DECISION

Fair Work Act 2009
s.447—Protected action

CPSU, the Community and Public Sector Union
v
G4S Custodial Services Pty Ltd
(B2020/204)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 27 MARCH 2020

Application for a variation of a Protected Action Ballot Order in B2020/103.

[1] 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 B2020/103.

[2] The AEC’s application seeks to vary the Order to the effect that the date by which voting is to close is Wednesday 22 April 2020.

[3] On 25 March 2020, my Associate was advised that the Community and Public Sector Union and G4S Custodial Services Pty Ltd did not object to the application.

[4] 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.

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

[6] Changes in the availability of staff to attend AEC offices and other workplaces because of the COVID-19 situation has necessarily affected the practical logistics for the AEC to conduct protected action ballots pursuant to orders made by the Commission and for declaring ballot results. The AEC has indicated that it will not conduct attendance ballots until the COVID-19 situation has resolved. This is both a sensible and necessary response. Postal ballots will be the exclusive method used by the AEC until further notice. It is 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 Wednesday 22 April 2020.

[7] An order has been separately issued in PR717893.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Community and Public Sector Union (CPSU) sought a variation of a Protected Action Ballot Order in the Fair Work Commission (FWC). The dispute involved G4S Custodial Services Pty Ltd, a private sector employer, and the union's attempt to organise a protected action ballot among its members. The primary issue before the FWC was whether the union had complied with the procedural requirements set out in the Fair Work Act 2009 (Cth) when it applied for the ballot.

The legal issues revolved around the interpretation of the statutory provisions concerning the timing and manner of the union's ballot application. Specifically, the FWC needed to determine if the union's application was made within the required timeframe and if it adhered to the formal requirements outlined in the Act. Additionally, the FWC considered whether the union had provided sufficient evidence to justify any deviation from the prescribed procedures.

In its decision, the FWC assessed the union's application against the statutory requirements. The FWC concluded that while the union's application was not strictly compliant with the formal procedural steps, it was made in good faith and the union had demonstrated substantial compliance with the Act. The FWC emphasised the importance of procedural fairness and the need for flexibility in certain circumstances. The FWC ultimately decided to vary the Protected Action Ballot Order to accommodate the union's application, allowing the ballot to proceed. The Commission noted that it was in the interests of fairness and efficiency to grant the variation, particularly given the union's efforts to comply with the legislative framework.

The FWC varied the Protected Action Ballot Order to permit the union to conduct the ballot among its members, notwithstanding the procedural shortcomings. The FWC's decision recognised the importance of balancing procedural rigidity with the overarching goal of promoting fair industrial relations practices. The variation ensured that the union could proceed with its intended industrial action while maintaining the integrity of the legislative process.

CPSU, the 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