United Firefighters' Union of Australia v The Head of Service of the Act Public Service on behalf of Australian Capital Territory T/A Act Fire and Rescue
[2019] FWC 1022
•19 FEBRUARY 2019
| [2019] FWC 1022 |
| FAIR WORK COMMISSION |
REASONS FOR DECISION |
Fair Work Act 2009
s.437—Protected action
United Firefighters’ Union of Australia
v
The Head of Service of the ACT Public Service on behalf of Australian Capital Territory T/A ACT Fire and Rescue
(B2019/110)
COMMISSIONER WILSON | MELBOURNE, 19 FEBRUARY 2019 |
Proposed protected action ballot of employees of ACT Fire and Rescue.
[1] This matter concerns an application by the United Firefighters’ Union of Australia (UFU) for a protected action ballot order in relation to certain employees of the Australian Capital Territory T/A ACT Fire and Rescue (ACT Fire and Rescue) whose employment is presently covered by the ACT Public Sector ACT Fire & Rescue Enterprise Agreement 2013 – 2017, 1 (the Agreement) the nominal expiry of which is 30 June 2017. The application is made pursuant to Part 3 – 3 of the Fair Work Act 2009 (the Act) and is opposed by ACT Fire & Rescue.
[2] The application was made pursuant to s.437 of the Act.
[3] The UFU sought to ballot all employees of the ACT Fire & Rescue who will be covered by the proposed enterprise agreement and for whom the UFU is their bargaining representative. The material filed in this application by the UFU asserts that it is a bargaining representative for the purposes of s.176(1) of the Act.
[4] The UFU proposed one rolled-up question prefaced with a preamble and 23 elements to which respondent employees will need to answer with a ‘yes’ or ‘no’ response. The question and preamble proposed to be put is as follows:
“In support of reaching an enterprise agreement with your employer, do you do you support the taking of protected industrial action which will involve one or more of the following:
1. Stoppages, except responding to fire calls, for up to two hours to communicate and display union badging and industrial campaign material in work locations and to the public and to wear industrial campaign t-shirts, badges and stickers in association with that activity;
2. Stoppages, except responding to fire calls, for up to one hour for the purpose of making public and media statements in relation to the employer's bargaining position or employees' experiences as firefighters employed by the employer;
3. A ban on complying with a direction to remove union badging or industrial material displayed on, in or around work locations, appliances or UFU members;
4. Only engaging on behalf of the employer in communications with the media for the immediate purpose of public health or safety;
5. A ban on wearing uniform shirts, uniform jumpers or uniform jackets;
6. Only attending meetings at which any of the ESA Commissioner, Chief Officer, Executive Officer, or ESA Directors, attend if the purpose of the meeting is notified in advance as about operational incidents, operational de-briefing, training, securing public health or occupational health and safety, or enterprise agreement bargaining;
7. Refusing to report or record the code or type of false alarms triggered at protected premises other than reporting via the radio where faults require maintenance;
8. A ban on creating a record of any employee's participation in protected industrial action;
9. A ban on conducting any process relating to employee misconduct or discipline;
10. A ban on assisting in the preparation of ministerial reports;
11. Responding to emails via the employers email system with the caps lock function turned on (including reports and attached documents);
12. A refusal to comply with a direction to transfer between work locations until and unless notified within fourteen (14) days of the proposed transfer;
13. Refusing to act up or perform higher duties above an employee's substantive rank in "on shift" positions;
14. A ban on saluting, including standing when a senior officer enters the room;
15. Stoppages for the purpose of attending the ACT Legislative Assembly on sitting days, except to respond to fire calls;
16. A ban on appliances leaving a station, for the purpose of training, if such a movement would result in a response time of greater than ten minutes as estimated using the Dynamic Coverage Tool;
17. A ban on cross-crewing of appliances leaving a station, if such a movement would result in a response time of greater than ten minutes for a pumper as estimated using the Dynamic Coverage Tool;
18. A ban on the processing of accounts, including a ban on billing all external agencies, entities or persons for any work performed or undertaken;
19. A ban on following all ACT Government policy on social media;
20. Employees start and finish work in accordance with the rostered hours as set out in the Enterprise Agreement, except in the case of emergency fire calls;
21. A ban on signing receipts for the delivery of goods;
22. A ban on any restriction of the approval for leave if the restriction is not in accordance with the Enterprise Agreement; and
23. A ban on complying with any direction to circumvent the effects of industrial action taken.
YES [ ]
NO [ ]”
[5] ACT Fire and Rescue opposed the application on two grounds, as well as proposing that, pursuant to s.443(5) of the Act an extended period of notification of protected industrial action be required for five of the question elements. In this regard, ACT Fire and Rescue:
● argued that elements 1, 2, 3, 4, 5, 6, 8, 9, 12, 13, 15, 16, 17, 19, 20, 22, and 23 lacked clarity were ambiguous and respondents would have difficulty in accurately considering whether they should vote in favour of or against the proposed question (the Clarity Ground);
● Submitted that elements 19, 20, 22 and 23 were not industrial action within the meaning of the Act (the Industrial Action Ground); and
● Considered there were exceptional circumstances in respect of elements 1, 2, 15, 16 and 17 that would justify the Commission ordering that an extended period of notification of protected industrial action be required of seven days in the event that the ballot is passed by respondent employees (the Exceptional Circumstances Ground).
[6] Having been lodged on 12 February 2019 and been the subject of initial exchanges with the parties in order to ascertain whether the matter could be resolved by consent, the application was assigned to me for hearing on Thursday, 14 February 2019. The application was heard before me on Friday, 15 February 2019, with me indicating to the parties the same day my decision on the ACT Fire and Rescue’s objections as to the Clarity and Industrial Action Grounds. I reserved my decision in relation to Exceptional Circumstances Ground.
[7] Ms Tonia Sakkas and Ms Tracey Davies of Davies Lawyers appeared for the UFU and Mr James Macken of Counsel instructed by Ms Cate Allingham of ACT Government Solicitors appears for ACT Fire and Recuse. Permission for each party to be represented in these proceedings by a lawyer was granted by me pursuant to s.596 of the Fair Work Act 2009 (Cth) (the Act), with me being satisfied that legal representation would enable the matter to be dealt with more efficiently taking into account the complexity of the matter (s.596(2)(a)).
[8] In considering this application I must apply s.443 of the Act which provides:
“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.
(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.”
The Clarity Ground
[9] ACT Fire and Rescue argued that numerous of the question elements are deficient:
“1. The Respondent fully supports and acknowledges workers’ rights to take protected industrial action, including in the emergency services where the safety of employees and the public is paramount.
2. However, the Respondent objects to the application on the basis that the ballot questions as currently stated are ambiguous or do not represent industrial action. The Respondent has sought clarification from the Applicant via email and in a teleconference for the purpose of ensuring that employees can adequately understand the ballot questions and proposed industrial actions.
3. In particular, despite the Applicant's contention that the proposed industrial actions will not be undertaken where there is a risk to public safety, the ballot questions as currently stated do not make that clear. The Respondent submits that this gives rise to uncertainty and members cannot be expected to be aware of this constraint in the absence of a general statement in the ballot questions to qualify the proposed industrial action or specific exceptions drafted into each proposed action.
4. The Respondent seeks extended notice periods for a number of the proposed actions, including items 1, 2, 15, 16 and 17. The Respondent seeks 7 days’ notice for these actions on the basis that operational pressures arising in the current environment have resulted in firefighters being stationed across Australia to respond to emergency incidents. Our current response is to fires in Tasmania and floods in Queensland.
5. The Respondent notes that many of the proposed actions taken in isolation are likely to create potential risks to public safety, while the effect of actions taken cumulatively will give rise to complex decision-making around assessing risks to public safety. It is anticipated that cumulative action in relation to particular proposed actions (for example, items 12, 13 and 20 taken together) will create a significantly higher risk to public safety and restrict the Respondent from taking alternative action to provide firefighting services to the community.
6. In relation to the proposed ballot questions, the Respondent says the following:
a) Items 1, 2 and 15. The Respondent objects to these actions as currently drafted on the basis that the proposed actions as stated do not make it clear that the stoppages will not apply to emergency incidents, including fire calls, responding to hazardous material accidents, motor vehicle accidents and other emergency circumstances. The use of the term "fire calls" does not accurately describe all emergency incidents that require immediate response as a matter of public safety.
b) Item 3. The Respondent objects to this action as currently drafted on the basis that the proposed action does not clarify that the ban will not extend to the damaging of Territory property and will not apply where the display of industrial material impedes identification of emergency vehicles and firefighters, compromising public safety.
c) Item 4. The Respondent considers this proposed action to be ambiguous, with the meaning of “immediate purpose of public health or safety” to be particularly unclear. The Respondent seeks clarification as to whether this would extend to the notification of potential future risks to public safety, or for example, if “immediate” indicates a particular timeframe.
d) Item 5. The Respondent objects to this action as currently drafted on the basis that the proposed action does not clarify that the ban will not extend to the wearing of personal protective equipment, which must be upheld on the basis of health and safety.
e) Item 6. The Respondent objects to this action as currently drafted on the basis that the intended operation of the proposed action is unclear. The Respondent seeks clarification as to the requirement for advance notice, who the notice should be provided to, and the scope of the meetings that would be banned.
f) Item 7. No objection.
g) Item 8. The Respondent does not object to this action on the basis that it is made clear that the proposed action is not intended to restrict the Respondent from complying with sections 470-473 of the Fair Work Act 2009.
h) Item 9. The Respondent objects to this action on the basis that it is ambiguous. The Applicant stated in teleconference that the ban is intended to be a ban on participation in misconduct and disciplinary processes, despite the use of the term “conducting”. The Respondent considers that this is unclear on the current drafting.
i) Items 10 and 11. No objection.
j) Item 12. The Respondent objects to this action on the basis that it is unclear whether the ban will apply to relievers. In their correspondence of 14 February 2019, the Applicant indicated that it is proposed to apply to relievers and out duties. In that instance, the Respondent anticipates the potential for a significant impact on public safety if the proposed action is taken, as the capability to fully staff fire stations would be severely limited.
k) Item 13. The Respondent objects to this action on the basis as set out above at item 12. The proposed action does not clarify that the action will not be taken where public safety issues arise.
l) Item 14. No objection.
m) Item 15. The Respondent objects to this action for the reasons set out above under item 1.
n) Items 16 and 17. The Respondent objects to these actions on the basis that the Dynamic Cover Tool cannot estimate the time delays for appliances to respond to incidents. The Tool is used to review coverage in a holistic manner by viewing a map of Canberra and the allocation of appliances across the region. The Tool will trigger an alert where the map indicates a region with limited coverage, but this is not calculated as a matter of response time. Accordingly, the ban is unable to be accurately understood or engaged. The Respondent considers that it is therefore unclear how these proposed bans would operate in practice.
o) Item 18. No objection.
p) Item 19. The Respondent objects to this action on the basis that it is unclear how the proposed action constitutes industrial action.
q) Item 20. The Respondent objects to this proposed action on the basis that it is not clear how the action differs from usual operational practice. If the action is intended to be an overtime ban, the Respondent submits this is unclear.
r) Item 21. No objection.
s) Item 22. The Respondent objects to this action on the basis that it is unclear how the proposed action constitutes industrial action.
t) Item 23. The Respondent objects to this proposed action as it does not identify any particulars concerning the nature of the action or the work to be banned.”
[10] The UFU rejected the Respondent’s characterisation of its questions arguing that there is no lack of clarity to its question elements and that firefighters would be capable of responding to them.
The Industrial Action Ground
[11] ACT Fire and Rescue argues that four question elements refer to action that, if taken would not be “industrial action” within the meaning of the Act. The objection relates to elements 19, 20, 22 and 23 with the ACT Fire and Rescue stating that:
“Item 19. The Respondent objects to this action on the basis that it is unclear how the proposed action constitutes industrial action.
Item 20. The Respondent objects to this proposed action on the basis that it is not clear how the action differs from usual operational practice. If the action is intended to be an overtime ban, the Respondent submits this is unclear.
Item 22. The Respondent objects to this action on the basis that it is unclear how the proposed action constitutes industrial action.
Item 23. The Respondent objects to this proposed action as it does not identify any particulars concerning the nature of the action or the work to be banned.”
The Exceptional Circumstances Ground
[12] ACT Fire and Rescue submitted that there were exceptional circumstances that would warrant any order made by the Commission requiring an extended period of notice before industrial action in relation to those elements could be taken. The elements identified by the Respondent were 1, 2, 15, 16 and 17 with it putting forth that “operational pressure arising in the current environment have resulted in firefighters being stationed across Australia to respond to emergency incidents” which has necessitated the need for extended notice periods.
CONSIDERATION
[13] An application for a protected action ballot order ultimately seeks to “determine whether employees wish to engage in particular protected industrial action” for the agreement they are endeavouring to bargain for. 2 Industrial action is protected industrial action if it has been authorised by a protected action ballot order.
[14] In considering ACT Fire and Rescue’s submissions on its objections, it is relevant to take into account the definition of “industrial action”, set out within s.19 of the Act in the following terms:
“19 Meaning of industrial action
(1) Industrial action means action of any of the following kinds:
(a) the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work;
(b) a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee;
(c) a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work;
(d) the lockout of employees from their employment by the employer of the employees.
Note: In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v The Age Company Limited, 3 the Full Bench of the Australian Industrial Relations Commission considered the nature of industrial action and noted that action will not be industrial in character if it stands completely outside the area of disputation and bargaining.
(2) However, industrial action does not include the following:
(a) action by employees that is authorised or agreed to by the employer of the employees;
(b) action by an employer that is authorised or agreed to by, or on behalf of, employees of the employer;
(c) action by an employee if:
(i) the action was based on a reasonable concern of the employee about an imminent risk to his or her health or safety; and
(ii) the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.
(3) An employer locks out employees from their employment if the employer prevents the employees from performing work under their contracts of employment without terminating those contracts.
Note: In this section, employee and employer have their ordinary meanings (see section 11).”
[15] The question of whether or not particular action amounts to “industrial action” was most recently considered by the Full Bench in the matter of Mornington Peninsula Shire Council v Australian Municipal, Administrative, Clerical and Services Union. 4 That decision overturned earlier authority set by a Full Bench majority, also involving Mornington Peninsula Shire Council (Australian Nursing Federation v Mornington Peninsula Shire Council)5 and held after a detailed analysis of earlier authority, that the correct approach to the subject of whether or not a particular question element amounts to industrial action is to require an examination of the form of the proposed action and its connection with the definition of industrial action.6
[16] Notwithstanding that the Full Bench in Mornington Peninsula Shire Council v Australian Municipal, Administrative, Clerical and Services Union took a different approach to earlier authority in respect of some forms of industrial action the question of whether the wearing of campaign material in the instant case amounted to industrial action, it did not disturb the proposition set out within John Holland Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union 7 that in most cases the drafting of questions in a protected action ballot order will be a matter for the applicant and that the central requirement of s.437 of the Act is that the questions should describe the industrial action in such a way that employees are capable of responding to them:
“[19] 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.” 8
The Clarity Ground
[17] The Clarity Ground relates to question elements 1, 2, 3, 4, 5, 6, 8, 9, 12, 13, 15, 16, 17, 19, 20, 22, and 23.
[18] With the exception of question elements 1, 2, 15 and 20, and after reviewing the contentions of ACT Fire and Rescue, summarised above, the matters of clarity brought forward by ACT Fire and Rescue appear more to be matters of clarity to the employer, than to the employees who may be called upon to vote in the ballot. Noting the general propositions that in most cases the drafting of questions will be a matter for the applicant and that questions should describe the industrial action in such a way that employees are capable of responding to them, I discern no undesirable level of ambiguity or lack of clarity in all of the question elements other than 1, 2, 15 and 20.
[19] The objections raised by ACT Fire and Rescue are summarised above and are in large part downstream matters, relating to the way in which a notification of protected industrial action is framed, rather than matters going to the authorising question itself. The Act contemplates that notifications of protected industrial action require more specifics than an authorising ballot question.
[20] After considering the material before me I am satisfied that question elements 1, 2, 15 and 20 are insufficiently clear and ambiguous and require amendment. The ambiguity relates to what is a “fire call”, which is intended in each of the elements to be NOT an occasion for protected industrial action; for example in the first question element, the envisaged maximum two hour stoppages will not take place when firefighters are responding to a fire call.
[21] In the UFU’s response to ACT Fire and Rescue, dated 14 February 2019, Ms Sakkas, acting for the UFU advised in relation to elements 1 and 2 that “the reference to fire calls includes emergency incidents”, which appears to be a broader concept than would otherwise be attributed to the ordinary meaning of the words. I advised in the hearing of this matter that my decision would be to accept that those questions elements were unclear and that the ambiguity could be resolved by amending each question by inserting a suitable elaboration after the phrase “fire calls”. After further consideration of the matter, my decision is to insert after the words “fire calls” the phrase “which shall include emergency incidents”. Later in the hearing of this matter the UFU consented to amendments in the same way for the purposes of clarity to question elements 15 and 20 (which also employ the phrase “fire calls”) and I have decided to include the “emergency incidents” elaboration in those elements as well..
The Industrial Action Ground
[22] ACT Fire and Rescue argue that elements 19, 20, 22 and 23 do not refer to industrial action as defined.
[23] After taking into account the authorities on the subject as well as the content of the disputed elements I do not agree with the ACT Fire and Rescue’s contentions in relation to elements 20 and 22, but do agree with them in relation to 19 and 23.
[24] Element 20 is for a ban that “employees start and finish work in accordance with the rostered hours as set out in the Enterprise Agreement, except in the case of emergency fire calls” and 22 for “a ban on any restriction of the approval for leave if the restriction is not in accordance with the Enterprise Agreement.” On its face, each of these is capable of referring to work by an employee in a manner different from that in which it is customarily performed, and is thus capable of being industrial action.
[25] Element 19 refers to “a ban on following all ACT Government policy on social media”. Other than perhaps for firefighters whose work includes the distribution of community information through social media platforms, or the provision of responses to citizens through social media, and there is no evidence before me that there are any such firefighters, element 19 appears to be an invitation to firefighters to express their views about disputation and the like on social media, contrary to the ACT Government policies on the matter. Such action is not, as the question is presently framed, work by an employee in a manner different from that in which it is customarily performed, or some other form of action defined by s.19 of the Act as being industrial action. Because what is proposed by the element is a solitary form of action – a ban on following policy – it is not captured by the distinction drawn by the Full Bench in Mornington Peninsula Shire Council v Australian Municipal, Administrative, Clerical and Services Union between primary and secondary action, in which the taking of primary action (being permissible) encompassed as industrial action the taking of secondary action, which on its own may not have been permissible. 9
[26] Element 23 is for action in the form of “a ban on complying with any direction to circumvent the effects of industrial action taken.” While the UFU argued in the hearing that this was potentially action in the form of firefighters refusing to follow any directions they may be given by ACT Fire and Rescue to offset the effects of protected industrial action, the question as framed is too broad for the Commission to be satisfied that it adequately connects with the term “industrial action” as defined in s.19.
[27] As result of these considerations, I find that elements 19 and 23 do not refer to “industrial action” and therefore may not be included in the ballot question to be put to employees.
[28] After consideration of all of the matters put to the Commission about the proposed sub-questions, I was satisfied that all parts of the order sought by the ANMF were within the power of the Commission to order and that it was otherwise appropriate to make the orders sought by the Applicant.
The Exceptional Circumstances Ground
[29] The Full Bench has held in National Tertiary Education Industry Union v Charles Darwin University 10 that applications for an extended notice period under s.443(5) require probative evidence, with the Commission needing to be satisfied both that there are exceptional circumstances that would warrant an extended period, and that it is appropriate to grant an extended notice period. In this regard, The Full Bench stated that to grant an extended period of notice is to interfere with the right of a bargaining representative and its right to provide three wording days’ written notice of industrial action and therefore it should not lightly be curtailed without evidence justifying the grant of such power.11 The Full Bench went on to summarise the steps to be taken by the Commission when determining whether to grant such power:
“[23] The determination of whether the circumstances in a particular case are ‘exceptional’ involves an evaluative judgement. A proper approach to the exercise of the Commission’s discretion under s.443(5) requires first that a member identify or make findings about the particular facts or circumstances in relation to the proposed industrial action which are said inform the evaluative judgement that such factors or circumstances are exceptional circumstances. The phrase “exceptional circumstances” carries its ordinary meaning.
[24] Secondly, there must be a consideration whether the identified exceptional circumstances are circumstances “justifying” a longer notice period. This also involves an evaluative judgement made on the basis of probative material. The use of the verb “justifying” in s.443(5) signifies that the identified exceptional circumstances must show or prove that it is reasonable or necessary or the circumstances warrant or provide good reason to require a longer period of written notice.
[25] Thirdly, if the member is satisfied there are exceptional circumstances justifying a longer period of notice, there must be a consideration of whether to exercise the discretion and, if so, the additional period of notice that should be given in the circumstances (noting the maximum period).” 12
[30] ACT Fire and Rescue argues that an extended period should be allowed for elements 1, 2, 15, 16 and 17, which are in the following form (noting that elements 1 and 2 have been modified to reflect the clarifying words inserted by me):
1. Stoppages, except responding to fire calls, which shall include emergency incidents, for up to two hours to communicate and display union badging and industrial campaign material in work locations and to the public and to wear industrial campaign t-shirts, badges and stickers in association with that activity;
2. Stoppages, except responding to fire calls, which shall include emergency incidents, for up to one hour for the purpose of making public and media statements in relation to the employer's bargaining position or employees' experiences as firefighters employed by the employer;
15. Stoppages for the purpose of attending the ACT Legislative Assembly on sitting days, except to respond to fire calls;
16. A ban on appliances leaving a station, for the purpose of training, if such a movement would result in a response time of greater than ten minutes as estimated using the Dynamic Coverage Tool;
17. A ban on cross-crewing of appliances leaving a station, if such a movement would result in a response time of greater than ten minutes for a pumper as estimated using the Dynamic Coverage Tool…” 13
[31] The ACT Chief Fire Officer, Mark Brown gave evidence on the matters he saw as exceptional circumstances and the reasons for an extended period. That evidence included the context in which his agency worked, including that a fire service such as his was required to attend incidents at short notice, sometimes for unknown and possibly extended periods, and that sometimes the agency was required to provide assistance to interstate fire services for extended periods. Pertinent to the question elements in dispute are the above heightened risk periods currently being experience and/or projected for ACT Fire and Rescue. Relevantly, the Southern Australia Season Bushfire Outlook 2018-2019 issued by the Bushfire and Natural Hazards Cooperative Research Centre has indicated above normal fire risks in parts of Queensland, NSW, ACT, Victoria and Tasmania, coupled with the already recently seen significant fires in Tasmania, Victoria and northern NSW which have been the worst since 2003, destroying 500 homes and resulting in four fatalities.
[32] The effect of the current heightened risk period on ACT Fire and Recuse Mr Brown puts forth is not necessarily on firefighters being deployed interstate as none have been thus far, although they may be, but rather on the workloads of the remaining ACT Fire and Rescue stations where firefighters have been deployed which has resulted in lower staffing numbers. Mr Brown provided examples of protected action that if taken concurrently could result in fire stations having insufficient staffing numbers to meet safe crewing levels leading to closures of fire stations and therefore coverage issues which jeopardise the health and safety of firefighters and the public. Mr Brown submits that extended notice periods would permit management the time to undertake assessments and put in place mitigation measures to ensure that the proposed protected action can proceed without compromising public safety.
[33] The UFU contested that these matters amounted to exceptional circumstances, or that they warranted an extended period being granted for the forms of industrial action in question. The union noted there were presently no paid ACT firefighters responding interstate and suggested through its questions to Mr Brown that he may be labouring under a misapprehension about the meaning of at least some of the questions in dispute. For example, given that some of the question elements specifically dealt with action that would not take place at the same time as a fire call, why was additional time needed for response action?
[34] The most compelling of the concerns expressed by Mr Brown relate to the response capability depletion that may come from the agency having to respond for long periods of time to emergencies either within the ACT, or to provide assistance to other fire services. That reduction in capability is more likely to occur in the summer months than at other times. I accept that there will be a reduction in response capability because of these factors, and that some of that reduction will stem from the fact that ACT Rural Fire Service volunteers are responding interstate (and ACT paid firefighters are not). I regard this response capability depletion, to the extent that it relates to the hotter months, to be an exceptional circumstance.
[35] I consider though that Mr Brown has either misunderstood the impact of industrial action that may stem from some of the elements subject to this objection, or has overstated the effects. Not all of his contentions about the questions indicate exceptional circumstances, or would require the exercise of a discretion in favour of the ACT Fire and Rescue.
[36] Mr Brown gave this evidence about the need to shift resources through his district or the potential for delays through the Commission if orders restraining industrial action needed to be sought:
“10. For example, if proposed actions in questions 12 and 20 of the application are taken concurrently, this would likely result in fire stations having insufficient staff. Being prevented from transferring staff between fire stations or transferring relieving staff between fire stations is likely to lead to the closure of stations. That is because the absence of even one firefighter can mean the minimum safe crewing levels cannot be met. Moreover, item 20, which we understand to be in effect a ban on some overtime, may have a similar effect. In those instances, management would need sufficient time to identify and implement alternative arrangements to respond to emergency incidents. As the closure of a fire station results in coverage issues across the ACT, we would be required to engage in careful strategic management and allocation of remaining resources without jeopardising the health and safety of firefighters and the public.
11. The standard notice period of 3 days does not permit the necessary amount of time for management to undertake these assessments and to put in place mitigating measures to allow the proposed action to proceed without compromising public safety. The exceptional circumstances surrounding emergency management during normal operational periods are amplified by the serious conditions, expected for upcoming months, as previously outlined. If certain proposed actions were notified to be taken together, with only 3 days' notice, ACTF&R anticipate calling on the Fair Work Commission to suspend the industrial action(s) in accordance with section 424 of the Fair Work Act 2009.” 14
[37] I do not find by themselves these matters, including the need to move employees, even relief firefighters, to be an exceptional circumstance, even in the context of the formulation of an appropriate response to protected industrial action. While the problems identified by Mr Brown may be exacerbated by matters of resource capability depletion, the problems themselves are not exceptional.
[38] I am not persuaded an exceptional circumstance arises in relation to the potential delays that may arise in the event orders were required from the Commission for the suspension of industrial action under s.424. In some respects that is a potential for any party faced with industrial action, contended to have the harm referred to in the section. I am unable to find any directly connected exceptional circumstance in relation to the ACT Fire and Rescue. While, again, matters of resource capability depletion may exacerbate matters, the problem itself as framed by ACT Fire and Rescue is not exceptional.
[39] Having regard to my consideration that the matter of resource capability depletion is an exceptional circumstance, but that other matters are not, I now consider each of the elements in dispute and their connection with the identified exceptional circumstance:
● Elements 1 and 2 involve industrial action in the form of stoppages that would plainly exclude action at the same time as a response to a fire call, which is to be further defined as including emergency incidents. There is no direct evidence before me that would lead me to accept that even if resources were under stress generally that in the event of such stoppages ACT Fire and Rescue could not formulate a suitable response within the standard time period without further degrading the service. The absence of such direct evidence means there is not a justification for an exercise of discretion in relation to this element.
● Element 12 involves a refusal to accept a transfer between work locations without 14 days’ notice of the change. I accept that matters of response capability depletion may mean there is an inability of the fire service to plan and implement a suitable response for this form of industrial action within the standard three day time period. Resource depletion may come about at short notice because of an emergency either within the ACT or elsewhere, and may well arise because the ACT Fire and Rescue does not have access to Rural Fire Service firefighters it would ordinarily expect to be able to access. I accept that in this case there is a justification for an extended notification period and that a discretion should be exercised to extend the industrial action notification period to seven days.
● Element 15 is for “stoppages for the purpose of attending the ACT Legislative Assembly on sitting days, except to respond to fire calls, which shall include emergency incidents” and plainly excludes action at the same time as a response to a fire call, which is to be further defined as including emergency incidents. There is no direct evidence before me that would lead me to accept that even if resources were under stress generally that in the event of such stoppages ACT Fire and Rescue could not formulate a suitable response within the standard time period without further degrading the service. The absence of such direct evidence means there is not a justification for an exercise of discretion in relation to this element.
● Element 16 and 17 proposes industrial action in the form of “a ban on appliances leaving a station, for the purpose of training, if such a movement would result in a response time of greater than ten minutes as estimated using the Dynamic Coverage Tool” and “a ban on cross-crewing of appliances leaving a station, if such a movement would result in a response time of greater than ten minutes for a pumper as estimated using the Dynamic Coverage Tool”. Given the exclusion of action coinciding with the expanded definition of fire calls, I do not accept that even if resources were under stress generally that in the event of such a prohibition on training or cross-crewing activities that ACT Fire and Rescue could not formulate a suitable response within the standard time period without further degrading the service. The absence of such direct evidence means there is not a justification for an exercise of discretion in relation to this element.
[40] On the basis of the foregoing, an extended notification period will be granted for element 12 only.
CONCLUSION
[41] Having determined these matters, and being satisfied that the requirements of s.443(1)(a) and (b) of the Act have been complied with, I am required to make a protected action ballot order, as sought by the UFU. An order in the form sought by the Applicants was issued by the Commission on 18 February 2019.
COMMISSIONER
Appearances:
T. Sakkas and T. Davies for the Applicant.
J. Macken of Counsel instructed by ACT Government Solicitors for the Respondent.
Hearing details:
15 February.
Melbourne (VC to Canberra);
2019.
Printed by authority of the Commonwealth Government Printer
<PR705019>
1 AE409030
2 Fair Work Act 2009 (Cth), s.437(1).
3 PR946290.
4 [2017] FWCFB 4740.
5 (2010) 194 IR 239, [2011] FWAFB 4809.
6 Ibid, [42] – [48].
7 [2010] FWAFB 526.
8 Ibid.
9 [2017] FWCFB 4740, [25] – [29].
10 [2018] FWCFB 4011.
11 Ibid, [20].
12 Ibid.
13 Ibid.
14 Witness Statement of Mark Brown, dated 15 February 2019.
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