CPSU v G4S Custodial Services Pty Ltd

[2014] FWCFB 9044

[2014] FWCFB 9044

DECISION

Fair Work Act 2009
s.266 - Industrial action related workplace determination
CPSU, the Community and Public Sector Union (090V)
v
G4S Custodial Services Pty Ltd
(B2014/1309)
JUSTICE ROSS, PRESIDENT	SYDNEY, 17 DECEMBER 2014
DEPUTY PRESIDENT GOSTENCNIK COMMISSIONER LEE

Catchwords - Industrial action workplace determination - Fair Work Act 2009 (Cth) - ss 266- 268 - Division 5 of Part 2-5 - s.275 matters at issue - relevant factors - consent of the parties - workplace determination made in the terms proposed.

[1] This decision deals with the making of an industrial action related workplace determination (the Workplace Determination) within the meaning of s.266 of the Fair Work

Act 2009 (Cth). The background facts may be briefly stated.

[2] On 31 December 2013 the G4S Custodial Services Pty Ltd Correctional Services Enterprise Agreement 2011 (the 2011 Agreement) reached its nominal expiry date. On 3 December 2013 G4S Custodial Services Pty Ltd (G4S) received the Community and Public Sector Union’s (CPSU) log of claims in relation to a proposed enterprise agreement (the 2014 Agreement) to replace the 2011 Agreement. The CPSU is a bargaining representative for the 2014 Agreement. On 6 June 2014 the CPSU applied to the Commission for a protected action ballot. The application was granted, the ballot endorsed the action proposed and on 2 July 2014 the CPSU and its members commenced taking protected industrial action.

[3] On 6 August 2014 G4S applied to the Commission to terminate the industrial action and on the same day the Commission ordered the termination of all industrial action effective 6 August 2014. The 21 day post industrial action negotiation period (see s.266 (3)) concluded on 27 August 2014 and this period was not extended. At the end of the post industrial action negotiation period not all of the matters at issue between the parties were resolved. However, G4S and the CPSU have now resolved all of the matters that were at issue between them during bargaining for an enterprise agreement. They have agreed on the terms of a proposed Workplace Determination that reflects their resolution of these issues. There are no outstanding, unresolved matters as between the parties. We now turn to the relevant legislative provisions.

[4] Section 266(1) of the FW Act provides that the Commission must make a Workplace Determination if the following jurisdictional facts have been established:

[2014] FWCFB 9044

(a) a termination of industrial action instrument has been made in relation to the proposed enterprise agreement; and

(b) the post industrial action negotiation period ends; and

(c) the bargaining representatives for the agreement have not settled all of the matters that were at issue during the bargaining for the agreement.

[5] It is common ground that these jurisdictional facts have been established and we are satisfied that we have power to make a Workplace Determination.

[6] Sections 267 and 268, along with Division 5 of Part 2-5 of the FW Act deal exhaustively with the content of workplace determinations. Only four types of terms may be included in a workplace determination (see ss.267 and 268): ‘agreed’ terms; arbitrated terms dealing with the ‘matters in issue’; ‘core terms’; and ‘mandatory terms’ as set out below.

(i)         agreed terms (s.267(1)(a) and (2))

An agreed term is a ‘term that the bargaining representatives for the proposed enterprise agreement concerned had, at the end of the post-industrial action negotiating period agreed should be included in the agreement (s.274(2)).

(ii)        arbitrated terms regarding the matters in issue (s.267(1)(a) and (3))

The determination must include the terms that the Tribunal considers deal with the matters that were still at issue at the end of the post industrial action negotiation period.

(iii)       core terms (s.267(1)(b))

The ‘core terms’ are set out at s.272:

“272 Core terms of workplace determinations

Core terms

(1) This section sets out the core terms that a workplace determination must

include.

Nominal expiry date

(2) The determination must include a term specifying a date as the determination’s nominal expiry date, which must not be more than 4 years after the date on which the determination comes into operation.

Permitted matters etc.

(3) The determination must not include:

(a) any terms that would not be about permitted matters if the

determination were an enterprise agreement; or

(b) a term that would be an unlawful term if the determination were an
enterprise agreement; or

[2014] FWCFB 9044

(c) any designated outworker terms.

Better off overall test

(4) The determination must include terms such that the determination would, if the determination were an enterprise agreement, pass the better off overall test under section 193.

Safety net requirements

(5) The determination must not include a term that would, if the determination were an enterprise agreement, mean that FWA could not approve the agreement:

(a) because the term would contravene section 55 (which deals with the interaction between the National Employment Standards and enterprise agreements etc.); or

(b) because of the operation of Subdivision E of Division 4 of Part 2-4 (which deals with approval requirements relating to particular kinds of employees).”

[7] Apart from ensuring that the Workplace Determination as a whole contains only permitted matters, satisfies the ‘better off overall test’ and does not contravene s.272(5) of the FW Act, the only ‘core term’ is a nominal expiry date no more than 4 years after the Workplace Determination comes into operation (s.272(2)). In this matter the nominal expiry date is in fact a ‘matter at issue.’

(iv)         mandatory terms (s.267(1)(c))

The mandatory terms are set out at s.273:

“273 Mandatory terms of workplace determinations

Mandatory terms

(1) This section sets out the mandatory terms that a workplace determination must include.

Term about settling disputes

(2) The determination must include a term that provides a procedure for settling disputes:

(a) about any matters arising under the determination; and

(b) in relation to the National Employment Standards.

(3) Subsection (2) does not apply to the determination if FWA is satisfied that an agreed term for the determination would, if the determination were an enterprise agreement, satisfy paragraphs 186(6)(a) and (b) (which deal with terms in enterprise agreements about settling disputes).

Flexibility term

(4) The determination must include the model flexibility term unless FWA is satisfied that an agreed term for the determination would, if the determination were an enterprise agreement, satisfy paragraph 202(1)(a) and section 203 (which deal with flexibility terms in enterprise agreements).

Consultation term

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(5) The determination must include the model consultation term unless FWA is satisfied that an agreed term for the determination would, if the determination were an enterprise agreement, satisfy subsection 205(1) (which deals with terms about consultation in enterprise agreements).”

[8]        A workplace determination must not include any terms other than those required by

s.267(1) (see s.268).

[9]        In relation to coverage, the determination must be expressed to cover:

(a) each employer that would have been covered by the proposed enterprise agreement concerned; and

(b) the employee who would have been covered by that agreement; and

(c) each employee organisation (if any) that was a bargaining representative of those employees (s.267(4)).

[10] On 5 December 2014 the parties filed a joint draft workplace determination, identifying the core terms, mandatory terms and agreed terms (Draft Determination). It is common ground that, apart from those clauses in the Draft Determination which are identified as ‘matters in issue’, all the remaining clauses are agreed terms and should be included in the Workplace Determination in that form.

[11] The Commission is only required to conduct a ‘merits arbitration’ in relation to the ‘matters at issue’ as at the end of the post industrial action negotiation period.

[12] The post-industrial action negotiating period ended on 27 August 2014. The parties agree that by that date, all of the terms of a new agreement had been agreed as between the bargaining representatives except for the terms set out below. The parties contend that all of the terms agreed between G4S and the CPSU are “agreed terms” within the meaning of s.27 4(2) of the FW Act, such that these terms must be included in the Workplace Determination (see s.267(2)). The parties agree that what remained in issue were the following subject matters, which are identified by reference to the clause numbers as they appeared in the 2011 Agreement:

(a)	term of agreement (as dealt with in the existing clause 3.1 of the 2011 Agreement);
(b)	allowances (as dealt with in the existing clause 18 of the 2011 Agreement);
(c)	wage adjustments (as dealt with in clause 19 of the 2011 Agreement);
(d)	operative date of wage adjustments (Clause 19 of the 2011 Agreement);
(e)	minimum staffing levels (not in 2011 Agreement); and
(f)	expiry of agreement (as dealt with in Clause 3.1 of the 2011 Agreement).

[13] Agreement has now been reached between G4S and the CPSU on these outstanding issues. With the exception of the matter listed at (e) (minimum staffing levels), the Draft Determination includes clauses that deal with them. The clauses, as they appear in the Draft Determination, are as follows:

(a) term of determination -clause 3.1;

[2014] FWCFB 9044

(b) allowances - clause 18;
(c) wage adjustments- clause 19;
(d) operative date of wage adjustments- clause 19;
(e) expiry of agreement- clause 3.1.

[14] The parties have agreed that the issue of minimum staffing levels is not to be included in the Workplace Determination. However, the parties have agreed on a Deed of Agreement addressing agreed staffing levels which includes a dispute resolution process that allows the Commission to make recommendations in relation to the dispute. Turning then to the remaining matters that were still in issue on 27 August 2014. All of these matters have now been agreed. G4S and the CPSU submit that they should be included in the Workplace Determination in the form that has been proposed. It is submitted that when regard is had to the list of factors in s. 275 of the FW Act, the Commission can be satisfied that these clauses appropriately deal with the matters that were still in issue.

[15] In relation to each of the matters at issue the Commission is required to take into account each of the factors set out in s.275.

“275 Factors FWA must take into account in deciding terms of a workplace determination

The factors that FWA must take into account in deciding which terms to include in a workplace determination include the following:

(a) the merits of the case;

(b) for a low-paid workplace determination—the interests of the employers and

employees who will be covered by the determination, including ensuring that the
employers are able to remain competitive;

(c) for a workplace determination other than a low-paid workplace determination—

the interests of the employers and employees who will be covered by the
determination;

(d)	the public interest;
(e)	how productivity might be improved in the enterprise or enterprises concerned;

(f) the extent to which the conduct of the bargaining representatives for the

proposed enterprise agreement concerned was reasonable during bargaining for the
agreement;

(g) the extent to which the bargaining representatives for the proposed enterprise agreement concerned have complied with the good faith bargaining requirements;

(h) incentives to continue to bargain at a later time.”

[16]      To take a matter into account means that the matter is a ‘relevant consideration’ in the

Peko-Wallsend[1]sense of matters which the decision maker is bound to take into account. As
Wilcox J said in Nestle Australia Ltd v Federal Commissioner of Taxation:

[1]Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24.

“To take a matter into account means to evaluate it and give it due weight, having regard to all other relevant factors. A matter is not taken into account by being noticed and erroneously discarded as irrelevant.”[2]

[2](1987) 16 FCR 167 at paragraph 184; cited with approval by Hely J in Elias v Federal Commissioner of Taxation (2002)

[17] The use of the word ‘include’ in s.275 suggests that the Tribunal is not confined to

those considerations alone, and can have regard to any other relevant considerations in the
circumstances of the particular case.[3]
[2014] FWCFB 9044

[3]AWU v Pioneer Construction Materials Pty Ltd PR925916, 19 December 2002 at paragraphs 32 - 33; CPSU v Australian

[18] The consent of the parties is clearly a relevant consideration in this context and is a

matter to which it is appropriate that we attach considerable weight. As to the specific factors
in s.275 the parties advanced the following joint submission:

“The [agreed clauses] meet the needs of the employer and its employees. The content of the clauses has been settled after lengthy and detailed negotiations. Against this background, G4S and the CPSU have filed a proposed workplace determination that contains clauses that deal exhaustively and comprehensively with the subject matter that had been in dispute. There is no other proposal before the Commission. G4S and the CPSU jointly submit that these clauses appropriately deal with the matters in issue.

Further, the Commission can be satisfied that it is in the interests of the employers and employees who will be covered by the Determination that these clauses be included. The making of the determination and the resolution of what was in controversy will deliver certainty and establish an agreed framework for future bargaining. This is in the interests of the employees and G4S.

An object of the Act is the achievement of productivity and fairness through an emphasis on enterprise-level collective bargaining: s. 3(f). It is by these means that agreement has been reached. The public interest favours giving legal effect to the consensus that is the product of that bargaining process. Further, agreement has relieved the parties and the Commission of the need to continue what would have been lengthy and costly proceedings that consumed the limited resources of the parties and the Commission. There is no countervailing public interest factor that militates against inclusion of the clauses identified in paragraph 18.

The factors in s.275(e) and (f) are not relevant in circumstances where G4S and the CPSU have reached agreement on all outstanding matters that were at issue at the end of the post- industrial action bargaining period.”

[19] Subject to one matter, we are satisfied, taking into account the factors in s.275, that the

matters at issue should be determined in the manner agreed by the parties. The one reservation
relates to proposed clause 3.1, which states:

3       Term of Determination

3.1 The Determination will commence seven (7) days after the approval by the Fair
Work Commission and shall continue in operation until 31 December 2016.

[20] The difficulty with the clause as drafted is that the commencement date proposal is inconsistent with the terms of s.276(1) of the FW Act. Section 276(1) provides that a workplace determination ‘operates from the day on which it is made’. We will amend the proposed clause 3.1 such that it provides that the Workplace Determination will commence on 17 December 2014 (being the date on which the Workplace Determination is made).

[21] We have now dealt with all of the matters still at issue at the end of the post-industrial action negotiation period.

[22] We propose to make a Workplace Determination in the terms proposed by the parties (the 2014 Workplace Determination) with the amendment to clause 3.1.

[23] We are satisfied that the 2014 Workplace Determination we will make passes the better off overall test in s.193 of the FW Act.

[2014] FWCFB 9044

[24] The 2014 Workplace Determination includes all of the ‘agreed terms’; terms which deal with matters still at issue at the end of the post industrial action negotiation period; the ‘core terms’ and the ‘mandatory terms’. The 2014 Workplace Determination does not include any terms that would not be about permitted matters or a term that would be an unlawful term, if the determination were an enterprise agreement.

[25] We have had regard to the factors identified in ss.275, 577 and 578 and to the objects

of the Act. In our view, the 2014 Workplace Determination reflects an appropriate balance
between these various considerations.

PRESIDENT

Appearances:

A. Capp for CPSU

L. Gheller for G4S Custodial Services Pty Ltd

Hearing details:

Melbourne;
2014

15 December

Printed by authority of the Commonwealth Government Printer

<Price code C, PR559003>

123 FCR 499 at paragraph 62 and by Katzmann J in CFMEU v FWA (2011) 195 FCR 74 at paragraph 103. Also see

AWU v Pioneer Construction Materials Pty Ltd PR925916, 19 December 2002 at paragraph 33.

Protective Service (PR910682) at paragraph 12 - 13.