Transport Workers' Union of Australia v Westside Bus Company Pty Ltd atf Westside Unit Trust T/A Bus Queensland

[2016] FWC 3347

[2016] FWC 3347

FAIR WORK COMMISSION

DECISION

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

Transport Workers' Union of Australia
v
Westside Bus Company Pty Ltd atf Westside Unit Trust T/A Bus Queensland; Toowoomba Transit Pty Ltd T/A Bus Queensland; Bus Queensland (Lockyer Valley) Pty Ltd T/A Bus Queensland; Toowoomba Admin Pty Ltd atf Toowoomba Admin Unit Trust T/A Bus Queensland; Park Ridge Admin Pty Ltd atf Park Ridge Admin Unit Trust T/A Bus Queensland
(B2016/529)

COMMISSIONER SPENCER BRISBANE, 9 JUNE 2016

Proposed protected action ballot of employees of Westside Bus Company Pty Ltd atf Westside Unit Trust; Toowoomba Transit Pty Ltd; Bus Queensland (Lockyer Valley) Pty Ltd; Toowoomba Admin Pty Ltd atf Toowoomba Admin Unit Trust; and Park Ridge Admin Pty Ltd atf Park Ridge Admin Unit Trust - 5 days notice of industrial action.

Introduction

[1] This decision relates to an application pursuant to s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot order in relation to members of the Transport Workers’ Union of Australia (the TWU / Union / Applicant) employed by Westside Bus Company Pty Ltd atf Westside Unit Trust T/A Bus Queensland; Toowoomba Transit Pty Ltd T/A Bus Queensland; Bus Queensland (Lockyer Valley) Pty Ltd T/A Bus Queensland; Toowoomba Admin Pty Ltd atf Toowoomba Admin Unit Trust T/A Bus Queensland; Park Ridge Admin Pty Ltd atf Park Ridge Admin Unit Trust T/A Bus Queensland (the Respondent).

[2] The Respondent operates bus services under contract with the Queensland Government which include route and school services, special education services and long distance services. They operate those services in the Toowoomba, Ipswich, Park Ridge and Lockyer Valley areas. The Respondent stated it employs some 455 persons of which 385 will be included in the proposed enterprise agreement negotiations.

[3] The Union and the Employer have been bargaining for an enterprise agreement to replace the Bus Queensland Employees’ Enterprise Agreement 2012 – 2014.

[4] Directions were set in line with the requirements in s.441 of the Act for the Respondent to confirm whether they objected to the application and if so on what grounds.

[5] The Respondent objected to the making of the order in the proposed terms, and sought that the proposed notice period be extended to require the Applicant to give five days notice in respect of (4 out of 6 types of) proposed industrial action authorised by the Ballot, relating to Questions 1 (overtime), 2 (stoppages for 2 hours), 3 (stoppages for 4 hours) and 4 (ban on collection of fares). The Respondent argued, pursuant to s.443(5) of the Act, that there are exceptional circumstances justifying the period of written notice to be extended, to longer than the three working days; to a period of five days. In evidence, the contractual obligations were raised that, required the employer to notify the Queensland Government of any change or disruption to their service. The Respondent also confirmed the necessity to communicate any changes to their customers, being passengers including children, special needs children and members of the public.

[6] The Respondent submitted that there were exceptional circumstances related to the protected industrial action in terms of properly notifying their passengers for whom they provide transport in order that alternative arrangements can be made.

[7] I am satisfied that all of the statutory tests of section 443(1) have been met by the Application and the only outstanding issue for consideration is the notification period. The Applicant, in response to the submissions of the Respondent, submitted that the application should be granted because all of the statutory requirements of s.443(1) have been satisfied. The Applicant contended that the Respondent had not discharged the onus of linking the nature of its business in terms of exceptional circumstances to a justification for an extension to a 5 day notice period for the protected industrial action. The Applicant opposed the 5 day notification period.

[8] In other respects, I am satisfied that the application was properly made and the legislative criteria met. The remaining matter under consideration is in relation to the extended notification period, sought by the Respondent.

Legislation

[9] Section 443 of the Act sets out when the Commission must make a protected action ballot order:

“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.”

[10] Section 414 of the Act provides:

“414 Notice requirements for industrial action

Notice requirements—employee claim action

(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.

(2) The period of notice must be at least:

(a) 3 working days; or

(b) if a protected action ballot order for the employee claim action specifies a longer period of notice for the purposes of this paragraph—that period of notice.

...”

Summary of Submissions and Evidence and Considerations

[11] The issue for determination is whether there are “exceptional circumstances” justifying a longer period of written notice than the three working days prescribed, pursuant to s.443(5) of the Act. The Respondent sought a five day notice period.

[12] In support of seeking the extended notification period to five (5) days, for Questions 1, 2, 3 and 4, the Respondent set out the scope of their business as follows:

“…

(viii) The Respondent operates to schools in the Ipswich area (54 schools), the Lockyer Valley 19 schools), Park Ridge (46 schools) and Toowoomba (59 schools). In total there are 178 schools which range from infants and primary schools to high schools and special needs schools where the student are disabled and required additional supervision on their buses to get them to and from school.

(ix) In the event that protected action is taken the following would have to be made. Against each notification is an estimate time line to make same.

a. Hospitals – patients catching Public Transport for appointments. Allow 1 week for relevant notice boards updated. Hospitals include: Ipswich Hospital, St Andrew’s Hospital, Toowoomba Base Hospital
b. Mount Lindesday Highway Action Group
c. Schools (178 schools including University students and TAFE students – newsletters (allow 1 week)
d. Local Council – EDMs (electronic district mail outs- 1 week content), update of websites
e. Local MPs – website updates and mail outs – 1 week. At least 22 local councils including: Somerset Regional Council, Brisbane City Council, Logan City Council, Scenic Rim Council, Ipswich City Council, Lockyer Valley Regional Council, Toowoomba City Council, Western Downs Region, Goodiwindi Region, Shire of Balonne, Shire of Paroo. Shire of Murweh, Blackall-Tambo Region, Longreach Region, Shire of Winton, Shire of Richmond, Shire of McKinlay, Shire of Flinders, Charters Towers Region, City of Townsville, Rockhampton Region, Shire of Banana,.
f. Community notice boards – 1 week
g. Peak advisory groups (e.g. Chambers of Commerce etc – 1 week to allow for adequate community notice)
h. Vision Aust – 1 week
i. Guide Dogs QLD – 1 week
j. Austism QLD – 1 week
k. Endeavour Foundation – 1 week
l. Council of Ageing – 1 week
m. Local Paper – 1 week out to allow for weekly paper
n. Media Incudes: Jimboomba Times, South West News, Beaudesert Times, Qld Times, The Advertiser, The Chronicle, The Gatton Star, River 94.9 radio (at least a day)
o. Customers and freight agents for long distance services – 1 week
p. Medical freight suppliers including: Tambo Medical Central, Augathella Hospital, Sullivan Nicholades, Julia Creek Hospital, Longreach Medical Centre.
q. The Special Needs schools including Claremont Speical School, Ipswich West Special School, Bremer State High School Special Education Unit, Ipswich Special School, Amberley District State School, Gatton State School, Lockyer District High School, Ipswich Central State School would need at least a week to ensure proper arrangement were made for these special needs students.

(x) The Respondent carries 6118 school students each school day the a variety of schools across the near western part of the State and makes 1358 trips per day during school days, 1036 trips on schools holidays, 487 on Saturday and 328 on Sunday. 1”

[13] Mr Balzer, a school and route bus driver employed by the Respondent, provided evidence for the Union opposing the need for the longer notification period.

[14] The Union considered that a three working day notification period was sufficient. Mr Balzer’s evidence as to the ability to suitably inform customers of service disruption, in the instance of members taking protected industrial action, was set out in his statement of evidence as follows:

“11. My understanding of the contractual arrangements between Bus Queensland and Translink is that Bus Queensland is obliged to advise Translink of service disruptions and late running. This information is then used to update the Translink web page that informs commuters of the status of the network. The "My Translink" application (app) also provides real time updates of services that may be running late or disrupted.

12. Translink has the resources of the Queensland State Government at its disposal for information dissemination about service disruptions. There is no requirement for Bus Queensland to take on this role by itself - it is mainly the responsibility of Translink.

13. Likewise, Bus Queensland is not obliged to contact each parent for any affected school route services. Their obligation is to advise the school of service disruption and the school then disseminates that information to the students and parents. The Department of Education is well positioned and resourced to undertake such notification. They have the contact details for the parents (including parent emails etc). Schools and parents then make decisions based on that information.

14. Translink long distance services require passenger manifests. Passengers provide telephone numbers and contact details when booking fares. Bus Queensland is obliged to inform Translink of late running and service disruptions. There are very few walk up passengers with most taking advantage of discounted fares online.

15. Long distance services can be significantly late and cancelled on short notice (less than 2 hours). A 3 day period is plenty of time to advise affected passengers of cancellations to services.

Mr Balzer stated, in addition to the communication avenues set out above, additional steps would be taken by Translink, Q Connect and the Department of Education, Bus Queensland could take the following steps to notify passengers who may be affected:

• Notices at Bus Stops;



• Notices in buses; and



• Community Service radio announcements;

These measures would take less than 3 working days to implement.”

[15] Based on Mr Balzer’s assessment of union membership, he stated:

“…If all TWU members employed by Bus Queensland were to engage in industrial action that involved a stoppage of work for any period it is likely that:

• services in the Laidley area would not be affected;



• services in Toowo omba and Park Ridge would remain largely unaffected;



• only those urban services provided by Westside Bus Company and long distance services from Toowoomba, Redbank and Mount lsa would face any significant disruption.

10. Most TWU members employed at Westside are employed to drive urban route services. There are only 4 school bus drivers who are TWU members and so school services from Westside would be largely unaffected if there were to be a stoppage of work.” 2

[16] However Mr Balzer conceded that the Employer does not know who the Union Members are and would not actually know which employees are taking the industrial action until the actual day, of the action.

[17] Mr Balzer stated that he had never been notified by the company of changes to the route or changes to the service timetable of the school service provided, for his special needs child. However, he conceded the delays were minor (approximately 16 minutes) arising from a change of route or an extra child being allocated, and had never resulted in the cancellation of a bus service.

[18] The Applicant argued that the “exceptional circumstances” discretion, in relation to the notice period, should be considered afresh on the facts and circumstances of each case. Various relevant case authorities were referred to by both parties.

[19] The Respondent argued the following circumstances of the Respondent’s operations, to demonstrate that exceptional circumstances exist, justifying a greater notice period in which to prepare for the industrial action; it was submitted that the Respondent would need to put in place business contingency arrangements, to ensure the safety of their passengers, and that the passengers were aware in a timely manner of the cancellation of services, in order that the alternative plans could be made. The Respondent argued the importance of extending the notification period to five days, to accommodate the following, (as set out in the submission):

“7. More specifically the Respondent seeks to rely upon the fact that the services operated by the respondent reach out to 6118 school students who are carried each school day to their respective 119 school. In addition the Respondent operates special needs services for over 100 disabled school students to some 8 special needs schools. It is the submission of the Respondent that these special needs children are a significant reason why appropriate notice of a disruption outweighs any other criteria for taking protected action.

8. It is the Respondent’s submission that the evidence of the Respondent is that in the past where services have been disrupted or changed a significant notice period has enabled the Respondent to minimise the impact of that disruption or change.

9. It has been argued by the Australian Public Transport Industrial Association, for a long time, that public transport is an essential service…”

[20] The Respondent submitted that there could be serious consequences if the increased notice period was not allowed to make plans, to accommodate the impact of the protected industrial action on their transport services and for their passengers.

[21] The following is an extract from the Decision of Vice President Lawler in CEPU v Australia Postal Corporation 3, which concerned s.463(5) of the Workplace Relations Act (the mirror provision of s.443(5) of the Act, which referred to the Decision of Justice Rares in Ho v Professional Services Review Committee No 2954:

“[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.”

[22] The Respondent contended that the present matter was one where exceptional circumstances existed and I have examined such circumstances in line with the definition in CEPU v Australia Post 5, in relation to the impact that stoppages of the Respondent’s transport services, would have on the Respondent, in endeavoring to inform its customers and the public.

[23] The Respondent contended that there was a basis, for the exercise of the discretion, to extend the notice period where a public interest exists. The Respondent submitted a public interest existed on the basis of the public safety and security in relation to the provision of the transport services, particularly to children.

[24] An issue to be taken into account is that, where the interests beyond that of the immediate parties may be significantly impacted by the taking of industrial action, the tendency is for an extension of the notice period to be provided, and in this regard the decision of Commissioner Lewin in Transport Workers’ Union of Australia 6, is extracted as follows: (citations omitted)

“[17] Decisions of Fair Work Australia ... which have granted an extension of the relevant period of notice beyond that prescribed by s414(2)(a) of the Act have all involved circumstances where a broader public interest to those of the parties immediately concerned with the protected industrial action existed. Such circumstances are the conjunctive circumstances of the employer and third parties referred to by Vice President Lawler. Those circumstances included: the national interest in the operation of the Australian Customs and Border Protection Services; the availability of public transport services in a capital city; and a particular form of industrial action involving risks to public safety from prisoners of a State and access to medical services within a State prison, in which case the period of notice was extended from three to five working days but limited to a particular form of protected industrial action, among others, which might be taken by employees of the employer responsible for the management of the prison.”

[25] The Commission has, in a number of cases, increased the notification period, generally in relation to essential services important to the public interest, such as health services 7, public transport services8, correctional9 and fire10 services, the provision of power11 and airport security12, and customs and border protection services13. Between five and seven working days were granted for notice periods in these cases.

[26] The Applicant denied that such exceptional circumstances existed with these operations and relied on the evidence of Mr Anthony Balzer, a school and route bus driver employed by the Respondent. He stepped through the range of ways, the Respondent could currently appropriately accommodate the protected industrial action, with three working days’ notice.

[27] Satisfaction of the appropriate communication to passengers, could not be drawn from the evidence of the Respondent, simply fulfilling its contractual obligations to advise the State Government and relying on this for the notification to passengers and parents of the industrial action.

[28] Mr Adam Carter, Assistant Secretary of the Queensland Branch of the Transport Workers’ Union, stated in evidence:

“If we notify action in particular workplace or a particular section of the workplace or section or the workforce, then we would encourage our members to take that industrial actions, yes.” 14

[29] It was acknowledge that this was the Union’s statutory entitlement to take protected industrial action. However, Mr Carter agreed he could not guarantee which members would go on strike 15. This then, made trying to operate the bus services very difficult for the Respondent.

[30] Mr MacDonald put to Mr Balzer, a driver with the Respondent, as follows:

“Can I put to you that three days, in fact, isn’t enough time to advise parents in relation to proposed strike action that would eliminate the school service on a particular day? – No, I don’t think that would be the case, as I’ve also said in my affidavit that the number of TWU members who undertake school run, if they were to participate in that sort of action there would be negligible disruption because the company has a large number of non-union members that can fill those positions. We’re taking four buses.

Mr Blazer, I apologise in advance but can I put to you that the leaving behind of on child at bus stop can have serious state-wide consequences for bus operations, however.…”. 16

[31] Mr Balzer suggested that the Respondent may be able to accommodate the protected industrial action by rostering alternative drivers. However, he conceded that the employee would probably not know, which drivers were union members and which would take industrial action until the day of the action.

“You say, Mr Balzer, as I understand it, and Mr Macdonald is right to put to you that if there is a notification of a four-hour stoppage, you say the employer can re-roster and roster other people to do that?---They do on a daily basis Commissioner.

But in relation to industrial action, as I understand your answer to an earlier question I put to you, that you accept that the employer may not know who are the union members and who is going to take industrial action?---Correct, because I don't know what form of notification that they get.

They simply get - and you correct me, Mr Norris, if I am mischaracterising, but it will be a notification under the Act within three days - I am summarising - that there will be industrial action of a particular type?---Okay.”  17

[32] The General Manager, Mr Davies, in addressing the communication undertaken on disruption to services stated:

“All of these service contracts that you do have, they all contain obligations within them that if things happen to disrupt services, you are to notify your contracting party which I understand to be the State of Queensland these days?---That is correct.
Do you agree with what I have just said?---Yes.

It is the case, isn't it, correct me if I am wrong, but I think you used to work for TransLink?---That's correct.

So you would have some experience in these things?---Yes.

It is the case that when there is disruption to services, TransLink or some other arm of the government may be swung into action to redress that.  That's correct, isn't it?---Yes, they would assist with communications.

Yes, very well.  Thank you.

THE COMMISSIONER:  How does that happen?---In the case of school services, we would notify TransLink of the change and generally speaking there are limited changes allowed to the school network on an annual basis.  We would notify TransLink a period of time at their request in advance of the change and they would approve the change and then request us to communicate that through an approved plan back to the schools.

But I am particularly interested in if there is notification with three days' notice of protected industrial action?---Yes.

Can you explain to me how the communication is undertaken?--We would notify our contract manager in writing and obviously verbally of the change.  We have an obligation to take precautions and propose alternative measures to be put in place and we would propose a communication strategy for our stakeholders.

What would that communication strategy be to parents?---As outlined previously, it would be similar to those examples I gave whereby we would sent notices to parents via the bus.  So, you know, there would be notices printed and given to the drivers who would distribute them to the school kids.  We would write to the school and request their assistance in communicating through their newsletters, et cetera, and distributing letters through the schools as well and then for a significant change we may also provide staff, if resources available, directly to the school to assist with, you know, diverting children in the right direction if they are not catching their normal services, et cetera.

What would that be?---In the case of where a service - where we might have to combine services because we have not had adequate drivers available as may be the case under this.  We may send a staff member to the school to say, you know, "Don't catch this bus, catch this bus instead."

Would that bus potentially be a different route?---Yes, but we would propose to, you know, make minor alterations to those routes to cover as many students as we could.” 18

[33] The General Manager agreed with Mr Norris that Bus Queensland liaises with Translink and provides some resources to assist with the communication such as putting notices up on the website, or possibly staff to hand out flyers, at the bus stop.

[34] In addition in response to questions from Mr Norris, the General Manager, Mr Davies stated:

“MR NORRIS:  So you would agree with me it doesn't take very long to produce a handout, does it?---The production of the handout perhaps doesn't take long.  The plan or the advice within that handout may take time to prepare.

So, for example, let it be supposed you get notice on a Monday afternoon that there will be protected industrial action on a Friday of that week; all right?  I imagine being the diligent and prudent kind of people you are, you would start production on a flier that you could hand out to the affected clients of that service.  Is that a fair thing to say?---We would start planning our response to that industrial action.

You would start preparing a flier - a handout, rather?---Once we had the information about what the flier was to contain.

As I have said to you, you have received the information on a Monday afternoon.  Isn't it the case that on Tuesday that you are going to start producing a handout?---Depending on the decision of this as to how to recover from that industrial action, as in what services we could or could not operate.  As I say, it is not the handout that takes time.  It is the plan, the contingency plan, with the number of services we operate could be quite extensive.

Just to clarify that.  So the first thing you would do quite diligently, I might add, is work out whether or not you could cover the affected services with other staff.  Is that a fair statement?---That is a statement - yes, fair statement.

The second thing, if it turns out that you have got a problem with staffing, you would start preparing handouts, wouldn't you?---Yes, we would.

It doesn't take long to prepare a handout, does it?---No.

I mean, for example, without labouring it too long, annexure A to your affidavit, you have got a staff information bulletin, enterprise bargaining agreement.  Now, I realise this is not a notice of a service stoppage, but it is what I would describe as a handout.  Do you have it in front of you?---Yes.

How long did it take to prepare that?  Less than a day, wouldn't it?

…

MR NORRIS:  So it is the case that the handout could be prepared on a Tuesday with some coordination including potentially from TransLink or the responsible State Government entity, you could be handing out that handout on Wednesday and Thursday of the week where industrial action was notified for Friday.  You would have to agree with that, wouldn't you?---As I said, depending on what the plan is, the contingency plan at that point in time, it may take longer than that to prepare the information for the public and the flier is only one part of that communication plan.

Can I suggest to you that you are only trying to avoid the question; right?  Just hypothetically - - -

MR MACDONALD:  He needs to be able to answer that question.

MR NORRIS:  - - - hypothetically you can't staff the shift that is affected; all right?---Once that decision has been made then, yes, we could put that in a flier format quickly.

Flier format quickly and you could start handing it out on the Wednesday and the Thursday of the week on the Friday when the industrial action was notified to commence.  That is right, isn't it?---Once the decision has been made, yes.

Thank you.

THE COMMISSIONER:  But am I to understand that that flier will be given to people who catch the service on Tuesday, Wednesday, Thursday?---I think that's what Mr Norris is proposing.

No, I am asking you.

MR NORRIS:  I don't believe that the witness agreed with me that it could be handed out on Tuesday.

THE COMMISSIONER:  I am sorry.  So in the circumstances, the flier would be handed to people catching those services on Wednesday/Thursday?---Yes.

If you haven't caught the service on Wednesday/Thursday, but you catch it on a Friday, you haven't been communicated it?---Correct.

There is no alternative communication strategy?---That was my point to Mr Norris is that that would - the flier would only form one part of our communication strategy.  Obviously the website updates notification through schools and newsletters and that sort of thing.  It would also form part of our strategy.

MR NORRIS:  Radio ads?---That's a possibility, yes.” 19

[35] The example of the Brisbane flood was referred to in terms of the response to the significant disruption to the bus service, however, it was noted by Mr Davies as follows:

“THE WITNESS:  Can I clarify that I think in the situation of a natural disaster, you don't get notification.  The public tends to be a lot more aware and they are not travelling in general because they are confined by the flood events.

THE COMMISSIONER:  Is it to say the airwaves are saturated when there is a public disaster?---Yes.” 20

[36] It is recognised, on the evidence, that industrial action will cause communication difficulties and disruption to the provision of the full services provided by the Respondent. It is recognised that taking protected industrial action is a statutory entitlement and the length of the notice period is not designed to deliver a period in which the Respondent can take such defensive strategies, such that the effect of the industrial action on the Respondent’s business is significantly reduced or voided.

[37] The circumstances of the current matter are similar to that considered by the Commission as currently constituted in TWU v Linfox Armaguard Pty Ltd. 21 where the particular nature of the work with considerations for safety, security and the impact of some forms of the potential industrial action were recognised. The transport business and the potential repercussions on the business, customers and the public are commensurate with exceptional circumstances, whilst five working days in that case was considered appropriate (based on the exceptional circumstances) for the notice period, five days is currently sought (for Questions 1 to 4).

[38] As stated above, I consider that public transport is an important service, and furthermore, given that the services involve the carriage of school children, confidence is required in the communication system, to ensure notification to parents, passengers and other users, to provide for their safety. Such a response and adequate time period is in line with the Queensland Government’s “no child left behind” policy. The evidence by the Applicant sought to test implementing a proposed 3 day process, involving developing a communication strategy, advising the State Government and then providing paper flyers across the remainder of the 2 day period. This process did not provide a satisfactory communication plan or timeframe to ensure passengers were properly informed in order that there was some certainty that passengers across the week received the information.

[39] The Respondent’s overall claim for the extension of the notice period to cover the protected industrial action has been considered against the statutory entitlement to take the action. As per the consideration of exceptional circumstances in CEPU v Australia Post, it is necessary for the Commission to balance the statutory entitlement to take protected industrial action and whether exceptional circumstances exist, which warrant a longer notice period for the industrial action. The following two paragraphs of the CEPU v Australia Post decision are relevant to the determination of exceptional circumstances:

“[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…” 22

[40] Mr MacDonald clarified that the extended notification period was only sought for the industrial action in relation to Questions 1 to 4, and not Questions 5 and 6. However, in relation to Question 4, bans on the collection of fares, whilst the Employer commented that they had a contractual obligation to collect fares; no evidence was brought in relation to this Question. Accordingly no extended notice period greater than three working days is granted in relation to protected industrial action associated with the non-collection of fares. Further, in relation to Question 1, bans on the working of overtime, the Respondent has not demonstrated exceptional circumstances to justify the extension to five days.

[41] Balancing the considerations as referred to above and taking into account all of the facts and circumstances of the Respondent’s transport services to their passengers and the required communication, it is concluded that, to accommodate the range of operational, safety and communication matters, an increased notice period of five days, for the notification of protected industrial action, in relation to Questions 2 and 3 only is justified. The evidence brought in this matter does not justify an increased notice period for Questions 1 and 4. The further period was not sought for Questions 5 and 6.

[42] On the evidence, to accommodate the imposition the protected industrial action (in relation to Questions 2 and 3) and the impact it may have on these transport services, particularly where children and members of the public rely on such, I cannot be confident that three working days’ notice is sufficient to allow for proper communication of the disruption to services. I am satisfied that exceptional circumstances exist to justify the extension to five days for Questions 2 and 3.

Conclusion

[43] Certainly I concur that public transport is an importance service and that the public depends on it, 23 and this justified sufficient time to allow for the communication of the affected services. This is particularly so where the passengers included children and special needs children and the members of the public.

[44] Having determined that exceptional circumstances exist for the provision of five days’ notice in relation to the protected industrial action proposed by Questions 2 and 3, the grant of a protected action ballot order will issue on that basis, with the 3 working days’ notice provided for Questions 1, 4, 5 and 6.

[45] A separate Order [PR580780] will issue.

COMMISSIONER

Appearances:

Mr L Norris, Legal Officer, for the Transport Workers’ Union of Australia

Mr I MacDonald, National IR Manager, Australian Public Transport Industrial Association, for Bus Queensland

Hearing details:

2016

Brisbane

May 25.

 1   Letter to FWC from Respondent (APTIA) dated 16 May 2016.

 2   Affidavit of Anthony Balzer, paragraph 9.

 3   [2007] AIRC 848

 4 [2007] FCA 388 (27 March 2007)

 5   [2007] AIRC 848

 6   [2012] FWA 133

 7   HSU v Victorian Institute of Forensic Mental Health[2012] FWA 4633; Australian Nursing Federation v Victorian Hospitals Industrial Association[2011] FWA 7198

 8   TWU and AMWU v the Chief Executive of the ACT Internal Omnibus Network(ACTION) on behalf of the Australian Capital Territory[2010] FWA 3355

 9   CPSU, the Community and Public Service Sector v G4S[2011] FWA 2115

 10   United Firefighter’s Union of Australia [2013] FWC 5360

 11   Construction, Forestry, Mining and Energy Union (EnergyAustralia) [2013] FWC 2748; AMWU v Clyde Babcock-Hitachi (Australia) Pty Ltd[2011] FWA 2291

 12   TWU v ISS Security Pty Ltd[2012] FWA 7141

 13   CPSU, the Community and Public Sector Union v Commonwealth Government - Australian Customs and Border Protection Service[2011] FWA 3919

 14   PN 43.

 15   PN50

 16   PN 362- 363.

 17   PN 477-479.

 18   PN 581- 592.

 19   PN 623-630, 636 – 648.

 20   PN 660 – 661.

 21   [2014] FWC 3934.

 22   Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation [2007] AIRC 848

 23   Transit Australia Pty Ltd v. Transport Workers Union of Australia[2011] FWA 3410, 31 May 2011 at [36]

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