Fair Work Act 2009

s.437 - Application for a protected action ballot order

Proposed protected action ballot of employees of Ventia Australia Pty Limited - whether exceptional circumstances justifying extended notice of industrial action demonstrated.

• [1] This is an application by the Transport Workers' Union of Australia (TWU or Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Ventia Australia Pty Limited (Ventia or Employer).

• [2] The parties are bargaining to replace the Ventia South Australian Prisoner Transport and In-Court Management TWU Enterprise Agreement 2022.

• [3] On 13 May 2025, the Commission was advised that the Employer, in effect, did not object to the Application, if amended to clarify certain proposed ballot questions. These proposals were accepted by the TWU. However, Ventia sought that an extended notice period of 5 "clear" days be ordered where employees propose to engage in work stoppages of 12 hours or more. The basis of this position was said to be to enable it to make appropriate arrangements to ensure the welfare of prisoners. The TWU did not consent to the extended notice period sought by the Respondent.

• [4] The parties sought that the application be determined on the papers, without conducting a hearing. Despite the parties, and in particular, the Respondent, being put on notice that in the context of a contested matter of this kind, evidence would generally be required to enable the Commission to be satisfied that there are exceptional circumstances and that these warrant a period of extended notice being granted, no evidence or a request to be heard was advanced.

• [5] In the circumstances, and on the basis that both parties were content with the matter being dealt with on the papers, I have granted permission to amend the application and decided to determine the matter on the papers.

• [6] On the basis of the material before me, including the declaration of William Cheffirs, Industrial Officer, setting out the steps taken by the TWU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with Ventia, I am satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in s.443(1) of the Act have been met.

• [7] The ballot is to be conducted by Vero Engagement and Voting Solutions Pty Ltd (Vero). Vero has been approved as an eligible protected action ballot agent under s.468A of the Act and consequently is authorised to conduct the ballot.

• [8] 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 27 May 2025.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

• [9] Ventia's request for additional notice of the specified proposed industrial action relies upon the capacity in s.44(2)(b) of the Act for the Commission to include such a term in the Order sought by this application. Section 443(5) then provides as follows:

"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 or 120 hours (whichever is applicable), the protected action ballot order may specify a longer period of up to 7 working days."

• [10] The submissions from Ventia about the basis for its position was as follows:[2]

• An extended notice period was not sought in another matter relied upon by the TWU in opposing the request for an extension here.

• The extension of the notice period sought is limited in scope (only for full stoppages of more than 12 hours), is limited in time (an additional 2 clear days) and is limited to one form of protected industrial action (Question1).

• The small extension will assist Ventia and the South Australian Department of Correctional Services to ensure the welfare of prisoners and enable them to manage important Court and medical appointments.

• [11] The TWU's submissions were as follows:[3]

• Three (3) days' notice was sufficient for Ventia to organise alternate prisoner transport arrangements in Western Australia, which is a reference to another PABO issued by the Commission.

• If Ventia cannot facilitate prisoner movements, such movements can be cancelled or conducted by prison officers if necessary.

• Officers who are not part of the union remain available for work.

• The public will not be put at risk. If unnecessary movements are cancelled or conducted by prison officers, risks are mitigated. Court proceedings can be adjourned or conducted by video link if deemed necessary. It is not unheard of for Court proceedings to be adjourned or delayed.

• An extension of the notice period from three (3) days is unnecessarily prejudicial to the bargaining position of the workforce.

• [12] No evidence or more detailed submissions on the issue were provided by Ventia or the TWU to the Commission. However, the default position in the Act[4] is that a minimum of 3 working days' written notice is required, and it was Ventia that contended the existence of the exceptional circumstances justifying the extension of the minimum notice period.

• [13] In relation to the immediate issue, a Full Bench of the Commission in Construction, Forestry, Maritime, Mining and Energy Union v DP World Brisbane Pty Ltd t/a DP World and Others[5] stated as follows:

"[13] The principles to be applied in relation to an extension of the notice period for engagement in employee claim action were comprehensively stated in the Full Bench decision in National Tertiary Education Industry Union v Charles Darwin University. In relation to s 443(5) generally, the Full Bench observed:

"[20] The exercise of a discretion under s.443(5) results in an interference with the right of a bargaining representative to otherwise give three working days' written notice of industrial action that is to be organised and engaged in by employees in support of a proposed agreement. That this right should not lightly be curtailed by the imposition of a longer period of notice is evident in the grant of power itself. There must be "exceptional circumstances" in relation to the proposed industrial action the subject of the order justifying a longer period."

[14] In relation to the meaning of the expression "exceptional circumstances", the Full Bench quoted and applied a decision of the Australian Industrial Relations Commission relating to the equivalent provision in the Workplace Relations Act 1996 which relevantly stated:

"[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."

[15] The Full Bench then set out the three-step decision-making process required in order to determine whether there should be an extension to the notice period pursuant to 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)." (references omitted)

• [14] Although industrial action in the circumstances of this enterprise may raise issues about prisoner safety, there is no evidence before the Commission to demonstrate the exceptional circumstances that would create the discretion to make the term of the order sought by Ventia. Further, there is no evidence or submissions that would enable the Commission to assess whether any such circumstances warrant any extended notice. As a result, the Order issued by the Commission does not contain any extended notice provision.

• [15] An Order has been separately issued in PR787287.

• [16] This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference. That Member will issue an Order requiring the attendance of all bargaining representatives in the proposed enterprise agreement at the conference. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

[1] This is, in effect 9 working days from the making of the Order and was the period determined by the Commission.

[2] Email to the Commission dated 13 May 2025.

[5] [2019] FWCFB 1150.

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