CPSU, the Community and Public Sector Union v G4S
[2011] FWA 2115
•6 APRIL 2011
[2011] FWA 2115 |
|
DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
CPSU, the Community and Public Sector Union
v
G4S
(B2011/2710)
COMMISSIONER ROE | MELBOURNE, 6 APRIL 2011 |
Proposed protected action ballot by employees of G4S at Port Phillip Prison.
[1] This is an application for a protected action ballot by members of the Community and Public Sector Union (CPSU) employed by G4S at Port Phillip Prison. The application is made pursuant to s.437 of the Fair Work Act 2009 (the Act). The Application was made in the afternoon of Friday 1 April 2011 and was determined in the morning of Tuesday 5 April 2011.
[2] The matter was heard on 5 April 2011. Mr Robert Laird appeared for the Applicant and Mr Broadbent, a lawyer, represented G4S. The CPSU opposed leave for Mr Broadbent to appear but I granted leave in order to ensure that the matter was dealt with expeditiously in accordance with the object of this section of the Act.
[3] The applicant seeks to ballot employees of G4S in certain specified classifications who would be covered by the proposed enterprise agreement and who are members of the CPSU.
[4] In considering this matter I must apply s.443 of the Act which provides:
“443 When FWA must make a protected action ballot order
(1) FWA 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) FWA 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) FWA 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:
(a) the name of each applicant for the order;
(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.
(4) If FWA decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:
(a) the person that FWA decides, under subsection 444(1), is to be the protected action ballot agent; and
(b) the person (if any) that FWA decides, under subsection 444(3), is to be the independent advisor for the ballot.
(5) If FWA 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, 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.”
[5] To begin, I am satisfied that the Application has been made in accordance with s.437 of the Act. I am satisfied that the Application was served upon the Respondent and the AEC as the ballot agent as required by Section 440 of the Act. I agreed to amend the draft order which was provided with the Application in two ways; firstly to extend the time for the ballot and secondly to remove ambiguity in one of the ballot questions. I am satisfied that the Application was not made earlier than 30 days prior to the nominal expiry date of the current agreement, as required by Section 438 of the Act.
[6] The next matter to which attention must be given is whether or not the Applicant has been, and is, genuinely trying to reach an agreement with the employer on behalf of the employees who are to be balloted. I am satisfied, after hearing submissions from Mr Laird, on behalf of the CPSU, that this is the case. G4S did not challenge these submissions.
[7] I am satisfied that the questions adequately specify the nature of the proposed industrial action and meet the requirements of Section 443(3)(d). The scope of the Agreement sought by the CPSU adequately describes the group of employees to be balloted as required by Section 443(3)(b). The AEC will be the ballot agent.
[8] Having decided that s.443(1)(a) and (b) have been complied with, I must make a protected action ballot order, as sought by the CPSU. At the conclusion of the proceedings conducted in Melbourne on 5 April 2011 I advised the parties that I would issue the Order as amended on that day. I have published that Order separately.
[9] G4S made application for the inclusion in the Order of a requirement pursuant to Section 443(5) that the period of written notice prior to taking the action specified in the ballot questions should be 7 days rather than the standard requirement for 3 days notice as specified in Section 414(1). The CPSU opposed that application. At the conclusion of proceedings I indicated with the consent of the parties that I would regard this application as an application to vary the Order sought by the CPSU which I subsequently issued on 5 April 2011. I advised the parties that I would publish this decision and if necessary a variation to deal with the application by G4S separately.
[10] Evidence was given by Mr Nicholas Selisky, Operations Manager of the Port Phillip Prison. I also carefully considered the submissions made by G4S and by the CPSU.
[11] G4S referred me to the decision of Vice President Lawler in CEPU v Australian Postal Corporation. 1 The decision of Vice President Lawler was followed in the other two decisions to which G4S referred, namely a decision of SDP Hamberger in TWU v Action2 and the decision of Commissioner Bissett in TWU v Scotts Agencies Pty Ltd T/A Scott Petroleum.3
[12] Vice President Lawler summarised the meaning of “exceptional circumstances” in the context of a similar provision in earlier legislation.
“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”. 4
[13] His Honour also found that:
“... it is important to note that when considering whether to make an order pursuant to s.463(5) the Commission is not simply concerned with determining whether there are exceptional circumstances. There must be exceptional circumstances “justifying” the specification of a longer notice period. The notion of justification is critical and calls for a consideration of the purpose of the notice required by s.441”. 5
[14] Vice President Lawler then went on to explain the nature of the test.
“Essentially, what is required in determining whether exceptional circumstances justify an extension of the required notices period is a weighing of the interests of the employer and third parties in the employer having a greater opportunity to take appropriate defensive action as against the diminution in the effectiveness of the employees’ bargaining power that results from such an extension. The fact that the legislature has seen fit to condition the ordering of an extension of the required notice period on the presence of exceptional circumstances justifying it, as distinct from merely conferring a simple discretion to extend the required notice period, indicates that ordinarily there should be no extension”. 6
[15] I adopt the approach taken by Vice President Lawler.
[16] Mr Selisky gave evidence that Port Phillip Prison is the largest maximum security prison in Victoria and that it also operates primary health care for the prison service as a whole in Victoria. Mr Selisky gave evidence of the complex and critical nature of various operations conducted at Port Phillip Prison and of the extent to which operations such as prisoner transport were required to be scheduled in advance and monitored.
[17] I do not accept that all proposed industrial action affecting an essential service of a maximum security prison can be regarded as an exceptional circumstance. The particular circumstances of the prison referred to by Mr Selisky do not in themselves constitute an exceptional circumstance. However, it may be that a combination of the nature of the proposed action and the particular circumstances of the prison could constitute exceptional circumstances. An example of this might be where the proposed industrial action could lead to a seriously ill prisoner being unable to access treatment at the only prison integrated medical facility in Victoria. If I established that a particular proposed action created an exceptional circumstance then I would have to consider whether or not those exceptional circumstances justify a longer notice period.
[18] A considerable part of the evidence and the submissions of G4S went to the impact that the proposed industrial action might have on the delivery of an essential service and the possible impact on the safety of prisoners, the public and other employees. Depending upon the nature and duration of the industrial action this might be relevant in proceedings under different sections of the legislation concerning suspension or termination of industrial action. I make no finding in this respect. However, the evidence and submissions in this respect are not directly relevant to the question of whether or not an additional notice period for the industrial action is justified.
[19] There was no evidence presented that the industrial action specified in Questions 4 to 7 of the Ballot order created an exceptional circumstance that would justify a longer notice period. The action in those questions relates to bans on the review and assessment process, checks for excess equipment, new rosters or trials of rosters, and to attendance for work no earlier than two minutes prior to rostered time. It is obvious that the implementation of such bans would lead to inconvenience to G4S but I am not satisfied that they create an exceptional circumstance or even if they did that a longer notice period is justified.
[20] The industrial action in Questions 2 and 3 relate to bans on informal counts of prisoners and on recording arrival time of prison workers at various locations. There was evidence that records concerning the locations of prisoners was important for G4S in meeting its contractual obligations, evidence in various proceedings and the maintenance of security. This evidence might also support a conclusion that G4S may be required to make other arrangements to gather information about prisoner movements in the event of the industrial action taking place. There was no evidence about why adjustments could not be made in three days but could be made in a period of up to seven days. There was no evidence that convinced me that without the additional notice time G4S would be unable to make alternative arrangements essential for public safety. I am not satisfied that the situation created by these proposed industrial actions are an exceptional circumstance or even if they were that a longer notice period is justified.
[21] The industrial action in Question 1 relates to a “ban on IMP files being relocated, updated or audited”. The IMP files are Individual Management Plans for each prisoner. G4S is contracted to update these files each month. Evidence was given that files are in fact updated whenever events occur and that updated files are important when prisoners are transferred or reoffend and also in order to ensure appropriate prisoner management and support. The evidence was that such files could be important to the effective management of risks to prison staff and prisoners. This evidence might also support a conclusion that G4S may be required to make other arrangements to update IMP files in the event of the industrial action taking place. There was no evidence about why adjustments could not be made in three days but could be made in a period of up to seven days. There was no evidence that convinced me that without the additional notice time G4S would be unable to make alternative arrangements essential for public safety. I am not satisfied that the situation created by this proposed industrial action is an exceptional circumstance or even if it were that a longer notice period is justified.
[22] The final industrial action proposed was in Question 8. This authorises an unlimited number of two hour stoppages.
[23] The evidence was that such a stoppage would be likely to result in prisoners being locked down. This is not an infrequent occurrence in the prison during normal operations. However, the consequences of a lock down in these circumstances were, according to G4S, different and more significant than routine lock downs. I do not consider that the lock down of prisoners for two hours because of proposed industrial action constitutes an exceptional circumstance.
[24] The evidence was also given that such a stoppage would disrupt scheduled prisoner transport to and from courts and to and from the medical facilities at Port Phillip Prison and to and from other prison facilities. There was no clear evidence as to why adjustments could not be made in three days but could be made in a period of up to seven days. However, I consider it likely that additional notice time would be likely to reduce the risks to public, prisoner and other employee safety which might result from this form of industrial action and its disruption of prisoner transport and access to medical facilities in particular.
[25] The granting of additional notice time in respect to two hour stoppages would of course reduce the effectiveness of the proposed industrial action. However, I also note in passing that the provision of additional notice time in this instance may have an impact on any future argument for the suspension or termination of the industrial action on the grounds of risks to public safety.
[26] I am satisfied that general two hour stoppages at Port Phillip Prison do create exceptional circumstances given the particular nature of the operations of that prison in respect to its medical facilities and the interrelationship between prisoner transport and the operations of a maximum security facility. It is a fine balance but I am also satisfied that exceptional circumstances do exist which justify some extension of the notice period in respect to the industrial action proposed in question 8 namely an unlimited number of two hour stop work meetings.
[27] Port Phillip prison operates on a 24 hour, seven day roster. I will vary the Order made in respect to the protected action ballot to provide that in respect to the action proposed at Question 8 of the ballot, namely “an unlimited number of two hour stop work meetings”, the period of notice required to be given be extended from three working days to five working days. The standard three day notice period will continue to apply to the other proposed forms of industrial action.
COMMISSIONER
Appearances:
Mr Robert Laird for the Applicant.
Mr Colin Broadbent for the Respondent.
Hearing details:
5 April
Melbourne
2011
1 (2007) AIRC 848.
2 [2010] FWA 3355.
3 [2010] FWA 1988.
4 [2007] AIRC 848, para 10.
5 Ibid at para 11.
6 Ibid at para 21.
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