Summary - protected action ballot application - extension of time for written notice - exceptional circumstances - s.414(2) - s.443(4)

[1] On 12 April 2011 the AMWU made application under s.437 of the Fair Work Act 2009 ("the Act") for a protected action ballot order. The relevant employees were those employees of Clyde Babcock -Hitachi (Australia) Pty Ltd ("the Company") who are members of and are entitled to be industrially represented by the AMWU.

[2] All the statutory requirements of the Act in respect of the application were satisfied other than a contested matter as to whether there were in existence exceptional circumstances for the purposes of s.443(5) of the Act that would warrant extending the written notice period beyond three days and up to seven days. Section 443(5) of the Act reads as follows:

5. If FWA 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.

[3] In this application, the Company sought an extension of two days, so that five days written notice might be required. The AMWU opposed the extension of period of written notice.

[4] As relevant background provided by the evidence before me, the Company carries out various works, including fabrication and modification and maintenance and shutdown works, on power plants and mining process plants in remote locations.

[5] The Respondent contends that the period of written notice should be extended for reason of the significant possible effects on the Company's clients of having limited time (three days) within which to respond to any industrial action affecting its (the Company's ) services.

[6] Evidence was led as to the possible consequences of not managing plant shutdowns or plant availability on these operations, with particular reference to power stations.

[7] In my view, ordinarily (and other than where an appropriate application is made under Chapter 3, Part 3-3, Division 6 of the Act) it would be inappropriate for FWA to interfere in the moderating of the effects of protected industrial action upon an employer or its clients by way of modifying the period of written notice. The structure of the bargaining provisions of the Act generally are not predicated upon the tribunal shielding or, as I said at the time of the hearing of this matter, insulating the employer from the effects of protected industrial action. Nor should the leverage of parties in a bargaining context be disturbed lightly.

[8] Bar the operation of s.443(5) of the Act (which is reflected in s.414(2)(b) of the Act), s.414(2)(a) of the Act ordinarily stipulates that three days is the required period of written notice. Parliament no doubt took that to be the appropriate balance between allowing an employer sufficient time to take defensive steps in relation to the proposed industrial action the majority decision in (see the majority judgment in Davids Distribution Pty Ltd v National Union of Workers [(1999) FCA 1108]) and the opportunity for the employee claim action to have optimal effect.

[9] Other than these observations, I concur with the comments by Lawler VP in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation (BP2007/3201) as to the approach to be taken in ordinary circumstances.

[10] That said, s.443(5) of the Act, as cited above, does make provision for an exercise of a conditioned discretion on the part of FWA to vary the period of written notice required to be given in relation to proposed industrial action where FWA is satisfied there are "exceptional circumstances".

[11] The task before me therefore is to determine whether I am satisfied that the circumstances of the application reveal any exceptional circumstances for the purposes of s.443(5) of the Act, and whether the period of time for which the extension sought is appropriate.

[12] The evidence before me in this matter which was not challenged by any contrary evidence on the part of the AMWU (beyond submission from the Bar Table) is that:

• the Company conducts its operations in "remote locations";

• the Company can have hundreds of employees working on site in its large site remote location, including a power station;

• the client would need to locate, house and provide handover instructions in short time to what might be a very large alternative workforce;

• the remote location of the sites may make this exercise impossible, and could have further detrimental effects upon the client's plant and operations; and

• the scope to make alterative arrangements in the three day timeframe to allow its clients to take defensive action or to moderate the impact of the industrial action on its own operations is not practical in such geographical circumstances.

[13] Clearly, these are not the circumstances that ordinarily apply to a business or enterprise which is prospectively facing employee claim action.

[14] It appears to me that the geographical circumstances relevant to the Company's operations, the possible magnitude of the relevant workforces, and the difficulties that might attach themselves to giving practical effect to alternative arrangements in remote areas constitutes exceptional circumstances for the purposes of s.443(5) of the Act.

[15] In such a context, it appears to me that is appropriate to extend the period of written notice from three days as required by s. 414(2)(a) of the Act to five days. That is, in my view, on the evidence led before me, the extension by two days of the period of written notice is an appropriate period of time.

[16] Given that the application has met the requirements of Part 3-3, Division 8 of the Act, I will issue an order for a protected ballot action order as sought by the Applicant. I will, however, consistent with direction in s.443(5) of the Act, include in the protected action ballot order a direction that the period of written notice required to be given by the bargaining representative of the employees to the Company prior to any proposed industrial action occurring be five (5) working days (as defined under s.12 of the Act).

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