Transport Workers' Union of Australia v SITA Australia Pty Ltd T/A SUEZ Environment and Waste Recovery

[2016] FWC 2586

[2016] FWC 2586

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 437 - Application for a protected action ballot order

Transport Workers' Union of Australia
v
SITA Australia Pty Ltd T/A SUEZ Environment and Waste Recovery
(B2016/471)

DEPUTY PRESIDENT SAMS SYDNEY, 26 APRIL 2016

Proposed protected action ballot of employees of SITA Australia Pty Ltd t/as SUEZ Environment and Waste Recovery – application to extend protected action notice period to seven days – ‘exceptional circumstances’ – circumstances not out of the ordinary, unusual, special or uncommon – exceptional circumstances not established – protected action ballot ordered.

BACKGROUND

[1] This is an application, filed by the Transport Workers’ Union of Australia (the ‘Union’), pursuant to s 437 of the Fair Work Act 2009 (the ‘Act’) in which the Union seeks a protected action ballot order for its members employed by SITA Australia Pty Ltd t/a SUEZ Environment and Waste Recovery (‘SUEZ’ or the ‘respondent’).

[2] The respondent is the only provider of domestic waste collection services for the 400,000 residents of the Australia Capital Territory. It provides these services under contract to the ACT Government. The Union seeks to ballot its members who would be covered by a proposed enterprise agreement with the respondent.

[3] The respondent employs 39 waste collection drivers under the terms of the SITA Australia ACT Residential Collections Agreement 2014 [AE 409249]. The nominal term of the Agreement expired on 31 March 2016 and the parties have entered into negotiations for a new Agreement with at least four meetings being held in March and April 2016. I note that this is the third application for a protected action ballot during the current round of negotiations. The first application (7 April 2014) was discontinued by the Union after the Commission’s directions for further negotiations and the second application (14 April 2014) was discontinued due to a technical defect in the application.

[4] This application was listed for urgent hearing on 21 April 2016 in compliance with the two day time limit under s 441 of the Act. Mr A Guy appeared for the Union and Mr J Dyster appeared for the respondent. Mr Dyster did not oppose the making of the protected action ballot order, and accepted in particular, that the Union was ‘genuinely trying to reach agreement with the employer’ (s 443(1)(b)). However, Mr Dyster made an application under s 443(5) of the Act, to extend the period of written notice required under the ballot order, from three working days to seven working days. The Union opposed the extension of the notice period. In an early point in the proceeding, I adjourned the matter in order for the parties to explore whether some middle ground might resolve the disputed issue. Unfortunately, this was unsuccessful.

Legislation and Principles

[5] The relevant provisions of the Act governing applications of this kind are set out in s 437 and s 443 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.

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.

[6] At this juncture, I note that there is no dispute that the application has been properly made under s 437 of the Act. Accordingly, I am satisfied s 443(1)(a) and ss 2 and 3 have been met. Similarly, the respondent does not dispute that the applicant Union has been, and is genuinely, trying to reach agreement with the employer of the employees proposed to be balloted. Accordingly, s 443(1)(b) is satisfied. Both parties relied on a decision of Lawler VP in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Australian Postal Corporation [2007] AIRC 848, as to the meaning of ‘exceptional circumstances’, in s 443(5) of the Act. His Honour’s decision has been relied on in subsequent decisions of the Commission where an extension of the notice period for protected action has been sought by the employer. At paragraph [10] of His Honour’s decision, he said:

‘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.’

His Honour continued at paragraph [11]:

‘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.’

At paragraph [21] His Honour added:

‘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.’

THE EVIDENCE

For the Union

Mr Pinkas

[7] In a statement of evidence, Mr Pinkas set out his 30 years’ experience in the industry as a waste collector and Union official responsible for the industry in the ACT. His first statement dealt with the genuineness of the Union in seeking to negotiate a new agreement. As this has been conceded by the respondent, I need not repeat the evidence.

[8] In a second statement, Mr Pinkas noted the background to this third application for a protected action ballot order. Mr Pinkas noted the history of industrial action in the industry in the ACT and said that in the last 30 years there had been at least 10 occasions of industrial action, including 24 hour stoppages, sometimes without notice. He specifically mentioned the 24 hour stoppages with Cleanaway in May 2011 (notice given of three days) where uncollected services were collected the next day and a 1986 strike of three weeks. Mr Pinkas was unaware of any public health issues associated with either dispute. Mr Pinkas noted that in the period of proposed industrial action during the winter months, the risk of ‘vapours, fumes, dust or mist’ are minimal, given the cold to freezing Canberra conditions.

[9] Mr Pinkas said in his experience over 30 years there have been numerous occasions where bins are not collected for a day, or even three or four days due to vehicle breakdowns or lack of availability of drivers. He was not aware of any adverse health issues in any of these circumstances.

[10] In oral evidence Mr Pinkas explained that following a 24 hour stoppage, it is not too difficult or complex to make arrangements for a missed service to be collected the next day. While there is a ‘concertina’ effect, there has never been a problem for all bins across the ACT to be collected within the week, with individual missed bins not left for more than one or two days. Mr Pinkas noted that the Company does not organise the notification to residents; the ACT Government does through various media outlets, social media sites and sometimes letter boxing.

[11] Mr Pinkas conceded he had not been involved in every meeting regarding planning to minimise the impact of the stoppages. However, it was not complex. He did not see any difference between handling the dispute in 2011 to how SUEZ would handle any dispute in the future.

For the Respondent

Mr Grosso

[12] Mr Grosso is the respondent’s NSW Regional Manager. He has 33 years’ experience in the waste collection industry. Mr Grosso set out the details of the ACT waste collection services as follows:

‘4. SUEZ as the only provider of public domestic waste collection services in the ACT has a scope of work providing essential service to the 400,000 people of the ACT every week including:

a. Single Unit Dwellings (SUDs);

i. General Waste – 132,000 services;
ii. Recycling – 69,000 services;

b. Servicing Six (6) Regional Recycling Centres (RRC) 18 services per week removing 20 tonnes of recycling material;
c. Multi-Unit Dwellings (MUDs);

i. General Waste – 2,500 services;
ii. Recycling – 750 services; and

d. Servicing 700 homes through the wheeled bin assistance program (otherwise known as Infirm Services).’

[13] Mr Grosso set out the reasons why he believed the notice period should be extended:

‘5. SUEZ would not be aware of the exact impact of industrial action on the services outlined above until notice is given by the TWU and would be unable to mitigate the adverse impact to public health and safety with only three (3) working days’ notice.
6. The weekly cycle in which domestic waste collection services are scheduled means that if disruption occurs SUEZ will not be able to adequately communicate to the public to put in place suitable alternative operational responses to ensure public health and safety.
7. SUEZ would be unable to guarantee when services missed due to industrial action would be collected due to the operational complexity and capacity and missed service would potentially be collected up to seven (7) days’ later with no other service available.
8. SUEZ may be able to develop suitable alternative operational responses however without additional notice to communicate with residents there would be a risk to public health and safety.’

[14] In oral evidence, Mr Grosso distinguished the delivery of waste collection services and industrial action in the industry in the historic examples cited by Mr Pinkas, to the realities of today’s industry. Today, there are greater limitations on the employer’s capacity to recover from missed services. This is due in part to tighter contracts and contemporary occupational health and safety requirements for drivers in respect to fatigue management. He did not agree that a missed service could be recovered in one to two days. He also pointed to the 700 ‘infirm’ services required to be conducted (services where the resident is too ill or incapacitated to put their bins out and the driver must collect, empty and return the bin).

[15] Mr Grosso insisted that recovery of services was not a simple process. There is only a two hour a day ‘window’ after a 10 hour day. It involves arranging dedicated vehicles for multi-unit developments, extra travel time to landfill sites, ‘infirm’ services, prioritising worst affected areas and the willingness of drivers to perform overtime.

[16] Mr Grosso accepted that the extension of the notice period is not necessarily about reducing the impact on the Company (although significant), but on getting information to the public about disrupted services. Mr Grosso accepted that the impact could be minimised by residents using regional drop off centres, the Company’s depot and landfill sites, and by utilising overtime and weekend work to recover services. Mr Grosso gave evidence that the public health issues arise, not only from decaying rubbish (noxious fumes and smells) but also from extra bags being left next to unemptied bins, broken glass, refuse scattered by dogs and cats and the attraction of vermin. There may also be large build ups of waste in multi serviced apartment collection areas.

[17] In cross examination, Mr Grosso agreed that fatigue management guidelines existed before 2011. He said that some drivers, mainly in recycling, work an eight hour shift and they have the necessary skills to collect residential waste and use the same vehicles. Mr Grosso agreed that he had no specific training or knowledge about the health risks associated with uncollected waste. However, he relied on his 33 years’ experience. He had also worked at a landfill site and an organic treatment plant.

SUBMISSIONS

The Union

[18] Mr Guy put that the Union opposed the respondent’s application on two grounds; firstly, that the application to extend the notice period was very close to offending an undertaking given on 8 April 2016, not to oppose any further protected action ballot orders made by the Union and secondly, the respondent had not established ‘exceptional circumstances’ to justify the application being granted.

[19] Mr Guy relied on a number of authorities in support of his submissions, in particular Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Australian Postal Corporation [2007] AIRC 848, that there was nothing in this case which was unusual, or uncommon. Missed bins happen in the ordinary course of business, admittedly not on the scale of a work stoppage. But in any event, Mr Pinkas’s evidence should be preferred when he said that generally missed services are picked up within one or two days.

[20] Mr Guy argued that the respondent’s claims of health and safety risks are nothing more than anecdotal opinions, not supported by specific evidence. As to communicating to the ACT residents, there were a number of means to do it through radio, television, print and social media. Mr Guy cited a number of recent protected action ballot orders of the Commission in the waste collection industry, in which it appeared no argument was put to extend the notice period.

The respondent

[21] Mr Dyster denied the respondent had breached any undertaking to the Union. The undertaking was in respect to opposing a future application based on whether the Union was ‘genuinely trying to reach an agreement with the employer’ and the organisation of two further negotiating meetings, which took place.

[22] Mr Dyster submitted that Mr Grosso’s evidence should be preferred over Mr Pinkus’s, whose work since 2003 was of someone involved in disrupting services, rather than planning to mitigate inconvenience. Mr Grosso has day to day involvement into the nature of the planning and how it works. Mr Dyster also relied on Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Australian Postal Corporation [2007] AIRC 848and a decision of Hamberger SDP in Transport Workers’ Union of Australia and anor v the Chief Executive of the ACT Internal Omnibus Network (ACTION) on behalf of the Australia Capital Territory [2010] FWA 3355 (‘Action Buses’). He said that like Action Buses (which was the only provider of bus services in the ACT), SUEZ is the only provider of domestic waste services in the ACT and as such tens of thousands of people were reliant on its services. In Action Buses His Honour extended the notice period to five days. Mr Dyster further submitted that orders made by consent have little precedential value. Mr Dyster said the wide and varied nature of the proposed protected action would require different complex operational requirements to ameliorate.

[23] In reply, Mr Guy distinguished Action Buses in circumstances where children may be left stranded at bus stops or in heavy industries where product is lost, to the circumstances here where remedial action is, and can be taken to minimise the impact of any protected action. Mr Guy added that the other cases he cited involved large and complex waste collection companies and no additional notice was ordered in these examples.

CONSIDERATION

[24] In the short period required to determine this application, the Commission has not had the benefit of the transcript. Nonetheless, I have taken account of the evidence adduced and the oral submissions of Mr Guy and Mr Dyster. I reserve the right to make typographical or stylistic amendments to this decision.

[25] It must firstly be observed that the onus rests on the respondent to satisfy the Commission of ‘exceptional circumstances’ to justify the prima facie position that three working days’ notice should be extended. Secondly, if the Commission is satisfied that the respondent’s onus has been met, the Commission may order an extension of the notice period from anything to four working days to a maximum of seven working days.

[26] In my view, the respondent has not made out a case that the extension of the notice period of protected industrial action should be extended to seven working days, from three working days, due to ‘exceptional circumstances’. I arrive at this conclusion for the following reasons:

[27] Mr Grosso’s evidence was that the extension of the notice period was sought, not to minimise the impact on the employer, but because of a concern as to notification to the public of disrupted services. I would agree that there is no precise evidence that the respondent would be more adversely impacted if the notice period was three working days rather than seven working days. However, I consider the evidence and submissions about the practical difficulties of informing the public of service disruptions, to be very much overstated. The client is the ACT Government - not some ‘tin pot’ country council. It has all the personnel, facilities and finances available to it of a well-resourced public service and Territory Government. I accept the Union’s evidence that there are many and diverse means of informing ACT residents of service disruptions, including local radio and television and the daily Canberra Advertiser, even letter boxing, and more modern techniques, such as text messaging and the Internet. I would be amazed and frankly find it unbelievable, that three working days’ notice would be insufficient to organise and advise affected residents of protected industrial action, disrupting services.

[28] While I accept that there are public health risks with putrid and rotting uncollected rubbish building up over long periods of time, in my opinion these risks can be minimised with effective client – to – provider planning and with the measures that are available to minimise the impact, such as were explained by Mr Grosso at paragraph [16]above. In addition, it is self-evident that this problem would be exacerbated in the warmer months, whereas the likelihood of any protected action in the present context, will be over the cooler (and sometimes freezing) conditions during Canberra’s autumn/ winter months.

[29] It also seems to me to be relevant that of the many recent protected action ballot orders made by the Commission in the waste collection industry (including by myself), there appears to be none in which the notice period has been extended to seven working days. I invited Mr Dyster to identify any authority to the contrary and have undertaken my own research, but none could be found. While I agree that this is not necessarily decisive, as each case turns on its own factual circumstances, it does seem open to conclude that if it had been necessary to extend the notice period in the same industry, with the same public health issues, that it would have at least been raised as a concern in one of these cases. Further, I consider that the facts and circumstances in Action Buses are plainly distinguishable to those in this case. In that sense, Mr Dyster’s reliance on that authority is misplaced.

[30] In addition, Mr Grosso’s evidence as to the public health issues, was his general opinion without any specific examples of identifiable public health risks, or incidents being associated with the non-collection of residential waste. I appreciate his evidence was given at short notice and based on his 33 years’ experience in the industry. In addition I make this observation. If the collection service is once a week, then the waste that is binned on the day after the collection, has a full six days to sit and putrefy until the next collection day. Assuming, the likelihood of stoppages of one day or less, it is difficult to see how a further one or two days’ delay to recover missed services would make any material difference.

[31] Understandably, Mr Dyster was concerned that any lengthy protected action, such as an indefinite strike, would exacerbate the serious public health risks from uncollected waste. Two things can be said about this submission. Firstly, apart from a three week strike in 1986, the most recent industrial history of the industry in the ACT, has not evidenced industrial action beyond 24 hour stoppages. There is no reason to believe that even if:

a) the protected action ballot is supported by the employees; and
b) the employees decide to take industrial action;

that such action would be extended beyond 24 hours. In any event, it would remain open to the respondent to make an application under s 424 of the Act, to have any threatened or actual protected action stopped if it is found to threaten the ‘personal safety or health, or the welfare, of the population or of part of it’.

[32] For the reasons herein expressed, I am not satisfied that the respondent has established ‘exceptional circumstances’ such as to warrant an extension of the notice period of protected action to seven working days. In my assessment, the circumstances relied on by the respondent are not ‘out of the ordinary course, unusual, special or uncommon’. I intend to make the protected action ballot order in terms of the draft order annexed to the Union’s application. The order shall take effect on 26 April 2016.

DEPUTY PRESIDENT

Appearances:

Mr A Guy, Solicitor for the applicant

Mr J Dyster, for the respondent

Hearing details:

2016:

Sydney,

21 April.

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