CPSU, the Community and Public Sector Union v G4S Custodial Services Pty Ltd

[2022] FWC 192

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.447—Protected action

CPSU, the Community and Public Sector Union
v

G4S Custodial Services Pty Ltd

(B2022/38)

Deputy President CLANCY

MELBOURNE, 31 JANUARY 2022

Application for a variation of a Protected Action Ballot Order in B2021/1185.

This is an application by the Australian Electoral Commission (AEC) made under s.447 of the Fair Work Act 2009 (Act) for variation of a protected action ballot order in matter B2021/1185 on 6 December 2021 (the Order).

The AEC’s application seeks to vary the Order to the effect that the date by which voting is to close is no later than 11 February 2022.

On 28 January 2022, my Associate was advised that the Community and Public Sector Union (CPSU) do not object to the application. On 30 January 2022, my Associate was advised that G4S Custodial Services Pty Ltd do not object to the application.

Section 447 of the Act sets out the circumstances in which the Fair Work Commission (Commission) may vary a protected action ballot order:

447 Variation of protected action ballot order
(1) An applicant for a protected action ballot order may apply to the FWC to vary the order.
(2) The protected action ballot agent for a protected action ballot may apply to the FWC to vary the protected action ballot order to change the date by which voting in the ballot closes.
(3) An application may be made under subsection (1) or (2):
(a) at any time before the date by which voting in the protected action ballot closes; or
(b) if the ballot has not been held before that date and the FWC consents - after that time.

(4) If an application is made under subsection (1) or (2), the FWC may vary the protected action ballot order.

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

On 25 January 2022, the AEC received an email from the CPSU advising that seven of its members on the roll of voters for this ballot had not received the ballot paper. Prior to the CPSU’s email of 25 January 2022, two of the seven members had telephoned the AEC requesting a replacement ballot paper on the basis that they had not received their initial ballot paper. Replacement ballot papers were posted by the AEC to these two members on 21 January 2021. It is normal practice for the AEC to issue a replacement pack in these circumstances to ensure that all employees who are entitled to vote are able to vote. As the ballot was due to close on 28 January 2022, it is unlikely that the replacement ballot papers could be returned by the close of the ballot. In order to ensure the franchise of persons entitled to vote, the AEC proposes to extend the date by which the ballot closes from 28 January 2022 to no later than 11 February 2022. I consider this a sensible response.

It is therefore appropriate in the circumstances for the variation to be made. Accordingly, the Order will be varied to the extent that the date by which voting is to close is no later than 11 February 2022.

An order has been separately issued in PR737888.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Community and Public Sector Union (CPSU) filed an application for a variation of a Protected Action Ballot Order against G4S Custodial Services Pty Ltd in the Fair Work Commission. The dispute arose from a protected action ballot held by the union to determine if its members were in favour of engaging in protected action in support of their enterprise agreement negotiations. The union sought to vary the ballot order to allow for a second ballot, as the initial ballot had not resulted in the required majority in favour of protected action. G4S opposed the application, arguing that a second ballot was not warranted under the circumstances.

The central legal issue before the Fair Work Commission was whether the application for a second ballot should be granted. The union argued that the initial ballot did not achieve the required majority and that there were grounds to believe that a second ballot could result in a different outcome. G4S contended that a second ballot was not justified as there had been no significant changes in circumstances since the first ballot. The Fair Work Commission had to balance the union's right to organise and engage in protected action against the employer's rights and the potential impact of industrial action on the public.

The Fair Work Commission considered the relevant provisions of the Fair Work Act and the principles governing protected action ballots. It noted that the union's initial ballot did not achieve the required majority and that the union had not demonstrated any significant changes in circumstances that would warrant a second ballot. The Commission found that a second ballot was not justified in the absence of such changes. Consequently, the application for a variation of the Protected Action Ballot Order was dismissed. The Commission emphasised the importance of ensuring that protected action ballots accurately reflect the wishes of the members and the need to avoid unnecessary industrial action.

The Fair Work Commission ordered that the application for a variation of the Protected Action Ballot Order be dismissed. The Commission made no further orders regarding the enterprise agreement negotiations or any other matters arising from the dispute. The decision reinforces the importance of adhering to the established procedures for protected action ballots and the need for unions to demonstrate compelling reasons for a second ballot.

CaseChat Overview and Summary

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Background to the litigation

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