United Firefighters' Union of Australia Victorian Branch v Ventia Pty Limited T/A Ventia

[2021] FWC 5285

[2021] FWC 5285

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

United Firefighters’ Union of Australia – Victorian Branch
v
Ventia Pty Limited T/A Ventia
(B2021/691)

DEPUTY PRESIDENT MASSON MELBOURNE, 30 AUGUST 2021

Proposed protected action ballot of employees of Ventia Pty Limited – whether ballot questions describe nature of proposed industrial action – objections to ballot questions rejected – protected action ballot order made.

[1] The United Firefighters’ Union of Australia (UFU) made an application for a protected action ballot order (PABO) under s. 437 of the Fair Work Act 2009 (the Act) on 18 August 2021. The PABO sought relates to bargaining between the UFU and Ventia Pty Limited T/A Ventia (Ventia) for a new enterprise agreement to replace the Broadspectrum Vic and UFU Fire and Rescue Enterprise Agreement 2017 1 (the Victorian Agreement), which has a nominal expiry date of 1 March 2021 and the Broadspectrum and UFU NSW Fire and Rescue Enterprise Agreement 20182(the NSW Agreement),which has a nominal expiry date of 30 June 2021.

[2] Ventia objects to the proposed order on the basis that a number of the proposed questions are not described in a manner that enables employees to properly respond to the questions. Consequently, Ventia objects to particular questions on the basis that they fail to comply with the requirements of s. 443(3)(d) of the Act.

[3] A conference of the parties was conducted on the 20 August 2021 during which the concerns of Ventia regarding the proposed questions were unable to be resolved. The matter was then listed for hearing on 26 August 2021 in advance of which both parties were afforded an opportunity to file witness statements, submissions and other material on which they sought to rely.

[4] Prior to the hearing the UFU filed an amended draft order in the following terms which sought to address some concerns raised by Ventia;

“In support of reaching an enterprise agreement with your employer, Ventia Pty Limited, do you support and authorise the taking of protected industrial actions which may involve taking separately, concurrently and/or consecutively any or all of the actions listed below, following the giving of 3 working days written notice to your employer?

1. Bans on wearing of Ventia uniform or clothing with company logos inside fire stations

2. Bans on meeting or communicating with management representatives other than in relation to enterprise agreement negotiations and during emergency response. Management representatives are defined as any Ventia employees that are more senior than a station officer

3. Bans on collection and collation of information to be used for reporting. This would include a ban on collecting information for the emergency log book other than in relation to actual emergencies or where an injury has occurred

4. Bans on preparing or providing reports

5. Bans on the use of computers excluding for the completion of timesheets and including for recording of incidents and incident narratives through the ‘IMS system’

6. Employees will be permitted to rest and recline (as defined in the relevant enterprise agreement) at any time

7. Bans on performing any administrative tasks other than completion of timesheets, including maintenance of the emergency log book other than for recording emergencies

8. Bans on providing training to defence members

9. Bans on performance of training on shift

10. Bans on performance of overtime at an employee’s home station (home station is the station where an employee currently performs their usual shifts)

11. Bans on the performance of tasks for defence other than emergency response. Tasks banned under this provision would include briefing cadets and conducting evacuation drills

12. Bans on the performance of deployments (as defined in the relevant enterprise agreement)

13. Bans on the performance of overtime.

YES []

NO [ ]”

[5] The amended draft order failed to resolve Ventia’s concerns, the matter proceeded to hearing and Ventia pressed objections to proposed questions 2, 6, 7 & 11.

[6] The UFU sought and were granted permission to be legally represented at the hearing pursuant to s. 596(2) of the Act. Mr Col Anderson who is Ventia’s National Manager for Aircraft Refuelling and Rescue Firefighting (ARRFF) Defence Base Services was called by Ventia to give evidence in the hearing.

Background and Evidence

[7] Ventia provides firefighting services in respect of its Aircraft Refuelling and Rescue Firefighting Defence Based Services (ARRFF) contract with the Departments of Defence across Western Australia, South Australia, Queensland, Victoria, and New South Wales 3. Those services provided by Ventia operate separately to metropolitan, regional, and volunteer firefighting operations in each state.

[8] The proposed agreement would cover operations within NSW and Victoria within which states the following Department of Defence sites are presently supported by Ventia; HMAS Albatross (NSW), the RAAF base and Kapooka army base in Wagga Wagga (NSW), Albury Wodonga Military Area (Vic), Puckapunyal Army Base (Vic), HMAS Cerberus (Vic) and RAAF East Sale (Vic) 4.

[9] The services provided by Ventia are subject to detailed procedures and requirements, examples of which were provided in Mr Anderson’s evidence, those documents being the Standard Operational Guidelines (SOG’s) Manual and the Rescue & Fire Fighting (RFF) Station Management Guidelines (SMG’s) 5. The ARRFF contract requires Ventia to provide a range of services including;

•  Aviation, Structural and Bushfire firefighting;

•  Fire Emergency Response Training and Evacuation Training;

•  Standby for aircraft refuelling when aircraft engines are still running (hot refuelling);

•  Stand-by for the de-fuel of aircraft which are in hangars for maintenance;

•  Runway inspections when the air traffic control tower is unmanned; and

•  Act as point of contact for aircraft communications at some airfields when the air traffic control tower is unmanned 6.

[10] Critical to Ventia’s service is that of firefighting and emergency response with their operations established to respond to alarms and incidents at aviation and some naval sites within 3 minutes and generally within 4 minutes with respect to Structural response 7. According to Mr Anderson, the operational context is that Ventia is required to train and maintain preparedness to treat every alarm or incident as an emergency8 and to respond quickly and efficiently to alarms and incidents9. Mr Anderson further states that it is not the case that every incident or alarm is an emergency but that every emergency will start as an alarm, or incident or phone call and as such it is not possible to assess whether there is an emergency without properly responding to an alarm or incident. This operational context according to Mr Anderson requires;

•  extensive reporting and liaison because calls and information may be incomplete;

•  that through investigation and liaison, the true nature of a particular situation becomes apparent;

•  receival of information across hierarchical lines which is crucial to understanding any emerging threat; and

•  wide dissemination of information.

[11] Mr Anderson gave evidence that the bans as posed in the draft order by the UFU were unclear and likely to be confusing to staff engaged in firefighting operations. In particular he states that the proposed bans, where they refer to emergency response, would impose an artificial distinction between emergency situations and non-emergency situations. Furthermore, implicit in the proposed bans would be a requirement for staff to make a judgement about what constitutes an emergency situation 10.

[12] During cross examination on the distinction between emergency response and non-emergency response, Mr Anderson conceded that in relation to his concern about crews exercising their judgement as to the status of a particular incident and/or alarms, crews would attend to an alarm or incident and through such attendance the true nature of the incident would become apparent. He also accepted that the term ‘emergency response’ was defined within the SOG’s at clause 1.3, that the term had a well understood meaning and that there was no uncertainty as to its meaning amongst staff within the Ventia operations that would be covered by the proposed agreement. He similarly conceded that there was no uncertainty as to the meaning of the term ‘emergency response’ where the term appeared in the SOG’s at clause 4.3 Turning Out Airfield Emergency Response Actions.

[13] Notwithstanding the concessions made by Mr Anderson in relation to the understood meaning of the term ‘emergency response’, he expressed concern at the potential for confusion about whether ‘emergency response’ was properly understood to extend to include certain critical stand-by activities including for example the provision of stand-by for ‘hot refuelling’. This involves Ventia crews being positioned on stand-by and present to provide support in the event of an incident occurring while ‘hot refuelling’ an aircraft. Mr Anderson stated that he understood ‘emergency response’ to include local standby and was concerned that employees may not understand the term ‘emergency response’ to extend to include such activities.

[14] In relation to Ban 2, Mr Anderson states that the impact of the ban which would restrict communication of staff with Ventia management other than during emergency response or in relation to enterprise bargaining could have unintended impacts. Those potential impacts could include creating a bottleneck of communications through the Station Officer, causing information not to be shared across a Station and result in information being passed on second hand with attendant potential delays. He also states that the ban conflicts with Ban 4 which imposes an absolute ban on reporting and that consequently he assumed that included a ban on reporting to the Station Officer 11.

[15] On Ban 6, which would permit staff at any time to ‘rest and recline’ as that term is defined within the current enterprise agreements, Mr Anderson states that the question would be confusing to employees. That is because the enterprise agreements define ‘rest and recline’ as only being permitted between 23.00 and 07.00 12 (or 22.00 and 06.00 at RAAF East Sale base) when airfield flying hours are closed. He states that the conflict between the proposed industrial action and the definition of the term ‘rest and recline’ in the enterprise agreements may be confusing for employees asked to vote on that particular proposed form of industrial action. He also states that engaging in rest and recline outside of prescribed non-operational hours is not contemplated in Ventia’s firefighting procedures and is likely to cause confusion in the provision of its services.

[16] In respect of Ban 7, which would impose a ban on administrative tasks, Mr Anderson states that it is likely to be confusing to staff asked to vote on the ballot as it overlaps with other bans. Mr Anderson specifically refers to Ban 4 which envisages an absolute ban on preparing or providing reports. Mr Anderson further states that it is unclear to him whether the preparation or provision of reports is a category of administrative tasks and that he believed many employees would consider reporting to be an administrative task 13. He also cites potential conflict between Ban 7 and Ban 3.

[17] In respect of Ban 11, Mr Anderson again refers to the lack of clarity and potential confusion over the meaning of the term ‘emergency response’ where it is carved out in the proposed ban. He then cites a number of activities undertaken by staff which may not be considered ‘emergency response’ but are implemented to maintain safe operations. Those activities include the following;

•  Out of hours runway inspections - required by firefighting staff when ATC is unmanned and is critical to aircraft safety.

•  Removal of FOD from the airfield – could include spraying water to clean down an area of the airfield – critical to aircraft safety.

•  Response to isolate or de-isolate alarms – critical to the Base running and works being completed on bases.

•  Checking an area if requested prior to hot works commencing – critical to the safety of people prior to a task commencing.

•  Standby of hot refuel on an aircraft – critical to aircraft and aircraft personnel safety.

•  Stand-by for defuel on an aircraft – critical for safety of all personnel associated with the activity and to be able to complete the maintenance activity which goes to Defence capability.

•  Watch room operators assisting with Base alarm testing – critical to the safety of the Base.

•  Response to fault alarm activations – critical for safety of the building and personnel who occupy the building.

•  Fire crew responding to a request of a noise coming from an alarm panel – nonresponse could lead to a safety issue for the building 14.

Statutory requirements for making a ballot order

[18] The Act relevantly provides as follows in relation to the requirements for a valid application to be made:

“437 Application for a protected action ballot order

Who may apply for a protected action ballot order

(1) A bargaining representative of an employee who will be covered by a proposed enterprise agreement, or 2 or more such bargaining representatives (acting jointly), may apply to the FWC for an order (a protected action ballot order) requiring a protected action ballot to be conducted to determine whether employees wish to engage in particular protected industrial action for the agreement.

………………………………

(2) The application must specify:

(a) the group or groups of employees who are to be balloted; and

(b) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

[19] Section 443 of the Act sets out the requirements as to the power of the Commission to make a protected action ballot order once an application pursuant to s, 437 has been made. Subsection 443(1) requires the Commission to make a protected action ballot order if an application has been made under s. 437 and the Commission is satisfied that the applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted. Subsection 443(3) relevantly 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.

(3) 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;

(b) 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.

…………………”

Consideration

[20] There is no contest that the UFU is eligible to bring the application and that it has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted. The evidence and other material before the Commission is also sufficient to demonstrate to the satisfaction of the Commission that all of the other requirements of s. 443 of the Act, save for the contested s. 443(3)(d) point, have been met. I now turn to the issue in contest, that of whether a number of the proposed questions comply with the requirements of s. 443(3)(d) of the Act.

[21] It was uncontroversial that the key authority on the proper construction of s. 437(3)(b) and s. 443(3)(d) is that of John Holland Pty Ltd v AMWU 15 (John Holland) where the Full Bench relevantly stated as follows when considering s. 437(3)(b);

“[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.

[20] The appellant’s criticism of the questions in the AMWU application is based on a technical and pedantic approach. The expression “separately, concurrently and/or consecutively” does not deprive the question of meaning. Those expressions apply, as far as there is scope, to the types of industrial action specified. We have already noted the terms of s.459(2) which gives separate justification for the term “consecutively”. While it is possible to construct extreme examples of the number of types of industrial action which might be authorised by an affirmative answer to the questions, in practical terms the questions do no more than identify eight types of industrial action and the possible options for taking each of those types of action.

[21] The criticism of question eight is unfounded. It might have been clearer to split that question into two parts, one dealing with indefinite bans on overtime and one with periodic bans. But the question is not meaningless. Seen in its full context the question asks whether employees will endorse bans on overtime which are either indefinite or periodic. An affirmative answer would indicate endorsement of both types of ban.

[22] Nor do we accept the criticism that questions one to eight, taken together, are nonsensical. An employee can endorse a number of different types of industrial action even if the deployment of one type may logically exclude another. There is no reason why employees cannot be asked to endorse a range of options.” 16

[22] Ventia accept that John Holland is the key authority and also seek to rely on the more recent comments of the Full Bench in Transport Workers' Union of Australia v Prosegur Australia Pty Ltd¹⁷(Prosegur) where the following was said;

“[32] We consider that the above passage in John Holland to be squarely applicable to s 443(3)(d), which is expressed in the same terms as s 437(3)(b). The Deputy President applied John Holland in her consideration under s 443(3)(d), and both parties in the appeal agreed that it stated the relevant principles.

[33] As John Holland makes clear, it will not normally be the proper role of the Commission to interfere in the drafting of questions to appear in a protected action ballot order. If the questions describe the nature of proposed industrial action in a sufficiently clear way such that employees are capable of responding to them, then there is no basis for the Commission not to include them in a protected action ballot order that it is required to make under s 443(1). However, as the above extract from John Holland makes equally clear, there may nonetheless be some cases in which the Commission will not be satisfied that the condition in s 443(3)(d) is met. In those cases where the employer seeks to be heard in relation to an application for a protected action ballot order, the employer may present evidence or other material which demonstrates that, because of the nature of the work that employees perform or some other relevant circumstance, a considered response might not be able to be given by employees to a particular question.” 18 (my emphasis added)

[23] It is clear on the authorities of John Holland and Prosegur that the questions posed in the proposed ballot must describe the nature of the proposed industrial action with sufficient clarity that employees are able to consider and respond to the proposed question. Ambiguity or a lack of clarity is not necessarily fatal to the proposed question’s compliance with s. 443(3)(d) and may be a more relevant consideration when a bargaining representative seeks to rely on the ballot result in initiating protected industrial action in compliance with s. 414(6) of the Act.

[24] It is also clear on the authorities that the ‘proper role’ of the Commission is not to interfere in the drafting of the questions to be included in a protected action ballot order unless the description of the nature of the industrial action proposed would not allow a considered response by employees. This may be established through evidence led by an employer as to the “nature of the work performed by employees or other relevant circumstances of employees”.

[25] At a general level, one of Ventia’s key objections to the relevant bans (Bans 2, 6, 7 and 11) is that the bans proposed are ambiguous when considered in the highly controlled environment of firefighting operations and that the facts are not dissimilar to the facts considered in Prosegur. Ventia refer to the Full Bench’s decision in that matter to decline to overturn a decision 19 of Deputy President Dean at first instance where the Deputy President did not allow a question in relation to a proposed partial work ban.

[26] Ventia contend that their firefighting operational environment is similarly highly regulated and controlled as was the case in Prosegur and that systems and procedures of Ventia are designed “to mitigate and control to the maximum extent life threatening situations” 20. In these circumstances Ventia contend that the bans are expressed in general terms, lack the necessary specificity and that it is unclear what is intended by those bans in the operational context of firefighting.

[27] Ventia further contend that the references within the proposed bans to ‘emergency response’ would be confusing to staff in circumstances where the distinction drawn by the UFU between ‘emergency response’ and health and safety measures which are at the core of Ventia’s service delivery, is an artificial one. Absent clarity in relation to that distinction in the description of the proposed industrial action, it would not be possible for staff to engage with the proposed questions.

[28] Turning firstly to Ventia’s submission that the circumstances in the present application are analogous to those considered in Prosegur, I accept that the operations of Ventia in respect of the ARRFF contract with the Defence Department is safety critical and that its operational environment is highly regulated and controlled. To that extent I accept there may be similar considerations in respect of the required particularity of the proposed bans to that considered in Prosegur.

[29] I do not however accept that the factual circumstances and proposed bans in the present matter are on foot with those considered in Prosegur. In that case the ban that was removed from the ballot by the Deputy President and which was not disturbed on appeal, was that of a “a number of periodic or indefinite partial work bans”. The difficulty with the description of that ban was set out by the Full Bench as follows;

“[34] In this case, Prosegur adduced evidence which, we consider, demonstrated that question 12 was problematic. Prosegur operates a cash transportation business which is, for obvious reasons, a potential target for criminal attack, and in those circumstances the security of the cash being carried and the safety of employees are paramount considerations. There are a range of work procedures that are adopted for security and safety reasons, including requirements upon employees as to the mode of delivering and picking up cash, the wearing of body armour and the carrying of firearms. In that specific context, there was a proper basis for concluding that question 12 did not sufficiently describe the nature of the proposed industrial action by simply referring to “partial work bans”. That language is ambiguous as to whether it encompasses bans on the type of security and safety measures referred to, and we accept that an employee voting upon question 12 might not understand whether bans of that type were included.” 21

[30] It is apparent that the Deputy President at first instance and the Full Bench on appeal accepted Prosegur’s evidence and arguments that in the context of a cash transportation business with the attendant risk of criminal attack, employees would not have properly understood the nature of the ‘partial work bans’ that might be imposed. It was the lack of clarity and specificity that led to the conclusion that a considered response might not be able to be provided. That can be contrasted with the present matter where a significantly greater degree of specificity has been provided in each of the proposed questions, which I will return to when dealing with each of the relevant bans below.

[31] As to Ventia’s argument that there is false distinction drawn by the UFU between emergency response and health and safety measures the following may be said. Firstly, the SOG’s describe and set out the differences between ‘emergency response’ and non-emergency response activities. See the following by way of example;

“1.3 RESPONSE PRIORITIES

•  All states in Australia utilise slightly different priority descriptors for turnouts; to ensure consistency across the Defence Base Services Contracts the following is to be implemented.

•  Priority 1 – Lights and sirens – Emergency Response

•  Priority 2 – No lights and Sirens: non-emergency task – routine transit. Can also be used for transit to an emergency scene where the urgency does not require a priority response, for example, where an incident controller has requested attendance but does not require lights and sirens.

Structural Emergencies – Priority 1

•  Including: Alarms, HAZMAT, Grass/Scrub fire, Vehicle Accidents, Flooding/Storm events.

•  Structural emergencies shall have an immediate response by appropriate appliance. The incident controller may utilise a command vehicle.

•  Minimum on scene crew requirement is four.

•  Structural turnout ensemble with flash hood donned and folded down over raised neck flap. Gloves and helmet should be secured with the appliance.

Non-Emergency Event – Priority 2

•  Alarm isolation, resets, investigations and faults.

•  Non-Emergency events require a timely attendance by an appropriate vehicle and staff to investigate. Structural uniform is to be carried within the vehicle.” 22

[32] Secondly, Mr Anderson conceded in his evidence that the term ‘emergency response’ which appears in some of the ballot questions, is well understood by staff and that there is unlikely to be uncertainty as to its meaning. Thirdly, Mr Anderson’s evidence as to the likelihood of potential confusion over whether some activities such as ‘stand-by’ should be rightly regarded as emergency response is undermined by his own evidence at paragraph 42 of his first witness statement where he describes a range of operational tasks including ‘stand-by on hot refuel’ which he states may not be considered emergency response. Mr Anderson apparently recognises the distinction despite expressing concern that the distinction may not be clear to staff when they are responding to the questions on the proposed forms of industrial action.

[33] It follows from the above that I do not accept Ventia’s argument that where the term ‘emergency response’ or ‘emergencies’ is referred to in certain proposed questions as a carve out to particular industrial action, that the terms are so vague or unclear in their meaning that employees would be unlikely to be able to engage and provide a considered response to the questions/s.

[34] My conclusion above does not mean that I do not accept Ventia’s evidence or submissions as to the safety critical nature of the standard operational tasks that their staff undertake on the bases they are engaged. I accept the unchallenged evidence of Mr Anderson that industrial action that impeded the performance of those standard operational tasks holds the potential to compromise the operational readiness and safety of the Defence Department sites which Ventia is supporting. The potential impact of the proposed industrial action foreshadowed in the ballot question is however not relevant to the application before me and may be the subject of further and different applications to the Commission by Ventia in due course.

[35] I now turn to consider the particular questions proposed by the UFU.

Ban 2

[36] Ventia contend that Ban 2 conflicts with Ban 4 and that employees would be confused as to the interaction of the bans and as such could not properly engage with and respond to the Ban 2 question. Ventia referred to a similar conflict dealt with in Transport Workers’ Union of Australia v Ventia Australia Pty Ltd 23 arising from which conflict Deputy President Beaumont determined to omit a proposed question.

[37] The relevant bans said to be in conflict are as follows;

2. Bans on meeting or communicating with management representatives other than in relation to enterprise agreement negotiations and during emergency response. Management representatives are defined as any Ventia employees that are more senior than a station officer.

………………….

4. Bans on preparing or providing reports.

[38] The conflict is not explicitly detailed in their submissions although I infer Ventia’s position to be that an absolute ban on the provision of reports pursuant to Ban 4 would conflict with the ‘emergency response’ carve out in Ban 2 which would allow communication with Ventia management representatives during an ‘emergency response’. The absence of an emergency response carve out in Ban 4 is argued to create a conflict with Ban 2 in circumstances where both bans were applied concurrently.

[39] Ventia’s objection appears premised on a view that communication between staff and Ventia management representatives during an ‘emergency response’, as allowed by Ban 2 would constitutes reporting and therefore be banned pursuant to Ban 4 if that ban were in place at the same time. I am unable to accept such a premise on the material before me. No evidence was led by either party as to the generally understood meaning of the term ‘reports’ within Ventia’s operations. While it may generally carry the meaning of a formal spoken or written account of something observed, heard, done or investigated, it is not possible for me to ascribe that general meaning in the context of Ventia’s operations. It may in those circumstances be accepted that there is some ambiguity in the term “reports’ where it is referred to in Ban 4 although Ventia has not objected to that question on the basis of ambiguity or uncertainty.

[40] Returning to Ban 2, it is expressed in sufficiently clear and specific terms that would allow employees to engage with and respond to the question. The area of concern lies in the potential overlap with the ban on reporting at Ban 4. The extent of the contended conflict or overlap was speculative and unclear on the evidence advanced by Ventia. I am unwilling in these circumstances to draw a conclusion that Ban 4 would displace the Ban 2 carveout of communication during emergency response such that employees would be unable to provide a considered response to the Ban 2 question.

[41] Even if it was accepted that there is a conflict between the two proposed bans, that does not in my view lead to a conclusion that the nature of the industrial action proposed in Ban 2 would be unclear to staff such that they could not engage and respond to the question. Ventia staff are being asked to consider a series of discreet questions, not to consider each question in the context of a complex rubric whereby all questions are required to be in harmony and without overlap or conflict. The Full Bench considered an analogous point in John Holland when they said the following in relation to a contended conflict between different and overlapping forms of industrial action;

“[22] Nor do we accept the criticism that questions one to eight, taken together, are nonsensical. An employee can endorse a number of different types of industrial action even if the deployment of one type may logically exclude another. There is no reason why employees cannot be asked to endorse a range of options.” 24

[42] I regard the Full Bench’s above comments in John Holland as pertinent to the circumstances of the contended conflict in the present matter, to the extent that such a conflict arises. The overlap between some bans or displacement of one or more bans by another does not automatically lead to a conclusion that the overlapping or displaced bans would be unclear. Furthermore, the fact that the UFU and its members may seek to avail themselves of a range of industrial action options is entirely unremarkable.

[43] In the above circumstances I reject Ventia’s objection to the Ban 2 question.

Ban 6

[44] Ban 6 is proposed as follows;

6. Employees will be permitted to rest and recline (as defined in the relevant enterprise agreement) at any time.

[45] Ventia contend that ‘rest and recline’ is dealt with in the enterprise agreements and is prescribed for example in the Victorian Agreement as being confined to non-operational hours, those hours being between 23:00 and 07:00 or between 22:00 and 06:00 at RAAF Base East Sale. By specifically referring in the proposed question to the definition in the agreements it is submitted by Ventia that employees are likely to be confused by the interaction of the words “at any time”, where those words appear in the question, with the defined period of time that ‘rest and recline’ is permitted under the terms of the agreements. The relevant clause from the Victorian Agreement provides as follows;

“31 Rest and recline

31.2 Employees on night duty will be permitted between the hours of 23:00 and 07:00 or 22:00 to 06:00 at RAAF Base East Sale, to recline and sleep whenever there is no work to be done.

31.2.1 Work for this clause only means responding to fire related calls or operational airfield tasks. For the avoidance of doubt, it does not include activities such as training and skills maintenance.”

[46] I do not accept Ventia’s contention that the above described conflict would mean that the description of the nature of the industrial action would not enable staff to consider and respond to the question. On a plain reading, the words “at any time” in the question means that staff would be asked to consider whether they would engage in ‘rest and recline’ during both operational and non-operational hours. To find a conflict such that it would prevent staff from properly engaging and responding to the question requires a pedantic reading of the question, which I reject.

[47] Ventia further contend there is a conflict between Ban 6 and Ban 3 (ban on collation of information other than in relation to actual emergencies), Ban 7 (ban on administrative tasks other than in relation to actual emergencies) and Ban 11 (ban on performance of tasks other than for emergency response). As such, the nature of the proposed industrial action would lack sufficient clarity to allow staff to engage and respond. The nature of the conflict was not elaborated upon although I discern that the concern may be that the imposition of a ban pursuant to Ban 6 may either be redundant or alternatively render redundant Bans 3, 7 & 11 to the extent they were in place at the same time.

[48] To illustrate what I understand to be the claimed conflict an assumption may be made that Bans 6 and 11 are in place at the same time. Ban 11 would prevent the performance of any work other than ‘emergency response’ whereas Ban 6 would result in employees engaging in ‘rest and recline’ which as defined in clause 31.2 of the Victorian Agreement as not being permitted when there is ‘work to be done’ which includes ‘operational airfield tasks’. Ban 6 if imposed would allow ‘operational airfield tasks’ to be undertaken whereas Ban 11 would not, as such tasks would not be an ‘emergency response’ activity. Similar hypothetical conflicts may be imagined between Ban 6, Ban 3 and Ban 7 if they were imposed at the same time.

[49] Relying on the comments of the Full Bench in John Holland 25 and for the same reasons as set out at [41]-[42], I do not accept that the contended overlap between bans or displacement of one ban by another leads to a conclusion in the present circumstances that the Ban 6 question fails to describe the nature of the industrial action in a manner that would allow employees to engage and respond to the question. Ventia’s objection to the Ban 6 question is consequently rejected.

Ban 7

[50] Ban 7 is proposed as follows;

7. Bans on performing any administrative tasks other than completion of timesheets, including maintenance of the emergency log book other than for recording emergencies.

[51] Ventia submit that Ban 7 conflicts with Ban 3 and Ban 4 which provide as follows;

3. Bans on collection and collation of information to be used for reporting. This would include a ban on collecting information for the emergency log book other than in relation to actual emergencies or where an injury has occurred.

4. Bans on preparing or providing reports.

[52] Ventia variously contend that the distinction between a report referred to in Ban 4 and an administrative task referred to in Ban 7 is unclear and that recording an emergency under Ban 7 would conflict with Ban 4 which bans any reporting. They further contend that Ban 7 includes a carve out for recording ‘emergencies’ whereas Ban 3 includes a carve out in respect of ‘actual emergencies’ which is likely to cause confusion.

[53] Dealing with the latter point first, there does not seem to me to be any material difference between the reference to ‘emergencies’ in the carve out in Ban 7 and to ‘actual emergencies’ in the carve out in Ban 3. The contended tension or conflict arising from the slightly different references to emergencies in those questions appears more contrived than real and is rejected. I don’t accept that staff could not engage and respond to Question 7 on the basis of the contended conflict with Question 3 raised by Ventia.

[54] Turning to the contended conflict between Ban 7 and Ban 4, some overlap between the above referred bans is apparent. The Ban 4 question addresses the imposition of a ban on the preparation or provision of any reports. This may logically extend to include reports relating to emergencies in the absence of a carve out. That absolute ban on reporting may sit uncomfortably with Ban 7 which, in banning administrative tasks, includes the carve out exception of recording emergencies in the emergency log book. The fact that one form of industrial action may appear to sit uncomfortably with another form of industrial action does not mean that the conflict cannot be reconciled or that even if not reconciled means an employee is unlikely to be able to engage with the question.

[55] Ban 7 is apparently directed to all administrative tasks which may logically include reporting as a subset of the intended ban. If Ban 7 were imposed, then the carve out in respect of recording emergencies in the emergency log book would operate. Even allowing for some ambiguity as to the scope of duties covered by the term ‘administrative tasks’, the nature of the industrial action is sufficiently clear in my view for an employee to engage with the question.

[56] Similar to Ban 7, Ban 4 is sufficiently clear in my view. It would impose a ban on the preparation and/or provision of all reports if imposed. If the recording of an emergency in the emergency log book were to be regarded as a ‘report’ then a tension arises between the two bans if imposed concurrently. If, however the recording of an emergency or injury in the emergency log book were not regarded as a ‘report’ but simply an administrative task then no conflict arises between the two bans if applied concurrently. If there is a conflict between the two referred bans, for the same reasons set out above at [41]-[42] the overlap between bans or the displacement or partial displacement of the effect of one ban by the other if applied concurrently, does not mean employees are likely to be unable to respond to the discreet questions posed. Both Ban 7 and Ban 4 describe the nature of the industrial action in sufficiently clear terms such that employees are likely to be able to engage and respond to the discreet questions. Ventia’s objection to the Ban 7 question is rejected.

Ban 11

[57] The Ban 11 question is proposed as follows;

11. Bans on the performance of tasks for defence other than emergency response. Tasks banned under this provision would include briefing cadets and conducting evacuation drills

[58] Ventia submit that the carve out of ‘emergency response’ from the general ban on the performance of defence force tasks would be unclear to employees based on the potential confusion over what tasks may constitute emergency response. For the reasons set out above at [31]-[33] I reject that contention. I am satisfied that the question describes the nature of the proposed industrial action in sufficiently clear terms so as to allow employees to engage and respond to the question.

[59] Ventia also contend that the nature of the proposed industrial action proposed conflicts with Ban 2, 3 and 5. No evidence was led by Ventia as to the contended conflict. Rather, the evidence of Mr Anderson goes to concerns held as to the impact of the ban on the performance of operational tasks required to keep the bases it supports at a state of operational readiness. That evidence does not describe or address the contended conflict and how employees would not be able to engage with and respond to the proposed question.

[60] For the reasons set out above Ventia’s objection to the proposed Ban 11 question is rejected.

Conclusion

[61] For the foregoing reasons I am satisfied that the UFU’s proposed ballot questions describe the nature of the proposed industrial action in a form that employees of Ventia are likely to be able to engage and respond to. It follows that the questions as framed satisfy the requirements of s. 443(3)(d) of the Act.

[62] On the basis of the material before me, including the statutory declaration of Mr Jeremy Murphy of the Applicant setting out the steps taken by it in bargaining with the Respondent and that it has been, and is, genuinely trying to reach agreement with the Respondent, I am satisfied that there is a notification time in relation to the proposed agreement and that the requirements in s.443(1) of the Act have been met.

[63] An order based on the revised draft order provided by the UFU has been separately issued in PR733294.

DEPUTY PRESIDENT

Appearances:

J McKenna of Counsel for the applicant.
D Klepac for the respondent.

Hearing details:

2021.
Melbourne (by Microsoft Teams):
August 26.

Printed by authority of the Commonwealth Government Printer

<PR733207>

 1   AE429608

 2   AE501687

 3   Exhibit R1, First Witness Statement of Mr Col Anderson at [5]

 4   Ibid at [11]

 5   Exhibit R1, Annexure A - Standard Operational Guidelines (SOG’s) Manual and Annexure B - Rescue & Fire Fighting (RFF) Station Management Guidelines (SMG’s)

 6   Exhibit R1 at [12]

 7   Ibid at [14]-[15]

 8   Ibid at [17]

 9   Ibid at [15]

 10   Ibid at [25]-[27]

 11   Ibid at [29]-[32]

 12   See clause 31.1 of the Victorian Agreement

 13   Ibid at [35]-[38]

 14   Ibid at [42]

 15   [2010] FWAFB 526

 16   Ibid at [19]-[22]

17 [2021] FWCFB 1562

 18   Ibid at [32] - [33]

 19   [2021] FWC 645

 20   Ventia Submissions, dated 21 August 2021 at [5]

 21   [2021] FWCFB 1562 at [34]

 22   SOG’s at clause 1.3

 23   [2021]0 FWC 5012

 24   2010 FWCFB 526 at [22]

 25   Ibid