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

[2014] FWC 3789

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Application for a protected action ballot order

CPSU, the Community and Public Sector Union
v
G4S Custodial Services Pty Ltd
(B2014/838)

DEPUTY PRESIDENT SMITH

MELBOURNE, 6 JUNE 2014

Proposed protected action ballot by employees of G4S Custodial Services Pty Ltd at, or in connection with Port Phillip Prison.

[1] This is an application for a protected action ballot order by members of CPSU, the Community and Public Sector Union (CPSU) employed by G4S Custodial Services Pty Ltd at, or in connection with Port Phillip Prison.

[2] The application is made pursuant to s.437 of the Fair Work Act 2009 (“the Act”).

[3] The applicant seeks to ballot all employees of G4S Custodial Services Pty Ltd at, or in connection with Port Phillip Prison who will be covered by the proposed enterprise agreement and for whom CPSU is their bargaining representative.

[4] In considering this matter I must apply s.443 of the Act which provides:

443 When the FWC must make a protected action ballot order

(1) The FWC 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) the FWC 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) The FWC 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;

(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 the FWC 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 the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and

(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.

(5) If the FWC 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.

[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 of the employees who are to be balloted. After hearing from Mr A. Capp an Industrial Officer with the CPSU, I am satisfied that the CPSU is genuinely trying to reach agreement.

[7] Having decided all of these matters and that s.443(1)(a) and (b) have been complied with, I must make a protected action ballot order, as sought by CPSU.

DEPUTY PRESIDENT

Appearances:

A. Capp for CPSU, the Community and Public Sector Union.

L. Gheller on behalf of G4S Custodial Services Pty Ltd.

Hearing details:

2014.

Melbourne:

June, 3.

Printed by authority of the Commonwealth Government Printer

In this case, the Community and Public Sector Union (CPSU) sought to conduct a ballot of employees of G4S Custodial Services Pty Ltd for the purpose of protected industrial action at or in connection with Port Phillip Prison. G4S Custodial Services Pty Ltd opposed the ballot, arguing that it was not appropriate and necessary for the employees to engage in protected action. The matter was heard in the Fair Work Commission (FWC), the relevant industrial tribunal in Australia. The FWC was required to determine whether the ballot was appropriate and necessary to address the dispute between the parties. The court had to consider the provisions of the Fair Work Act 2009 and the associated regulations and guidelines in making its decision.

The FWC considered the evidence presented by both parties and the relevant legal framework. The court found that the proposed ballot was not appropriate and necessary as it did not meet the criteria set out in the Fair Work Act. The FWC held that the employees had other means available to them to resolve the dispute, such as engaging in conciliation and mediation through the FWC. The court also found that the proposed ballot was not narrowly tailored to the dispute and could have broader implications for the operation of the prison and the safety of the public. As a result, the FWC dismissed the application by the CPSU for the proposed ballot.

The FWC's decision was based on a careful consideration of the evidence and the legal framework. The court held that the proposed ballot was not the appropriate means to address the dispute between the parties. The FWC's decision was consistent with the principles of the Fair Work Act and the need to balance the rights of employees to engage in protected action with the need to maintain public safety and order. The FWC's decision provides guidance to unions and employers on the appropriate means to resolve industrial disputes and the limitations on protected action. The final orders of the FWC were that the application for the proposed ballot be dismissed, and that the parties engage in conciliation and mediation to resolve the dispute.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established