"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union v BAE Systems Australia Limited [2023] FWC 2983 (16 November 2023)

[2023] FWC 2983

The attached document replaces the document previously issued with the above code on 16 November 2023.

Correction to typographical error in paragraph [4].

[2023] FWC 2983

Fair Work Act 2009

s.437 - Protected action

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union

Proposed protected action ballot of employees of BAE Systems Australia Limited

• [1] BAE Systems Australia Limited (BAE) has been negotiating for an enterprise agreement to replace the BAE Systems Australia Limited (Henderson) Enterprise Agreement 2020-2023 (BAE Agreement),[1] since in or around May 2023. It is not in dispute that the nominal expiry date of the BAE Agreement has passed.

• [2] An application has been brought by the "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (the AMWU) under s 437 of the Fair Work Act 2009 (Cth) (the Act) for a protected action ballot order (PABO) in relation to certain employees of BAE.

• [3] The application was lodged with the Commission on 14 November 2023 and was initially allocated to Deputy President Hampton. The Commission's Bargaining Team sought a response from BAE which was forthcoming on the afternoon of 14 November 2023. In its initial response, BAE confirmed that it proposed to object to aspects of the application and sought to be heard in respect of the application, including in relation to the notice period pursuant to ss 414(2)(b) and 443(5) of the Act.

• [4] Section 441 of the Act states that the Commission must, as far as practicable, determine an application under s 437 within two working days after the application is made. The application was allocated to my chambers on 15 November 2023. I listed the application for hearing on 16 November 2023.

• [5] In accordance with the directions issued on 15 November 2023, BAE advised the Commission that if the Commission considered it was required to make the PABO there were exceptional circumstances that justified an extension to the standard three working days' notice period in respect of the following ballot questions on the draft PABO:

a) question 1, which referred to work stoppages of various durations;

b) questions 2 and 4, which would ban overtime and shift work and could result in bans on key functions critical to docking and undocking; and

c) question 12, which could result in bans on docking work.

• [6] BAE therefore sought an extension of the notice period from three working days to five working days.

• [7] Further, in respect to questions 1, 4, 6, 7, 9, 11 and 12 on the draft PABO, BAE held the view that the questions as drafted did not meet the criteria set out in s 443(3)(d) of the Act, and as such should not be included in any PABO.

• [8] Prior to the hearing, the AMWU provided to BAE a revised draft of the proposed questions (revised PABO). Having engaged in a period of conferral, the parties asked for the Commission's indulgence to continue to confer with a view to arriving at a consent position concerning the issues raised by BAE. A consent position was arrived at in respect of the extension of the notice period and the perceived issues regarding the proposed questions. The parties indicated that based on the materials filed, they were content for the Commission to determine the matter on the papers in the absence of a hearing. In light of the above, I considered it was an appropriate course to adopt.

• [9] Mr Mattlin Librizzi, Production Capability Manager at BAE's Henderson site, gave evidence on behalf of BAE. Having been employed since 2005, initially as a Trades Assistant and thereafter occupying roles as Supervisor, Construction Superintendent, Project Manager, Workshop Manager, and Production Operations Lead,[2] he appeared qualified to talk to BAE's business at the site.

• [10] In the context of then negotiations for a new agreement, Mr Librizzi had, in addition, assumed the role of bargaining representative on behalf of BAE.[3]

• [11] The Henderson site is said to occupy a 14.5 hectare waterfront, vessel berthing, and docking, lay down and fabrication areas located within the Australian Marine Complex (AMC). The AMC provides infrastructure and support to Defence, local marine and mining and mineral industries.[4]

• [12] In addition to commercial vessels, the Royal Australian Navy (RAN) uses the BAE Henderson site exclusively for the completion of major upgrades and maintenance work on the ANZAC fleet (which is comprised of eight ships), plus holding ships in a state of readiness for immediate and short term deployment.[5] Mr Librizzi explained that this type of work was under contract until 2026, and that at the time of providing his evidence, BAE had one vessel located at the Henderson site on operational 'stand by', a second vessel coming to the end of its upgrade program, at which point it would commence the transition to operational status, and a third vessel aiming for completion by the end of the next year.[6]

• [13] In respect of AMWU members on site, Mr Librizzi gave evidence that they performed critical work necessary to support the docking and undocking of vessels.[7] Mr Librizzi stated that the overall team consisted of a work group that acted as line handlers and support for all ANZACs.[8]

• [14] Mr Librizzi stated that in terms of engaging workers on site, BAE had a standard process for on-boarding workers. This included:

a) identification of suitable candidates, CV checking and reference checks;

b) a police check of the candidate;

c) pre-employment medical examination of the candidate;

d) completion of Verification of Competency (VOC) for docking and undocking operations by the worker demonstrating their capabilities by working on three vessels to verify those competencies; and

• e) site induction and any additional BAE training that may be required.[9]

• [15] Mr Librizzi stated that BAE had no employees within its broader business who could be relocated to perform work at the Henderson site to replace some or all of the AMWU members who are involved in the docking/undocking activities.[10]

• [16] Mr Librizzi continued that if BAE could source sufficient qualified third party workers, these would likely be stevedores, who would likely be MUA members.[11] BAE would need to bring in business partners to perform the work that is typically performed by the AMWU members as part of the docking and undocking of vessels.[12] However, this cannot be done immediately - as even if candidates were available, there would likely be a delay due to the on-boarding process, which often takes weeks to months, and cause disruption on the worksite.[13] Mr Librizzi noted that there was no guarantee that candidates would be available.

• [17] As to the impact on BAE's customers, Mr Librizzi states that with sufficient advance notice, the vessel operator can arrange a berth at an alternative location that is able to accommodate it, either by letting the vessel berth there (for a short delay) or having work conducted at the alternative location (where this is an option).[14]

• [18] Mr Librizzi stated that a vessel would also need advance notice to redirect its course to that alternative location, and in many cases, the staff on board vessels are rostered on to work during the journey to the Henderson Site, and then relieved from duty while the vessel is in the dock. Mr Librizzi further stated that without sufficient advance notice, it may not be possible for the vessel to reach the alternative location without delaying the time at which staff will be released from the vessel (and from their duties).[15]

• [19] With regard to a vessel operator securing alternative berthing arrangements, Mr Librizzi said that travel time needed to be factored in to move the vessel to that location.[16] By way of example, Mr Librizzi said that the distance between BAE's Henderson site to the alternative location in Adelaide, which may be suitable for Defence vessels, could be completed in an estimated three to four days and the distance from the Henderson site to the alternative location in Sydney, which also may be suitable for Defence vessels, could be completed in an estimated six to seven days.[17]

• [20] Mr Librizzi said that if BAE only received three days' notice of industrial action, it was highly likely that a vessel would already be on its way to Henderson before it was able to be informed of the disruption to the docking schedule at Henderson.[18] This would mean that the vessel would need to make arrangements to dock elsewhere from an offshore location, without the benefit of planning travel during a suitable weather window.[19] Mr Librizzi said it would also likely result in delays in getting the ship's staff safely ashore, and attending to repair works which may be urgent and/or critical.[20]

• [21] Regarding the impact on the RAN, Mr Librizzi stated that the RAN had a complicated staffing program which sees ships' staff moving around the country to support operations of their ANZAC fleet.[21] The staffing is said to hinge around scheduled vessel maintenance and report date and RAN operational demands.[22] Mr Librizzi noted that generally, Defence schedules were programmed to ensure that vessels were available when needed for operational requirements.[23]

• [22] Mr Librizzi said that a further consideration was the few sites in Australia that could accommodate Defence vessels.[24] Mr Librizzi repeated that the Henderson site is one of only four sites that can do so.[25] The other sites included the Common User Facility nearby Henderson, the Osborne Naval Shipyard in Adelaide (which is located three to four calendar days away from the Henderson site), and the Captain Cook Graving dock in Sydney (which is six to seven calendar days away from Henderson).[26]

• [23] Mr Librizzi explained that there was a particular adverse impact for Defence, given the few alternative options that were available for Navy vessels.[27]

• [24] Mr Librizzi stated that if BAE received a longer period of notice of stoppages (question 1) or bans on key functions critical to docking and undocking (questions 2, 4), and in respect of the type of action described in question 12 (depending on weather), this would materially impact the ability of third parties to take steps to mitigate the impact on their businesses.[28] Mr Librizzi noted that it would not materially affect the impact of the industrial action on BAE.[29]

• [25] Regarding the impact on BAE, Mr Librizzi gave evidence that BAE would be unable to continue its scheduled work on vessels, and would suffer a variety of negative consequences, including financial penalties and lost revenue for breaches of its commitments.[30] Mr Librizzi stated that the period of notice provided for the industrial action would not materially affect this, given that BAE had no capacity to bring on any replacement workers to perform docking work at short notice, and that any replacement workers would take some time to be sourced and on boarded.[31] Mr Librizzi stated that it could take between two to six months to onboard new workers, so even if BAE could find suitably skilled workers who were willing to do the work and BAE was to start this process now, it would not be able to be completed in time to allow BAE to bring on alternative workers in the context of industrial action.[32]

• [26] Evidence in support of the application was provided by Mr Jade Cochrane, State Union Organiser for the AMWU.

• [27] On or around 17 May 2023, BAE issued a Notice of Employee Representational Rights (NERR) for a replacement agreement.[33]

• [28] Since the issuance of the NERR, the parties have met on the following dates:

a) 31 May 2023

b) 16 June 2023;

c) 6 July 2023;

d) 27 July 2023;

e) 14 August 2023;

f) 30 August 2023;

g) 13 September 2023;

h) 27 September 2023;

• [29] Mr Cochrane said that on 16 June 2023, the AMWU provided its log of claims to BAE and since that time, the AMWU had changed its bargaining position - with certain claims being accepted, resolved or removed as a result of bargaining with BAE.[35]

• [30] According to Mr Cochrane, it was the AMWU's position that it had been genuinely trying to reach agreement with BAE and would continue working with BAE to reach an agreement.[36]

• [31] Section 443 of the Act outlines the circumstances in which the Commission is obliged to issue a PABO:

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:

(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.

• [32] As can be seen, s 443(1)(a) requires that an application has been made under s 437. That section relevantly provides:

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:

(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).

(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) If 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

(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.

(6) The application must be accompanied by any documents and other information prescribed by the regulations.

• [33] There are certain circumstances that must be satisfied before a PABO can be granted. In the context of this application, those circumstances are that: (a) there has been an application made under s 437; and (b) the AMWU has been and is genuinely trying to reach an agreement with BAE.[37]

• [34] Turning to the latter point, I am satisfied that the AMWU has been and is genuinely trying to reach an agreement. BAE does not argue otherwise. Furthermore, the application has been properly made. There has been a 'notification time' in relation to the proposed agreement and there was no dispute that both BAE and the ballot agent received the application within the requisite statutory period.[38]

• [35] However, s 443(3) stipulates that a protected action ballot order must specify, amongst other things, the question or questions to be put to the employees who are to be balloted. This includes the nature of the proposed industrial action (see subsection 443(3)(d)).

3 Questions - compliance with s 443(3)(d) of the Act

• [36] BAE argued that the proposed questions 1, 4, 6, 7, 9, 11 and 12 as drafted, did not meet the criteria set out in s 443(3)(d) of the Act, and should therefore not be included in any PABO.

• [37] The AMWU held the view that whether BAE understood the questions to be balloted was beside the point. The AMWU pressed that Mr Cochrane had given evidence that the questions were clear and understood by the voting cohort of AMWU members who were said to have drafted the ballot questions after consultation with representatives for other unions.[39] The ballot questions were said to have been endorsed on 3 November 2023 at a meeting with AMWU members.[40]

• [38] The questions on the draft PABO attached to the AMWU's application included:

In support of reaching an enterprise agreement with your employer, do you authorise the taking of protected industrial action against your employer separately, concurrently and/or consecutively, in the form of:

1. An unlimited number of stoppages of the performance of all work for any amount of time between 30 minutes and 48 hours inclusive?

1. An unlimited number of indefinite or periodic bans on overtime?

1. An unlimited number of indefinite or periodic bans on weekend work?

1. An unlimited number of indefinite or periodic bans on shift work?

1. An unlimited number of indefinite or periodic bans on the use of non-powered hand tools?

1. An unlimited number of indefinite or periodic bans on the use of metal working machinery (e.g., lathes, sheet metal benders, pipe benders and presses)

1. An unlimited number of indefinite or periodic bans on the use of welding equipment?

1. An unlimited number of indefinite or periodic bans on work that would require an employee to hold a valid high-risk work licence?

1. An unlimited number of indefinite or periodic bans on gas pressure testing?

1. An unlimited number of indefinite or periodic bans on the use of fixed and/or portable ladders?

1. An unlimited number of indefinite or periodic bans on climbing more than one stair?

1. An unlimited number of indefinite or periodic bans on all work at any temperature equal to, or higher than 35 degrees Celsius?

1. An unlimited number of indefinite or periodic bans on the signing of electronic permits?

1. An unlimited number of indefinite or periodic bans on entering the Common User Facility (CUF) for work purposes?

1. An unlimited number of indefinite or periodic bans on travel to HMAS Stirling, Garden Island for work purposes?

• [39] In National Tertiary Education Industry Union v Curtin University (NTEIU),[41] the Full Bench stated at paragraph [37]:

The Commission's power to make a protected action ballot order under s 443 of the FW Act is not discretionary in nature. Section 443(1) imposes a duty on the Commission to make an order if two conditions have been met: first (in paragraph (a)), that an application for such an order has been made under s 437 and, second (in paragraph (b)), that the Commission is satisfied that each applicant for an order has been, and is, genuinely trying to reach an agreement with the employer of the employees to be balloted. If these conditions are not met, then the Commission is prohibited from making an order: s 443(2).

• [40] The Full Bench further clarified that under s 443 the Commission first determines whether there is an obligation to make an order under s 443(1) and then determines the content of the order in conformity with ss 443(3)-(5). As to what is necessary to satisfy the requirement in s 443(1)(a), which operates as a condition precedent to the duty to make an order, the Full Bench said at paragraphs [40]-[41]:

It may be accepted that for an application to have been made "under" s 437, it must have been made in conformity with s 437. That proposition is implicit in all the previous authorities relating to protected action ballot orders and was not contested by the NTEU in this case. That means that the application must specify the matters in s 437(3). We note at this point that, unlike s 443(1)(b), the jurisdictional prerequisite in s 443(1)(a) is not expressed in terms of the Commission's satisfaction as to the requirement. Therefore, whether an application has been made under s 437, including whether it specifies the matters in s 437(3)(b), must be regarded as a matter of jurisdictional fact.

The Full Bench decision in John Holland has generally been regarded as authoritative in relation to what is necessary for compliance with s 437(3)(b), and it was not suggested by either party before us that we should not follow it. In that case, the employer contended that the application for a protected action ballot order was not valid "because the question to be put to the employees was ambiguous and did not adequately specify the nature of the industrial action for which the endorsement of the employees was sought"...

• [41] Of course, in John Holland Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (John Holland), the Full Bench stated, in respect of the proper construction of s 437, that 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.'[42] Subsequent Full Bench decisions of this Commission following John Holland have endorsed that approach.[43]

• [42] In NTEIU, the Full Bench expressed at paragraphs [54] and [55] that it did not consider the Commission has a general discretion to determine the questions which will be included in the order, or to simply exclude valid questions, independent of what has been applied for:

[54] As earlier stated, s 443(1) imposes a duty on the Commission to make a protected action ballot order if the requirements of paragraphs (a) and (b) of the subsection are met. The mandatory nature of s 443(1) is the most important factor governing the construction of s 443 as a whole. It should not therefore be considered that, in respect of a valid application for a protected action ballot order, the Commission is at large as to the terms of the order to be made subject to satisfaction of the content requirements in the section. The inference to be drawn from the mandatory nature of s 443(1) is that the order required to be made is one which gives effect to an application validly made under s 437. Thus, in respect of s 443(3)(d), we do not consider that the Commission has a general discretion to determine the questions which will be included in the order, or to simply exclude valid questions, independent of what has been applied for.

[55] That is not to say that the Commission is compelled, in making an order, to reproduce the questions in precisely the same terms as applied for. Section 599 of the FW Act provides that, except as provided by the FW Act, the Commission is not required to make a decision in relation to an application in the terms applied for, and there is no reason to think that anything in s 443 ousts the operation of s 599. If there is some adjustment which can be made to the text of a question in order to more clearly express what the applicant proposes, then that may be done in discharging the requirements of s 443(1) and (3)(d). In rare cases, there may also be applications which, while they contain a number of questions which meet the requirements of s 437(3)(b) and are thus validly made under s 437, contain a question which is so lacking in meaning that it is incapable of being answered. In that circumstance, unless the drafting of the question can be rectified in a way consistent with the applicant's intent, it may be necessary to make an order pursuant to s 443(1) which excludes that question. (footnotes omitted).

• [43] As identified in NTEIU, the Commission is not compelled, in making an order, to reproduce the questions in precisely the same terms as applied for.

• [44] In this case the parties have conferred and have consensually agreed to adjustments regarding the text of the questions in issue, in order to more clearly express what the AMWU proposes in the way of industrial action. Therefore, the revised questions, as noted below, have been included in the PABO, in line with the request of the parties and in circumstances where I am satisfied that the requirements of s 443(1) and (3)(d) are met:

In support of reaching an Enterprise Agreement with your employer, do you endorse the taking of any and all protected industrial action which is authorized by this ballot, separately, concurrently and / or consecutively in the form of the following.

For the avoidance of doubt, none of questions 1-16 include activities that fall within the definition of "docking" in question 17.

1. An unlimited number of stoppages of the performance of all work for a specified duration (which could be any amount of time between 30 minutes and 48 hours inclusive)?

1. An unlimited number of indefinite or periodic bans on overtime?

1. An unlimited number of indefinite or periodic bans on weekend work?

1. An unlimited number of indefinite or periodic bans on afternoon shift work?

1. An unlimited number of indefinite or periodic bans on night shift work?

1. An unlimited number of indefinite or periodic bans on the use of non-powered hand tools?

1. An unlimited number of indefinite or periodic bans on the use of:
   1. lathes;
   2. sheet milling machines;
   3. sheet metal folders/benders;
   4. pipe benders;
   5. guillotines; and
   6. presses

1. An unlimited number of indefinite or periodic bans on the performance of welding activities?

1. An unlimited number of indefinite or periodic bans on work that would require an employee to hold a valid high-risk work licence?

1. An unlimited number of indefinite or periodic bans on pressurising of new systems for the purposes of testing?

1. An unlimited number of indefinite or periodic bans on the use of fixed and/or portable ladders?

1. An unlimited number of indefinite or periodic bans on all work performed onboard ships?

1. An unlimited number of indefinite or periodic bans on all work once the temperature reaches 35 degrees Celsius according to the Bureau of Meteorology "Temp OC" measure at Jandakot Airport at the website Latest Weather Observations Jandakot (bom.gov.au) and to recommence when the temperature falls below 35 degrees Celsius.

1. An unlimited number of indefinite or periodic bans on the signing of electronic permits?

1. An unlimited number of indefinite or periodic bans on entering the Common User Facility (CUF) for work purposes?

1. An unlimited number of indefinite or periodic bans on travel to HMAS Stirling, Garden Island for work purposes?

1. An unlimited number of bans on the "docking" of vessels? For the avoidance of doubt, this includes docking and undocking, wet berthing and dry docking. The ban applies to the following activities:

(a) building a cradle, bringing the lift facility online and preparing the lines;

(b) throwing the lines, lifting the vessel and positioning it on the cradle; and

(c) disconnecting the vessel for docking and pulling the vessel into place.

Notwithstanding the above, please note that under s 415 of the Fair Work Act 2009 (Cth) industrial action will not be legally protected in certain circumstances, including if the industrial action has involved or is likely to involve:

1. personal injury; or
2. wilful or reckless destruction of or damage to, property.

The AMWU and the Employer agree that no person should allow any imminent risks to safety that involve, or is likely to involve, personal injury.

• [45] Regarding whether the circumstances warrant an extension to the notice period from three working days to five working days, I have found that they do in respect of the nature of the proposed industrial action so described in the revised draft PABO at question 17, which referred to an unlimited number of bans on the docking of vessels.

• [46] For the sake of clarity, it is noted that where reference is made to 'exceptional circumstances', it is done so in the context of the aforementioned question (17).

• [47] Section 443(5) of the Act provides that the Commission can require a longer period of notice to be given where it is satisfied that there are exceptional circumstances justifying this. The onus is on BAE to provide evidence that would satisfy the Commission that there are exceptional circumstances in this instance. To warrant an extended period of notice, the Commission must be satisfied both as to the existence of exceptional circumstances and the fact that these justify the granting of the extended notice.

• [48] As to whether a different notice period can be ascribed to the nature of some proposed industrial action in comparison to others, the answer appears to be in the affirmative. In Community and Public Sector Union v G4S Custodial Services Pty Ltd (G4S),[44] consideration was given to whether the power in s 443(5) of the Act pertained only to 'the proposed industrial action' generally (that is, if a longer period of notice is specified, it must apply to all of the forms of action listed in the ballot order), or whether the power could be exercised in relation to any one or more of the particular types of industrial action contemplated in the order. It was concluded that Division 8 of Part 3-3 plainly contemplated the possibility of a multiplicity of questions appearing on protected action ballots (see s 443(3)(d)) and that the framework contemplated that employees might authorise some forms of action but not others. The Deputy President in G4S considered that it was consistent with this framework that the power of the Commission to prescribe a longer notice period under s 443(5) was referrable to particular types of action.[45]

• [49] Evidence bearing on the question of exceptional circumstances was provided by Mr Librizzi. His evidence was uncontested and there is no reason to believe that his account was not representative of BAE's circumstances.

• [50] It is evident that within the BAE workforce there is a group of employees who possess particular skills to operate equipment that is essential to BAE's provision of services to vessel operators. In this respect, I refer to AMWU members on the Henderson site who perform critical work necessary to support the docking and undocking of vessels.[46] Mr Librizzi stated that the overall team consisted of a work group that act as line handlers and support for all ANZACs.[47]

• [51] That in and of itself does not establish, in my view, exceptional circumstances. However, when consideration extends to one of the third parties impacted, namely Defence, and the steps that would be required to be taken to ameliorate such impact, the circumstances become out of the ordinary course, unusual, special or uncommon.

• [52] In Construction, Forestry, Maritime, Mining and Energy Union v DP World Brisbane Pty Ltd, it was expressed that on no basis could it be said that the simple fact that protected industrial action has effects upon third parties requiring ameliorative steps to be taken is 'out of the ordinary course', 'special', 'rare' or 'uncommon' such as to constitute the requisite exceptional circumstances.[48] Were it otherwise, said the Full Bench, extensions to the standard notice period under s 443(5) would be granted as a matter of course.[49]

• [53] However, the evidence before me is such that the employees in question, that is members of the docking crew (line handlers), perform work that is highly specialised such that they are not able to be simply replaced by contract labour and in circumstances where they were, the evidence is such that it would take at least weeks to months to onboard such workers given BAE's requirements for working on site, including verification of VOCs. When these facts are considered against the backdrop of one of the vessel operators being Defence and that BAE's Henderson site is one of only four locations nationally that can take a Navy ANZAC vessel out of the water, there is clearly a much more significant impact on Defence when compared to the other vessel owners and operators given the limited number of locations that are available for these vessels.

• [54] The expression 'exceptional circumstances' was considered by Lawler VP in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation (Australia Post),[50] and in National Tertiary Education Industry Union v Charles Darwin University, the Full Bench concluded that the Vice President's discussion was apposite to the phrase 'exceptional circumstances justifying' in s 443(5).[51] At paragraphs [23]-[25], the Full Bench stated in respect of s 443(5):

[23] The determination of whether the circumstances in a particular case are 'exceptional' involves an evaluative judgement. A proper approach to the exercise of the Commission's discretion under s.443(5) requires first that a member identify or make findings about the particular facts or circumstances in relation to the proposed industrial action which are said inform the evaluative judgement that such factors or circumstances are exceptional circumstances. The phrase "exceptional circumstances" carries its ordinary meaning.

[24] Secondly, there must 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.

[25] Thirdly, if the member is satisfied there are exceptional circumstances justifying a longer period of notice, there must be a consideration of whether to exercise the discretion and, if so, the additional period of notice that should be given in the circumstances (noting the maximum period).

• [55] With respect to whether there are exceptional circumstances, for the aforementioned reasons, I consider that to be the case. In my view, the exceptional circumstances so explained, are inclusive of the indubitable fact that if a Navy vessel arriving at the Henderson site needs to re-route, it can only do so at one of the limited sites that could accommodate the vessel when Henderson cannot. With there being only three alternative sites that could be used by Defence, one of which is in Adelaide (which is 3-4 calendar days away from Henderson) and one of which is in Sydney (which is 6-7 calendar days away from Henderson),[52] the impact on Defence in addition to the other factors mentioned constitute exceptional circumstances and justify the extended notice period of five working days.

• [56] To the extent the interests of the employer and third parties are weighed against a possible diminution of employee bargaining power (see Australia Post at [21]), the balance here lies comfortably with the grant of an extension. Here, the effectiveness of the industrial action as against BAE will not be materially diluted or reduced by extending the notice period for those forms of industrial action for which it is sought. In this respect, I refer to the uncontested evidence of Mr Librizzi at paragraphs [25], [27], [28] and [38] of his witness statement.

• [57] It is open to find that the industrial action will impact BAE regardless of an extension of time. The only significant benefit will be to provide third parties, such as Defence, with the opportunity to act to protect their interests.

• [58] In my view, the circumstances so described in the witness statement of Mr Librizzi, justify the extension of the notice period up to five working days in respect of the type of industrial action described in question 17. I have therefore extended the notice period accordingly, observing that the parties were agreeable to such course. For the remaining types of industrial action described at questions 1 to 16, three working days' notice is appropriate.

• [59] It is uncontroversial that the AMWU is a bargaining representative of at least some of the employees who will be covered by the proposed agreement. Those employees are all members of the AMWU employed by BAE whose employment will be covered by the terms of the proposed agreement.

• [60] Briefly stated and as noted, I have concluded that the AMWU has been, and is, genuinely trying to reach agreement with BAE, and I am further satisfied that the requirements in ss 440, 443(1) and 437 of the Act have been met.

• [61] The ballot is to be conducted by the Democratic Outcomes Pty Ltd T/A CiVS (CiVS). CiVS has been approved as an eligible protected action ballot agent under s 468A of the Act[53] and consequently is authorised to conduct the ballot.

• [62] For the purposes of s 443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is ten days from the 'Commencement Date' as that term is defined in clause 8.2.1 of the Order.[54] This also establishes the ballot period for the purpose of s 448A(2) of the Act.

• [63] An Order has been separately issued in PR768280.

• [64] This matter will shortly be listed for a s 448A compulsory conciliation conference. An Order will be issued requiring the attendance of all bargaining representatives involved in the proposed enterprise agreement at the conference. Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

[2] Witness Statement of Mattlin Librizzi, [1] (Librizzi Statement).

[33] Form F34B - Declaration in support of an application for a protected action ballot order, question 2.1 [1].

[37] Fair Work Act 2009 (Cth) s 443.

[38] Ibid s 440.

[39] Witness Statement of Jade Cochrane, [16] (Cochrane Statement).

[41] (2022) 320 IR 70.

[42] [2010] FWAFB 526; (2010) 194 IR 239, 246 [19].

[43] See, e.g., National Tertiary Education Industry Union v RMIT University (2013) 237 IR 264; Trade Workers' Union of Australia v Prosegur Australia Pty Ltd [2021] FWCFB 1562.

[44] [2020] FWC 1106.

[48] [2019] FWCFB 1150, [18].

[50] [2007] AIRC 848; (2007) 167 IR 4.

[51] [2018] FWCFB 4011, [20]-[21].

[52] Librizzi Statement (n 2) [31(c)].

[53] Democratic Outcomes Pty Ltd [2023] FWC 1400.

[54] PR768280.

Printed by authority of the Commonwealth Government Printer