Fair Work Act 2009

s.437 - Protected action

Proposed protected action ballot of employees of Broadspectrum (Australia) Pty Ltd -- has been and is - genuinely trying to reach agreement - notification time- employer agrees to bargain or initiates bargaining.

[1] On 8 June 2018, the Transport Workers' Union of Australia (TWU) filed an application for a protected action ballot order (PABO) pursuant to s 437 of the Fair Work Act 2009 (Cth) (Act). The application concerned a proposed ballot of certain employees of Broadspectrum (Australia) Pty Ltd (Broadspectrum).

[2] The employees in question are members of the TWU who are based in Western Australia who would be subject to a proposed enterprise agreement (Proposed Agreement). An enterprise agreement does not currently apply to the relevant employees.

[3] Section 441 of the Act provides that the Fair Work Commission (Commission) must, as far as practicable, determine an application for a PABO within two working days after the application is made. The application was listed for Hearing on 12 June 2018 and a second day was listed on 13 June 2016 to provide Broadspectrum with the opportunity to have their witness give evidence. It was acknowledged that 12 June 2018 was a public holiday in the State in which the witness resides and therefore it was difficult to arrange and confirm his attendance on such date.

[4] Mr Adam Dzieciol, Senior Legal / Industrial Officer of the TWU (Mr Dzieciol), appeared for the TWU at the hearing and Mr Dean Klepac, General Counsel Broadspectrum, appeared on behalf of Broadspectrum (Mr Klepac).

[5] Broadspectrum opposed the granting of the proposed order on the basis that it and the TWU had entered into an agreement on a without prejudice basis to negotiate an enterprise agreement with a view of settling two proceedings that were, or had been, on foot.

[6] The agreement on a without prejudice basis was referred to by the parties as the Working Framework - Broadspectrum (Australia) Pty Ltd & Transport Workers Union WA (Working Framework Agreement).

[7] The Working Framework Agreement set out among other matters:

BRS and TWU(WA) have agreed to negotiations without prejudice to the current litigation in an attempt to agree on an enterprise agreement for WA CS&CS in settlement of these proceedings as the basis for a good working relationship going forward. Nothing in this framework can be taken to mean that BRS has agreed to negotiate with employees for the purposes of s173 of the Fair Work Act[1].

[8] Thereafter, the Working Framework Agreement included eight principles that underpinned the settlement discussions. They were:

1. New Enterprise agreement term to expire 31 December 2019

2. Wage Increases to be negotiated to be payable on 24 march 2018 and 24 March 2019

3. New Classification Structure reflecting work undertaken by wages employees under the CS&CS contract. The new classification structure will recognize experience and qualifications of employees, qualifications and term of the employment and provide for a uniform classification structure across BRS, CS&CS.

4. Transitional Issues the TWU(WA) identified in relation to Serco employees employed under the CS&CS contract.

5. A new allowances system.

6. Framework for recognition of the critical role of employees in the delivery of the contract.

7. All other provisions other than 1-6 above in accordance with the Serco enterprise agreement

8. Recognition that the enterprise agreement and costs must be sustainable to support tendering, new employment, work and career development into the future[2].

[9] The Working Framework Agreement was signed by Mr Tim Dawson the Branch Secretary of the TWU (WA).

[10] Subsequent to the establishment of the Working Framework Agreement, over a period of two days on 28 February 2018 and 1 March 2018, Mr Duilio Cutrali, TWU WA Branch Organiser (Mr Cutrali), and two TWU delegates, met with Mr Daniel Dal Bon, Executive Manager Employee Relations (Mr Dal Bon) and Mr David Denny CS&CS Contract Management Representative Broadspectrum, to development a Settlement Proposal[3]. The Settlement Proposal document was said to have set out key points for the terms and conditions that were to be in the Proposed Agreement (Settlement Proposal).

[11] It was the contention of Broadspectrum that the TWU had entered into the Working Framework Agreement and had agreed to the Settlement Proposal (collectively the Agreements) for the purpose of obtaining from Broadspectrum an agreement to bargain to only renege on the Agreements when bargaining commenced. Broadspectrum advanced that the agreement to negotiate under the Working Framework Agreement could not be taken to be an agreement to negotiate as that term is understood in s 173 of the Act.

[12] Broadspectrum further advanced that there was a clear conflict of interest between the role of the TWU as a bargaining agent and the undertakings it entered into with Broadspectrum.

[13] A further issue Broadspectrum identified was that the proposed order would allow for industrial action to be taken on short notice, which had the potential to cause major disruption to the criminal justice system in Western Australia.

[14] For the sake of completeness, the two proceedings referred to were the appeal of decision of Commissioner Williams on 12 December 2017 regarding the granting of a Majority Support Determination (MSD)[4], and a matter that was said to be before the Federal Court regarding a proposed enterprise agreement referred to as the Justice Bargaining Unit Enterprise Agreement (JBU Agreement). It was submitted that the Commission had at first instance found that the JBU Agreement could not be approved having been satisfied that it was not genuinely agreed to[5]. On appeal the Full Bench of the Commission refused to grant permission to appeal, having found that the Decision was not attended by sufficient doubt, such as to require the grant of permission[6].

[15] Apart from these contested matters there is no dispute between the parties, save to when Broadspectrum agreed to, or initiated, bargaining for the Proposed Agreement.

[16] Section 437 of the Act enables a bargaining representative to apply for a PABO. Subject to the restrictions in ss 437(2A) and ss 438(1) the Commission must make an order in relation to employees who will be covered by a proposed agreement in the circumstances set out in s 443. Section 443 relevantly provides:

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.

[17] Whether an applicant 'has been, and is, genuinely trying to reach an agreement' within the meaning of ss 443(1)(b) is a question of fact to be decided by reference to all of the circumstances of the bargaining in question[7]. It will frequently involve consideration of the extent of progress in negotiations and the steps taken in order to try to reach agreement[8]. There are two temporal components to ss 443(1)(b); the applicant must have been genuinely trying to reach agreement, and must be genuinely trying to reach agreement[9].

[18] While there is a relationship between ss 443(1)(b) and the need to bargain in good faith under s 228 of the Act, a Full Bench of the Commission in Esso Australia Pty Ltd v AMWU[10] cautioned against conflating the two requirements. It stated that _'_a party may not meet a particular good faith bargaining requirement but may nevertheless be genuinely trying to reach agreement'[11]. Ultimately, it is the test in ss 443(1) that must be applied.

[19] For reasons that will be become apparent I am satisfied that the threshold requirements have been met. Pursuant to ss 437(1), I have found that the TWU is a bargaining representative and is entitled to make the application being considered in this matter.

[20] Considering the evidence and other material provided I am further satisfied that the application has been properly made under s 437 of the Act and the application was not made earlier than 30 days before the nominal expiry date of a previous enterprise agreement, given that there was not one.

[21] It was confirmed that Broadspectrum was provided with a copy of the application within 24 hours of it being made as required by s 440 of the Act[12].

[22] Mr Cutrali gave evidence that he was the TWU WA Branch Organiser with responsibility for the TWU members employed by Broadspectrum who worked in the WA Court Security and Custodial Services (WA CS&CS). The TWU is the bargaining representative for those TWU members who are in negotiations for an enterprise agreement and to whom an enterprise agreement does not currently apply[13]. Mr Cutrali had been involved in the negotiations since February 2018[14].

[23] The relevant employees work in courts, court custody areas, and other locations, and are involved in court security, and the transportation and security of persons in custody[15]. Sites of work include both the Perth metropolitan area and a number of regional locations[16].

[24] Broadspectrum won the contact with WA CS&CS in March 2017 and on doing so employed a number of former employees from its predecessor Serco Australia Pty Ltd (Serco)[17]. While an enterprise agreement does not currently apply to the employees, Broadspectrum and the employees have reached an agreement that they will be provided with higher than Award rates, and for that matter higher than the rates of pay they received whilst working for Serco.

[25] Mr Cutrali's evidence was that the TWU gave Broadspectrum a Log of Claims, which, in broad terms, sought that the terms and conditions of the employees be similar to the terms and conditions that applied to the employees doing WA CS&CS work when Serco was the contractor[18]. This was provided before the Working Framework Agreement had been established and the subsequent Settlement Proposal.

[26] In December 2017, the TWU secured a majority support determination (MSD) in relation to the WA CS&CS workforce before Commissioner Williams. That MSD was the subject of an appeal before the Commission.

[27] On or around 8-9 February 2018, meetings were held between the TWU and Broadspectrum at Broadspectrum's Perth offices. In attendance were Mr Tim Dawson and Mr Dzieciol for the TWU and Mr David Denny and Mr Klepac for Broadspectrum. As noted earlier in this decision, the meeting resulted in the development of the Working Framework Agreement[19]. This document was said to be an agreement the purpose of which was to establish a negotiation for an enterprise agreement and how the parties would conduct themselves.

[28] Broadspectrum said that it agreed to have these negotiations with the TWU on a without prejudice basis in attempt to establish a framework, by which they could agree upon an enterprise agreement for the employees in WA CS&CS. As a result of establishing the Working Framework Agreement, Broadspectrum said that it discontinued its application for a stay and the appeal with regard to the MSD. Further, at that time the parties decided not to commence bargaining. There were no bargaining orders sought by the TWU regarding the MSD.

[29] As observed, it was the evidence of Mr Dal Bon that on 28 February 2018 and 1 March 2018 the parties met to develop the Settlement Proposal[20]. According to Mr Dal Bon the purpose of the meeting was to reach settlement on coverage of classification, which excluded salaried and managerial staff, rates of pay to accommodate both ex-Serco and new employees, various monetary allowances with the remainder of the terms largely based on the Serco enterprise agreement[21].

[30] On 1 March 2018, Mr Dal Bon emailed Mr Dzieciol, Mr Dawson and Mr Cutrali a copy of the draft CS&CS enterprise agreement and the Settlement Proposal which had been developed from discussions involving Mr Cutrali and the TWU delegates[22]. Thereafter, Mr Dal Bon had a telephone discussion with Mr Cutrali about the timing for commencement of CS&CS bargaining. Mr Dal Bon said that he proposed to Mr Cutrali to forward him a draft of Notice of Employee Representational Rights (NERR) for his review and comment[23].

[31] On 20 March 2018, Mr Dal Bon telephoned Mr Dzieciol to enquire about the TWU's status in relation to the Settlement Proposal. Mr Dal Bon said that Mr Dziecol confirmed the TWU's agreement to the Settlement Proposal and in response Mr Dal Bon said that he confirmed that Broadspectrum agreed to commence bargaining with the TWU and that 20 March 2018 would be the notification time for the purpose of enterprise bargaining and Broadspectrum would commence issuing the NERRs.

[32] Mr Cutrali said that in February 2018 Broadspectrum agreed to bargain for an enterprise agreement in relation to the WA CS&CS employees and on 28 March 2018 sent out NERRs[24]. Both parties were in agreement that bargaining had commenced.

[33] Meetings were held on 28 February 2018, 1 March 2018, 29 March 2018, 20 April 2018 and 2 May 2018[25].

[34] It was Mr Cutrali's evidence that he had held meetings with the employees regarding the Proposed Agreement and that he was instructed by those employees to reject the Proposed Agreement[26].

[35] According to the Mr Cutrali, the main areas of disagreement included:

1. the Proposed Agreement sought to introduce a two-tier wage structure, under which the former Serco employees would be paid an hourly rate that was comparable to the rates of pay under the Serco enterprise agreement, however, a lower rate of pay would apply to new employees;

2. the regional allowances for the employees who work in regional areas were significantly lower than the regional allowances under the Serco enterprise agreement; and

c) as well, a number of other allowances were lower than those in the Serco agreement[27].

[36] It is the evidence of the TWU that Broadspectrum had advised that the Settlement Proposal was their best offer and therefore the TWU had not made a counter proposal[28]. It followed that the relevant employees had instructed Mr Cutrali that Broadspectrum's proposal was unacceptable and to make an application for the PABO.

[37] Subsection 437(1) provides that a bargaining representative of an employee who will be covered by 'a proposed enterprise agreement' may apply to the Commission for a protected action ballot order. Subsection 443(1) requires an application to have been made under s 437 in order for the Commission to be empowered to make a protected action ballot order.

[38] On 1 March 2018, Mr Dal Bon emailed to Mr Cutrali a draft CS&CS enterprise agreement and the Settlement Proposal. It is plainly permissible that a bargaining representative of an employee who will be covered by an agreement proposed by the employer may apply for a protected action ballot order[29].

[39] Having considered the decisions in Mermaid Marine Vessel Operations Pty Ltd v The Maritime Union of Australia[30], Skilled Offshore Pty Ltd v AMWU and others[31] and Maritime Union of Australia, The v Maersk Crewing Australia Pty Ltd (Maersk Crewing)[32]. I am satisfied that the draft CS&CS enterprise agreement and Settlement Proposal constituted a 'proposed enterprise agreement' within the meaning of ss 437(1) and 443(1) of the Act.

[40] For a protected action ballot order to have been validly made under s 473(1) there must have been a 'notification time' for the proposed agreement[33]. There appeared to have been some dispute as to when that notification time was. Broadspectrum advanced that it was 20 March 2018 and the TWU submitted it was late February. Both, however were in agreement that there had been a notification time.

[41] In Maersk Crewing[34] the Full Bench stated that it was clear that the reference to ss 437(2A) to 'notification time in relation to the proposed enterprise agreement', meant a notification time within the meaning of ss 173(2) of the Act.

[42] Subsection 173(2) of the Act states that the notification time for a proposed enterprise agreement is the time when 'the employer agrees to bargain or initiates bargaining, for the agreement'. I note that with regard to the matter before me ss 173(2)(b)-(d) are not relevant in the current context and in that respect I refer to my observations regarding the MSD.

[43] The Full Bench in Maersk Crewing[35] referred approvingly to the observation of Vice President Hatcher in Transport Workers' Union of Australia v Hunter Operations Pty Ltd (Hunter) [36] that the definition of 'notification time' in ss 173(2)(a) 'indicates that an employer's agreement to bargain is a single event which happens at a particular point in time'.

[44] It is accepted that an employer may agree to bargain expressly in writing or orally or an employer may be inferred to have agreed to bargain through its conduct; (such as by commencing to actually engage in bargaining in relation to a proposed agreement[37].

[45] In Liquor, Hospitality and Miscellaneous Union v Coca-Cola Amatil (Aust) Pty Ltd[38] the Full Bench considered the interpretation of the phrase 'agreement by an employer to bargain' for the purposes of s 237(2)(b) of the Act and while it was a different provision of the Act that was under consideration I am of the view it provides guidance. The Full Bench stated:

[35] In our view, the proper interpretation of agreement by an employer to bargain for the purposes of s.237(2)(b) of the Act is agreement to bargain about a single-enterprise agreement or agreements as defined by s.172 of the Act in respect of the employees identified in a s.236 application, subject to the good faith bargaining requirements within s.228 of the Act.

[36] The expression "bargain" in s.237(2)(b) means bargaining in relation to an agreement of the type described in s.172 and bargaining in accordance with the bargaining process within Division 8 of Part 2-4 of the Act, rather than bargaining in a generic sense. Simply put, bargain, interpreted in the context of Division 8 of Part 2-4, means bargain in accordance with the bargaining processes of the Act.

[37] If such agreement is found to exist, bargaining has commenced within the meaning of the "notification time" in s.173(2) and a majority support determination is not available in light of s.237(2)(b). Nor is it necessary to commence the bargaining processes within the Act. If such agreement is not evident, a majority support determination must be made, subject to satisfaction as to the other matters within s.237 of the Act. Agreement to bargain in some general sense, but a refusal to bargain about an agreement as defined by s.172 or an agreement in terms proposed by the bargaining representative of the employees, could not support a finding that an employer had agreed to bargain for the purposes of s.237(2)(b)[39].

[46] Mr Dal Bon's evidence was that the notification time was 20 March 2018, which he said he confirmed as much in his telephone call to Mr Dzieciol on 20 March 2018. However, I am unpersuaded that this is the case.

[47] Evidence was given that over the course of 28 February 2018 to 1 March 2018 the parties met with the purpose of reaching settlement on coverage of classification, which excluded salaried and managerial staff, rates of pay to accommodate both ex-Serco and new employees, various monetary allowances, with the remainder of the terms largely based on the Serco enterprise agreement[40]. This culminated in the development of the Settlement Proposal and on 1 March 2018, Mr Dal Bon sent to the TWU the Settlement Proposal and a draft CS&CS enterprise agreement. I do not consider that this was bargaining in a general sense. It is evident to me that on 28 February 2018, Broadspectrum had initiated bargaining with the TWU given the content of the discussions and outcomes reached regarding terms of the Proposed Enterprise Agreement and agreement on the same, at least by the TWU and Broadspectrum at that stage.

[48] I do not consider that Mr Dal Bon's confirmation to Mr Dzieciol on 20 March 2018 that Broadspectrum had agreed to commence bargaining somehow negated the conduct that occurred during the course of 28 February and 1 March 2018. Mr Dal Bon's provision of advice to Mr Dzieciol of the notification date did not effectively set the notification date to the date stipulated by Mr Dal Bon.

[49] The NERRs were distributed on 21 March 2018 according to Mr Dal Bon. Clearly this is greater than 14 days after the notification time for the Proposed Agreement. During the course of the hearing Mr Klepac made mention that an issue may arise regarding the late provision of the NERRs.

[50] In Maersk Crewing[41] it was contended by Maersk that because the 'notification time' in s 173(2) of the Act triggered the requirement for the employer to give the NERR in respect of the proposed agreement it followed that the Commission could not make a protected action ballot order in that case because no valid NERR had been given for the proposed enterprise agreement.

[51] The Full Bench rejected that proposition observing that it imported an additional precondition which simply was not found in the text of ss 437(2A)[42]. It continued that the validity of a NERR is not determinative in deciding whether a protected action ballot order application can be made under ss 437(1), notwithstanding a NERR is relevant to the factual enquiry of whether the employer had agreed to bargain in relation to the proposed agreement[43].

[52] It is incumbent on me to consider whether the TWU has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted. With regard to the first contention of Broadspectrum it is unclear to me how this submission advances its case that the TWU had not been, and is not, genuinely trying to reach agreement.

[53] It appears that the conduct relevant to a determination of whether the TWU is genuinely trying to reach agreement is that which has occurred during the course of bargaining, and that which is presently occurring. Mr Dzieciol submitted to the effect that what happens prior (to bargaining) informs what happens after (while bargaining is on foot).

However, I am not persuaded in the context of this case that that the conduct of the parties leading up to Broadspectrum's initiation of bargaining, with particular reference to the establishment of the Working Framework Agreement, assists Broadspectrum with its objection.

[54] Broadspectrum contended that the TWU procured the issuing of the NERRs in circumstances whereby it had agreed to conditions precedent for such bargaining, namely the Agreements and this therefore should not be permitted. However, it is the case that Broadspectrum initiated bargaining when it sought to land the terms of the Proposed Agreement with the TWU on 28 February 2018 through the Settlement Proposal and the draft CS&CS enterprise agreement. The obligation to issue NERRs did not arise from some agreement between the parties; the obligation arose pursuant to s 173(3) of the Act.

[55] While it may be the case that the TWU agreed to the Settlement Proposal all it could do in the circumstances was agree to put such Proposal and the draft CS&CS enterprise agreement to its members, which is what Mr Cutrali attests occurred. I am not persuaded that terms of the Proposal or the draft CS&CS enterprise agreement were therefore binding on the TWU members or for that matter the TWU such that the members' rejection of the terms would result in a conclusion that the TWU was not genuinely trying to reach agreement. It is on this basis that I consider Broadspectrum's' submission that the TWU had a conflict of interest was absent merit.

[56] The evidence of Mr Cutrali was that he indicated to Mr Dal Bon on 1 March 2018 that the TWU would put the Settlement Proposal and draft CS&CS enterprise agreement out to its members. Mr Dal Bon confirmed in his evidence that with regard to the Settlement Proposal and the draft CS&CS enterprise agreement Mr Cutrali indicated it was not likely to be accepted by the employees. According to Mr Dal Bon such indication had occurred a couple of times, the last being the bargaining meeting on 2 May 2018. In that respect I am satisfied that the TWU had not misled Broadspectrum.

[57] While the TWU and Broadspectrum may have arrived at a Working Framework Agreement and Settlement Proposal, it did not necessarily follow that the Proposed Agreement would be acceptable to the members of the TWU. Should the Proposed Agreement be unacceptable to the members of the TWU then a deviation from the principles in the Working Framework Agreement and the terms in the Settlement Proposal to cater for the members' counterproposal would not, in my view, mean that the TWU was not genuinely trying to reach agreement.

[58] It is the evidence of the TWU that Broadspectrum had advised that the Settlement Proposal was their best offer and therefore the TWU had not made a counter proposal[44]. It was not contested by Broadspectrum that this was not the case.

[59] On the basis of having considered the evidence of both parties, for the purposes of ss 443(1)(b) of the Act, I am therefore satisfied that the TWU has been and is, genuinely trying to reach an agreement with Broadspectrum.

[60] Section 443(5) of the Act provides 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 then is on Broadspectrum to provide evidence that would satisfy the Commission that there are exceptional circumstances in this instance.

[61] The approach to exceptional circumstances in this context was discussed by Vice President Lawler in CEPU v Australian Postal Corporation[45] which concerned an equivalent provision of the Workplace Relations Act 1996[46]:

[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.

[62] The Vice President went on to state:

[21] Essentially, what is required in determining whether exceptional circumstances justify an extension of the required notices [sic] 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.

[22] The first example provided in Davids Distribution provides an illustration of where exceptional circumstances may justify an extension of the required notice period. A sophisticated piece of plant, such as a smelter, may take many days to shut down without damage. The employer is exposed to wholly disproportionate damage if it is prevented by too limited a notice period from undertaking an orderly shutdown of the plant. A further example may be afforded by a strike by teachers where the school needs to be able to notify parents of the strike so as to give them an opportunity to make alternative arrangements for the care of their children on the days of the strike. Typically, three working days will be insufficient for this purpose.

[63] In order 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. This requires a weighing up of the opportunity for Broadspectrum to take appropriate defensive action against the diminution of the effectiveness of the TWU members' bargaining power that is contemplated by the scheme of the Act[47]. In that light, it would not be a relevant exercise of discretion to grant additional notice simply to allow the employer to neutralise the impact of the industrial action[48].

[64] Where the interests beyond that of the immediate parties may be significantly impacted by the taking of industrial action, the tendency is for an extension of the notice period to be provided[49].

[65] However, in short, Broadspectrum has not met the onus of satisfying the Commission that there are in this instance exceptional circumstances justifying the period of notice of protected industrial action being longer than three working days as is prescribed in the Act.

[66] Broadspectrum did not seek a particular notice period but simply submitted that the proposed order would allow for industrial action to be taken at short notice by the TWU and as such had the potential to cause major disruption to the criminal justice system of Western Australia.

[67] Mr Dal Bon's evidence in hearing was that there were approximately 330 employees working under the CS&CS contract although he could not precisely specify the number that were to be covered by the Proposed Agreement.

[68] Mr Dal Bon said that to the best of his recollection the proposed order included unlimited bans on overtime, stoppages, and limitations on work. He continued, that based on his knowledge of the CS&CS contract this would pose a significant and serious risk to the efficiency of the WA justice system and would pose a threat to public safety. Security officers were said to provide hospital sits where they supervise prisoners. It was said that the absence of staff to perform that function may impact on the health and well-being of prisoners or otherwise pose a risk to safety.

[69] Considering this evidence I accept that there will be a significant impact on the operations of Broadspectrum and potentially then parts of criminal justice system of Western Australia. However the extent and degree of this will be dependent upon the nature of any protected industrial action that might be taken. Self-evidently however there are actions the respondent can take to reduce the impact of any protected industrial action and there remains recourse under the Act. No evidence was led as to what options Broadspectrum has, to take steps to ameliorate the impact of protected industrial action, and no evidence was led as to why in particular three working days' notice of any protected industrial action is insufficient in the circumstances.

[70] I decline to specify a longer period than the three working days referred to ss 414(2)(a) of the Act.

[71] For the above reasons I have found that the TWU has met the statutory requirements of the Act and have found that the TWU has been and is genuinely trying to reach an agreement with Broadspectrum who is the employer of the employees who are to be balloted.

[72] An order PR608038 based on the draft order provided by the TWU is issued in conjunction with this decision.

[1] Exhibit R1 Witness Statement of Mr Daniel Dal Bon Annexure A (Exhibit R1).

[3] Exhibit A1 Statutory Declaration of Mr Duilio (John) Cutrali dated 1 June 2018 [2.7] Annexure B & Ibid [12].

[4] Transport Workers' Union of Australia v Broadspectrum (Australia) Pty Ltd [2017] FWC 6492.

[5] Broadspectrum (Australia) Pty Ltd T/A Broadspectrum [2017] FWC 1818.

[6] Broadspectrum (Australia) Pty Ltd t/a Broadspectrum v United Voice [2017] FWCFB 3202.

[7] Esso Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2015] FWCFB 210 [57].

[8] Total Marine Services Pty Ltd v Maritime Union of Australia [2009] FWAFB 368 at [32]; National Union of Workers (NUW), Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers' Union (AMWU) v Sakata Rice Snacks Australia Pty Ltd [2016] FWC 6262 at [25].

[9] Esso Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2015] FWCFB 210 [54].

[10] [2015] FWCFB 210.

[12] Section 440 of the Act.

[13] Exhibit A1 Witness Statement of Mr Cutrali (Exhibit A1).

[19] Exhibit R1 Witness Statement of Mr Daniel Dal Bon [10] Annexure A.

[29] Maritime Union of Australia, The v Maersk Crewing Australia Pty Ltd [2016] FWCFB 1894 [17].

[30] [2014] FWCFB 1317.

[31] [2015] FWCFB 7399 [27].

[32] [2016] FWCFB 1894 [15].

[33] Section 437(2A) of the Act ; Ibid [23].

[36] [2014] FWC 7469 [60].

[37] Maritime Union of Australia, The v Maersk Crewing Australia Pty Ltd [2016] FWCFB 1894 [35]; Ibid [50].

[38] [2009] FWAFB 668.

[41] [2016] FWCFB 1894 [31].

[45] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation [2007] AIRC 848.

[46] Section 463(5) Workplace Relations Act 1996 (Cth).

[47] Australian Federation of Air Pilots v Alliance Airlines Pty Ltd T/A Alliance Airlines [2017] FWC 6748 [12].

[49] Transport Workers' Union of Australia [2012] FWA 133; Transport Workers' Union of Australia v the Chief Executive of the ACT Internal Omnibus Network (ACTION) on behalf of the Australian Capital Territory; Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers' Union (AMWU) v the Chief Executive of the ACT Internal Omnibus Network (ACION) on behalf of the Australian Capital Territory [2010] FWA 3355.

Printed by authority of the Commonwealth Government Printer