Application by Australian Rail, Tram and Bus Industry Union [2016] FWC 1855 (24 March 2016) [2016] FWC 1855 FAIR WORK COMMISSION DECISION Fair Work Act 2009 s.437 —Protected action Australian Rail, Tram and Bus Industry Union v Metro Trains Melbourne Pty Ltd (B2016/34) DEPUTY PRESIDENT CLANCY MELBOURNE, 24 MARCH 2016 Proposed protected action ballot of employees of Metro Trains Melbourne Pty Ltd – extension of the period of written notice for industrial action. [1] The Australian Rail, Tram and Bus Industry Union applied for a protected action ballot order. 1 In its application, the union sought an order that employees of Metro Trains Melbourne Pty Ltd who are represented by the union and who will be covered by the proposed Metro Trains Melbourne Pty Ltd Infrastructure Division Enterprise Agreement 2015 be balloted to see if they supported the taking of protected industrial action. [2] The union and Metro Trains had a series of discussions regarding the application and the orders sought and reached an agreed position. [3] It was not disputed that: 1. The union is a bargaining representative for the employees; 2 2. The application specifies the group of employees to be balloted and the questions to be put to the employees; 3 3. A copy of the application was given to Metro Trains and the AEC within 24 hours of the making of the application; 4 4. The nominal expiry date of the applicable agreement has passed; 5 and 5. The union is genuinely trying to reach agreement with Metro Trains. 6 [4] Their proposed draft order included the requirement for the union to give at least 5 working days’ notice of all but two of the proposed forms of industrial action. Section 443(5) of the Fair Work Act 2009 (the Act) requires me to be satisfied that there are exceptional circumstances justifying this because it is longer than the 3 working days referred to in s.414(2)(a) of the Act. [5] What constitutes exceptional circumstances in this context has been considered in numerous decisions of the Commission, notably in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Communication 7 by Vice President Lawler at [10] and [21], when he considered an equivalent provision of the Workplace Relations Act 1996 : “[10] In this passage his Honour was concerned with the ordinary meaning of the expression "exceptional circumstances" and the approach identified is, in my view, equally applicable to the use of that expression in s.465(3). 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 … [21 Essentially, what is required in determining whether exceptional circumstances justify an extension of the required notices period is a weighing of the interests of the employer and third parties in the employer having a greater opportunity to take appropriate defensive action as against the diminution in the effectiveness of the employees' bargaining power that results from such an extension. The fact that the legislature has seen fit to condition the ordering of an extension of the required notice period on the presence of exceptional circumstances justifying it, as distinct from merely conferring a simple discretion to extend the required notice period, indicates that ordinarily there should be no extension.” [6] Three things emerge relevant to the determination of this aspect of the application: I must be satisfied that there are circumstances that are out of the ordinary course, unusual, special or uncommon; These circumstances must justify the granting of extra notice; and I must weigh the interests of Metro Trains and third parties in Metro Trains “having a greater opportunity to take appropriate defensive action” against “the diminution in the effectiveness of the employees' bargaining power that results from such an extension”. [7] Metro Trains made submissions that there were exceptional circumstances justifying notice being increased from 3 to at least 5 working days. The union indicated it did not object to the increased notice and nor did it oppose the Metro Trains submissions. Metro Trains’ submissions [8] Metro Trains is the franchise operator of the Melbourne metropolitan rail network. It has 207 trains running on approximately 1000 km of tracks. It transports 815,000 passengers each weekday, including 300,000 in afternoon peak hours, via 2000 weekday services. [9] The employees of the Infrastructure division of Metro Trains carry out the maintenance and upgrades of the rail network in order to ensure it is safe and operable. [10] The industrial action listed in questions 1, 2, 3, 4, 5, 6, 7, 8, 11, 12 and 13 of the proposed protected action ballot order give rise to two key safety risks. The first is the capacity of Metro Trains to respond to an emergency, safety critical incident or unplanned fault in a timely and/or effective way. The second is its capacity to confirm the ongoing integrity of the infrastructure. [11] A period of 3 working days is insufficient to: identify and assess interim, alternative risk control measures; identify the safety critical tasks that will not be undertaken; and reschedule and reprioritise such work. [12] If Metro Trains cannot mitigate these risks to a suitable level, it will have no option but to close a section or sections of the track. [13] In the event of network disruption, Metro Trains needs to notify the public of the services that cannot run and liaise with other service providers. It must also prepare appropriate contingencies to account for any safety and operational issues that may arise on account of temporary adjustments and organise alternative transport. [14] The additional notice sought would give Metro Trains an improved opportunity to consider and implement alternative arrangements for customers and manage such arrangements in a way that best supports the safe transport of the hundreds of thousands of users of the network. [15] There were numerous examples of the Commission having granted additional time pursuant to s. 443(5) , including Australian Rail, Tram and Bus Industry Union [2015] FWC 8019 , in which 7 days’ notice was granted and TWU and AMWU v the Chief Executive of the ACT Internal Omnibus Network (Action) on behalf of the Australian Capital Territory [2010] FWA 3355 , in which 5 days’ notice was granted. Conclusion [16] I am satisfied that the nature and the potential impact of the proposed industrial action is such that exceptional circumstances do exist, justifying the extension of the notice period to at least 5 working days. [17] The combination of the services provided by Metro Trains, its obligation to ensure the safety of its staff, customers and the general public, the consequences of the proposed action and the contingency planning required in response lead me to this view and I have noted that in circumstances where interests beyond that of the immediate parties are impacted by the taking of industrial action, there has been a willingness by the Commission to extend the notice period to be provided. 8 [18] I am also satisfied that there will be no diminution in the effectiveness of the employees' bargaining power that results from the extension because of the nature of the managerial and operational burden that will be felt by Metro Trains, even with the additional notice. [19] 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. [20] Further, I am satisfied there are exceptional circumstances justifying the period of written notice being extended to at least 5 working days where protected industrial action is in the form of action listed in questions 1, 2, 3, 4, 5, 6, 7, 8, 11, 12 and 13 of the protected action ballot order. [21] An Order to that effect will be issued separately to this decision. DEPUTY PRESIDENT 1 See s.437 of the Fair Work Act 2009 . 2 Ibid, s.437(1). 3 Ibid, s.437(3). 4 Ibid, s.440. 5 Ibid, s.438(1). 6 Ibid, s.443(1)(b). 7 [2007] AIRC 848 . 8 Construction, Forestry, Mining and Energy Union [2013] FWC 2748 at [41] , referring to Transport Workers’ Union of Australia [2012] FWA 133 at [17]. Printed by authority of the Commonwealth Government Printer <Price code A, PR578307>