G4S Custodial Services Pty Ltd v United Voice

[2011] FWA 6038

[2011] FWA 6038

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.229 - Application for a bargaining order

Wilson Security Pty Ltd; Mss Security Pty Ltd; G4S Custodial Services Pty Ltd
v
United Voice
(B2011/3118)

COMMISSIONER LEWIN MELBOURNE, 9 SEPTEMBER 2011

Wilson Security Pty Ltd, MSS Security Pty Ltd and G4S Custodial Services Pty Ltd - good faith bargaining - conduct - unfair - undermining of collective bargaining

[1] This decision concerns an application for a bargaining order under s.229 of the Fair Work Act 2009 (the Act). The application is made by Wilson Security Pty Ltd, MSS Security Pty Ltd and G4S Custodial Services Pty Ltd.

[2] The ground upon which the application is made is that United Voice, a bargaining representative for proposed enterprise agreements between the applicants and their employees, has not met the good faith bargaining requirements of s.228(1)(e) of the Act.

[3] The substance of that ground is that United Voice engaged in unfair conduct that undermined the collective bargaining for a proposed enterprise agreement or agreements between the applicants and its representatives and their employees and their representatives.

[4] The unfair conduct relied upon was the publication by United Voice of a statement as follows:

“At industry pay talks at Fair Work Australia last night, major security contractors Wilson, MSS and G4S confirmed plans to cut the pay of thousands of guards by more than $3000 a year...”

[5] That statement was published on a website “Safeguard” on 6 July 2011. The applicants maintain that the statement was grossly misleading and substantially misrepresented their proposals for the terms of an enterprise agreement with their employees at the relevant time.

[6] At the time of this decision a decision and order has been made by Commissioner Bissett [PR514025] for a Protected Action Ballot, for employees of Wilson Security, under s.437, in which voting will commence no later than 13 October 2011. Due to my imminent departure on leave I consider it desirable to issue my decision in this matter in summary terms and provide reasons in due course so that the ballot need not proceed without this application being decided.

[7] I should state that my decision must be founded upon the evidence before me. That evidence is the basis upon which the applicants must discharge the onus to satisfy the Tribunal that the conduct complained of was unfair and had the effect of undermining the collective bargaining for the proposed enterprise agreement(s). On that evidence I am satisfied that the statement was an unfair representation of the applicants’ proposals for the terms of an enterprise agreement at the time the statement was made. Likewise, on that evidence, I am not satisfied that the statement had the effect of undermining the collective bargaining between the respective representatives, the employers and their employees.

[8] Accordingly, the application is dismissed. An order will issue.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<Price code A, PR514231>