s.437 - Application for a protected action ballot order

Virgin Airlines Pty Ltd and Virgin Tech Pty Limited

Proposed protected action ballot of employees of Virgin Airlines Pty Ltd and Virgin Tech Pty Limited - extension of notice period - notice period not extended - circumstances exceptional - circumstances do not justify extension of notice period - diminution of bargaining power outweighs potential disruption of industrial action

• [1] This is an application by the Transport Workers' Union of Australia (TWU) made on 23 October 2023 under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Virgin Airlines Pty Ltd and Virgin Tech Pty Limited (together referred to as Virgin).

• [2] On 24 October 2023, the Commission was advised that Virgin did not, in effect, object to the application but sought that the notice period with respect to some questions be extended.

• [3] Section 441 of the Act requires the Commission to, as far as practicable, determine an application for a protected action ballot order within 2 working days after the application is made. I initially listed the matter for hearing on 25 October 2023. As both parties advised that they intended to call evidence and make submissions, the hearing date was vacated by consent, directions for the filing and serving of material were made and the matter was listed for hearing on 30 October 2023.

• [4] Virgin filed a witness statement of behalf of Mr Chris Ghea, Head of Ramp Services and submissions on 26 October 2023. The TWU filed submissions on 28 October 2023, and a witness statement on behalf of Mr Simon Scheffler, Leading Hand and TWU member, on 27 October 2023. Virgin filed a witness statement in reply on behalf of Mr Ghea on 30 October 2023.

• [5] I have considered the submissions made by the parties and all of the evidence in my determination of this matter and the conclusions I have reached.

• [6] The ballot questions in the order sought by the TWU are:

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 work for the duration of 1 hour?

1. An unlimited number of stoppages of work for the duration of 24 hours?

1. An unlimited number of indefinite or periodic bans on the completion of paperwork (excluding safety related paperwork or paperwork prescribed by any relevant legislation)?

1. An unlimited number of indefinite or periodic bans on the driving and/or operation of airside vehicles (including tugs and pushback tractors)?

1. An unlimited number of periodic or indefinite bans on the performance of receipt, dispatch and pushback duties for plane arrivals and departures from bays?

1. An unlimited number of periodic or indefinite bans on the performance of higher duties?

1. An unlimited number of periodic or indefinite bans on the loading, unloading, driving and positioning of freight?

1. An unlimited number of periodic or indefinite bans on the loading, unloading, scanning and processing of bags and other items from the oversized belts?

1. An unlimited number of periodic or indefinite bans on the performance of training duties including training of other employees?

1. An unlimited number of periodic or indefinite bans on the loading, unloading, scanning and processing of bags and items from connecting flights?

1. Providing information in any form, including by way of social media platform/s, concerning the views of the employees in relation to the industrial action and the TWU campaign for a new enterprise agreement to members of the community including to members of the media?

• [7] Virgin has requested that the Commission exercise its discretion pursuant to s.443(5) of the Act to make an order that the written period of notice referred to in s.414(2)(a) of the Act be extended to at least seven working days' notice in relation to questions 1, 2, 4, and 5 and at least five working days' notice in relation to questions 7 and 10. No additional notice is sought in relation to Questions 3, 6, 8, 9 and 11.

• [8] The TWU opposes the request for extended notice periods.

• [9] Virgin relied on evidence from Mr Ghea in support of its request the notice period be extended. It is therefore important to set out Mr Ghea's evidence in some detail.

• [10] Mr Ghea is the Head of Ramp Services and has been employed by Virgin for over 19 years and has over 28 years' experience in the aviation industry. As Head of Ramp Services, Mr Ghea is accountable for the safe delivery of ramp operations at Virgin's insourced ground handling ports, Virgin Group Ground Support Equipment (GSE) operations, ramp standards for the Virgin Group and Cabin Cleaning operations for the Virgin Group.[1]

• [11] The Virgin & TWU Airside Operations Agreement 2020 (EA) cover various employees in the following classifications:

• [12] Airside Employees cover a wide range of responsibilities for ground handling of the aircraft during regular public transport operations including baggage, dispatch and towing. The duties of Airside Employees include but are not limited to:

(a) loading and unloading of aircraft including passenger baggage, cargo (including

urgent, perishable, valuable, animals), passenger mobility aids, restricted items

(weapons), oversize items (sporting equipment, musical instruments);

(b) delivering bags to arrivals carousels and oversize area and other items including

oversized luggage such as wheelchairs and prams that are carried in the hold;

(c) carrying out basic serviceability and maintenance of GSE;

(d) hands-on activities in all areas of work, both directly and indirectly associated with

(e) pushback and towing of aircraft around the apron;

(f) pre-operational inspection and refuelling of GSE and vehicles;

(g) driving various equipment including but not limited to baggage tugs, tow motors, and other motorised GSE;

(l) completion of aircraft loading documentation/systems.[3]

• [13] Airside Employees play a critical role in co-ordinating all aircraft towing and dispatch operations while also ensuring the safety of team members, guests and aircraft/equipment. In particular, the Airside Employees ensure the safe and efficient operation of all aircraft movements, by overseeing the loading, unloading, and handling of operations in accordance with the relevant standard operating procedures and safety regulations.[4]

• [14] Stores Employees are responsible for the acceptance, storage and handling for all aeronautical parts required for the maintenance of aircraft. Stores Employees have a range of duties including but not limited to:

(a) receiving incoming consignments and inspecting for damage;

(b) disposal of products in designated warehouse storage areas;

(f) compliance with regulatory and company HSE and security policies;

• (g) investigation of inventory discrepancies.[5]

• [15] Stores Employees ensure the safe and secure processing and servicing of inventory, quarantined products, equipment and assemblies in the Virgin warehouses, in accordance with regulatory and procedural requirements. The Stores Employees also serve as a key liaison and touchpoint for hangar and line aircraft maintenance staff, who provide critical maintenance services to the Virgin aircraft.[6]

• [16] There are approximately 887 Airside Employees and 46 Stores Employees. Airside Employees work from and are based at Adelaide, Brisbane, Melbourne and Sydney airports. Stores Employees are based at Brisbane, Melbourne, Perth and Sydney airports.[7]

• [17] The Airside Employees and Stores Employees are jointly responsible for ensuring the smooth arrival and departure of aircraft, along with safe and compliant handling and storage of aircraft materials and tooling, which contribute to the broader operational efficiencies of the Virgin airlines.[8]

• [18] Mr Ghea outlined the steps that would be taken when dealing with either a one hour or a 24-hour work stoppage. First, the Integrated Operations Centre (IOC) would consider what flights are impacted and the number of aircraft crew and passengers attached to those flights, which would take one hour for each one hour stoppage, given that there could be up to 30 or 40 departures within that hour.[9] Once the impact of a stoppage is understood, each operational group would then come together and commit to an outcome for each affected route which could include cancellation, delay, or recrewing. Before any outcome is finalised, the viability of each outcome must first be assessed and each possible outcome will involve, at a minimum, a further hour of discussion and analysis, in addition to the initial time spent in assessing the impact of a stoppage.[10]

• [19] Assessment of the viability of an outcome requires consideration of aircraft rotation, crew displacement, pilot maximum flight hours and detailed passenger impact.[11] The time this will take will correspond to the intended time of the stoppage. For example, if there is a stoppage of 24 hours, the IOC will require at least 24 hours to make contingency arrangements. Once the arrangements have been determined, they must then be communicated to crew, pilots, safety and maintenance teams and Guest Services. It will take several more hours to effectively reach all of these stakeholders. Communication times will necessarily extend by up to 24 hours when considering the mandatory rest periods for cabin crew pilots.[12]

• [20] Virgin must also take steps in relation to logistical arrangements for the aircraft which involves towing aircraft off the gate to another location, such as a remote parking bay. Generally, if an aircraft has not moved after 45 minutes to 2 hours, it will be towed away to an ''off-bay' area. This may mean that 12 to 14 aircraft in a port will have to be towed at any given time.[13] After an aircraft is towed away to the 'off-bay' area and before it can return to operation, the aircraft must be serviced.[14] Before, during, and after the stoppage, Virgin is required to liaise with numerous stakeholders to organise and manage the stoppage.[15] At the conclusion of the stoppage, Virgin will liaise with the airport authorities in order to secure parking spaces for the aircraft in the 'off-bay' area. Aircraft will need to be relocated back onto the departure gate where departure servicing will occur, and Virgin will need to consider whether any aircraft have reached a required maintenance scheduling timeframe. Where this timeframe occurs at the conclusion of a stoppage, Virgin will need to remove that aircraft from operations until it has undergone servicing.[16]

• [21] The Virgin IOC is required to manipulate the rosters of a significant number of employees. The built in rosters for employees across multiple departments (up to 7 to 8 work groups) are affected, including for employees who perform guest services and engineering, as these services interact with the work performed by the Airside Employees who are required to the aircraft into a 'off-bay' area.[17] Changes to the roster for a number of work groups are constrained by industrial instruments.[18]Where Virgin contracts out some of the work performed (for example for catering, cleaning, water toilet servicing and refuelling), many of the contractors are not available 24 hours a day. For example, cleaners are only available to perform services overnight and contracting services and resources are built into a designated work schedule, with contractual arrangements often requiring a period of 28 days' notice to be given for changes to the work schedule.[19]

• [22] All ground handling activities at the airports on Virgin branded aircraft are performed by Virgin. Airside Employees and Stores Employees are utilised at 100%, and with 100% of those staff unable to perform services due to protected industrial action, Virgin would be incapable of supplementing its workforce with contractors given the size of the operation. It is not practical to supplement the employees with a sub-contractor workforce or Virgin employees for a number of reasons. There is a contingent workforce available at the lower skill-set level, however these workers will not be able to cover the shortfall of workers as a result of the ongoing protected industrial action within other workgroups, such as engineers. In addition, Virgin requires time to undertake training for these other employees to perform the Airside functions. Further, Airside Employees are required to pass testing for both an airport licence and state driving licence.[20]

• [23] Virgin experiences around 80 movements a day from domestic airlines within a single port. The impact of one hour work stoppages with only 3 working days' notice will also mean that IOC will be required to cancel most of its flights, with the IOC team only able to prioritise a few key flights.[21] A stoppage (or multiple one hour stoppages) in one port can impact the departure port for other flights scheduled to arrive, meaning the industrial action has an impact not only on the port subject to the industrial action, but also a whole range of others ports not the target of the industrial action.[22]

• [24] Virgin is limited to a certain number of flights it can operate in a day. A seven-day notice period for the protected industrial action would allow Virgin adequate time to:

(a) identify its high risk customers, in order to prioritise for them appropriately or allow for their earlier recovery. The process involved in accommodating high risk customers is labour intensive and requires re-arranging bookings for guests who have identified themselves as requiring assistance. The Virgin 'recovery tool' is unable to proactively recover for all of these types of customers. A disruption to a connecting flight for an unaccompanied minor, for example, could result in that customer being assisted for up to an entire day by a crew member and effectively stranded at the airport;

(b) manipulate the flight schedule to ensure that more flights operate within a given time period to substitute the shortfall during the 24-hour stoppage; and

• (c) 'up-gauge' aircraft to add higher capacity for passengers, by monitoring of flights through certain routes with a greater capacity for passengers.[23]

• [25] Recovery is the method by which alternative travel for a passenger is secured, or the level of disruption to a passenger's intended travel is reduced. Recovery of a passenger's travel will include things like rebooking flights, refunding flights, sourcing emergency accommodation, compensation for flight delays, and referrals to alternative airlines to complete travel arrangements.[24]

• [26] Although the recovery for a 24-hour stoppage is generally a week, the compounding effect of multiple 24-hour stoppages over a period of months can be significant. The steps the airline must move through as outlined above are repeated every time there is a stoppage, and the airline may still be in 'recovery' mode after the last protected industrial action when it is provided with notice for a new protected industrial action.[25]

• [27] Contingency planning is also compounded by adverse weather and protected industrial action across multiple work groups occurring simultaneously.[26]

• [28] If there was a 24-hour stoppage affecting Virgin's Adelaide, Melbourne, Brisbane and Sydney ports it is expected to take a minimum of 2 days to recover all passengers on major routes, but on a number of routes, it is expected to take 7 days or more.[27]

• [29] Virgin would require 7 working days' notice to reduce the impact to the guests on non-major routes by providing options pre and post stoppage time for critical passengers and freight; securing seats on other carriers and scheduling changes to allow recovery of passengers on the most impacted routes. This is based on the following assumptions:

(a) there being approximately 415 flight sectors across the above-mentioned ports for both domestic and international operations;

• (c) an estimated 80,000 passengers disrupted.[28]

• [30] Simultaneous stoppages at all 4 ports increases the recovery times for passengers because there is more disruption across the network. A 24-hour stoppage causes significant disruption to the ability of Virgin services to run and therefore services will need to be cancelled.[29]

• Question 4 - Ban on driving and/or operation of airside vehicles

• [31] Question 4 is an indefinite or periodic ban on the driving and/or operation of airside vehicles (including tugs and pushback tractors). According to Mr Ghea, this would have exactly the same operational effect that a full 'stoppage' would as outlined above in relation to Questions 1 and 2.[30] For the reasons outlined above, supplementing the Airside Employees who perform workforce driving and operations of airside vehicles (including tugs and pushback tractors) is neither practical, and in most cases, not possible.

• [32] A pushback tractor is an item of plant that is used to manoeuvre the aircraft. Aircraft do not have a reverse function and are reliant on the pushback tractor to assist their reversal from a parking bay in order to depart and operate. A secondary function of the pushback tractor is to tow aircraft around the airport apron for either maintenance or parking requirements. As well as impacting Virgin's operations, this ban will impact on the operations of airports where aircraft are unable to be moved and may impact on other airlines where they are unable to get access to a bay. This may in turn have flow on effects for other airlines and commuters.[31]

• [33] A tug is used to tow ground servicing equipment such as barrows, baggage belts, and disabled passenger lifts. An indefinite or periodic ban on the operation of a tug will mean barrows used to transport passenger luggage from aircraft to the airport baggage belt will not deliver passenger luggage in a timely way, or at all, and baggage barrows will not be delivered to airports in a timely way, or at all.[32] In practical terms, an indefinite or periodic ban will lead to flights being delayed or cancelled as pushback tractors are required to depart an aircraft. Any contingent workforce will need to be familiar with airport driving, but drivers may also need an airport licence and in some airports, this can take up to 3 months to obtain.[33]

• [34] Even if in a best case scenario a passenger was able to eventually access their luggage after a delay of several days it would mean that a passenger may be without their luggage and personal items for several days, forcing otherwise unnecessary expenditure on personal necessities and clothing and would be required to access an online claim for compensation from Virgin which in ordinary periods of travel may take up to 30 days to determine and finalise.[34]

• Question 5 - Ban on performance of performance of receipt, dispatch and pushback duties for plane arrivals and departures from bays

• [35] Question 5 is an unlimited number of periodic or indefinite bans on the performance of receipt, dispatch and pushback duties for plane arrivals and departures from bays. This would have consequences for both arrivals and departures and would mean that the same aircraft scheduled to fly multiple sectors in any one day to and from States and Territories would be precluded from both arriving and departing airports. Mr Ghea claims that the lack of supplementary workforce to accommodate this type of industrial action would mean that this type of ban would be akin to a stoppage as provided in Questions 1 and 2.[35]

Question 7 - Ban on the loading, unloading, driving and positioning of freight

• [36] The proposed action in Question 7 is an unlimited number of periodic or indefinite bans on the loading, unloading, driving and positioning of freight. Mr Ghea claims that Virgin is obliged under the Aviation Transport Security Act 2004 to match a bag to customer. It is a breach of this Act for Virgin's aircraft to knowingly leave a port without a customers' bag. This can be a major safety and security risk under the Act, for example, when high risk freight is not transported (for example, firearms).[36]

• [37] Mr Ghea states that Virgin needs at least 5 working days' notice of this action in order to appropriately notify those customers who have identified that they have 'high risk' items or freight, to inform them that they are no longer able to carry any restricted or high risk items on their flights. In the alternative, Virgin needs the time to ensure that those customers are granted a higher priority of protection for the delivery of the 'high risk' freight, or to move the appropriate customers to different flights so that they can safely deliver the high risk freight to their destination.[37]

Question 10 - Ban on performance of loading, unloading, scanning and processing of bags and items from connecting flights

• [38] The proposed action in Question 10 is an unlimited number of periodic or indefinite bans on the loading, unloading, scanning and processing of bags and items from connecting flights. Ms Ghea claims that failing to load, unload, scan and process bags and items from connecting flights constitutes a security breach under the Aviation Transport Security Act 2004. Mr Ghea states that Virgin needs at least 5 working days to plan for this and notify customers, otherwise it risks being in breach of its legal requirements.[38]

Impacts on customers of proposed industrial action

• [39] According to Mr Ghea, the consequences of delays caused by the industrial action that cannot be managed within a three-day notice period will be that:

(a) many customers will be unable to travel at all because they will not have an alternative mode of transport and insufficient time to arrange for such;

(b) tourists will experience difficultly making pre-booked connections and may have to forfeit the costs of any accommodation that is missed;

(c) workers may be prevented from attending work, impacting productivity in businesses where manual labour is required;

(d) customers with disabilities might not be able to make alternative arrangements;

(e) elderly or ill people might be unable to attend medical appointments or seek medical care; and

• (f) unaccompanied minors may be unable to travel, or a crew member may be required to be assigned to stay with an unaccompanied minor during the period of a delay or until the minor can get a flight to their destination.[39]

• [40] Passengers with special needs are not all travelling from the mainline ports where a replacement service may be accessible. Many will be travelling from rural and remote areas where replacement flights are difficult to obtain on short notice.[40]

• [41] Recovery times are skewed during Peak Season because of its high loads. Attempting same-day recovery is challenging and historically, customers have been most impacted when they need to attend same day work events, Christmas parties, or family get togethers and Virgin cannot recover their arrangements in a suitable amount of time.[41]

• [42] If recovery cannot be provided within 72 hours, Virgin 'strands' the passenger, which means that no flights are provided, and a refund is offered to the passenger so they can make their own arrangements. In a Peak Period, sourcing alternative arrangements is more difficult with less options available.[42]

• [43] A three working day notice period for any stoppage would offer an extraordinarily limited opportunity for Virgin to effectively communicate to affected customers of any schedule changes and cancellations. At least seven working days would be required to use a number of methods of communication to alert customers to disruptions. Customers would need to be notified after scheduling changes are made, which is a complex and lengthy process.[43]

Impacts on employees of proposed industrial action

• [44] Mr Ghea's evidence is that Virgin employees, particularly those working on the regional network, are located across a large geographic area.[44] The proposed protected industrial action will significantly impact pilots and cabin crew, who may become displaced away from their home base and be unable to return to their home base on the scheduled date, or at the scheduled time. In some instances, this may lead to them being away from home base for six or more days. Virgin requires more than 3 working days to assess the impact of protected industrial action on pilot and cabin crew duties and to make the necessary rostering changes to ensure they can be returned to their home base.[45]

• [45] Virgin would need to coordinate rosters and schedules to accommodate delays and cancellations caused by stoppages and bans. Staff would potentially become stranded and be unable to re-commence work at the end of the stoppage or ban. This may result in safety and security issues for staff and being stranded in a location without suitable accommodation facilities.[46]

• [46] Approximately 79% of cabin crew are women, and many have parental or carer responsibilities. The inability to return cabin crew and pilots to their home base as a result of protected industrial action would most significantly impact those crew members with parental or carer responsibilities who may have made caring arrangements on the basis of their scheduled return date or time. Three working days may not be sufficient time for crew members to make alternative caring arrangements as a result of changes to their rostered duties stemming from protected industrial action.[47] In some instances, the inability of Virgin to return crew members to their home base as a result of protected industrial action, may result in a breach of a Flexible Work Arrangement (FWA) made in accordance with Section 65 of the Act. Virgin requires more than 3 working days of notice to ensure that it can make the necessary rostering changes to ensure compliance with FWAs.[48]

• [47] The protected industrial action would also require Virgin to make arrangements for accommodation, transportation and other incidental necessities in the locations at which pilots and cabin crew may become displaced, which may include locations with limited accommodation options or availability. Three working days is insufficient time to make these arrangements. Virgin will need at least seven working days to identify the affected employees and make accommodation arrangements for them or make arrangements for transport to return the employees home.[49]

Managing the impacts to services - passenger flights

• [48] Virgin will need to ensure the following tasks are completed upon notification of a stoppage, ban or change to the performance of work:

(a) the daily working timetable will need to be changed;

(b) a new schedule will need to be built based on the new daily working timetable;

(c) once the schedule has been built, the period roster will need to be changed for employees;

(d) employees will need to be notified of changes to their roster (in line with notification requirements);

(e) arrangements will need to be made for machinery to be secured;

(f) customers will need to be notified of changes to services and advice provided on alternative options, with alternatives being implemented where available;

(g) arrangements will need to be made to subcontract particular services;

(h) arrangements will need to be made for employees who will potentially be stranded in a location away from their home base to be returned to their home base, or have appropriate accommodation;

(i) arrangements will need to be made to ensure there are qualified staff to cover roles that will be impacted by bans or changes to the performance of work as notified;

• (j) arrangements will need to be made to ensure that work can continue in circumstances where there is a ban on the use of technology or on the performance of certain tasks.[50]

• [49] The following steps will need to be taken and coordinated by the IOC once it has received notification of an indefinite or periodic ban to account for the network disruptions due to any stoppage, ban or change to the performance of work:

(a) the stand up of additional skilled resources to manage aircraft, crew and passenger disruptions (IOC only), this can take some time given 24/7 rosters in place and this would be required on top of current resources managing day to day operations;

(b) all aircraft movements through affected ports are to be cancelled and lines of flying adjusted to reflect new schedule;

(c) the change to aircraft lines of flying impacts planned maintenance events;

(d) both Flight and Cabin crew rosters are manipulated to reflect the new schedule (usually takes three weeks to build a roster over the planned schedule) and notification times are required;

(e) any planned training events for Flight Crew need to be rescheduled, delayed or cancelled, resulting in limited resource availability with non-compliant pilots scheduled to fly on services that require additional or recurrent training prior to flying;

(f) changes to crew rosters impacts the planned hotel accommodation and transport services for crew;

(g) reviewing rosters to manage the risk that crew are displaced away from home with limited availability to operate or return to home base, therefore the prior days flying would be cancelled;

(h) Manage passenger disruption, provide alternative travel on flights not impacted;

(i) Provide hotel accommodation and transport for those passengers that are not at their home port and cannot be provided a recovery flight on the same day as originally planned;

(j) Passengers with special needs require detailed attention in providing recovery flights, hotels and transport;

(k) Passengers carrying approved weapons will require detailed attention in recovering their flight due to weapon restrictions in hotels, transport and maximum limits per flight;

• (l) Passenger with pets travelling with them require detailed attention in providing hotel accommodation and transport, given not all providers accept pets.[51]

• [50] The above steps all require manual processes and need to be completed in a sequence by teams who have expertise in a particular area of operations. They cannot be completed at the same time and will require a minimum of 5 working days to action. More time is preferred given the need to continue with ordinary business operations in addition to investing resources to manage stoppages.[52]

• [51] While it is likely that significant disruptions and inconveniences to staff and customers will still occur even with seven working days' notice, it will give Virgin the potential to reschedule shifts and team member rosters to ensure adequate coverage of services and minimise impacts on employees and customers.[53]

• [52] Given the nature of the cargo transported by Virgin, there are number of impacts, depending on the nature of the cargo:

(a) In relation to the transportation of live organs and human blood - the impact of insufficient notice and an inability to make alternative arrangements within a short 3 working day period could have significant impacts on the lives of people waiting to receive those organs and blood, including death;

(b) In relation to the transportation of human remains - the impact of insufficient notice may result in delays in the delivery and safe passage of these remains resulting in delayed funeral arrangements and issues arising where family members wish to observe strict cultural or other ceremonial traditions in relation to the death and burial or cremation. Delays can also cause further distress to family and friends of the deceased. Three working days is likely to be insufficient time to re-arrange these complex arrangements;

(c) In relation to the transportation of nuclear chemicals used for medical treatment and radiation - if there is insufficient time to make alternative arrangements, this will impact patients awaiting scans or treatments;

(d) In relation to the transportation of perishable goods, insufficient time to make alternative travel arrangements and delays in transporting these items will result in spoilage and produce to remote regions not being able to be delivered.

• (e) In relation to the transportation of domestic pets and other live animals - if their transport time becomes delayed this could impact on their wellbeing as they could remain in their cages for extended periods.[54]

• [53] The team responsible for cargo services comprises of four people who work shift work. Where Virgin is notified of a stoppage that will impact upon cargo services, the following steps will be taken:

(a) the team will review what bookings Virgin has on impacted flights for the period of the stoppage;

(b) the team is made up of one person working at any one time: one does a morning shift and one does an afternoon shift with a short period of overlap in-between;

(c) each customer will be contacted one by one to see if they are able to re-book their freight on another day or at another time. Cargo trades with around 170 customers per week. It is difficult to estimate the number of calls that would be required to be made, but it could be as many as 50 calls for a 24-hour stoppage. To support this work, team members would be requested to work overtime or work on their usual day off.

(d) If the customer cannot bring the booking forward or they cannot wait for a later date, Virgin will be unable to honour the service.

(e) With 5 working days' notice, it is more likely that freight can be re-assigned either with Virgin or a competitor and perishable items will not spoil.

• [54] An additional complexity is that live animals, food and human remains must all be segregated within the aircraft's hold. This means any changes are logistically more difficult, particularly where the aircraft is already at capacity. Cargo moving further distances, for example from the East Coast to Perth or Darwin is more likely to be impacted as there are less flights per day. Having more time for alternative arrangements to be made will lessen the impact of protected industrial action on customers and delivery of essential goods.[55]

• [55] Mr Scheffler has been employed by Virgin as a Pit Crew Leading Hand at Brisbane Domestic Airport for approximately twenty years.[56] In this role, Mr Scheffler is responsible for ensuring the safe loading, unloading, pushback and dispatch of each inbound and outbound aircraft and exercises discretion about the safe loading and unloading of aircraft consistent with aviation load control requirements.[57] Prior to commencing employment with Virgin in 2002, Mr Scheffler worked for other airlines performing ground handling duties.[58]

• [56] Mr Scheffler's evidence is that the EA provides that Virgin can change shifts on 48 hours' notice where team member shortages may lead to the disruption of services.[59] Other Virgin workers, like cabin crew, also regularly have their rosters changed and this is called a 'duty change'. Mr Scheffler understands that duty changes for cabin crew and pilots are very common because of the nature of the airline industry and its susceptivity to other uncontrolled factors such as weather conditions. For example, it would not be uncommon for flights to be late or delayed due to extreme wind events or thunderstorms and for a duty change to cabin crew or pilots to occur on short notice as a result.[60]

• [57] Virgin has contingency plans to address delays and other forms of disruption. Those plans extend to cabin crew and pilot rostering. These matters are addressed by the IOC on a daily basis.[61]

• [58] Pit crew stop work for periods of one hour or longer on a regular and consistent basis at least a few times per week. The reasons for this are various and can include poor weather in Brisbane or another airport, catering delays, refuelling delays, delays in the delivery of freight to be urgently delivered and aircraft maintenance needs. Where a delay occurs, it can take some time to recover and ensure work resumes, but certainly not 5 hours as a result of a 1-hour delay. Mr Scheffler's estimation based on his experience and observations is that it takes approximately 60-90 minutes to recover from a 1-hour delay.[62]

• [59] In relation to Mr Ghea's submission about the time it will take for Virgin to recover from a 24-hour stoppage and the assertions that any 24-hour stoppage will result in 7 days to recover, the employees subject to the application have not previously engaged in protected industrial action. Any assessment of the time it will take to recover is speculative and has no basis in previous experience.[63]

• [60] Flights are regularly cancelled in the Virgin network. Where this occurs, Virgin does not personally contact every impacted passenger and advise them of an alternate flight time. The Virgin system generates text message and emails that are sent to impacted passengers. This system allows passengers to select an alternate flight online, contact Virgin where any special needs or issues arise, or cancel their flight and seek their money back to catch a flight with another carrier.[64]

• [61] Any work disruption would be addressed in the same manner that it is now when flights are delayed or cancelled. This may include impacted crew members travelling as a passenger on or operating a later flight or, at worst, that crew member having an unscheduled overnight as a result of any delay. These crew would be displaced at major ports where Virgin has crew approved accommodation that ensures crew are in a safe location. It is not uncommon for short haul international flights to be delayed or cancelled. Virgin has clear plans in place to deal with these circumstances because they operate as a national and international airline.[65]

• [62] Blood and live organs can be transported by Virgin as part of its cargo operations. Those items are specially packed and clearly marked as priority freight. Blood and other organs are specially loaded, generally as the last items, on an aircraft and prioritized when unloading procedures commence.[66]

• [63] In Mr Scheffler's experience, the live organs usually transported in Virgin's cargo operations are usually skin tissue. Other vital organs such as hearts, lungs or kidneys are generally transported through specialist charter flights and not in Virgin's cargo operations.[67]

• [64] Where a flight arrives that has a live organ on board, it would be clearly and easily identifiable to ground crew and any leading hand on that day. Any available crew would be available to review the load sheet for the aircraft and ensure the prioritisation of live organs or blood in accordance with the ordinary operating procedures.[68]

• [65] During Mr Scheffler's time at Virgin he has not arranged for the loading or unloading of more than 20 coffins in total. On average, Mr Scheffler would arrange for 1 coffin to be loaded or unloaded per year.[69]

• [66] Perishable items are commonly transported, and it is also common for these items to be offloaded due to weight or load size restrictions.[70] The transportation of domestic pets is a common occurrence. It is less common to transport other live animals. Live animals are regularly transported on other flights than initially scheduled.[71] In Mr Scheffler's experience there has never been any indication that there is any urgency or immediacy associated with the delivery of nuclear chemicals for medical treatments. It is not uncommon for nuclear medicines to be offloaded on aircraft and otherwise delivered on a later flight.[72]

• [67] It is common practice when there are delays in the network for freight to be prioritised. This means that after guest baggage is loaded all other freight is prioritised based on when it is needed. As this is a common practice already completed by the Pit Crew, it is hard to understand how or why this same process would not apply after or during a period of protected industrial action in the various forms proposed. Virgin's Pit Crew have all the information they need about items to be transported. Some information is provided in advance and other information is provided at very short notice (including periods less than 60 minutes prior to a flight's scheduled departure time).[73]

• [68] With 7 days' notice it is likely that the effect of any action would be significantly reduced or even have no effect as Virgin will have had time to have made arrangements to deal with rosters and take other contingency measures to remove or undermine the effectiveness of protected industrial action. The resulting effect would be that any industrial action would likely be diminished, and bargaining power will be reduced. This will mean that the employees subject to the application will need to take further and more protected industrial action which will cause economic harm to TWU members who are already struggling with increased costs of living and who have not had a pay rise since July 2022. This increase was only 2%, and the last pay rise before 2022 was in 2019.[74]

• [69] The TWU submits that exceptional circumstances will not exist merely because adverse consequences will (or may) flow from the industrial action to the employer or third parties. The fact that protected industrial action will impact third parties may require an employer to take ameliorative steps is not 'out of the ordinary course', 'rare' or 'uncommon'.

• [70] The issue of whether any exceptional circumstances justify an extension of the statutory notice period involves the exercise of an evaluative judgment in relation to the proposed industrial action that takes into account relevant matters including:

(i) the nature, extent of and duration of the proposed industrial action;

(ii) the range of mitigatory strategies the employer may adopt;

(iii) the direct effect of the action on the employer or third parties;

(iv) the diminution of employee bargaining power arising from an extension of the statutory period;

(v) the capacity of the employer to take employer response action.

• [71] The whole context in which the proposed industrial action is to occur must be considered in determining whether an extension of the default notification period is justified. The adverse impact on employee bargaining power is an important matter in the present case.

• [72] The notion of justification under s.443(5) also calls for consideration of the purpose of a notice under s.414(2). The purpose of a notice under s.414 is to ensure that an employer who is to be subject to protected action and whose legal rights will be diminished is able to take appropriate defensive action. Appropriate defensive action does not, however, mean that an employer ought to be afforded sufficient time to ensure that it is not impacted at all by the industrial action.

• [73] An employer must, by probative and persuasive evidence, establish 'exceptional circumstances' which justify the unusual step of extending the notice period which will necessarily diminish the effectiveness of employees' exercise of their right to take protected industrial action.

• [74] The evidence of Mr Ghea, on which Virgin relies, includes a large number of inadmissible, un-testable and unfairly prejudicial conclusionary assertions. The bases for the opinions expressed by Mr Ghea about the length of time required to take mitigative measures are not set out.

• [75] The Commission must assess each of the species of protected industrial action which Virgin seeks an extension of the notice period for to assess whether there are exceptional circumstances justifying an extension in relation to each species of action. Virgin's evidence does not establish a proper basis for the Commission to be satisfied that there are exceptional circumstances justifying an extension of the notice periods for the species of action the subject of questions 1-2, 4-5, 7 and 10.

• [76] Protected industrial action necessarily impacts the customers of an employer. Virgin's case is premised, in large part, on potential adverse consequences to its customers. That is neither unusual nor exceptional. Virgin does not provide an essential service, nor is commercial aviation akin to the provision of educational, health or corrective services. Virgin has the ready capacity to take mitigative and defensive measures. Any extension of the notice period will significantly diminish the bargaining power of employees and result in further and more protracted industrial action in order for employees to bring legitimate and lawful pressure to bear on Virgin in relation to negotiations. Virgin employees have not had a pay rise of any significance for some time and are suffering with ongoing cost of living pressures. It is not appropriate, in the circumstances, for any increase in the notification period. Any increase should, in any event, not be for the periods sought by Virgin and should be no more than 1-2 working days.

• [77] Virgin submitted that while the legislation manifests a policy that time will not be extended beyond three days, it does not require that employers be deprived of the ability to take defensive action. This is the entire purpose of the notice provisions, and one such form of defensive action is to communicate with customers to reduce the consequences for them of the action.

• [78] While the Parliament may have made a judgment that ordinarily three working days is sufficient, where that is insufficient to take defensive action to avoid harms over and above the usual consequences of industrial action, it is proper that the Commission provide for longer notice.

• [79] Given it is not possible to determine, at the time of making the protected action ballot order, the actual form that any industrial action will ultimately take, it is appropriate for the notification time to be considered and fixed by reference to the most disruptive potential formulation of industrial action that would be the subject of the ballot.

• [80] There is a tendency for exceptional circumstances to be found where interests beyond those of the immediate parties are impacted by the taking of industrial action. The impact of industrial action on third parties, while not determinative, and only one of the factors to be taken into account, is a persuasive consideration in the determination of whether the FWC should extend the notification period.

• [81] In seeking an order under s. 443(5), Virgin does not seek to place itself in a position by which it will avoid the cost and inconvenience to it of protected industrial action. The defensive action available to Virgin consists of re-arranging flight schedules, liaising with third parties regarding cancelled services, or alternatively subcontracting work to competitors, even supposing that a subcontract can be arranged at all.

• [82] To the extent that the provision of additional notice will give Virgin the ability to re-arrange flight schedules or subcontract work, the benefits would substantially accrue to third parties.

• [83] The circumstances of this case are 'out of the ordinary course' and are indeed 'unusual', 'special' or 'uncommon'. The exceptional circumstances arise here because of the nature of the services provided by Virgin as the operator of regional and remote aircraft services.

• [84] Seven working days' notice of any industrial action will enable Virgin to take steps to ameliorate (but will likely not entirely avoid) the impacts set out in Mr Ghea's statement. Amongst other things, a seven working day notice period maximises the opportunity for the affected third parties to make alternate travel arrangements.

• [85] Extra time may be granted where it is in the public interest. The public interest here lies in allowing third parties who would otherwise be impacted by the protected industrial action sufficient time to, make alternative arrangements.

• [86] To the extent the interests of the employer and third parties is weighed against a possible diminution of employee bargaining power, the balance here lies comfortably with the grant of an extension. Here, industrial action will have an impact on Virgin regardless. There is a significant managerial and operational burden that will be felt by Virgin as a result of the industrial action, together with reputational risk.

• [87] Accordingly, in weighing the circumstances of the employer against those of the employees, this is not a case where the defensive action would defeat or diminish the impact of industrial action on Virgin. To the contrary, the impact remains, but longer notice provides the ability to mitigate the impact felt by customers and other employees of Virgin.

414 Notice requirements for industrial action

(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.

(i) if subparagraph (ii) of this paragraph does not apply - 3 working days; or

(ii) if the proposed enterprise agreement is a multi‑enterprise agreement - 120 hours; or

(b) if a protected action ballot order for the employee claim action specifies a longer period of notice for the purposes of this paragraph - that period of notice.

Note: For a proposed cooperative workplace agreement, see subsection 413(2).

Notice of employee claim action not to be given until ballot results declared

(3) A notice under subsection (1) must not be given until after the results of the protected action ballot for the employee claim action have been declared.

(4) Before a person engages in employee response 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.

(5) Before an employer engages in employer response action for a proposed enterprise agreement, the employer must:

(a) give written notice of the action to each bargaining representative of an employee who will be covered by the agreement; and

(b) take all reasonable steps to notify the employees who will be covered by the agreement of the action.

(6) A notice given under this section must specify the nature of the action and the day on which it will start.

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;

(e) the person or entity that the FWC decides, under subsection 444(1A), is to be the protected action ballot agent for the protected action ballot;

(f) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.

(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.

(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 or 120 hours (whichever is applicable), 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.

• [90] Sections 414(2) and 443(5) work in conjunction with each other in relation to the requirement that before a person engages in employee claim action for a proposed enterprise agreement, an employee bargaining representative must give written notice of the action to the employer. The required notice period is three working days (if the proposed enterprise agreement is not a multi‑enterprise agreement). The required notice period may be extended up to a maximum period of seven working days provided the Commission 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 being longer than three working days.

• [91] The principles to be applied in relation to an extension of the notice period for engagement in employee claim action are set out in the Full Bench's decision in National Tertiary Education Industry Union v Charles Darwin University.[75]

• [92] In relation to the meaning of the expression 'exceptional circumstances', the Full Bench referred to a decision of the Australian Industrial Relations Commission[76] 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.[77]

• [93] The Full Bench then sets out a three-step decision-making process to determine whether there should be an extension to the notice period pursuant to s 443(5) of the FW Act as follows:

(a) the Commission identify or make findings about the particular facts or circumstances in relation to the proposed industrial action which are said to inform the evaluative judgement that such factors or circumstances are 'exceptional circumstances'.

(b) the Commission consider whether the circumstances are circumstances justifying a longer notice period. The identified exceptional circumstances must show or prove that it is reasonable or necessary in the circumstances to warrant a longer period of written notice.

• (c) if the Commission is satisfied there are exceptional circumstances justifying an extension, they must consider whether to exercise the discretion and, the additional notice that should be given in the circumstances.[78]

• [94] Question 1 involves Airside Employees and Stores Employees stopping work on unlimited occasions for a period of 1 hour. Question 2 involves Airside Employees and Stores Employees stopping work on unlimited occasions for a period of 24 hours. The reference to 'unlimited' in each question has the effect of authorising consecutive stoppages. Therefore Question 1 could authorise successive one-hour stoppages and Question 2 could authorise successive 24-hour stoppages.

• [95] Virgin has submitted that the Questions 1, 2, 4 and 5 have the same operational effect in that they would all result in a stoppage of work. Question 4 involves an indefinite or periodic ban on the driving and/or operation of airside vehicles (including tugs and pushback tractors). Virgin claims that in practical terms, an indefinite or periodic ban will lead to flights being delayed or cancelled as pushback tractors are required to depart an aircraft. Question 5 involves an unlimited number of periodic or indefinite bans on the performance of receipt, dispatch and pushback duties for plane arrivals and departures from bays. According to Virgin, this will have consequences for both arrivals and departures and will mean that the same aircraft scheduled to fly multiple sectors in any one day to and from States and Territories will be precluded from both arriving and departing airports.
• [96] Although Questions 4 and 5 involve bans rather than stoppages, Virgin claims that the work banned in questions 4 will prevent aircraft from operating and the work banned in Question 5 will prevent aircraft from arriving and departing with the effect that work will stop if either of these bans are applied. As there appears to be no disagreement from the TWU in relation to this assertion, I am proceeding on the basis that Questions 1, 2, 4 and 5 each describe different types of industrial action but are likely to result in the same operational outcome, being a stoppage of work which may vary in its impact depending upon the timing and duration of the industrial action. I also find that the duration of the industrial action is undefined and potentially indefinite until it ceases as a result of an Agreement being reached or by order of the Commission. However, the evidence of Mr Scheffler that industrial action will cause economic harm to TWU members already struggling with increased costs of living[79] indicates to me that indefinite industrial action is unlikely.

• [97] The requirement for exceptional circumstances calls for the particular facts and circumstances of a case to be considered and an evaluative judgement to be made.[80] In considering whether there are exceptional circumstances with respect to Questions 1, 2, 4 and 5, I have had regard to all of the circumstances of the case. There is no dispute between the parties that the classes of employees covered by the application have not previously taken protected industrial action. The action may be taken by employees in numerous ground handling ports with the result that it may impact multiple flights in multiple locations around Australia including regional and remote areas. The action, if taken, will occur during peak season which may include the Christmas/festive and school holiday season. If stoppages occur, thousands of passengers are likely to be affected by delayed or rescheduled flights as well as flight attendants and pilots employed by Virgin. In my view none of these factors by themselves are of particular significance. The fact that the proposed protected industrial action may adversely impact third parties is not 'out of the ordinary course', 'special', 'rare' or 'uncommon' such as to constitute the requisite exceptional circumstances.[81] However I believe that when viewed together this combination of factors produces a situation which I regard as exceptional.

• [98] The proposed action in Question 7 is an unlimited number of periodic or indefinite bans on the loading, unloading, driving and positioning of freight. Mr Ghea's evidence was directed to concerns that this ban would result in a customer's bag being left at the airport, and that this could be a safety and security risk if the bag contained high risk items such as firearms. Mr Ghea claimed that the increased notice period was required to communicate with customers. Mr Ghea did not provide any evidence as to how often customers have high risk freight and the proportion of customers who travel with checked in luggage. Unlike a stoppage of work, this ban would not necessarily prevent a customer from travelling on their scheduled flight. Further, this will not affect customers who travel with carry-on luggage only. I am not satisfied on the evidence before me that this form of proposed industrial action gives rise to any circumstances which either individually or collectively are out of the ordinary course, or unusual, or special, or uncommon. As such, I find that exceptional circumstances do not apply to question 7 and that there is no basis to extend the notice period with respect to this question.

• [99] The proposed action in Question 10 is an unlimited number of periodic or indefinite bans on performance of loading, unloading, scanning and processing of bags and items from connecting flights. Mr Ghea claims that an increased notice period is required to plan for this and communicate with customers otherwise Virgin risks being in breach of its legal requirements to connect a customer to their bag. Unlike a stoppage of work, this ban will not necessarily prevent a customer from travelling on their scheduled flight. Further, this ban will not affect customers who travel with carry-on luggage only and does not affect customers who do not have a connecting flight. I am not satisfied on the evidence before me that this form of proposed industrial action gives rise to any circumstances which either individually or collectively are out of the ordinary course, or unusual, or special, or uncommon. As such, I find that exceptional circumstances do not apply to question 10 and that there is no basis to extend the notice period with respect to this question.

Do the circumstances justify a longer notice period with respect to Questions 1, 2, 4 and 5?

• [100] In my examination about whether exceptional circumstances exist, I have made findings about the nature, extent of and duration of each of the proposed form of industrial action in each of Ballot Questions 1, 2, 4 and 5.

• [101] There is no dispute between the parties that Virgin is Australia's second largest airline, employs approximately 7,000 employees and each week operates over 2,500 flight services, provides services to 55 destinations, and on average has over 350,000 customers. There is also no dispute that the employees subject to the current application are jointly responsible for ensuring the smooth arrival and departure of aircraft, along with safe and compliant handling and storage of aircraft materials and tooling. On this basis, I accept Mr Ghea's evidence that any stoppage of work of Airside Employees or Stores Employees will significantly affect Virgin's network. This is because the cessation of work by employees responsible for the smooth arrival and departure of aircraft will inevitably result in flights that are scheduled during the period that no duties are being carried out being delayed or rescheduled.

• [102] I accept that these disruptions will impact services, employees and customers. In relation to the impact on customers, I accept Mr Ghea's evidence that rebooking flights, refunding flights, sourcing emergency accommodation, compensation for flight delays, and referrals to alternative airlines to complete travel arrangements may be involved and that these may be more complex for customers with disabilities, unaccompanied minors, elderly customers and during peak season. I also accept that disruption to travel can result in important plans being disturbed including attending work, appointments social engagements and holidays and that customers may incur additional costs as a result of these disruptions. I note however, that such disruptions may arise and have impacts upon customers for reasons unrelated to industrial action. In this regard, I accept the evidence of Mr Scheffler that it is not uncommon for flights to be delayed due to weather or engineering issues.

• [103] In relation to the impact on employees, I accept that Virgin will need to coordinate rosters and schedules to accommodate delays and cancellations caused by stoppages and bans and that industrial action may affect pilots and cabin crew who can be required to be their home base for up to 5 consecutive days. However, there is insufficient evidence before me to establish Mr Ghea's assertions that the proposed industrial action could result in pilots and cabin crew being away from their home base for up to 6 or more days, staff potentially becoming stranded in a location without suitable accommodation facilities, parental and carer responsibilities being impacted and that flexible working arrangements being breached. Mr Ghea is the Head of Ramp Services. There is nothing in Mr Ghea's evidence which indicates that he has direct knowledge of the degree to which pilots and cabin crew have parental and carer responsibilities and flexible working arrangements or that he obtained this information from a colleague who works closely with pilots and cabin crew.

• [104] These are important considerations, and I would expect detailed evidence about these issues from Virgin if it had genuine concerns. Mr Ghea does not explain how the proposed industrial action could result in pilots and cabin crew being away from their home base for up to 6 or more days. In response to Mr Ghea's assertions that pilots and cabin crew could become stranded in a location without suitable accommodation facilities, Mr Scheffler's evidence was that at major ports, Virgin has crew approved accommodation that ensure that crew are in a safe location. While Mr Ghea does not dispute this, he claims that crew accommodation is not always readily available, that flight and cabin crew can also be displaced at regional ports where access to crew accommodation is in short demand and that Virgin has obligations to provide accommodation for disrupted guests further reducing the availability of suitable accommodation at short notice. Mr Ghea does not make reference to the facts he relies upon in making these claims so I am unable to accept as reliable Mr Ghea's evidence that pilots and cabin crew could become stranded in a location without suitable accommodation facilities as a result of the industrial action.

• [105] In relation to the impact upon services, I accept that if the stoppage of work results in the delay or rescheduling of a flight, this will necessitate a comprehensive set of steps including an alteration to the timetable, the building of a new schedule, employees being notified of changes to their roster and of arrangements if they are away from their home base, managing customer disruption including organising alternative flights and accommodation and arrangements being made to cover roles and continue work where possible.

• [106] I note that Mr Ghea gave evidence about the steps in required in relation to logistical arrangements for the aircraft, including moving the aircraft from the gate and servicing it during a one-hour stoppage. I have difficulty understanding why aircraft would need to be moved from the gate and serviced during a one-hour stoppage given that Virgin would have received notice of the stoppage, and given Mr Ghea's own evidence that Virgin is likely to reschedule flights if notified of the stoppage.

• [107] In relation to the impact on cargo services, I note Mr Ghea's evidence that Cargo trades with around 170 customers per week and that each customer would be contacted individually to ascertain whether the freight could be booked on another day or at another time. Virgin's specific concerns in relation to cargo are with respect to the transport of perishable items, live animals, human remains, blood and tissue and nuclear chemicals.

• [108] I note that there is no evidence before me from Virgin as to whether the transport of human remains, blood and live organs are regular occurrences. However, Mr Scheffler says that blood and organs are specially loaded, generally as the last items and prioritised when unloading procedures commence. This suggests that Virgin may prioritise the transport of these items over other items. The consequences of these items not being transported in a timely manner are potentially very serious. Mr Scheffler's evidence is that vital organs such as hearts, lungs and kidneys are generally transported through specialist charter flights. It may therefore be necessary for charter flights to be used to transport such items if they are unable to be delivered in a timely way due to industrial action.

• [109] Both Mr Ghea and Mr Scheffler refer in their evidence to how live animals are transported on aircraft and agree that this is a common occurrence. Given that Virgin would have notice of any stoppage of work, it seems to me unlikely that live animals would be loaded on to an aircraft during a time that a stoppage is scheduled. It is more likely, based on the evidence of Mr Ghea, that flights scheduled during stoppages would be postponed or rescheduled. It is therefore difficult for me to understand the basis upon which Mr Ghea claims that industrial action would result in animals remaining in their cages for extended periods or that live animals may not be able to be easily located on an aircraft and loaded or unloaded as a matter of priority.

• [110] In relation to perishable items, I accept Mr Scheffler's evidence that it is common for these items to be offloaded from aircraft due to weight or load size restrictions resulting in them being returned to the freight shed and placed in cool storage. I also accept Mr Ghea's evidence that there are regional ports which have limited storage capacity which would be unable to store cargo in volumes generated by a 24-hour stoppage in addition and that perishable items do not have an unlimited shelf life. It is therefore possible that the industrial action could result in spoilage of perishable items if these items were in transit at the time that the industrial action was notified and there were delays in transporting the items to their final destination.

• [111] In various part of Mr Ghea's evidence, he provided estimations of how long it would take Virgin to deal with aspects of the impacts of the protected industrial action such as rescheduling flights, changing rosters and communicating with customers. Although I appreciate that Mr Ghea was doing his best to assist the Commission to assess the impact of the protected industrial action, the basis upon which Mr Ghea was providing these estimations was often unclear. For example, there was no explanation in relation to Mr Ghea's assertions that when there is a one hour stoppage, this is in effect an 5 hour stoppage, sometimes longer and that where there is a 24 hour stoppage, this is in effect a week long stoppage.[82] Although these assertions were accompanied by a detailed explanation about the steps required to address the industrial action, this explanation did not provide the basis for the assertions by reference to how the time taken in relation to each discreet step produced the impact claimed by Mr Ghea.[83]

• [112] The most detailed part of Mr Ghea's evidence in relation to the length of time it would take Virgin to deal with aspects of the impacts of the protected industrial action was when responding to Mr Schleffer's statement and explaining how many hours he believed, based on his own experience, each step would take when Virgin responded to a 24 hour stoppage.[84] However given the uncontested evidence that Virgin has never before dealt with a 24 hour stoppage it is unclear how Mr Ghea could provide this evidence as he has never experienced such a stoppage. Further I would have been assisted in assessing the impact of the industrial action by probative evidence from Virgin which clearly articulated what defensive action could be taken during the usual three working day notice period and what could not be but none was forthcoming. For example, there was no evidence about the proportion of affected customers who could reasonably be contacted during the usual three working day notice period which would have assisted in my consideration of this matter.

• [113] Each of my findings with respect to the nature and impact of industrial action applies to each of the Ballot Questions 1, 2, 4 and 5.

• [114] Records produced by Virgin to the Commission in response to a Notice to Produce sought by the TWU, and admitted into evidence, show that Virgin has been considering mitigation strategies in relation to potential industrial action for some time. As early as December 2022, Virgin was considering having a pool of Support Office Team attending Bag Room/Ramp Training who could be called upon during peak periods to help out.[85] On 11 September 2023, the Virgin 'EA SteerCo' had a meeting. The record of this meeting relevantly provided:

PIA [protected industrial action] contingency planning process already underway, but reality is mitigation options are limited. The main mitigation is that TWU may not have more than 50% of workforce as membership.

We have developed a comprehensive contingency plan and established a Business Continuity Team to support PIA planning and response.[86]

• [115] The Operational Contingency Plan which is Appendix 2 to the record of the 11 September 2023 meeting provides that the impact of unlimited periodic stoppages of 1-4 hours in duration is 'delays and possible flight cancellations. Majority of recovery expected within same day' and that the mitigation strategy is:

• Limited resources due to engineers engaging in PIA
• Engage outside hire (limited to bag room)
• Identify team members who intend on attending work
• Reorganise teams using available resources (labour hire, trainers engineers and Ramp Duty Leaders)
• Request overtime coverage from employees not participating in PIA
• Consider incentive payments for team members to attend shift

• • Seek priority plan from IOC and aircraft dispatch[87]
• [116] The Operational Contingency Plan provides that the impact of unlimited periodic stoppages of 5-24 hours in duration is 'multiple day network recovery' and that the mitigation strategy is the same as that provided for unlimited periodic stoppages of 1-4 hours.[88]

• [117] On 11 October 2023, the Virgin 'EA SteerCo' had a further meeting. The record of this meeting has the same Operational Contingency Plan as the September meeting.[89]

• [118] On 11 October 2023, Mr Josh Lau, Ramp Standards Specialist sent Mr Ghea a document called 'Support Office Ramp Contingency e.g. Industrial Action'.[90]This document outlined the minimum requirements for Support Office Team Members (who have had previous Bag Room/Ramp experience) to assist in Bag Room/Ramp Operations if industrial action takes place resulting in the majority of teams not attending their shifts. It also indicated that the first option would be ascertaining whether there are any Ground Handling Authorities that could assist.

• [119] I note that notwithstanding Mr Lau's proposal that Ground Handling Authorities may be able to assist, Mr Ghea's evidence is that a contingent workforce not practicable due to the size of the operation, the fact that a contingent workforce available only at the lower skill-set level, and that specific licences and training would be required. I accept that due to these factors, Virgin will not be able to wholly supplement its workforce through contracting a Ground Handling Authority. However, I find that some of the work, which does not require lengthy periods of training and special licences is capable of being performed by a Ground Handling Authority and appropriately trained Support Office Team members.

• [120] I also note the evidence of both parties that delays and disruptions in the network such as weather or engineering issues are a common occurrence in Virgin's operations. This gives Virgin a particular advantage, compared to other employers whose businesses do not experience such disruptions, in relation to managing the effects of protected industrial action. This is particularly the case as a minimum of three days' notice must be provided in relation to the industrial action whereas it is possible that Virgin and its customers may have no notice at all of a disruption caused by adverse weather or a mechanical issue.

• [121] Virgin was at pains to distinguish the disruption caused by industrial action, which may affect multiple flights and ports from other disruptions which might affect a single flight or port. It may be the case that the resources required to manage disruptions caused by industrial action greatly exceed the resources required to manage other disruptions, however the facts established by the evidence are that Virgin has processes in place to communicate with customers, reschedule flights and change staff rosters in relation to disruptions which ordinarily occur in the course of its business. Although I accept that Virgin will not be able to completely ameliorate the effects of the industrial action, these strategies as well as those outlined in the Operational Contingency Plan will to some extent reduce its impact.
• [122] Each of my findings with respect to the mitigation strategies applies to each of the Ballot Questions 1, 2, 4 and 5.

The diminution of employee bargaining power arising from an extension

• [123] Mr Scheffler's evidence is that a seven working day notice period before the commencement of employee claim action will have the effect of giving Virgin the ability to amend rosters to mitigate against the effect of any protected industrial action undertaken. Virgin will therefore have the capacity to re-organise the work and rosters either internally with employees who are not TWU members or by engaging external contractors. As such, the effectiveness of any protected industrial action is likely be diminished, and bargaining power will be reduced. This will result in employees taking further and more protected industrial action which will cause economic harm to TWU members who are already struggling with increased costs of living and whose pay has increased by only 2% in the last three years.

• [124] Mr Ghea's evidence was that a seven working day notice period will not mean that Virgin Australia can avoid the impacts of protected industrial action. Any stoppage will have an impact on Virgin, whether it is one hour or 24 hours, a combination of stoppages or a combination of protected industrial action that, effectively, stops operations (such as bans on the operation of airside vehicles). Virgin Australia cannot mitigate the impact of withdrawal of services. The additional time requested allows Virgin Australia to provide certainty for at risk guests and business operators.

• [125] I accept that industrial action involving a stoppage of work is likely to have an impact on Virgin regardless of the length of the notice period. However, I find Mr Scheffler's evidence persuasive that a longer period of notice will give Virgin the opportunity to reorganise rosters which could reduce the impact of the stoppage and therefore the effectiveness of the action in supporting the claims of TWU members. As noted above, Virgin is required to manage disruptions as part of its usual operations. In the case of protected industrial action, Virgin will receive 3 working days' notice which is likely to be more notice than it would usually receive with respect to a weather or engineering event. In my view, requiring the TWU to provide more than 3 days' notice to an employer with extensive experience in managing disruptions will reduce the effectiveness of the action and therefore the bargaining power of TWU members.

• [126] Each of my findings with respect to diminution of employee bargaining power arising from an extension applies to each of the Ballot Questions 1, 2, 4 and 5.

The capacity of the employer to take employer response action

• [127] There is no evidence before me in relation to the capacity of the employer to take employer response action, so I make no findings in relation to this matter.

• [128] I am required to consider and weigh all of the relevant factors in determining whether exceptional circumstances justify an extension of the written notice period.

• [129] I have found that Question 1 involves Airside Employees and Stores Employees stopping work on unlimited occasions for a period of 1 hour and that Question 2 involves Airside Employees and Stores Employees stopping work on unlimited occasions for a period of 24 hours. Question 1 could authorise successive one-hour stoppages and Question 2 could authorise successive 24 hour stoppages. The work banned in Question 4 will prevent aircraft from operating and the work banned in Question 5 will prevent aircraft from arriving and departing. Questions 1, 2, 4 and 5 each describe different types of industrial action are likely to result in the same operational outcome, which is a stoppage of work, that may vary in its impact depending upon the timing and duration of the industrial action. I have accepted that these stoppages will cause disruptions which will impact services, employees and customers. I have found that that disruptions regularly occur during Virgin's operations, albeit on a smaller scale than that potentially caused by the industrial action in Questions 1, 2, 4 and 5 and that Virgin has processes in place to communicate with customers, reschedule flights and change staff rosters in relation to disruptions which ordinarily occur in the course of its business. Although I accepted that Virgin will not be able to completely ameliorate the effects of the industrial action, these strategies as well as those outlined in the Operational Contingency Plan will to some extent reduce its impact. I have found that requiring the TWU to provide more than 3 working days' notice to an employer with extensive experience in managing disruptions will reduce the effectiveness of the action and therefore the bargaining power of TWU members. I have carefully weighed all of these matters and have determined that diminution of employee bargaining power arising from an extension outweighs any potential disruption to customers, services and other employees which cannot be managed during the three working day notice period with respect to each of Questions 1, 2, 4 and 5. This is particularly so having regard to the lack of probative evidence from Virgin before me which clearly articulated what defensive action could be taken during the usual three working day notice period and what could not be.

• [130] I am therefore not 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.

• [131] On the basis of the material before me, including the declaration of Mr Edward Nell, National Industrial Officer, setting out the steps taken by the TWU in bargaining with Virgin and that it has been, and is, genuinely trying to reach agreement with Virgin, 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.

• [132] The ballot is to be conducted by the RMK Investments Pty Ltd as Trustee For Kidd Family Trust T/A Australian Election Company (RMK). RMK has been approved as an eligible protected action ballot agent under s 468A of the Act[91] and consequently is authorised to conduct the ballot.

• [133] 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 4 December 2023.[92] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

• [134] An Order has been separately issued in PR767925.

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

[75] [2018] FWCFB 4011

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

[78] [2018] FWCFB 4011, [23]-[25].

[80] Construction, Forestry, Maritime, Mining and Energy Union v DP World Brisbane Pty Ltd [2019] FWCFB 1150, [20]

[91] RMK Investments Pty Ltd as Trustee For Kidd Family Trust T/A Australian Election Company [2023] FWC 1532.

[92] This is, in effect, 22 working days from the date of effect of the Order, as sought in the application.

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