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

[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

The matter before the court involved a dispute between the Community and Public Sector Union (CPSU) and G4S Custodial Services Pty Ltd. The CPSU sought approval for a ballot to gauge its members' support for protected action, which would involve industrial action against G4S. The Federal Circuit and Family Court of Australia was tasked with deciding whether to approve the ballot as a protected action under the Fair Work Act 2009 (Cth). The court's decision hinged on whether the proposed ballot met the criteria set out in the Act, specifically whether the industrial action was related to a workplace matter and whether the union had made a genuine attempt to resolve the matter through conciliation.

The primary legal issue before the court was whether the ballot proposed by the CPSU qualified as a protected action under the Fair Work Act. The court needed to determine if the proposed action related to a workplace matter, as defined in the Act, and if the union had made a genuine attempt to resolve the matter through conciliation. The court examined the nature of the dispute, the process the union had followed, and the evidence provided regarding the attempt to resolve the matter through conciliation.

The court found that the proposed ballot did not qualify as a protected action under the Fair Work Act. The court concluded that the union had not demonstrated a genuine attempt to resolve the matter through conciliation, as required by the Act. The evidence provided by the union did not sufficiently show a meaningful engagement with the employer, G4S. Therefore, the court declined to approve the proposed ballot as a protected action. The union's failure to adequately attempt conciliation meant the proposed industrial action was not protected, and the court dismissed the application.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established