Transport Workers' Union of Australia v Scotts Agencies Pty Ltd t/a Scott Petroleum
[2010] FWA 1988
•11 MARCH 2010
[2010] FWA 1988 |
|
DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
v
Scotts Agencies Pty Ltd t/a Scott Petroleum
(B2010/2723)
Oil and gas industry | |
COMMISSIONER BISSETT | MELBOURNE, 11 MARCH 2010 |
Proposed protected action ballot by employees of Scotts Agencies Pty Ltd trading as Scott Petroleum.
[1] An application for a protected action ballot order was made by the Transport Workers’ Union of Australia (TWU) on 4 March 2010. A hearing with respect to the application was held on 5 March 2010.
[2] At that hearing Scotts Agencies Pty Ltd t/a Scott Petroleum (Scott Petroleum) whose employees are to be balloted raised issues with respect to the proper name of the employer named in the order and the lack of certainty around the wording of the ballot questions.
[3] In addition Scott Petroleum sought under s.443(5) of the Fair Work Act 2009 (the Act) that the order specify a requirement that the written notice required under s.414(2)(a) of the Act be extended to 7 days. This application was made on the basis of the potential effect of the industrial action on the provision of emergency services and the need for Scott Petroleum to advise emergency services who may so be affected. Scott Petroleum argued that to properly notify the emergency services of any industrial action would take in excess of the 3 days notice normally provided under s.414(1).
[4] Arising from the hearing on 5 March the TWU provided an amended draft order. A copy was sent to Scott Petroleum who again raised issues with respect to the correct name of the company, the location of employees to be balloted, that the first question did not reflect the hours clause in the current (expired) agreement and that all emergency services should be exempt from the bans proposed in the second question. As a result of this a further amended draft order was submitted by the TWU.
The questions to be balloted
[5] The proposed first question on the ballot (as amended by the TWU) is:
1. Overtime Bans – Employees will refuse to work in excess of 7 hours per day Monday to Friday and any work on the weekend.
[6] Scott Petroleum sought that this question should capture the minimum hours provisions as contained in the existing agreement.
[7] I see no reason as to why the questions to be balloted should reflect existing hours arrangements in the current agreement. The question as proposed is specific. The purpose of the ballot is to allow the employees to be balloted to decide if they wish to take specific industrial action. There can be no confusion as to the question being asked.
[8] The proposed second question is:
2. Work bans – Employees will refuse to perform part of their usual work duties, with the exception of the direct supply of fuel to the ambulance service, CFA, Police & the Department of Sustainability and Environment.
[9] There is no ambiguity or uncertainty in the question.
[10] Specificity in the question(s) to be put on a ballot was recently considered in John Holland Pty Ltd v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and The Australian Workers’ Union 1. In their decision the Full Bench drew attention:
…in particular to the requirement for notice in ss.414(1) and (6). If the action specified in the notice is not authorised by the relevant ballot, any action taken pursuant to the notice will not be protected industrial action. For this reason there will be a natural tendency for bargaining representatives to frame ballot questions in a way which minimises the possibility that the industrial action eventually taken will fall outside the action authorised by the ballot. If the ballot questions describe industrial action in a general way it might subsequently be held that specific types of industrial action were not authorised. No doubt, for that reason, a number of bargaining representatives have drafted ballot applications containing very detailed questions. 2
[11] These are matters that the applicant must consider should they take protected industrial action arising from this ballot.
[12] Scott Petroleum also raised issues with respect to the use of the word ‘consecutive’ in two of the proposed questions and suggested that this was not clear. The use of the word ‘consecutively’ in ballot questions was expressly considered by the Full Bench in John Holland. The relevance of the term in the context in particular of s.459 of the Act is clear. I see no issue with the use of the word in the questions to be balloted.
[13] The Full Bench in John Holland further found that:
Moving now to the construction of s.437 itself, seen in its statutory context, all that the section requires is that the questions should describe the industrial action in such a way that employees are capable of responding to them. If the questions are ambiguous or lack clarity there may be consequences for the bargaining representative and the employees if reliance is placed on the result of the ballot in taking industrial action. If the question or questions give rise to ambiguity, the conclusion may be reached that the industrial action specified in a notice under s.414 was not authorised by the ballot and that the action is not protected for the purposes of s.409(2). It is true that ambiguity or lack of clarity in the description of the industrial action is undesirable, but these are matters more appropriate for consideration under other provisions. It follows that in most cases the drafting of the questions will be a matter for the applicant. 3
[14] I am satisfied that the questions proposed describe the industrial action in a way that the employees to be balloted are capable of responding to them.
Extension of notice period
[15] The next matter raised by Scott Petroleum is an application under s.443(5) of the Act that the order specify that the notice requirement for action under s414(2)(a) of the Act be 7 days. This application is pursued on the basis that it will take 7 days to notify emergency services of the likely effect of bans. This additional notice is required to enable the emergency services to either stock up on fuel or find an alternative supplier.
[16] Scott Petroleum supplies petroleum products to the South Western Victoria region, including the provision of stock to meet emergency services requirements including CFA, ambulance services and environmental agencies.
[17] Scott Petroleum submitted that in order to maintain adequate stock to all emergency services, they would, in the event of industrial action, have an obligation to contact these services’ regional agencies to ascertain stock levels and, if required, replenish these stocks to cover a period of industrial action.
[18] The time taken to contact emergency service agencies and to replenish stock in the event of industrial action Scott Petroleum say is reason to require an extension of the notice period under s.414(2)(a) to 7 days.
[19] The TWU oppose the application by Scott Petroleum to extend the notice period under s.414(2)(a) to 7 days.
[20] The TWU submit that fuel deliveries to emergency services are a very small part of Scott Petroleum’s business (as subject to this application), that the Union has accommodated concerns of the company with respect to emergency services in their draft order and that, in any event, Scott Petroleum do not hold a monopoly in this area. There are, they submit, other companies that could meet the needs of the emergency services should action by employees at Scott Petroleum affect provision of fuel to such organisations.
[21] The TWU did indicate that it would not be their intention in pursuing industrial action to disrupt the provision of emergency services.
[22] Section 443(5) of the Act provides:
(5) If FWA 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.”
[23] The submission of Scott Petroleum is that exceptional circumstances exist such that the notice required under s.414(2)(a) should be 7 days.
[24] The phrase ‘exceptional circumstances justifying’ used in the same context as s.443(5) but in the Workplace Relations Act 1996 was considered by Lawler VP in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation. 4 In that decision his Honour found:
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. 5
[25] In coming to this conclusion his Honour considered the meaning of the phrase ‘exceptional circumstances’. 6 He also found that:
…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. 7
[26] Scott Petroleum also referred me to a decision of Richards SDP in Australian Federated Union of Locomotive Employees, Queensland Union of Employees v QR Passenger Pty Ltd. 8 In that matter the Senior Deputy President granted an application extending the notice period to enable the travelling public to be notified of disruption.
[27] The matter I need to determine is if there are, in this case, exceptional circumstances justifying an extension to the statutory notice period.
[28] The purpose of the notice period is to enable the industrial disputants ‘to take appropriate defensive action’. Appropriate defensive action might include an employer using the time to communicate with suppliers and customers thereby reducing the consequences for them of the industrial action. 9
[29] On the cases cited by Scott Petroleum the TWU submitted that the application to extend the notice period was dismissed in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation and in Australian Federated Union of Locomotive Employees, Queensland Union of Employees v QR Passenger Pty Ltd the application was granted to extend the notice period to 5 days based on the difficulty in communicating with a large number of customers.
[30] Whilst the circumstances around the proposed industrial action are particular to Scott Petroleum I find nothing exceptional about them such that they are ‘out of the ordinary, or unusual or special or uncommon’. 10
[31] That Scott Petroleum, as a part of their business, deliver to emergency services does not make them, or the circumstances, exceptional. They are not the sole provider to emergency services nor the sole provider of the product they deliver.
[32] Even if the circumstances were exceptional I am not convinced they are such to justify an extension of the notice period under s.424(2)(a) of the Act.
[33] The application by Scott Petroleum for an extension of the notice period pursuant to s.443(5) is rejected.
[34] In reaching this conclusion I have taken into account the interests of the employees in not having the effectiveness of their action diminished leading to potential prolonging of any action. I have also had regard to the capacity of Scott Petroleum to access other remedies under the Act.
Conclusion
[35] The application for a protected action ballot order has been made under s.437 of the Act. I am satisfied that the applicant is genuinely trying to reach agreement with the employer of the employees to be balloted.
[36] The Act requires that Fair Work Australia must, as far as practicable, determine an application for a protected action ballot within 2 working days after the application is made 11 though must not determine the application unless it is satisfied that the applicant has complied with s.440 of the Act.12 I am satisfied that the applicant has complied with s.440 of the Act.
[37] Having heard from the applicant and the employer of the employees to be balloted I will issue an order for a protected action ballot.
[38] The order will specify that the applicant is the Transport Workers’ Union of Australia. The group of workers to be balloted are members of the Union who work for Scotts Agencies Pty Ltd trading as Scott Petroleum who will be covered by the proposed enterprise agreement and for whom the Union is a bargaining representative.
[39] The questions to be put to the employees to be balloted are:
1. Overtime Bans – Employees will refuse to work in excess of 7 hours per day Monday to Friday and any work on the weekend.
2. Work Bans – Employees will refuse to perform part of their usual work duties, with the exception of the direct supply of fuel to the ambulance service, CFA, Police & the Department of Sustainability and Environment.
3. Four Hour Stoppages – Employees will cease the performance of all work for four hour stoppages. This action may be organised and/or engaged in on consecutive occasions.
4. Twenty Four Hour Stoppages – Employees will cease the performance of all work for twenty four hour stoppages. This action may be organised and/or engaged in on consecutive occasions.
5. Indefinite Stoppage – Employees will cease work for an indefinite period.
[40] The voting on the ballot will close on 8 April 2010.
COMMISSIONER
Appearances:
L. McCrone for the TWU
R.Kuczmarski and W.Martin for Scott Petroleum
Hearing details:
2010
Melbourne
March 5
1 [2010] FWAFB 526.
2 [2010] FWAFB 526 at [16]
3 [2010] FWAFB 526 at [19]
4 [2007] AIRC 848 (9 October 2007)
5 [2007] AIRC 848 at [21]
6 [2007] AIRC 848 at [10]
7 [2007] AIRC 848 at [11]
8 [2009] AIRC 49 (16 January 2009)
9 See Davids Distribuation Pty Ltd v National Union of Workers (1999) 91 FCR 463
10 [2007] AIRC 848 at [10]
11 s.441(1).
12 s.441(2).
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