Secretary. Mr Lawrie also stated to the Commission that he did have the authority at the time of lodging the application.

[13] The written authority was not dated but was apparently provided on 13 March 2014. It stated that:

“Edward Flint Lawrie, Industrial Officer of the Transport Workers Union of Australia and Admitted Barrister and Solicitor of the Supreme Court of South Australia and the High Court of Australia, is authorised to appear before the Fair Work Commission and lodge Fair Work Commission applications, on behalf of the Transport Workers Union of Australia.”

[14] Armaguard accepted the validity of the written authority but submitted that this did not of itself demonstrate that the authority was held at the time of the application and noted that it was not sufficient to obtain authorisation after the event. 6 I accept that the application must have been valid at the time that it was lodged and that this means that Mr Lawrie must have had the requisite authority.

[15] I am satisfied that the application was properly made and validly before the Commission. The written authority could be read narrowly as meaning that the authorisation was in fact provided by the written document. However, all of the circumstances are sufficient to satisfy me that the written document should be considered to be a confirmation of pre-existing authority rather than an authority in its own right. These circumstances include the fact that the TWU regularly lodges applications in the Commission in this manner without controversy and Mr Lawrie, as an officer of the Court, has confirmed that he held the relevant authority to lodge the application. These factors would not necessarily be sufficient on their own, but when combined with the terms of the written confirmation, are sufficient to satisfy me of the validity of the application at the time it was made.

6. Should an extended period of notice be required?

[16] Armaguard sought that if a ballot order was made, additional written notice be required in relation to some of the proposed industrial action. Section 443(5) of the Act provides in effect that if there are exceptional circumstances justifying the period of written notice referred to in s.414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days in relation to the proposed industrial action that is the subject of the protected action ballot.

[17] The approach to exceptional circumstances in this context was, as correctly cited by Mr West who appeared for Armaguard, discussed by Lawler VP in CEPU v Australia Post Corporation 7 (CEPU), which concerned an equivalent provision of the Workplace Relations Act 19968 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.

...

[21] Essentially, what is required in determining whether exceptional circumstances justify an extension of the required notices period is a weighing of the interests of the employer and third parties in the employer having a greater opportunity to take appropriate defensive action as against the diminution in the effectiveness of the employees’ bargaining power that results from such an extension. The fact that the legislature has seen fit to condition the ordering of an extension of the required notice period on the presence of exceptional circumstances justifying it, as distinct from merely conferring a simple discretion to extend the required notice period, indicates that ordinarily there should be no extension.

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

[18] The exceptional circumstances relied upon in this case relate to the impact of work stoppage by the road crews given the nature of their role and the impact upon security and safety risks to its customers and the public. In particular, Armaguard contended that the contingency arrangements that it would need to put in place to minimise those risks required it to have a longer period of notice. Armaguard relied upon the evidence of Mr Damian Waters, its General Manager of Security.

[19] The TWU contended in effect, that the nature of exceptional circumstances previously found by the Commission as warranting an extension related to public service activities and this was not present here. It also challenged the evidence of Mr Waters in relation to the employer’s capacity to put in place contingency arrangements and contended that the concerns were to reduce the costs and inconvenience of the industrial action to Armaguard.

[20] The forms of potential industrial action where Armaguard sought to have the additional notice were:

● Bans in relation to the performance of two-man crewing;
● Work stoppages for periods between four and 24 hours; and
● Bans on ATM servicing.

[21] The forms of industrial action where additional notice was not sought involved bans on overtime, working to rule and work stoppages of less than four hours.

[22] In order to warrant an extended period of notice, 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.

[23] As made clear in CEPU above, this also requires a weighing up of the opportunity for Armaguard 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.

[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. 9 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.10

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

[27] In terms of the length of the extension, Mr Waters’ evidence was that between seven and ten working days would be necessary to ensure the mutual recognition of existing licence holders would be in place. It was however, also evident from cross-examination that at least some reasonable contingency arrangements could be put in place in the knowledge that industrial action was possible (assuming the ballot endorses the proposed industrial action concerned). This would in my view have the effect of reducing the extent of the additional notice reasonably required to some degree and must be taken into account in relation to the forms of potential industrial action that might be subject to the additional notice.

[28] The notice of protected industrial action under s.414(2)(a) of the Act requires three working days. “Working days” is defined in s.12 as follows:

“working day means a day that is not a Saturday, a Sunday or a public holiday.”

[29] This means that any period of five (or more) working days notice has the effect of including at least one weekend in that period. That is, working days means in effect clear working days. 11 Although there may not be access to the relevant licensing authorities over the weekends, given the nature of the industry and the employer in this case, this additional period does represent time during which reasonable contingency arrangements can be planned, organised and/or advanced in other ways.

[30] I have determined that the bans on two-person crewing, ATM servicing and stoppages over four hours, will be subject to five working days notice. In terms of stoppages of lesser duration, I am not satisfied on the evidence that an extended period of notice is warranted.

7. The form of ballot order

[31] I have issued the ballot order largely in the terms sought by the TWU. However, I have nominated a closing date for the ballot which represents 20 working days after the order, given the arrangements with the AEC and the requirements of s.443(3A). I have also confirmed the group of employees by reference to the existing enterprise agreement (which reflects the scope of the bargaining) and included reference to the potential exclusion of employees who are presently subject to an individual agreement-based transitional instrument, to reflect the operation of the Act. 12

[32] I have also included the additional notice determined above.

Appearances:

E Lawrie with M Spring for the Transport Workers’ Union of Australia.

R West (of counsel) with K Lehane (of Minter Ellison), both with permission, with S Ferlan and D Waters for Linfox Armaguard Pty Ltd.

Hearing details:

2014

Adelaide

March 13.

 1   PR548666.

 2   The evidence of Mr Spring - exhibit A1.

 3 (1994) 125 ALR 16.

 4   Rule 68(3) of the rules of the TWU.

 5   Exhibit A2.

 6 (1994) 125 ALR 16.

 7   [2007] AIRC 848.

 8   S.463(5).

 9   Consumer and Business Affairs operating under the Security and Investigation Industry Act 1995 (SA).

 10   The evidence of Mr Waters.

 11   See also the operation of the Act and the Acts Interpretation Act 1901 in Tooheys Pty limited v Liquor, Hospitality and Miscellaneous Union[2010] FWA 9210 per Thatcher C.

 12 Item 2 of Schedule 13 of Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.

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<Price code C, PR548653>