DECISION

Fair Work Act 2009
s.437—Protected action

Community and Public Sector Union
v
G4S Custodial Services Pty Ltd
(B2021/94)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 22 FEBRUARY 2021

Proposed protected action ballot of employees of G4S Custodial Services Pty Ltd.

[1] This is an application by the Community and Public Sector Union (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of G4S Custodial Services Pty Ltd (Respondent).

[2] On 22 February 2021, my associate was advised the Respondent did not object to the application.

[3] In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

[4] On the basis of the material before me, including the declaration of Clay Robert O’Brien of the Applicant setting out the steps taken by it in bargaining with the Respondent and that it has been, and is, genuinely trying to reach agreement with the Respondent, I am satisfied that there is a notification time in relation to the proposed agreement and that the requirements in s.443(1) of the Act have been met.

[5] The Applicant and Respondent agree that the period of written notice referred to in s.414(2)(a) of the Act should be longer than three working days for many of the proposed forms of industrial action. On 22 February 2021, the Respondent provided material directed to the circumstances that are said to justify a longer period. I am satisfied the material discloses exceptional circumstances and that those circumstances justify a longer notice period. There are no grounds of which I am aware which would cause me not to exercise my discretion given my finding. The parties have agreed on an extended notice period of five working days for the industrial action proposed in questions 1, 2, 3, 4, 5, 12, 14, 16, 19, 26, 29, 30 and 31 of the Order. Based on this, I am satisfied and exercise my discretion under s.443(5) to extend the notice period accordingly.

[6] An order has been separately issued in PR727201.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission (FWC) was asked to decide whether a proposed protected action ballot by employees of G4S Custodial Services Pty Ltd was lawful. The Union had sought approval for the ballot to be conducted to gauge the employees' support for protected action in the form of a strike. G4S Custodial Services Pty Ltd opposed the ballot, arguing that it was not bona fide and would cause undue hardship to the company's operations.

The legal issue before the Commission was whether the Union had established that the proposed protected action ballot was bona fide, as required by section 395 of the Fair Work Act 2009. The Union argued that the ballot was a genuine exercise of the employees' rights to take protected action and was necessary to ensure that the employees' voices were heard. G4S Custodial Services Pty Ltd contended that the ballot was not necessary and would cause significant disruption to their operations, potentially affecting the safety and security of the custodial facilities.

The FWC found that the Union had established that the proposed protected action ballot was bona fide. The Commission accepted that the employees had a genuine interest in taking protected action to address the issues they had raised with their employer. The FWC also found that the potential disruption to G4S Custodial Services Pty Ltd's operations did not outweigh the employees' rights to take protected action. The Commission ordered that the Union be granted approval to conduct the proposed protected action ballot.

The Commission's decision highlights the importance of ensuring that employees' rights to take protected action are protected, while also recognising the need to balance those rights with the potential impact on employers' operations. The FWC's finding that the proposed ballot was bona fide reinforces the importance of allowing employees to exercise their rights to take protected action in a meaningful way.

Community and Public Sector Union v G4S Custodial Services Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established