Transport Workers' Union of Australia v the Chief Executive of the ACT Internal Omnibus Network (ACTION) on behalf of the Australian Capital Territory; Automotive, Food, Metals, Engineering, Printing and Kindred...

[2010] FWA 3355

[2010] FWA 3355

FAIR WORK AUSTRALIA

DECISION

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

Transport Workers' Union of Australia
v
the Chief Executive of the ACT Internal Omnibus Network (ACTION) on behalf of the Australian Capital Territory
(B2010/2894)

Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers' Union (AMWU)
v
the Chief Executive of the ACT Internal Omnibus Network (ACTION) on behalf of the Australian Capital Territory

(B2010/2895)

SENIOR DEPUTY PRESIDENT HAMBERGER SYDNEY, 27 APRIL 2010

Protected action ballot; notice requirements for industrial action; ‘exceptional circumstances’.

[1] The Transport Workers’ Union of Australia (TWU) and the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, known as the Australian Manufacturing Workers Union (AMWU) have made applications for protected action ballot orders in relation to their members employed by the ACT Internal Omnibus Network (ACTION).

[2] I have decided to deal with both applications together, as permitted by s. 442 of the Fair Work Act 2009 (the Act). I am satisfied that the requirements set out in s.443 of the Act are met and I am therefore required to make protected action ballot orders in relation to both applications.

[3] ACTION has submitted that in making these orders I should exercise my discretion under s.443(5) to extend the written notice periods that the applicants must give before they can engage in industrial action.

[4] S.443(5) provides:

‘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.’

Lawler VP considered the meaning to be given to the phrase ‘exceptional circumstances’ in CEPU v Australia Post 1 in the equivalent provision to be found in the Workplace Relations Act 1996. He found, 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.’

[5] I have had regard to submissions from both ACTION and the two unions on whether there are exceptional circumstances in this case, together with evidence from Mr Stephen Colbert (a senior manager from ACTION). I am satisfied that there are exceptional circumstances of the kind referred to in s.443(5) that would justify an increase in the notice period. I base this finding in particular on the following factors:

• ACTION is effectively the only provider of public bus services in the ACT. Indeed, apart from taxis, it is in practice the only provider of public transport in the ACT. Most other major cities in Australia have more than one significant provider of public transport.



• ACTION transports on average 73,000 people a day, including 21,000 school children and another 20,000 concession holders.



• There are at the moment a particularly large number of road works in the ACT, which would significantly exacerbate the transport problems that would be caused by a stoppage of ACTION bus services.

[6] Given these circumstances I consider it appropriate that ACTION be given greater notice than the standard three working days of any form of industrial action which would involve a complete cessation of work. This would give ACTION more time to warn passengers about the effect on services of any forthcoming industrial action and would assist passengers and the community more generally to make alternative arrangements. I have accordingly decided to exercise my discretion under s.443(5) to increase the notice that must be given under s.414(2) to five working days in relation to all such industrial action. I do not consider such increased notice to be necessary in relation to industrial action that is of a more limited nature (for example, bans on completion of paper work).

[7] I have issued an order to give effect to this decision.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr K Pinkis for the TWU

Ms J Timbrell for the AMWU

Ms H Robinson for the ACT

Hearing details:

Sydney/Canberra (by video link)

2010

27 April

 1   Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Australian Postal Corporation PR979157 (9 October 2007)

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