United Workers' Union v ISS Security Pty Ltd T/A ISS

[2021] FWC 4541

[2021] FWC 4541

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

United Workers’ Union
v
ISS Security Pty Ltd T/A ISS
(B2021/587)

DEPUTY PRESIDENT CLANCY MELBOURNE, 27 JULY 2021

Proposed protected action ballot of employees of ISS Security Pty Ltd – application for extension of the period of written notice for industrial action denied.

[1] On Friday 23 July 2021, the United Workers Union (Union) applied for a protected action ballot order. 1 In its application, the Union sought an order that employees of ISS Security Pty Ltd (ISS Security) who are members of the Union and who will be covered by the proposed ISS Security and the United Works Union Melbourne Airport Agreement 2021 (proposed agreement) be balloted to see if they supported the taking of protected industrial action.

[2] The Union and ISS Security had a series of discussions regarding the application and the orders sought and reached an agreed position in relation to a range of matters. At 4.00pm on Monday 26 July 2021, my Associate was advised that ISS Security did not oppose the making of a protected action ballot order but sought an extended notice period of intended industrial action in accordance with s.443(5) of the Fair Work Act 2009 (the Act). Therefore, my Associate sent an email to the Union seeking their views in relation to ISS Security’s request to extend the notice period. The Union replied via email at 5:09pm on 26 July 2021 opposing ISS Security’s request to extend the notice period from 3 working days to 7 working days.

[3] In these circumstances, the matter was listed for hearing before me at 12.00pm on Tuesday 27 July 2021. ISS Security was directed to file any evidence on which it sought to rely in support of its application for an extension of the minimum statutory notice period by 10.00am on 27 July 2021.

ISS Security’s evidence and submissions

[4] Mr Jed Moore is Legal Director of ISS Administrative Services Pty Ltd, an associated entity of ISS Security. He said ISS Security provides aviation security services at Melbourne Airport and that the Australian Government regulates the security of the Australian aviation environment through the Aviation Transport Security Act 2004 and the Aviation Transport Security Regulations 2005. Mr Moore gave some general evidence regarding the manner in which aviation security screening is regulated and carried out. 2

[5] Mr Moore provided a breakdown of ISS Security’s workforce at Melbourne Airport. 3 He said ISS Security has 462 trained employees who are to be covered by the proposed agreement whereas prior to COVID-19, there were 720. He said that of these 462 employees, 332 are permanent employees. Mr Moore did not know precisely how many ISS Security employees are currently required to be rostered at any one time but estimated that it may be one third. He said that the number required depends on how many lanes are operating at each particular screening point at any one time. Similarly, Mr Moore could not provide an estimate of how many employees would be required in order for ISS Security to be able to provide the necessary screening services if there was protected industrial action taken by the 234 employees that would be covered by the protected action ballot order. Mr Moore said that of its 462 employees, 392 are in the level 2 classification that provides the aviation screening services and that ISS Security are currently only rostering from amongst its 266 level 2 classification permanent employees. Mr Moore does not know how many of these employees are members of the Union. Significantly, Mr Moore indicated that in order to provide the security screening services required in the face of protected industrial action, ISS Security would seek to draw upon its pool of 126 level 2 classification casual employees if needs be but again, indicated that he did not know how many of these casual employees were members of the Union.

[6] Mr Moore said ISS Security has no other local directly employed staff who could provide the services in the event of withdrawal of labour and further, that due to the legislative requirements regarding the provision of security screening at airports (including mandatory screening roles, ASIC requirements and security licensing) there is also no pool of alternate local labour available through any labour hire provider or similar service. Mr Moore said that in order to avoid the disruption to security screening services, ISS Security may have to fly in employees from other airports where it provides security services, such as Brisbane or Perth. He said these employees would have to obtain mutual recognition of their state security licence from the Victorian security licencing authority and hold a current Australia wide ASIC. Mr Moore said these contingency arrangements could be significantly hampered by COVID-19 related travel restrictions.

[7] However, Mr Moore acknowledged that Melbourne Airport also sources aviation security screening services from other companies. Further, when cross examined, the thrust of Mr Moore’s evidence was that it was probably the case that ISS Security could meet the mandatory security screening services within 3 working days but less likely if the volume of travel returned to that which was occurring prior to the current domestic lockdowns. Mr Moore also said that the “absolute capacity” of ISS Security to comply depends on passenger demand at the time. He said 5 days’ notice was superior to 3, but that 7 days’ notice was better again in terms of ISS Security being able to implement robust contingency measures in response to protected industrial action.

[8] ISS Security relies on the meaning of “exceptional circumstances” as discussed by Vice President Lawler in CEPU v Australian Postal Corporation 4 and both the decision in Transport Workers’ Union of Australia v ISS Security Pty Ltd5 and the Order in another application involving the same parties.6ISS Security submits that the test of exceptional circumstances is satisfied in this matter and submits that these exceptional circumstances justify the specification of a longer notice period than the minimum 3 days and that the Union should be required to provide 7 working days written notice of industrial action. In the alternative, ISS Security submits a 5-day notice period should be required.

Evidence and Submissions of the Union

[9] Mr Damien Davie is an official of the Union and its national co-ordinator for the security sector, a role in which he is responsible on behalf of the Union for the security sector and aviation protection officers (APOs) at all airports throughout Australia. Mr Davie gave the following evidence:

•  He is familiar with the duties performed by APOs.

•  He is responsible for representing the Union and Union members in discussions with ISS Security regarding the proposed agreement and has been involved throughout the negotiations for the proposed agreement.

•  The Union currently has 234 members who are employed by ISS Security at Melbourne airport, and who would be covered by the proposed protected action ballot order.

•  The majority of these 234 members are in the level 2 classification that provide the aviation screening services.

[10] While Mr Davie said Melbourne Airport employs APOs and ASIC card holders, who are not employees of ISS Security and could provide contingency support, he could not identify their number. Mr Davie also asserted that MSS Security, which also operates at the Melbourne Airport with trained APOs and ASIC card holders, are currently operating on a reduced scale and would therefore have excess capacity to assist ISS Security. However, Mr Davie provided no specific evidence regarding this and instead based his assertion on an arrangement he understands was activated at Perth Airport approximately ten years ago. Finally, Mr Davie made the obvious point that COVID-19 has resulted in a significant decrease in aviation activity throughout Australia, including a decrease in flights in and out of Melbourne Airport for both domestic and international travel. He also made the following assertions, without being able to provide details:

•  Casual APOs and employees of ISS Security are on reduced shifts; and

•  There is significantly reduced passenger and baggage screening, due to the lower volume of flights.

[11] The Union submitted that ISS Security does not meet the requirements of the three-step process outlined in National Tertiary Education Union v Charles Darwin University. 7 The Union submits that ISS Security has not established there are exceptional circumstances having regard to its reduction in work, its staff numbers in excess of requirements, its pool of casual employees and the number of union members as a proportion of total employees. Further, the Union asserts ISS Security has not identified circumstances “justifying” a longer notice period and submits the evidence suggests ISS Security has the capacity in the current climate to put in place contingency arrangements within 3 days’ written notice. For these reasons, the Union submits the Commission should not exercise its discretion to extend the provision of notice.

Consideration

[12] It is not disputed and based on the material before me, I am satisfied that:

1. The Union is a bargaining representative for the employees; 8

2. The application specifies the group of employees to be balloted and the questions to be put to the employees; 9

3. A copy of the application was given to ISS Security and the AEC within 24 hours of the making of the application; 10

4. The nominal expiry date of the applicable agreement has passed; 11 and

5. The Union is genuinely trying to reach agreement with ISS Security. 12

[13] The only disputed issue in this application for a protected action ballot order concerns the notice requirement for engagement in the proposed employee claim action. Section 443(5) of the Act grants me a discretionary power to specify a longer period of notice than the 3 working days referred to in s.414(2)(a) if I am satisfied that there are exceptional circumstances justifying this.

[14] The principles to be applied in relation to an extension of the notice period were outlined in decision of the Full Bench in National Tertiary Education Industry Union v Charles Darwin University. 13 In particular, the Full Bench outlined to following:

•  the right to otherwise give three working days’ written notice of industrial action “should not lightly be curtailed” by the imposition of a longer period of notice; 14

•  the meaning to be given to the expression “exceptional circumstances justifying” in s.443(5) is that which was discussed in the following terms in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation:

“[10] … In summary, the expression “exceptional circumstances” requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.” 15

•  The determination of whether the circumstances in a particular case are “exceptional” involves an evaluative judgement. 16

•  A member of the Commission must first identify or make findings about the particular facts or circumstances in relation to the proposed industrial action which are said to inform the evaluative judgement that such factors or circumstances are exceptional circumstances, with the phrase “exceptional circumstances” carrying its ordinary meaning. 17

•  There must then 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. 18

•  If the member is satisfied there are exceptional circumstances justifying a longer period of notice, there must then be a consideration of whether to exercise the discretion and, if so, the additional period of notice that should be given in the circumstances. 19

[15] These principles and the three-step decision-making process was endorsed by the Full Bench in National Tertiary Education Union v Charles Darwin University. 20

[16] The essence of the application made by ISS Security for an extension of the notice period is that if the standard notice period notice of protected industrial action involving the withdrawal of labour is given by the members of the Union, it may give rise to a situation where ISS Security is unable to make the necessary arrangements to provide the required screening services before its commencement. It says that if this occurs, no flights will be able to depart until screening services are restored. ISS Security submits the non-departure of flights will have significant impacts on third parties such as the airlines, who suffer substantial financial losses as a result of any flight schedule delays, and the travelling public, who will be inconvenienced by the disruption.

[17] However, even if I accept Mr Moore’s evidence regarding the consequences of the non-provision of screening services, I am not persuaded that the current circumstances facing ISS Security are such that it would not be able to mitigate the effects of the proposed industrial action within the standard notice period. An overwhelming 85% of ISS Security’s employees fall within the level 2 classification that covers the screening services. The 234 members of the Union who would be covered by the proposed protected action ballot order represent approximately 50% of the ISS Security’s 462 employees. Mr Moore estimated that only a third of ISS Security’s employees are currently required each day. It also appears that there is a pool of up to 126 level 2 classification casual employees not currently engaged that could be called upon in the event of protected industrial action, although I acknowledge it is not apparent how many of them are members of the Union. Having regard to these various figures, I am not persuaded that the sort of measures Mr Moore said would need to be employed in order to be able to provide screening services in the face of the proposed industrial action would currently be required. I am fortified in these views by the evidence of the reduced volume of work and staff being rostered in excess of current operational requirements. Therefore, I am not persuaded the circumstances before me in relation to the proposed industrial action are exceptional.

Conclusion

[18] For the reasons set out above, I am satisfied that the Union has satisfied the statutory prerequisites for a protected action ballot order, and accordingly, must make a protected ballot action order. However, as outlined above, I am not satisfied there are exceptional circumstances justifying the period of written notice referred to in s.414(2)(a) being longer than 3 working days. The Order will be issued separately to this decision.

DEPUTY PRESIDENT

Appearances:

Ms L Harrison on behalf of the United Workers Union.
Mr J Moore on behalf of ISS Security Pty Ltd.

Hearing details:

2021.
By Video via Microsoft Teams:
July 27.

Printed by authority of the Commonwealth Government Printer

<PR732209>

 1 See s.437 of the Fair Work Act 2009.

 2   Exhibit R1 at [1]-[10].

 3   Exhibit R2.

 4   [2007] AIRC 848 at [21].

 5   [2012] FWA 7141.

 6   PR591475

 7   [2018] FWCFB 4011 at [23]-[25].

 8   Fair Work Act (2009), s.437(1).

 9 Ibid, s.437(3).

 10   Ibid, s.440.

 11   Ibid, s.438(1).

 12   Ibid, s.443(1)(b).

 13   2018] FWCFB 4011.

 14 Ibid at [20].

 15 2018] FWCFB 4011 at [21].

 16 Ibid at [23].

 17   Ibid.

 18 Ibid at [24].

 19 Ibid at [25].

 20   [2019] FWCFB 1150 at [13]-[15].