[12] Mr Lynch gave evidence for the Respondent in the proceedings. In relation to the ballot question, he said that given the highly regulated and safety sensitive nature of the work performed by employees who would be covered by any proposed agreement, it was necessary to be clear about what might constitute a partial work ban. Using firearms as an example, he said that if the proposed partial work ban was a ban on wearing a firearm when employees were performing their duties, the Respondent would have no choice but to direct the employees not to perform any work because of the safety issues that would arise. This would have consequential implications for employees in relation to their income.

[13] The TWU submitted that the ballot question satisfies the requirements of s.443(3) because:

1. The phrase 'partial work bans' is a well understood phrase and is defined in s.470(3) of the Act;

2. The question is one that is commonly found in protected action ballot orders made by the Commission;

3. Full Bench authority dictates that "all that [s.443(3)(d)] requires is that the questions should describe the industrial action in such a way that employees are capable of responding to them";

d) In a decision of Deputy President Gostencnik in AMWU v Steel Building Systems Australia Pty Ltd T/A Supaloc[1] (the AMWU Decision), the Deputy President found that the question which comprised the phrase 'indefinite or periodic partial work bans' was sufficiently clear to enable it to be answered by the employees who would participate in the ballot and allowed it to be included in the order. The conclusion the Deputy President came to was on the following basis:

• (i) The word 'partial' implies that the industrial action is not a ban on all work or all duties which an employee is engaged to perform at the same time.
• (ii) Rather, the question asks employees to authorise industrial action involving banning parts of their work or duties. For example, a ban may be imposed on one duty while other duties will continue to be performed.
• (iii) It is not necessary to specify each duty which may be subject to a partial work ban.
• (iv) The purpose of s.443(3) is to enable employees to understand the industrial action they are being asked to authorise. It does not require the same level of specificity as might be required in a notice under s.414 of the Act which requires industrial action to be specified but is issued for a different purpose, begin to alert the employer so it is able to take defensive action.

1. On the basis that the ballot question is identical to the question considered in the AMWU Decision, and for the reasons given by Deputy President Gostencnik in that matter, the question meets the requirements under s 443(3) of the Act.

[14] The TWU relied on evidence from Mr Haldane, the TWU delegate, to the effect that in his view the meaning of 'partial work ban' was 'obvious', in that it meant a ban on some work but not other work. Further, he said that representatives of the TWU, including himself, would explain the ballot questions to employees prior to them completing the ballot.

[15] Having considered the evidence and submissions made by the parties, I am not satisfied that the ballot question describes the proposed industrial action in such a way that employees are capable of responding to it, in that it is not expressed with sufficient clarity as to enable employees to make an informed choice as to whether to support particular industrial action.

[16] The necessary level of specificity required is set out in Country Fire Authority. Relevantly, the Commission held as follows:

"[20] As noted above, the requirement in s.452(1)(a) is that the application for a protected action ballot must include the question or questions to be put to the relevant employees in the ballot, including the nature of the proposed industrial action. If industrial action is approved by a secret ballot, and all other pre-requisites for protected action are present, a written notice to the employer of intended industrial action is required to state the nature of the intended action and the day when it will begin (see s.441(6)). It was submitted by Mr. Parry SC, who appeared with Mr O'Grady for the CFA, that the use of the same words in s.441(6) and s.452(1) requires a similar approach - albeit that the notices are directed on the one hand to an employer, and on the other, to employees. As a matter of construction we believe this is correct. Further, while the intention of the legislature can only be gleaned from the provisions of the legislation in this case, it appears logical that when employees are asked whether to authorise industrial action in a protected action ballot, the nature of the proposed industrial action is expressed clear enough to enable them to make an informed choice.

[21] The predecessor to s.441(6) was s.170MO(5). The latter section was considered by a Full Court of a Federal Court in Davids Distribution Pty Ltd v National Union of Workers [1999] FCA 1108; (1999) 91 FCR 463. At paragraph 88 the Court said:

'[88] It will be apparent we think it necessary, and sufficient, for parties to describe the intended action in ordinary industrial English; for example, 'an indefinite strike of all employees', 'a lockout of all employees employed in the AB fabrication plant', 'a ban on overtime', 'a ban of the use of MN equipment', 'rolling stoppages throughout the mine', 'a ban on the servicing of delivery vehicles'.'"

[31] In determining whether to engage in protected action it is reasonable to expect, and in our view a requirement of the Act, that the nature of the proposed industrial action is specified. In our view, this requires employees who will be voting on the questions to understand what work would not be undertaken and what work would remain to be done. The description of the nature of the industrial action in the questions they are asked in the ballot should enable employees to understand the implications for them while at work, and other relevant circumstances" [2]

[17] The decision in Country Fire Authority, while expressed differently, is broadly consistent with the Full Bench decision in John Holland Pty Ltd v AMWU[3]. (John Holland) as follows:

"[19] Moving now to the construction of s.437 itself, seen 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. If the questions are ambiguous or lack clarity there may be consequences for the bargaining representative and the employees if reliance is placed on the result of the ballot in taking industrial action. If the question or questions give rise to ambiguity, the conclusion may be reached that the industrial action specified in a notice under s.414 was not authorised by the ballot and that the action is not protected for the purposes of s.409(2). It is true that ambiguity or lack of clarity in the description of the industrial action is undesirable, but these are matters more appropriate for consideration under other provisions. It follows that in most cases the drafting of the questions will be a matter for the applicant."

[18] I note the Full Bench in John Holland was not asked to consider ballot questions involving partial work bans, which is the issue for consideration here.

[19] Further, a Full Bench in National Tertiary Education Industry Union v RMIT University[4] (RMIT) stated:

"[22] It is commonly accepted that in order to obtain a PABO, and accordingly undertake protected industrial action, the party seeking to obtain the PABO must specify in the application the nature of the proposed industrial action ...

[24] Once a PABO is issued by the Commission and industrial action gains support from the employees eligible to vote, the action is an "employee claim action" - assuming the other prerequisites are met. Once proper notice is given in accordance with s.414 of the Act, the industrial action which is supported by the PABO and notified will be protected under the Act, subject of course to any application made pursuant to Part 3-3, Division 6 of the Act to suspend or terminate the protected industrial action.

[25] It is not the case that the nature of the action as identified in the PABO requires a high level of specificity. The Act clearly provides that the PABO must include 'the nature of the proposed industrial action' and the Full Bench guidance in John Holland makes clear that the questions should be specific enough such that "employees are capable of responding to them."

[20] While a high level of specificity is not required, the ballot questions cannot be so unspecific as to be vague and meaningless. The level of specificity required is one which enables employees who will be voting on the questions to understand what work would not be undertaken and what work would remain to be done. It requires employees to be able to understand the implications for them while at work. The balance to be struck is that employees must be able to understand what it is they are being asked to support in terms of the proposed industrial action and enable them to make an informed choice in that regard.

[21] A partial work ban can encompass a myriad of possibilities. Given the myriad of possibilities, employees could not reasonably be expected to understand what work would or would not be undertaken.

[22] In terms of the TWU's argument that the ballot question is commonly found in protected action ballot orders made by the Commission, I simply note that this is not the relevant test that I need to apply in the application before me.

[23] In relation to the TWU's argument that the meaning of 'partial work ban' is well understood by industrial parties, that is likely to be the case, but it is not an industrial party that is being asked to complete the ballot - it is a group of employees. In any event, the question is not whether an employee understands the meaning of the phrase 'partial work ban', it is whether the employee understands what work will not be undertaken and what work will remain to be done.

[24] The TWU said it would explain the ballot questions to employees. If it is necessary to explain the ballot questions to employees, then in my view the questions lack sufficient clarity. It should be evident on reading the ballot questions what it is that employees are being asked to authorise.

[25] Finally, I accept the submissions of the Respondent that the phrase 'nature of the action' in ss.437(3) and 443(3) is the same in substance as s.414(6). As a matter of statutory construction, when words are used in one part of an Act they should be given the same meaning when used in another part unless there is reason to do otherwise.

[26] For these reasons, the ballot question will not be included in the order made.

Extension of notice period for proposed industrial action

[27] The Respondent sought an extension of the notice period for proposed industrial action from 3 working days to 7 working days.

[28] Section 443(5) of the Act provides in effect that if there are exceptional circumstances justifying the period of written notice referred to in s.414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.

[29] The TWU accepted that there may be exceptional circumstances which exist in relation to the Respondent, however it argued that the exceptional circumstances did not justify an extension to the notice period. Alternatively, it argued, if the Commission was minded to exercise its discretion to extend the notice period in this matter, the TWU relied on a decision involving Armaguard to support a finding that it should not be extended beyond 5 working days, and that it should apply to certain types of industrial action only, being stoppages of work over four hours.

[30] There have been a number of decisions of the Commission in which exceptional circumstances justifying a longer notice period has been considered, including in the cash in transit industry.

[31] In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation[5], Vice President Lawler held:

"[10] In summary, the expression 'exceptional circumstances' requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe 'exceptional circumstances' as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural 'circumstances' as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of 'exceptional circumstances' includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.

[11] However, it is important to note that when considering whether to make an order pursuant to s.463(5) the Commission is not simply concerned with determining whether there are exceptional circumstances. There must be exceptional circumstances 'justifying' the specification of a longer notice period. The notion of justification is critical and calls for a consideration of the purpose of the notice required by s.441."

[32] The Commission has, in a number of cases, found that exceptional circumstances exist in the cash in transit industry, justifying an extended notice period.[6]

[33] While these decisions do not set a precedent, they have usefully considered similar issues in the same industry and in similar circumstances. Common amongst these decisions is a broad acceptance as to the potential increased security risks for employees as well as the employers' clients and the public that may result from a disruption to cash collections and distribution.

[34] In support of its application for an extended notice period, the Respondent relied on two witness statements and oral evidence given by Mr Lynch. Additionally, he was cross examined by the TWU.

[35] Given the constraints of time that go with the determination of these applications, I have not summarised all of the evidence given by the witnesses. To the extent there are differing views about the nature of the Respondent's business and the existence of circumstances justifying an extension to the notice period, I prefer the evidence of Mr Lynch. As the Workplace Relations Manager and having had a relatively lengthy period of employment in the cash transit industry, he is in a better position than the TWU organiser and delegate to accurately outline the business structure, the numbers of employees performing particular work, the safety and security requirements of the role, its use of contractors and constraints in accessing labour from other states given COVID boarder issues, licensing and training requirements for employees (including in relation to firearms), and the issues that arise in areas such as the mandatory use of personal body armour which is individually fitted to each employee.

[36] The significant aspects of Mr Lynch's evidence were as follows:

1. The potential implications for the Respondent if employees were to take protected industrial action go well beyond mere inconvenience and additional costs, because of the nature of the work performed and the highly regulated and security sensitive nature of the cash in transit industry;

2. It was important, for safety reasons, that large amounts of cash were able to be removed from their client's sites, and that cash was able to be delivered to major financial and retail institutions along with thousands of ATM's;

3. If no deliveries or collections of cash were able to be performed, cash may not be available to members of the public either through ATMs, banks or EFTPOS cash outs;

4. The Respondent is heavily relied on to service remote and regional bank branches and ATMs, and the general public would be adversely affected by any disruptions to this service;

5. Small businesses may be at risk, particularly regional businesses, if the Respondent was unable to deliver cash, particularly where notes and coins are necessary to complete a financial transaction;

6. The inability to collect cash from bank branches poses a significant risk to bank staff and members of the public as the risk of armed robbery is increased in this situation;

7. The Respondent is unable to implement its Business Continuity Plan (BCP) until it is notified of what industrial action is to be taken and its duration. The BCP is necessary to ensure that any contingency arrangements are carried out safely and in a way that meets its regulatory obligations. It is unable to implement its contingency arrangements until it knows of the action taken and duration because it is unable to estimate how many employees will be required to continue operations in a safe manner;

8. Employees need to be appropriately trained, licenced and experienced. This includes the vast majority of employees holding firearms and security licences;

9. Many businesses require coins to trade, such as vending machine operators, state transport services, large retailers who need coins for floats such as Aldi, McDonalds and the like;

10. The Respondent uses a small number of contractors in NSW which may equate to up to 6 out of around 103 employees on any one day, and a large number of contract employees are not available at short notice;

11. The Respondent's insurance policies require that the amount of cash stored at a client's premises is limited;

12. Unlike its major competitor, Armaguard, the Respondent's OHS risk management policy mandates the use of personal body armour for all relevant employees, which must be obtained for and fitted to each individual employee;

13. State boarder closures due to COVID affect the Respondent's ability to source labour from outside NSW; and

14. Three days' notice is insufficient in all of these circumstances to implement its BCP.

[37] The TWU argued that of the Respondent was smaller than its competitor Armaguard, it has access to contractors, and its BCP would not require the same level of planning and therefore did not justify an extension to the notice period.

[38] I accept the evidence of Mr Lynch set out above. There is nothing in the evidence of Mr Haldane and Mr Rasmussen, nor in the cross examination of Mr Lynch, that would cause me not to accept his evidence in full. Mr Lynch's evidence read as a whole sets out a clear basis for a finding there are exceptional circumstances. In particular, the potential for increased safety risks to employees, clients and the public, the potential economic impact on regional businesses as well as to members of the public unable to access cash as a result of disruptions to cash delivery and collection, constitute exceptional circumstances. The impact is in my view out of the ordinary, unusual and uncommon.

[39] Further, I am satisfied that Mr Lynch's evidence sets out a clear basis for a finding that the exceptional circumstances justify a longer notice period. I accept his evidence that the Respondent will require longer than three days to put its contingency plans into place in a manner that does not increase the safety risks to employees and others. It cannot reasonably implement these plans until it knows the nature and duration of the proposed industrial action because it will not be able to estimate the number of employees necessary to perform the work in a safe manner until that information is known to it.

[40] Having considered the submissions and the evidence, I am satisfied that there are exceptional circumstances which justify an extension of the notice period to five working days. This period is consistent with a number of other decisions of the Commission in similar circumstances.

[41] Finally, having accepted the evidence of Mr Lynch and for the same reasons that I have found exceptional circumstances justifying the longer notice period, I am satisfied that it is appropriate to extend the notice period to five working days for all types of proposed industrial action and not only stoppages over 4 hours in duration, as contended by the TWU.

[42] Having made the above findings, I am satisfied that the order sought by the TWU, as modified to reflect this decision, must be made.

[43] An order has been separately issued in PR726784.

A Owen-Strauss for the Transport Workers' Union of Australia.

[1] [2018] FWC 4755.

[2] (2006) 158 IR 120.

[3] [2010] FWAFB 526.

[4] [2013] FWCFB 9549.

[5] [2007] AIRC 848.

[6] These matters include: TWU v Linfox Armaguard Pty Ltd [2016] FWC 1275; TWU v Prosegur Australia Pty Ltd (PR579196); TWU v Prosegur Australia Pty Ltd (PR587602); TWU v Prosegur Australia Pty Ltd (PR586961); TWU v Prosegur Australia Pty Ltd (PR579196) and TWU v Linfox Armaguard Pty Ltd [2014] FWC 1753.

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