Health Services Union v G4S Australia T/A G4S Australia

[2017] FWC 3161

[2017] FWC 3161

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

Health Services Union
v
G4S Australia T/A G4S Australia
(B2017/426)

COMMISSIONER GREGORY MELBOURNE, 9 JUNE 2017

Proposed protected action ballot of employees of G4S Australia.

[1] The Health Services Union Victorian Branch No 2 operating as the Health and Community Services Union (“HACSU”) has made application for a protected action ballot order under s.437 of the Fair Work Act 2009 (Cth) (“the Act”) in respect of its members employed by G4S Australia Pty Ltd (“G4S”) who carry out work in respect of a contract that G4S has to provide a range of security services at the Thomas Embling Hospital.

[2] The application was dealt with in a hearing on 8 June 2017. The matter was also adjourned into conference during the course of that hearing to enable further discussions with the parties. At the conclusion of that hearing the Commission handed down a decision in transcript indicating that the application had been approved and an order would be issued. This decision now provides confirmation of the decision handed down in transcript. Mr Martin Davis appeared in the proceedings on behalf of HACSU. Mr Lou Gheller appeared on behalf of G4S.

[3] The application is supported by a Statutory Declaration made by Ms Ginny Adams, an Organiser with HACSU. It has also been supported by further materials that were subsequently received from the Union, which include a document headed HACSU Statement of Facts, together with a further summary document that contains submissions responding to objections that were foreshadowed by G4S to the application. That document also contains a series of attachments, which include a summary of the objections by the employer, and further materials in regard to the state of the negotiations between the parties in regard to the making of a new enterprise agreement.

[4] HACSU also provided two additional witness statements in support of the application, which also respond to the objections to the application raised by the employer. The first was provided by Mr Santo Muscara, dated 7 June 2017, and the other by Mr Michael Palma is also dated 7 June 2017. It is understood that both of these witnesses are employees of G4S and work at the Thomas Embling Hospital site. They are also both delegates of HACSU.

[5] G4S opposes the application on the basis that it is premature, given the ongoing negotiations between the parties, and the possibility of an agreed outcome to those negotiations being concluded in the near future. However, there have been some negotiations between the parties in regard to those objections, and agreement has been reached in response about the form of any order to be made and the nature of the questions that should be contained in that order.

[6] Section 443 of the Act provides that the Commission must make a protected action ballot order if an application has been made under s.437, and the associated requirements of the Act have been satisfied, including that the Applicant is genuinely trying to reach agreement.

[7] I am satisfied that HACSU is a bargaining representative for the employees sought to be covered by the proposed Agreement. I am also satisfied that the application specifies the group of employees to be balloted and the questions to be put, including the nature of the proposed protected action. I am also satisfied that the requirements of s.440 of the Act have been satisfied and that within 24 hours of making this application HACSU gave a copy to G4S and the ballot agent. I also note that the Statutory Declaration provided by Ms Adams makes clear that the nominal expiry date of the existing agreement that now covers the parties is 28 January 2017.

[8] As indicated, I am also satisfied HACSU is “genuinely trying to reach agreement” in accordance with the requirements of s.443 of the Act. HACSU provided a log of claims to G4S in December of last year and it is understood that since November 2016 there have been at least 7 meetings between the parties in regard to the negotiations, and an exchange of positions has been provided by both the Union and the employer during the course of those negotiations. Further details about those negotiations are again set out in the Statutory Declaration provided in support of the application by Ms Adams.

[9] I am accordingly satisfied that although there are still a range of issues outstanding in the negotiations HACSU has made known to G4S the nature of its claims and the basis upon which an agreement is sought to be concluded. I am also satisfied that G4S has in response foreshadowed, at least in general terms, its attitude to the claims.

[10] I also note that the Thomas Embling Hospital is obviously a difficult workplace, given the nature of the work involved, and I also understand the submissions and statements that have been made in the various materials that have been filed, including the witness statements, that staff will continue to respond to emergency situations, where they occur, regardless of any industrial action that might be taking place.

[11] I am satisfied, in conclusion, that the requirements of the Act in respect of an application made under s.437 have been met and I accordingly propose to make an order in large part in the terms sought by HACSU, subject to three particular amendments that have been agreed to by the parties and will be reflected in the order issued.

[12] The agreed changes are as follows. Current question 10 in the draft order will be amended to now read “Refuse to undertake pre-booked cuffed escorts.” Secondly, question 11 will be amended by the addition of a further sentence at the end of the existing words in the following terms, “Stoppages will not be scheduled and will be cancelled in the event of an emergency situation that requires the attendance of either the Police, the Fire Brigade or the Ambulance Service, or involves a power outage.” Thirdly, in terms of any action that is taken in accordance with questions 10 and 11, in the event that the ballot is successful, a 7 day notice period will be required to be provided before any action in accordance with the forms of action set out in those two questions can be undertaken. I am satisfied that it is appropriate in accordance with s.443(5) of the Act for this additional notice period to be provided.

[13] An order [PR593625] in these terms is issued in conjunction with this decision.

COMMISSIONER

Appearances:

M Davis for the Health Services Union.

L Gheller for GS4 Australia Pty Ltd.

Hearing details:

2017.

Melbourne:

June 8.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR593624>