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

[2021] FWC 6524

[2021] FWC 6524

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

CPSU, the Community and Public Sector Union
v
G4S Custodial Services Pty Ltd
(B2021/1185)

DEPUTY PRESIDENT CLANCY MELBOURNE, 6 DECEMBER 2021

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

[1] This is an application by Communications, Electrical, Electronic, Information, Postal, Plumbing and Allied Services Union of Australia (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 Service Pty Ltd (Respondent).

[2] On 3 December 2021, my Associate was advised by the Respondent lawyers that the Respondent would be willing to consent to the Application being granted if the Applicant would be willing to consent to an amendment to the notice period required for the taking of industrial action (subject to the Commission being satisfied it is appropriate to extend the notice period). When they parties were unable to reach a consent position, I made directions for the filing and service of material ahead of a hearing to be held on 7 December 2021.

[3] Subsequently, on 6 December 2021, I was advised in correspondence from the Respondent’s lawyers that parties had agreed that 5 workings days' notice would be appropriate in relation to proposed actions 5, 6, 7, 18, 19 and 26. Further, the Respondent filed an outline of submissions in support of its application for an order under s.443(5) of the Act and a statutory declaration of Ali Assafri, General manager – Melbourne Custody Centre.

[4] In the circumstances, I decided to vacate my directions and the hearing and determine the matter on the papers without holding a hearing.

[5] On the basis of the material before me, including the declaration of Ms Pearce 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.

[6] As regards the notice requirement for engagement in the proposed employee claim action, s.443(5) of the Act grants me a discretionary power to specify a longer period of notice than the 3 working days referred to in s.414(2)(a) if I am satisfied that there are exceptional circumstances justifying this. I have noted the consent position of the parties and I am satisfied, having reviewed the Respondent’s outline of submissions and the statutory declaration of Mr Assafri, that:

a) there are facts or circumstances in relation to the proposed actions 5, 6, 7, 18, 19 and 26 that are “exceptional circumstances, within the ordinary meaning of that phrase; and

b) these exceptional circumstances are circumstances “justifying” a longer notice period; and

c) in all the circumstances, it is appropriate to exercise the discretion s.443(5) of the Act grants me and order that 5 workings days' notice should be given in relation to proposed actions 5, 6, 7, 18, 19 and 26.

[7] An order has been separately issued in PR736480. In it, proposed actions 5, 6, 7, 18, 19 and 26 appear separately, as questions 22 – 27 (inclusive).

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR736479>