TWU v ISS Security Pty Ltd

[2012] FWA 7141

[2012] FWA 7141

FAIR WORK AUSTRALIA

DECISION

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

Transport Workers’ Union of Australia
v
ISS Security Pty Ltd
(B2012/1496)

DEPUTY PRESIDENT BARTEL ADELAIDE, 21 AUGUST 2012

Application for a protected action ballot order - period of written notice of industrial action.

[1] On 20 August 2012 I issued a protected action ballot order on application of the Transport Workers’ Union of Australia (TWU) in relation to the negotiation of a proposed enterprise agreement with ISS Security Pty Ltd (the employer). 1 The employees covered by the proposed enterprise agreement are engaged at Adelaide Airport and are currently covered by the ISS Security Adelaide Airport Collective Agreement 2006.

[2] The application was not opposed by the employer, however Mr Moore, the employer’s General Manager, Industrial Relations, sought an extended period of seven working days notice to the employer for any industrial action, pursuant to s.443(5) ofthe Fair Work Act 2009 (the Act).

[3] At the conclusion of the hearing I indicated that I was satisfied that the statutory requirements of ss.443(1), (2) and (3) of the Act had been met, and reserved my decision in relation to the request for extended notice of industrial action.Having considered the submissions of Mr Spring from the TWU and Mr Moore, I have determined that the TWU should provide seven days written notice of any stoppages of work and a provision to this effect was included in the protected action ballot order. Set out below are the reasons for my decision.

[4] Mr Moore’s submission for the extended notice was based upon the possibility that employees may undertake one or more stoppages of work of 48 hours duration in the event that the ballot was approved. He stated that the employees concerned perform aviation screening which is essential to the operation of the airport. This work requires the relevant employees to have certain clearances and levels of training and as such they could not be readily replaced by other employees based in South Australia. In the event that employees performing the screening were unable to be replaced, Mr Moore stated that there would be “… a complete grounding of all travel out of Adelaide Airport, domestic and international schedules would be interrupted … affecting not only passengers and crew, but also the broader community …” 2

[5] Mr Moore stated that the only option to maintain the screening function would be to bring in employees from airports interstate, who have the requisite clearances and training. He advised that the employer has contingency arrangements in place with the Office of Consumer and Business Affairs (OCBA) to recognize licensed security officers from interstate in certain circumstances, including industrial action. Mr Moore submitted that a period of seven days notice of industrial action was reasonable in the circumstances.

[6] The TWU opposed the extended notice of industrial action. Mr Spring argued that there was no certainty that any industrial action would take place, let alone stoppages of 48 hours which was only one of a range of industrial actions that would be open to the employees should the ballot be approved. In addition, it was argued that three days notice would be sufficient to arrange replacement labor from interstate. Mr Spring contended that in these circumstances, there were no exceptional circumstances to warrant the extended notice sought by the employer.

[7] Section 443 of the Act provides as follows:

“443 When FWA must make a protected action ballot order

(1) FWA 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) FWA 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) FWA 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.

(4) If FWA 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 FWA decides, under subsection 444(1), is to be the protected action ballot agent; and

(b) the person (if any) that FWA decides, under subsection 444(3), is to be the independent advisor for the ballot.

(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.”

[8] In CEPU v Australian Postal Corporation, 3 Vice President Lawler discussed the meaning of “exceptional circumstances”. While decided in a different, although similar statutory context, the following passage is apposite, and has been adopted by members of FWA4 in the context of a consideration of s.443(5) of the Act:

“[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.”

[9] I am satisfied that the reasons given by the employer justify the extended period of notice sought. The relocation of workers from interstate may take some time to effect, depending on the circumstances of the workers concerned. The potential consequence of not being able to introduce replacement labour is significant disruption to the travelling public. Aviation screening operates for passengers of all airlines and alternative modes of transport are unlikely to be a viable option for many of them. In my view this constitutes an exceptional circumstance warranting an extension of the notice period.

[10] However, as Mr Spring noted, a stoppage of work is but one of a range of industrial actions being put to ballot in the following question:

“Do you, for the purposes of supporting or advancing claims in respect of a proposed enterprise agreement with the employer, authorise the taking of protected industrial action separately, concurrently and/or consecutively over the period of negotiation, in the form of:

• The performance of work in a manner different from that in which it is customarily performed;



• Bans and limitations on job functions;



• Higher duties bans;



• Overtime bans and limitations;



• Paperwork bans;



• Work to rule; and



• Work stoppages or stop work meetings of up to 48 hours duration?

Yes   No

[11] Mr Moore raised no issues concerning any of the other forms of industrial action proposed in the ballot question and as such the requirement to give seven working days notice will apply only to a proposed stoppage(s) of work. The standard three working days notice will apply to all other forms of proposed industrial action.

DEPUTY PRESIDENT

Appearances:

M Spring of the Transport Workers’ Union of Australia for the applicant

J Moore on behalf of ISS Security Pty Ltd

Hearing details:

2012
Adelaide
August 20

 1   PR528121.

 2   Tr at PN101.

 3   [2007] AIRC 848.

 4   See, for example, CPSU, the Community and Public Sector Union v G4S[2011] FWA 2115, esp. at para [11].

Printed by authority of the Commonwealth Government Printer

<Price code A, PR528149>