United Workers' Union v Sydney Night Patrol & Inquiry Co Pty Ltd T/A Certis Security Australia
[2022] FWC 1665
•28 JUNE 2022
| [2022] FWC 1665 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.437—Protected action
United Workers’ Union
v
Sydney Night Patrol & Inquiry Co Pty Ltd T/A Certis Security Australia
(B2022/580)
| DEPUTY PRESIDENT DEAN | CANBERRA, 28 JUNE 2022 |
Proposed protected action ballot of employees of Sydney Night Patrol and Inquiry Co Pty Ltd T/A Certis Security Australia.
The United Worker’ Union (UWU or the Union) has made an application for a protected action ballot order (PABO) pursuant to s.437 of the Fair Work Act 2009 in respect of employees.
The application seeks to ballot employees of Sydney Night Patrol & Inquiry Co Pty Ltd T/A Certis Security Australia (Certis) who are members of, and represented by, the UWU for a proposed enterprise agreement (Relevant Employees). The Relevant Employees are presently covered by the SNP Aviation Security (Sydney Airport) Agreement 2019 which has a nominal expiry date of 24 February 2022.
Certis is a security services provider engaged by Sydney Airport Corporation Limited (Sydney Airport) to secure its premises. This includes to provide a full suite of security services including to secure airside access, and to screen and restrict prohibited items and access to the security restricted areas and sterile areas of the airport including Terminals 1, 2 and 3 and other locations around the airport. Certis is the primary security services provider at Sydney Airport and provides 24/7 security coverage at Sydney Airport. Work such as perimeter security, alarm monitoring and CCTV monitoring must be performed 24/7. The services provided by the Respondent are integral to the running of Sydney Airport, to passenger safety and to aviation security.
Certis opposes the making of the PABO and advances three grounds for its objection, namely:
a.the Fair Work Commission will not be satisfied of the matters set out at s443(1)(b) of the Act (the genuine agreement objection);
b.in respect of proposed questions 9 to 15, the application is not one that is made pursuant to s437 of the Act (the objectional questions); and
c.s443(1) confers a limited discretion to be exercised judicially on grounds that do not go beyond the scope and object of the part of the Act in within which the discretion exists, being Part 3- 3 (the discretion argument).
Further, if the Commission finds against Certis in relation to these objections and makes the PABO, it argued that exceptional circumstances exist such as to warrant an extension of the notice period for proposed industrial action (extension of notice period).
The matter was listed for a hearing on 27 June 2022. Mr N Pefanis appeared for the UWU and Mr S McIntosh of Counsel appeared with permission for Certis. Permission was granted because I was satisfied the application would be dealt with more efficiently given the nature of the arguments advanced in opposition to the granting of the order (ie complexity).
The UWU relied on evidence given by Mr Damien Davie (Union Coordinator) who provided a witness statement and a statutory declaration in support of the Union’s application. Ms Karen Halbert, Executive General Manager Corporate Affairs of Sydney Airport was called to give evidence for the UWU. Both Mr Davie and Ms Halbert were cross examined during the hearing.
Certis relied on evidence given by Ms Vicky Kotkiewicz, National Manager – Human Resources Aviation, who provided a witness statement, and Mr Sam La Spina, General Manager – Head of Human Resources, provided a witness statement which is the subject of a confidentiality order. Ms Kotkiewicz was cross examined but Mr La Spina’s evidence was unchallenged.
The Union sought an order for production of the full contract between Certis and Sydney Airport. I declined to make the order having accepted the argument set out in the detailed submissions made by Certis opposing production of the contract.
Relevant legislation
Section 437 of the Act deals with applications for a protected action ballot order:
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)Subsection (1) does not apply if the proposed enterprise agreement is:
(a)a greenfields agreement; or
(b) a multi-enterprise agreement.
(2A)Subsection (1) does not apply unless there has been a notification time in relation to the proposed enterprise agreement.
Note: For notification time, see subsection 173(2). Protected industrial action cannot be taken until after bargaining has commenced (including where the scope of the proposed enterprise agreement is the only matter in dispute).
Matters to be specified in application
(3)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.
(4)If the applicant wishes a person other than the Australian Electoral Commission to be the protected action ballot agent for the protected action ballot, the application must specify the name of the person.
Note: The protected action ballot agent will be the Australian Electoral Commission unless the FWC specifies another person in the protected action ballot order as the protected action ballot agent (see subsection 443(4)).
(5)A group of employees specified under paragraph (3)(a) is taken to include only employees who:
(a)will be covered by the proposed enterprise agreement; and
(b)either:
(i)are represented by a bargaining representative who is an applicant for the protected action ballot order; or
(ii)are bargaining representatives for themselves but are members of an employee organisation that is an applicant for the protected action ballot order.
Documents to accompany application
(6)The application must be accompanied by any documents and other information prescribed by the regulations.
Section 443 sets out the circumstances in which a protected action ballot order must be made:
443 When the FWC must make a protected action ballot order
(1)The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:
(a) an application has been made under section 437; and
(b)the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.
(2)The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).
(3) A protected action ballot order must specify the following:
(a) the name of each applicant for the order;
(b) the group or groups of employees who are to be balloted;
(c) the date by which voting in the protected action ballot closes;(d)the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.
(3A)For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.
(4)If the FWC decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:
(a)the person that the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and
(b)the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.
(5)If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.
Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.
Issues to be determined
As outlined above, the grounds for objection to the making of the order are:
a.the Fair Work Commission will not be satisfied of the matters set out at s443(1)(b) of the Act (the genuine agreement objection);
b.in respect of proposed questions 9 to 15, the application is not one that is made pursuant to s437 of the Act (the ballot questions); and
c.s443(1) confers a limited discretion to be exercised judicially on grounds that do not go beyond the scope and object of the part of the Act in within which the discretion exists, being Part 3- 3 (the discretion argument).
Certis also contended that if a PABO was to be made, then exceptional circumstances exist which warrant an extension of the notice period for proposed industrial action beyond the standard 3 working days (extension of notice period).
Genuine agreement objection
There is no dispute and I am satisfied that an application has been made that satisfies s.443(1)(a).
In relation to s.443(1)(b), Certis put forward the following arguments in support of its objection (with footnotes omitted):
1.The Fair Work Commission must not make the PABO unless it is satisfied that the Applicant has been, and is, genuinely trying to reach agreement with the employer of the employees who are to be balloted: ss443(1)(b) and 443(2) of the Act. For the following reasons, the Fair Work Commission will not be so satisfied.
2.The requirements in s 443(1)(b) of the Act involve two distinct temporal considerations. The use of the present tense “is genuinely trying to reach an agreement” requires satisfaction that, at the time of the determination, the Applicant is trying to reach an agreement. The use of the past tense “has been genuinely trying to reach an agreement” requires satisfaction that the Applicant had been trying to reach an agreement prior to the time of determination: Appeal by Coles Supermarkets (Australia) Pty Ltd [2015] FWCFB 379 at [45].
3.There are no rigid rules outlining what steps need to be taken for an applicant to demonstrate that they are genuinely trying to reach an agreement. Rather, determining whether an applicant is genuinely trying to reach an agreement requires an assessment of the circumstances in each case: Total Marine Services Pty Ltd v Maritime Union of Australia (2009) 189 IR 407 at [31]; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Kraft Foods Ltd (2010) 197 IR 12 at [29].
4.All the relevant circumstances must be assessed to establish whether the applicant is or is not genuinely trying to reach agreement: Total Marine Services Pty Ltd v Maritime Union of Australia (2009) 189 IR 407 at [32].
5.While there is a relationship between genuinely trying to reach agreement and bargaining in good faith, the two concepts are conceptually distinct: Transport Workers’ Union of Australia v CRT Group Pty Ltd [2009] FWA 425. However, in practice, there is significant overlap between the two. In MUA v Total Marine Services Pty Ltd [2009] FWA 187, Thatcher C stated that whether an applicant is genuinely trying to reach agreement is likely to include consideration of any evidence that the bargaining agent has been bargaining in good faith, although this will not be conclusive in and of itself. See also Fair Work Australia v Union of Christmas Island Workers; Phosphate Resources Limited [2012] FWA 1081 at [75].
6.The timing of an application for a PABO is a relevant factor in determining whether an Applicant is genuinely attempting to reach an agreement. Prematurely seeking to take industrial action may reveal that a party is not genuinely trying to reach agreement: AMWU v Pacific National Pty Ltd [2010] FWA 3882; Construction, Forestry, Mining and Energy Union v Brookfield Multiplex Constructions Pty Ltd [2012] FWA 2817.
7.The Commission may consider a variety of factors in assessing whether genuine agreement is sought, including the timing of negotiations and the conduct of the Union in respect of third parties: APC at [64].
8.Where a negotiating party does not seriously consider a claim (and by implication an offer) that party may be at risk of being found to have not been genuinely trying to reach an agreement. It is relevant to examine the following:
a.The claims themselves in the context of industry practice and fancifulness; and
b.The entire context of the negotiating history including:
i.evidence of an intention to conclude an agreement;
ii.whether every reasonable effort has been made to reach an agreement (including whether offers or claims have received serious consideration, and whether there has been any evidence of an all or none approach);
iii.whether any conduct has unreasonably inhibited the process of achieving agreement; and
iv.whether a party has conducted itself in a manner that has the predictable effect of destroying the decision making framework of bargaining: Minister for Health — re Applications for termination of bargaining periods — PR954110 [2004] AIRC 1234 at [40], [57].
9.First, the Applicant is intransigently pursuing a claim that is fanciful and unrealistic (not merely ambitious) when considered by reference to industry standards and practice. Since negotiations commenced with the Applicant, they have insisted on an annual wage increase of 7% per year backdated to 1 January 2022. The Respondent has made many concessions as part of the bargaining process, however the Applicant's insistence on the 7% increase has become an unreasonable sticking point in the negotiations. The request for a 7% increase is an ambit claim and has never been justified by the Applicant by reference to any evidence. Despite many attempts by the Respondent to propose compromises to this increase, the Applicant has simply been unwilling to make any concession whatsoever on this issue. It has not provided any response as to why the Applicant’s alternate proposals have been rejected.
10.The 7% demand is wholly out of kilter with the security industry. The Respondent has surveyed 38 comparable enterprise agreements approved by the Fair Work Commission, and the annual wage increases in those agreements range from approximately 1% to 3.125%, or are to be calculated with respect to the Fair Work Commission's Annual Minimum Wage Review. Not a single agreement contains an increase of 7%.
11.Second, the Applicant has failed to give any consideration or adequate response to the reasons for the Respondent’s response to the Applicant’s demand for 7% increase. It is, and has been made clear, why the increase is not viable for the Respondent.
12.Third, there is reasonable evidence upon which the Commission could infer that one, or more, of the Applicant’s representatives are motivated by an improper purpose. Mr Davie, upon whose evidence the Applicant relies in advancing the application, has engaged in conduct that is wholly inappropriate conduct directed towards a key member of the Respondent’s executive. On 5 May2020 he issued a media release attacking Mr Roche. On 23 May 2020 the Applicant WU posted Mr Roche's personal mobile phone number on its publicly available Facebook page, encouraging people to call Mr Roche. The post also included a photograph of Mr Roche along with the words “This is millionaire Tom Roche. During the COVID crisis, he turned his back on the workers who made him rich”. The Respondent submits that, to do so, was a form of harassment – and that the Applicant’s unreasonable conduct during bargaining is contextualised by this conduct.
13.The Respondent’s concerns over the conduct of the Applicant’s representatives is not limited to Mr Davie. On 20 June 2022, Mr Carr, a representative of the Applicant, (not for the first time) accessed operational areas at Sydney Airport that he did not have a proper reason to enter to hold appropriate discussions with staff.
14.The Respondent submits that conduct, such as the above, goes beyond the merely hard negotiation, but is instead harassment, suggests that factors beyond the mere advancement of member’s industrial interests by lawful means of negotiation may be motivating the Applicant’s conduct – including the bringing of this PABO application.
15.The inference is also supported by the terms of the orders sought. Questions 13 to 15 seek a carte blanche permission for employees to disparage the Respondent by a number of different means – the traditional media, social media and personal interaction with passengers. The sought orders suggest that the Applicant’s intention is to achieve more than the exertion of bargaining pressure by altering the way in which work is performed – but rather to have the Respondent’s reputation publicly damaged by the comments of its own employees. Whether that is to achieve the breakdown of the Respondent’s relationship with Sydney Airport, to drive membership in the Applicant, or for some other reason such as to gain a forensic advantage in other negotiations – what is clear, the Respondent submits, is that the sought orders point away from the purpose being an attempt to bargain for and reach agreement with respect to a proposed enterprise agreement.
16.Fourth, the Applicant knows, or ought reasonably know, that sought orders would expose risks to aviation security, public safety and the Applicant’s relationship with Sydney Airport. Given the seriousness of these matters, dealt with further below, the very fact of having sought orders, on the terms contained in the draft orders, amounts to conduct that unreasonably inhibits the process of achieving agreement, and is the Applicant conducting itself in a manner that has the predictable effect of destroying the decision making framework of bargaining.
17.The innumerate consequences of the orders sought include:
a.Sydney Airport being unable to operate during the period of the industrial action;
b.unacceptably increasing the risk of a sterile area breach through dangerous items or weapons entering the airport’s sterile area, which in turn can cause the entire sterile area to be evacuated;
c.significant disruption at Sydney Airport in that airline staff, crew and passengers would be unable to pass through screening points to board flights. Particularly, up to 50,000 passengers could be disrupted per day of industrial activity;
d.the loss of capacity within Sydney Airport to monitor suspicious activity in the IOC control room, including, and especially dangerous, during periods where the screening lanes are closed leading to an increased number of passengers and crew being forced to wait in the non-sterile area of the airport;
e.periodic reductions in the perimeter security of Sydney Airport, leading to an increased risk that unauthorised persons could gain access to sterile areas of the airport,14 and the need to shut down critical areas of the airport such as the delivery dock and vehicle and emergency vehicles access;
f.serious economic harm to the Respondent by damaging its position under its contract with Sydney Airport, and placing the contract at risk of termination. It is patently obvious that action that risks the termination of the Respondent’s contract with Sydney Airport will destroy the process of achieving agreement. If there is no ongoing work for the Respondent to perform at Sydney Airport, there will be no enterprise agreement;
g.placing the Respondent in breach of clause 5.05 of the Aviation Transport Security Regulations 2005 and clause 8 of the Aviation Transport Security (Screening Officer Requirements) Determination 2021;
h.safety being placed at risk by the increased compacting of customers within a small physical area, increasing Covid-19, and other, transmission risks;
i.safety being placed at risk by increased passenger frustration, coupled with fewer staff and decreased or no CCTV monitoring, meaning that if a customer becomes violent or unruly, Australian Federal Police (AFP) officers will face increased difficulties in dealing with such conduct, and the Respondent’s staff will be unable to assist the AFP;
j.safety being placed at risk by an increased risk of weapons or unauthorised people passing the security check points, compromising airside security;
k.safety being placed at risk by the increased risk of people running for flights – slip and fall dangers; and
l.the economic position of innocent third parties being placed at risk by delayed flights, and penalties for delayed flights.
18.In short, the potential consequence for the Respondent, Sydney Airport, airlines and the travelling public – particularly during school holidays – is entirely disproportionate to the aims of reasonable bargaining. The action risks destroying the reputation and relationships of the Respondent – which will in turn destroy the prospect of agreement being reached through bargaining. This is said in the context of the Respondent’s position during bargaining being eminently reasonable, and Sydney Airport specifically supporting the Respondent’s approach to bargaining – along with working with the Respondent to provide additional benefits beyond those that are contained in the current enterprise agreement.
19.Fifth, the proposed industrial action itself would comprise unlawful interference with aviation, within the meaning of that phrase as used in the Aviation Transport Security Act 2004 (Cth) (ATS Act), which provides at s10(1)(h) that “committing an act at an airport, or causing any interference or damage, that puts the safe operation of the airport, or the safety of any person at the airport, at risk” is such interference. While the chapeau of s10(1) contemplates that if such conduct is engaged in with “lawful authority” it would not constitute “unlawful interference with aviation”, s10(2) makes clear that only where industrial activity does not interfere with or damage the safe operation of the airport, or place the safety of any person at the airport at risk, escapes the definition of unlawful interference with aviation. It is plain that the Commonwealth Parliament regards the protection of the safe operation of Sydney Airport, and the maintenance of safety for persons within the airport as a matter of paramount concern.
20.Sixth, the timing of the PABO application is significant. Its timing is so as to inflict the maximum reputational, relationship and contractual damage on the Respondent by disrupting travel within the school holidays. Prior to the application a meeting had been held on 26 May 2022. At the time of the PABO application, further bargaining meetings were scheduled for the week commencing 20 June 2022. The Respondent had consistently brought reasonable proposals to the Applicant, some of which the Applicant had never responded to. The strong inference available to the Commission, particularly in light of the orders seeking permission to disparage the Respondent and the Applicant’s past behaviour in this regard, is that the timing of the PABO application was specifically intended to coincide with the school holiday travel period. The Respondent submits that it is open for the Commission to conclude that an application, intended to have industrial action occur – and as a consequence Sydney Airport repeatedly grind to a halt – coinciding with a period of particularly heavy family and personal travel is not brought by an Applicant seeking to reach agreement – but rather an Applicant seeking to inflict damage on the Respondent.
21.For the above reasons, the Commission can comfortably conclude that the Applicant has not been, and is not, genuinely trying to reach agreement with the Respondent.
I have not summarised the evidence brought by Certis, mostly because a large part of it is the subject of a confidentiality order, however I have given careful consideration to the evidence in making my decision.
The UWU’s response
The UWU contended that the Commission can be satisfied that it is and has been genuinely trying to reach an agreement with Certis and the requirements of s.443(1)(b) have been met.
In response to Certis’ first submission, the UWU contended that a 7% wage increase per annum was neither fanciful nor unrealistic in the context of a national CPI rate of 5.1% and a recent Annual Wage Review decision awarding increases of 5.2% to the National Minimum Wage and 4.6% to Award covered employees. In addition, during the most recent bargaining meeting between the parties, Certis tabled a revised wage offer which would provide for a 6.9% wage increase by 1 July 2022.
The union highlighted that with respect to the 38 agreements referred to by Certis, only one related to aviation security, and as such the remaining agreements were not a reasonable comparison.
A better comparison, it argued, were the agreements that covered security employees at Brisbane and Melbourne airports, and which contain significantly higher wage rates than those paid to the Relevant Employees at Sydney Airport. The Union pointed to Mr Davie’s evidence that the intent of the 7% wage increase is for Relevant Employees at Sydney Airport to “catch up” with the wage rates applicable at Brisbane and Melbourne airports.
The UWU contended that its failure to compromise on its 7% claim does not mean it is not genuinely trying to reach agreement, nor does it mean it is not bargaining in good faith.
In response to the submission that Mr Davie was motivated by an improper purpose, the Union submitted that regardless of what the Commission may think of Mr Davies’ actions in May 2020, these actions occurred some 17 months prior to the formal commencement of bargaining.
In response to the submission by Certis that the seeking of the PABO by the Union amounts to conduct that unreasonably inhibits the process of achieving an agreement, the Union contended that this submission should be rejected by the Commission because it strains credulity.
In response to the submission by Certis that the proposed industrial action would compromise unlawful interference with aviation, within the meaning of that phrase as used in the Aviation Transport Security Act 2004 (Cth), the Union contended that this was not a matter that concerned whether the Union was genuinely trying to reach agreement.
In terms of the contention by Certis that the timing of the application (just prior to school holidays) was designed to “inflict the maximum reputation or relationship and contractual damage on the respondent by disrupting travel within the school holidays”, the Union submitted this was clearly incorrect because, even if the PABO were made this week, the declaration of the ballot would not occur until at least mid-August, well after the conclusion of the school holidays.
Consideration of genuine agreement objection
Having given careful consideration to the evidence and submissions made by the parties, I am on balance satisfied that the Union has been and is trying to reach an agreement with Certis.
First, I agree that at first glance, a wage claim of 7% appears excessive, until it is considered in light of the recent Annual Wage Review decision. Further, it appears Certis has made an offer for the first year of a proposed agreement of 6.9%. I accept that this is not a year on year offer by Certis. Further, I accept that there is some rationale by the Union, that being what it says is a comparison of wage rates paid at Melbourne and Sydney Airports, as to the basis for the 7% claim.
I accept the evidence of Certis that 7% is not consistent with the security industry generally. The difficulty of this argument in the context of whether the union is genuinely trying to reach agreement is that consideration may also be properly given to the current wage rates, which may or may not be comparable.
As a result, while the claim may well be highly ambitious, I am not satisfied that the claim is fanciful.
Second, I am not satisfied that this application has been made for an improper purpose. I accept the purpose of the application is to ballot the Relevant Employees with a view to taking protected industrial action.
I fully accept that Certis has genuine concerns about the conduct of Mr Davie, particularly his disparaging public comments about Certis generally (including in his EBA updates) and its former CEO more specifically. What was put to Mr Davie in cross examination was that his motivation was actually a membership drive. It may well be that Mr Davie sought to increase the Union’s membership, but I am not satisfied that this was the primary motivation for the application.
Third, while I fully accept that the taking of certain forms of protected industrial action would expose risks to aviation security, public safety and Certis’ relationship with Sydney Airport, this does not mean that the Union is not genuinely trying to reach an agreement with Certis. I reject the argument that the very fact of having sought a PABO amounts to conduct that unreasonably inhibits the process of achieving an agreement.
Fourth, if the taking of protected industrial action comprises unlawful interference with aviation, as that phrase is used in the Aviation Transport Security Act 2004, then Certis has legal avenues open to it to respond, including an application under s.424 of the Act. It is not a matter in my view that goes to whether the Union is genuinely trying to reach an agreement.
Fifth, I do not accept Certis’ argument that the timing of this application is designed to disrupt peak school holiday travel, thereby inflicting damage on it. As the Union correctly points out, by the time the ballot is declared by the AEC (assuming the PABO is made now) the school holidays will be over.
Finally, given these findings I consider it unnecessary to make any specific findings as to the credit of Mr Davie, as was invited by Certis.
The ballot questions
The UWU did not press the making of the order with the inclusion of questions 13 to 15 which were included in its application. An objection remained as to questions 9 to 12 which essentially related to a variation to the employees’ prescribed uniform.
Certis correctly noted that to grant the sought PABO, the Commission must be satisfied, in respect of each separate question to be put to the employees, that an application has been made under section 437. Under s437 of the Act, an application can only be made if it is made in respect of particular “industrial action” as defined in s19 of the Act. Action is not industrial action within s19(1)(a) and (b) unless it relates to or concerns the performance of work.
Certis submitted that questions 9 to 12 were concerned with matters that are not substantively about the performance or bans on work, noting questions 1 to 7.
The UWU argued that these proposed questions did constitute industrial action and relied on the full bench decision in Mornington Peninsula Shire Council[1] (Mornington) which considered similarly worded questions.
I am satisfied and find, based on the reasoning in Mornington, that questions 9 to 12 refer to action which can clearly constitute industrial action as defined.
The discretion argument
Certis submitted that a question arises as to whether s443(1) of the Act imposes a mandatory obligation on the Commission, or whether the power is, to a limited degree, facultative and permissive.
Its submissions in this regard, with footnotes omitted, are as follows:
a.The answer to this question commences with the approach to the task of statutory interpretation set out in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 384 [78] wherein McHugh, Gummow, Kirby and Hayne JJ in their joint judgment stated:
The duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.
b.The Respondent accepts that it may be accepted that the use of the word “must” (previously regarded as imposing a “mandatory” requirement) may be but the start of the inquiry. But it is not the conclusion. While the statutory language in fact employed remains a valuable guide to resolving the inquiry, it is by no means determinative: Kutlu v Director of Professional Services Review [2011] FCAFC 94; 197 FCR 177 at [77].
c.In fact, the word “must” (previously “shall”) is capable of indicating a legislative intention to confer a limited discretion to be exercised judicially on grounds that do not go beyond the scope and object of the part of the Act in within which the discretion exists: Ward v Williams (1955) 92 CLR 496 (Ward).
d.Further, in construing s443 there is much to be said for an approach that considers the broad statutory purpose. The FW Act provides a detailed, carefully-structured, regulatory environment for the making of enterprise agreements, and for the maintenance of the integrity of the system of collective bargaining which conventionally leads to such agreements. In the sense that protected industrial action must, necessarily, relate to a proposed enterprise agreement (see s 408), it is legitimate to point out that the ability to take protected industrial action is to be seen as part and parcel of the statutory regime for bargaining in pursuit of, or in resistance to, the making of such agreements. This way of looking at the legislation is amply justified by the parliament’s own words in identifying the object of the Act: see s 3(f): JJ Richards & Sons Pty Ltd v Fair Work Australia [2012] FCAFC 53; 201 FCR 297 (JJ Richards) per Tracey J at [29].
e.While the exercise of power in s443 has been described as mandatory, the exercise of power pursuant to s 443, on an application under s 437, has been also been described by Drake DP as a “question of an exercise of discretion by Fair Work Australia in each application”: Transcript of proceedings in B2009/10457 and B2009/10458 at PN 142-143.
f.What, then, is the legislative intention of s443?
g.A review of the precedent provisions dealing with the same subject matter reveals the mischief that the statute is trying to address. Until 26 March 2006, the commencement of protected action was not subject to the control of the Australian Industrial Relations Commission: ss170ML to 170MP of the Workplace Relations Act 1996 (Cth) (WR Act). After that date, and until the commencement of the Act, s461 of the then titled Workplace Relations Act 1996 (Cth) provided as follows:
461 Application not to be granted unless certain conditions are met
Commission must be satisfied of various matters
(1)The Commission must grant an application for a ballot order if, and must not grant the application unless, it is satisfied that:
(a)during the bargaining period, the applicant genuinely tried to reach agreement with the employer of the relevant employees; and
(b)the applicant is genuinely trying to reach agreement with the employer; and
(c)the applicant is not engaged in pattern bargaining.
When Commission has discretion to refuse application
(2)Despite subsection (1), the Commission may refuse the application if it is satisfied:
(a)that granting the application would be inconsistent with the object of this Division (see section 449); or
(b)that the applicant, or a relevant employee, has at any time contravened a provision of this Division or an order made, or direction given, under this Division.
h.The mischief resolved by s461 was not to confer a right upon workers or an industrial association to commence protected industrial action, but rather to confer upon the AIRC the power to determine whether a ballot authorising such action should occur. This is important because it reveals that the Fair Work Commission is interposed as a decision maker between the union and employees (on the one hand) and the employer (on the other), and is interposed for protecting the employer and/or the public, and not to confer rights upon employees. Were this not the case, the interposition of the AIRC in 2006 would not have been necessary. This is a factor that points towards the power having a discretionary component: Ward at 507.
i.Put another way, the provision was not introduced for the protection or enforcement of private “rights” of employees seeking to engage in industrial action (which would point towards a non-discretionary power), but is designed to safeguard or serve interests enjoyed by the employer or the public at large (which points towards a discretion): Ward at 507, 508.
j.s461 of the WR Act may be contrast to s443 of the Act in the following respects:
i. removing s461(2), which required the Commission to consider the “objects of [the] Division”;
ii. inserting s443(2), which reads “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)”, and which has no work to do unless s443(1) is discretionary.
k.Concerning s461(2), the requirement to consider the objects of the WR Act on every application was antithetical to s457, which required the Commission to act as quickly as possible in resolving the application. The obligation to act with speed on a PABO application is replicated in the Act, and has been furthered by an amendment on 1 January 2017 to Rule 31 of the Fair Work Commission Rules 2013 to require applicants to lodge a statutory declaration setting out the basis on which the requirements have been met. The intent of the amendment is to enable uncontested applications to be dealt with on the papers. It is understandable that Parliament removed the obligation to consider the matters set out at s461(2).
l.The removal of this obligation, however, should not be understood as removing the Commission’s capacity to, as a matter of discretion, consider such matters if raised by a Respondent to a PABO application. Support for this proposition is found in the explanatory memorandum to the Fair Work Bill (EM), the nature of the decision to be made by the Commission, and the text of the section within the context of Part 3-3 of the Act.
m.Paragraph [264] of the EM, appearing with the section of the EM that describes and criticises the then PABO process, specifically notes that the AIRC has discretion to refuse an application if granting it would be inconsistent with the objects of the protected action ballots division. No criticism is levelled at the then PABO application process for the existence of such discretion. Paragraph [282] of the EM then states:
When making an application for a secret ballot, there will still be a requirement for applicants to be genuinely trying to reach agreement, but the current complex and prescriptive procedural requirements will be streamlined reducing the red tape burden on applicants, Fair Work Australia (FWA), the Australian Electoral Commission (AEC) and alternative approved ballot agents.
n.The existence of a discretion in the exercise of a decision making role is not a “complex [or] prescriptive procedural requirement”. The EM says nothing of removing a discretion. The Parliament did not intend to do so.
o.The nature of the decision, as explained above, that is focused upon the conferral of a private right. The matters that the Commission is required to consider (whether an application has been properly made and notified, and whether the applicant has been genuinely trying to reach agreement) are focused on protecting an employer from having an application determined in its absence, or the taking of industrial action for an illegitimate purpose. It is also one that may have significant safety and economic consequences on the employer, third parties with whom the employer contracts or has other relationships, and the public generally. So much is clear from both Ms Kotkiewicz’s First and Second Statements.
p.The Respondent submits that these are factors that point heavily in favour of parliament having intended that for a residual discretion to remain.
q.This submission is also supported by the inclusion of s443(2). If s443(1) is mandatory (that is, it compels the Commission to make a decision to grant a PABO on the existence of the factors set out in s443(1)(a) and (b)), it would be unnecessary to say that the Commission cannot make the order except in the circumstances set out in s443(1). Rather, s443(1) and (2) when read together are understood as communicating that s443(1) sets the minimum preconditions for the making of an order, and that satisfaction of such preconditions, unless a contrary position is put by a respondent, would ordinarily be sufficient for the making of an order.
r.Given that the FW Act provides a detailed, carefully-structured, regulatory environment for the making of enterprise agreements, and for the maintenance of the integrity of the system of collective bargaining, that there exists the conferral of a limited discretion, to ensure that those ends are met, when the Commission is to make a decision s443(1) is a submission that the Commission can readily accept.
s.What, then, is that nature of the discretion? It is submitted that, for the reasons outlined above, the legislative intention was to confer a limited discretion to be exercised judicially on grounds that do not go beyond the scope and object of the part of the Act in within which the discretion exists, being Part 3-3.
t.The Respondent submits that the scope and object of Part 3-3 includes:
i. providing the Fair Work Commission with power to regulate and deal with industrial disputes and industrial action, in a manner that is fair, flexible for business, that promotes productivity and economic growth for Australia’s future economic prosperity;
ii. ensuring that where there is no opposition to a PABO application, the decision is made quickly;
iii. providing employers, and the Fair Work Commission, with the capacity and power to protect:
(a)employers from significant economic harm;
(b)life, personal safety, health and welfare; and
(c)third parties from significant harm.
u.For the following reasons, granting the PABO on the terms sought by the Applicant will not meet those ends:
i.the continuous operation of Sydney Airport, particularly during a period of economic recovery, is important for both productivity and the growth of Australia’s economy. The importance of Sydney Airport as the Nation’s key domestic and international air freight and passenger hub is self-evident. Rolling periods of industrial action that, even temporarily, closes the Airport risks damaging the national interest, and our international reputation;
ii.the specific industrial action sought by the PABO application risks significant economic harm to the Respondent. It places the Respondent at risk of either being required to pay significant contractual compensation or the termination of the contract;
iii.the specific industrial action sought will increase safety risks to passengers at Sydney Airport, flight crew at Sydney Airport and the Respondent’s workers at Sydney Airport. The Respondent’s workers work in safety and security critical roles, and their attendance at, or absence from, work directly correlates to the levels of safety, and exposures to safety and security risks;
iv.the specific industrial action sought risks undermining passenger and public confidence in security at Sydney Airport;
v.the specific industrial action sought risks flight delays, which result in penalties being imposed on third party airlines; and
vi.the industrial action is inconsistent with the ATS Act.
The UWU characterised Certis’ discretion argument as “both novel and strained” and contended it should be rejected by the Commission.
It conceded that in limited circumstances, the prima facie reading of “must” as a mandatory requirement can sometimes (though rarely) be displaced by the context of the particular provision within a piece of legislation. However, this was not a common occurrence and generally, the use of the word “must” speaks of a mandatory provision.
In the circumstances of s.443(1), the Union contended that the use of the word “must” is unambiguous, and it is mandatory for the Commission to issue the PABO where it is satisfied the applicant has made an application under s.437 and is genuinely trying to reach agreement. This is particularly so where Parliament intentionally removed the express discretion contained in s.461 of the Workplace Relations Act.
The discretion argument is certainly novel. Certis was not able to point to any decision of the Commission in which this argument had been considered.
It is not in dispute the approach currently taken by the Commission is to treat “must” as a requirement, in other words without any discretion. I have decided to follow the Commission’s accepted approach. I note that the evidence and submissions put by Certis which go to the significant impact on the operation of Sydney Airport if certain forms of protected action is taken would in my view be highly persuasive arguments in support of an application made under s.424 of the Act. These arguments have not, however, persuaded me to depart from the accepted approach of the Commission to read “must” as a requirement in s.443(1).
Extension of notice period
Section 443(5) of the Act provides in effect that if there are exceptional circumstances justifying the period of written notice referred to in s.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.
The UWU accepted that there may be exceptional circumstances which exist in relation to Certis. While it did not concede that the exceptional circumstances justified an extension to the notice period, it agreed that it would not object to an extension of the notice period to 5 working days.
There have been a number of decisions of the Commission in which exceptional circumstances justifying a longer notice period have been considered.
In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation[2], Vice President Lawler held:
“[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.
[11] However, it is important to note that when considering whether to make an order pursuant to s.463(5) the Commission is not simply concerned with determining whether there are exceptional circumstances. There must be exceptional circumstances ‘justifying’ the specification of a longer notice period. The notion of justification is critical and calls for a consideration of the purpose of the notice required by s.441.”
The Commission has, in a number of cases, found that exceptional circumstances exist justifying an extended notice period.
Certis outlined the following potential effects of protected action at Sydney Airport which included:
a.Sydney Airport being unable to operate during the period of the industrial action;
b.unacceptably increasing the risk of a sterile area breach through dangerous items or weapons entering the airport’s sterile area, which in turn can cause the entire sterile area to be evacuated;
c.significant disruption at Sydney Airport in that airline staff, crew and passengers would be unable to pass through screening points to board flights. Particularly, up to 50,000 passengers could be disrupted per day of industrial activity;
d.the loss of capacity within Sydney Airport to monitor suspicious activity in the IOC control room, including, and especially dangerous, during periods where the screening lanes are closed leading to an increased number of passengers and crew being forced to wait in the non-sterile area of the airport;
e.periodic reductions in the perimeter security of Sydney Airport, leading to an increased risk that unauthorised persons could gain access to sterile areas of the airport, and the need to shut down critical areas of the airport such as the delivery dock and vehicle and emergency vehicles access;
f.serious economic harm to the Respondent by damaging its position under its contract with Sydney Airport, and placing the contract at risk of termination. It is patently obvious that action that risks the termination of the Respondent’s contract with Sydney Airport will destroy the process of achieving agreement. If there is no ongoing work for the Respondent to perform at Sydney Airport, there will be no enterprise agreement;
g.placing the Respondent in breach of clause 5.05 of the Aviation Transport Security Regulations 2005 and clause 8 of the Aviation Transport Security (Screening Officer Requirements) Determination 2021;
h.safety being placed at risk by the increased compacting of customers within a small physical area, increasing Covid-19, and other transmission risks;
i.safety being placed at risk by increased passenger frustration, coupled with fewer staff and decreased or no CCTV monitoring, meaning that if a customer becomes violent or unruly, Australian Federal Police (AFP) officers will face increased difficulties in dealing with such conduct, and the Respondent’s staff will be unable to assist the AFP;
j.safety being placed at risk by an increased risk of weapons or unauthorised people passing the security check points, compromising airside security;
k.safety being placed at risk by the increased risk of people running for flights – slip and fall dangers; and
l.the economic position of innocent third parties being placed at risk by delayed flights, and penalties for delayed flights.
It is clear that in these circumstances, the potential implications for Certis and Sydney Airport if employees were to take protected industrial action go well beyond mere inconvenience and additional costs because of the nature of the work performed and the highly regulated and security sensitive nature of aviation security.
During the hearing the Union properly conceded that certain forms of industrial action could have significant economic impact and significant disruption to the operation of Australia’s busiest airport.
Consideration as to extension of notice period
I accept the oral evidence of Ms Halbert who was called by the UWU. There is nothing in her evidence that would cause me not to accept it in full. Likewise, I accept the evidence of Mr La Spina whose evidence was unchallenged.
This evidence, considered as a whole, sets out a clear basis for a finding there are exceptional circumstances. In particular, the potential for increased safety risks to employees and the public, the potential impact of a closure or significant disruption of Sydney airport, constitute exceptional circumstances. The impact is in my view out of the ordinary, unusual and uncommon.
Further, I am satisfied that the evidence sets out a basis for a finding that the exceptional circumstances justify a longer notice period. Both Certis and Sydney Airport will need longer than three days to put in place plans to ensure the safety of employees and members of the public. Neither organisation can reasonably implement such plans until the nature and duration of the proposed industrial action is known.
For these reasons, I am satisfied that there are exceptional circumstances which justify an extension of the notice period to five working days.
Conclusion
Having made the above findings, I am satisfied that the order sought by the UWU, as modified to reflect this decision, must be made.
An order will be separately issued.
DEPUTY PRESIDENT
Appearances:
N Pefanis, for United Workers’ Union.
S McIntosh of Counsel for Sydney Night Patrol & Inquiry Co Pty Ltd T/A Certis Security Australia.
Hearing details:
2022.
By video:
June 27.
[1] [2011] FWAFB 4809.
[2] [2007] AIRC 848.
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