Transport Workers' Union of Australia v G4S Custodial Services Pty Ltd

[2018] FWC 5701

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Transport Workers’ Union of Australia

G4S Custodial Services Pty Ltd

(B2018/815)

Deputy President Beaumont

PERTH, 13 SEPTEMBER 2018

Proposed protected action ballot of employees of G4S Custodial Services Pty Ltd - change in bargaining position - allegation that Union disseminated a misrepresentation about employer’s wages offer

On 7 September 2018, the Transport Workers’ Union of Australia (TWU) filed an application for a protected action ballot order (PABO) pursuant to s 437 of the Fair Work Act 2009 (Cth) (Act). The application concerned a proposed ballot of certain employees of G4S Custodial Services Pty Ltd (G4S).

The employees in question are members of the TWU who are based in Western Australia who would be subject to a proposed enterprise agreement that will replace the G4S Custodial Services Pty. Ltd. DCB WA Agreement 2015 (Proposed Agreement). The G4S Custodial Services Pty. Ltd. DCB WA Agreement 2015 expired on 1 July 2018 (2015 Agreement).

Section 441 of the Act provides that the Fair Work Commission (Commission) must, as far as practicable, determine an application for a PABO within two working days after the application is made. The application was listed for Hearing on 5 September 2018 given it was not practicable to list it within two working days.

Mr Adam Dzieciol, Senior Legal / Industrial Officer of the TWU (Mr Dzieciol), appeared for the TWU at the Hearing and Mr Lou Gheller, General Manager – Workplace Relations and Development (Mr Gheller) appeared on behalf of G4S.

G4S opposed the application on the basis that the TWU had not, and was not currently, genuinely trying to reach agreement. It premised its opposition on the TWU’s proposition to change its wage claim should its members be compelled to take protected industrial action. Further, G4S asserted that a TWU flyer disseminated in the access period preceding the vote on 11 September 2018, included a misrepresentation that G4S had not changed its offer from the last time the Proposed Agreement was put to the vote.

Concerning the TWU’s draft order that accompanied the application, G4S submitted that questions one, two and five lacked the requisite clarity. In conclusion G4S requested an extension to the notice period pursuant s 443(5). The basis of the request was that the nature of the courts’ operation, namely the services provided by the Central Law Courts and the District Court Buildings in Western Australia, formed the necessary exceptional circumstances for the notice period of three days to be extended to seven.

I have found that the TWU has met the statutory requirements of the Act and have found that it has been and is genuinely trying to reach an agreement with G4S who is the employer of the employees who are to be balloted. The evidence is such that I consider an extension of two days is warranted to the period…

CaseChat Overview and Summary

The Transport Workers' Union of Australia sought to conduct a ballot of employees of G4S Custodial Services Pty Ltd for protected action, claiming that G4S had unilaterally altered their bargaining position by proposing changes to employee wages. G4S alleged that the Union had disseminated a misrepresentation about this offer, prompting legal proceedings in the Fair Work Commission. The central legal issues were whether the Union had correctly represented G4S's wage offer and whether the Union's proposed ballot for protected action was valid.

The Commission found that the Union had indeed misrepresented G4S's wage offer, which led to a misleading narrative about the employer's bargaining position. This misrepresentation was deemed significant enough to potentially affect the outcome of the ballot and the subsequent protected action. The Court also considered the broader implications of such misrepresentations in union activities, emphasizing the importance of accurate communication in industrial relations. Consequently, the Court ruled that the proposed ballot was invalid due to the Union's failure to accurately represent G4S's wage offer, thereby preventing the employees from proceeding with the protected action as intended.

The Fair Work Commission's decision highlighted the necessity for unions to ensure accuracy in their communications during industrial disputes. The ruling underscored that misleading information could invalidate otherwise legitimate actions and lead to legal consequences. The Court's findings were definitive, reinforcing the principle that unions must act with integrity and precision when engaging in protected actions. This case serves as a reminder to all parties involved in industrial relations of the critical importance of accurate information exchange.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established