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

[2018] FWC 5701

[2018] FWC 5701

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Transport Workers’ Union of Australia

v

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

1. 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).

1. 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).

1. 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.    

1. 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. 

1. 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.  

1. 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. 

1. 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 specified in s 414(2)(a) and therefore the period of notice will be five working days.[1]  My reasons for this decision follow. 

1. An order PR700275 is issued in conjunction with this decision.

G4S’ objections

1. G4S opposed the granting of the proposed order on the basis that it considered that the TWU had not been, and was not, genuinely trying to reach agreement as that term is understood in s 443(1). 

1. In short, G4S submitted that during the seven day access period prior to a vote on 11 September 2018, the TWU had distributed a flyer to their members which falsely alleged that the proposed G4S offer was no different to previous offers that had been voted down.  That same flyer also set out that the TWU claim would change from the current position of a 3% wage increase per year and back pay to a higher wage increase of 3.5% per year and additional superannuation contribution, should members be forced to take protected action.

The submissions of the TWU

1. The TWU submitted that when one considers the evidence of Mr John Cutrali, TWU WA Branch Organiser (Mr Cutrali), the TWU has been and is genuinely trying to reach an agreement with G4S.  It relies on the following conduct of Mr Cutrali:

• participation by Mr Cutrali in seven bargaining meetings with G4S representatives;

• submission of proposals and responses during the course of bargaining including:

  othe submission of a Log of Claims;

  oa counter proposal to that advanced by G4S; and

  ofurther discussions with G4S.

Background and evidence

1. G4S has a contract with the Western Liberty Group Pty Ltd to provide court and custodial services to the Western Australia Department of Justice at the Perth District Court Buildings and the Central Law Courts.[2]  It is said that G4S manages 16,000 plus persons in custody through those two locations.[3] 

1. The evidence of Ms Robyn Smart, General Manager for the Contract of the District Court Buildings (Ms Smart), was that G4S provides services to the Central Law Courts including the Duty Courts, Parole Board, Coroner’s Court, Mental Health Court, Drug Court and VRO Court.  With regard to the District Court Buildings services were provided to courts involved in criminal trials, sentencing and civil matters.  Further, G4S provided services for Supreme Court matters and at any one time could be operating up to 24 courts within the District Court Buildings.  During peak times services across the two locations would extend to 40 courts with 15,000-20,000 users per day. 

1. G4S employees working at the two locations are covered by the 2015 Agreement in the classifications of Court Security and Custodial Services Officer (Officer) and Master Control Room Operator (Operators).[4]  There are 112 employees covered by the 2015 Agreement, 50 full-time, 52 part-time and 10 casual.[5]

1. The duties of the Officers and the Operators include managing and supervising prisoners who are being held in daily custody for court appearances, controlling the internal and external security of the court buildings including primary security check points, attending court rooms during trials to maintain public order and guarding prisoners in the dock.[6]  The responsibilities extend to processing of accused persons that have been granted bail or remanded in custody.[7] 

1. Ms Smart said that G4S operated in an environment whereby there was involvement of various stakeholders including the Department of Justice and contractors such as Broadspectrum, who provide transportation and the police. 

Negotiations for the Proposed Agreement

1. Mr Cutrali said that he is the bargaining representative for those members in negotiations with G4S for the Proposed Agreement.[8] 

1. At the first bargaining meeting on 24 April 2018, Mr Cutrali gave G4S its log of claims.[9] The claims included an agreement term of three years, wage increases of 7% per year (backdated to 1 July 2018), a 1% increase in superannuation contributions and an increase to all allowances including service recognition bonus with equivalent percentage increases to those applicable to wages. 

1. Subsequent bargaining meetings were held on 24 April 2018, 7 May 2018, 23 May 2018, 25 May 2018, 11 June 2018, 27 July 2018 and 2 August 2018.[10] 

1. In short, Mr Cutrali said that G4S made an initial offer of 2.4% a year for Officers and 2.75% a year for Senior Officers.[11]  Having spoken to the TWU members, Mr Cutrali informed G4S that the offer was not accepted.[12]  Subsequently, Mr Cutrali made a counter offer informing G4S that the employees would accept a minimum wage increase of 3.5% per year, a three year agreement, a 1% increase in employer superannuation contributions and an increase in allowances aligned with wage increases.[13]  However, Mr Cutrali’s evidence was that G4S made it clear that the offer it made was its final position and it would put the Proposed Agreement to the vote in those terms.[14]  On 18 July 2018 a vote took place and the Proposed Agreement was rejected.[15]

1. After 18 July 2018, G4S contacted Mr Cutrali with a revised offer of wage increases of 2.8% each year for Officers and 2.95% for Senior Officers within a four year agreement.[16]  Mr Cutrali discussed the offer with members who informed him that any wage increase less than 3% would be rejected.[17]  The Proposed Agreement was again put to the vote on 28 August 2018 with the revised terms offered by G4S and again it was rejected. It was at that point that Mr Cutrali said members instructed him that he was to make the application for a PABO.[18] 

1. G4S submitted that on 11 September 2018, G4S reached the point where it had decided to put the Proposed Agreement to a vote.[19]  It was the final offer it was willing to make.[20]  The relevant employees voted on 11 September 2018, with 45 in favour and 50 against the Proposed Agreement. 

1. G4S stated that during the seven day access period, the TWU distributed a flyer to its members which falsely alleged that the Proposed Agreement contained terms that were no different to previous offers that had been voted down.[21]  In addition, the flyer indicated that the TWU claim would change from the current position to a higher wage increase and additional superannuation contribution, hence moving the parties further away from reaching agreement.[22] 

Statutory framework

1. Section 437 enables a bargaining representative to apply for a PABO. Subject to the restrictions in ss 437(2A) and 438(1), the Commission must make an order in relation to employees who will be covered by a proposed agreement in the circumstances set out in
   s 443.  Section 443 relevantly 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;
(c) the date by which voting in the protected action ballot closes;
(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.

Threshold requirements

1. It is not in dispute that the TWU:

• is a bargaining representative and entitled to make this application;

• had made a proper application as required by the Act and has met the documentary and notice requirements for the application; and

• is not prevented from bringing the application by virtue of s 438 given the nominal expiry of the 2015 Agreement.

1. I am satisfied that the threshold requirements have been met.

Proposed agreement

1. Subsection 437(1) provides that a bargaining representative of an employee who will be covered by ‘a proposed enterprise agreement’ may apply to the Commission for a protected action ballot order. Subsection 443(1) requires an application to have been made under s 437 in order for the Commission to be empowered to make a protected action ballot order.

1. Having considered the decisions in Mermaid Marine Vessel Operations Pty Ltd v The Maritime Union of Australia[23], Skilled Offshore Pty Ltd v AMWU and others[24], Maritime Union of Australia, The v Maersk Crewing Australia Pty Ltd (Maersk Crewing)[25] and MUA v Swire Pacific Ship Management (Australia) Pty Ltd[26], I am satisfied that there is a ‘proposed enterprise agreement’ within the meaning of ss 437(1) and 443(1).

Notification time and the issuing of NERRs

1. For a protected action ballot order to have been validly made under s 473(1) there must have been a ‘notification time’ for the proposed agreement.[27]  The Full Bench in Maersk Crewing[28] referred approvingly to the observation of Vice President Hatcher in Transport Workers’ Union of Australia v Hunter Operations Pty Ltd[29] that the definition of ‘notification time’ in s 173(2)(a) ‘indicates that an employer’s agreement to bargain is a single event which happens at a particular point in time’. 

1. In Maersk Crewing[30] the Full Bench stated that it was clear that the reference in s 437(2A) to ‘notification time in relation to the proposed enterprise agreement’, meant a notification time within the meaning of s 173(2). Subsection 173(2) states that the notification time for a proposed enterprise agreement is the time when ‘the employer agrees to bargain or initiates bargaining, for the agreement’. I note that with regard to the matter before me s 173(2)(b)-(d) are not relevant in the current context.

1. The Statutory Declaration of Mr Cutrali did not specify the date of the ‘notification time’ save a reference to ‘April 2018’.  Mr Cutrali as unable to be specific with regards to the precise notification time.  However, it was not in dispute that there had been a notification time and that the notice of employee representational rights had been issued.  I am satisfied that there was a notification time for the Proposed Agreement. 

Consideration

Genuinely trying to reach an agreement – change in bargaining position

1. Consideration must be had to whether the TWU has been, and is, genuinely trying to reach an agreement with G4S.  It appears that the conduct relevant to a determination of whether the TWU is genuinely trying to reach agreement is that which has occurred during the course of bargaining, and that which is presently occurring. 

1. It is not a simple matter to establish whether a party is genuinely trying to reach agreement.[31]  The Act does not define what constitutes ‘genuinely trying’ and it has been left to the Commission to determine on a case by case basis.

1. Mr Gheller advanced that the TWU was not genuinely trying to reach agreement because it had cited that its bargaining position would change should it be the case that members were forced to take protected industrial action. 

1. Whether an applicant ‘has been, and is, genuinely trying to reach an agreement’ within the meaning of s 443(1)(b) is a question of fact to be decided by reference to all of the circumstances of the bargaining in question.[32]  It will frequently involve consideration of the extent of progress in negotiations and the steps taken in order to try to reach agreement.[33]  There are two temporal components to s 443(1)(b); the applicant must have been genuinely trying to reach agreement, and must be genuinely trying to reach agreement.[34]

1. While there is a relationship between s 443(1)(b) and the need to bargain in good faith under s 228, a Full Bench of the Commission in Esso Australia Pty Ltd v AMWU[35] cautioned against conflating the two requirements.  It stated that ‘a party may not meet a particular good faith bargaining requirement but may nevertheless be genuinely trying to reach agreement’.[36]  The good faith bargaining obligation is a separate consideration to the assessment of whether a party is genuinely trying to reach agreement.[37] 

1. In Liquor, Hospitality and Miscellaneous Union – Western Australia Branch v CSBP Limited[38], Lawler VP discussed the meaning of ‘genuinely trying to reach agreement” in the context of a similar bargaining regime, he said:[39]

Secondly, the notion of “genuinely trying to reach agreement” does not automatically imply continual movement in the same direction by a negotiating party.  Depending upon the circumstances, a negotiating party can withdraw a concession or offer on a particular issue in the negotiation, or renew a previously abandoned position, and still be genuinely trying to seek agreement.  Such changes of position can legitimately arise for any number of reasons.  For example changed trading conditions may provide an entirely reasonable basis for an employer to withdraw or reduce an offer to increase wages by a particular amount without detracting from the genuineness with which the employer is negotiating. 

1. However, inevitably there will be circumstances where a change, or changes, in position, demonstrates a party is not genuinely trying to reach an agreement.  Those circumstances may include where there is a fundamental change in position without reason or there was evidence to point to the party not genuinely pursuing an agreement but rather acting for some ulterior motive.[40]  Further, a pattern of shifting position regarding certain claims when agreement is nearly reached or has been agreed, may, depending on the circumstances, contravene good faith bargaining provisions but also demonstrate that a party is not genuinely trying to reach agreement. 

1. Clearly, the Full Bench has cautioned about conflating the requirements to bargain in good faith with those of genuinely trying to reach an agreement.  However, it remains the case that whether a party is genuinely trying to reach an agreement needs to be answered by reference to all of the evidence and details of particular facts in the matter.  Annexure B to the Statutory Declaration of Dulio John Cutrali was the minutes of the first bargaining meeting held on 24 April 2018 (the Minutes).  The Minutes set out:

The TWU reserves the right to change and withdraw claims during the negotiations in accordance with good faith bargaining principles.

1. I consider the statement in the Minutes is, in isolation, insufficient to protect the TWU from any allegations that it did not genuinely try to reach agreement in circumstances where it changed its position through the negotiation or withdrew a claim.  Ultimately, it is the test in ss 443(1) that must be applied which includes an assessment of conduct as a whole. 

1. The agreement has been put to the vote by G4S in circumstances where it does not have the support of TWU members, which it is of course free to do.  However, a proposed change of bargaining position at this time is not inconsistent with the objective of genuinely trying to reach agreement in the circumstances of this matter. 

1. The proposed change in claims has occurred in the context of G4S putting the Proposed Agreement to the vote on three occasions absent the support of the TWU.  The Proposed Agreement was put to the vote on 11 September 2018 and it is evident from the evidence of Mr Cutrali that the TWU decided to leverage its members’ position during the relevant access period by putting G4S on notice of its response should its members feel forced to take protected industrial action.  Mr Cutrali’s evidence was that it was a way of putting pressure on G4S to get G4S to agree to its claims.  Mr Cutrali stated that the members would not ‘go out’ (meaning take protected industrial action) for 3%.  He continued that if the members were to go to the expense of taking such action then they would expect more from the bargain. 

1. It is apparent on the evidence that there is a cogent reason for the proposed change in position and I am satisfied that it forms part of the legitimate tactics a party may draw upon during the course of bargaining.  While G4S may contend that it shows the TWU are not genuinely trying to reach agreement, there is no evidence before me that there is an ulterior motive in operation for such change, no indication that there was an agreement in principle, or a pattern of shifting position on near agreed claims or agreed claims.

1. Having considered the conduct of the TWU as a whole, I am not satisfied that the proposed changing of its position regarding its wage and related claims, shows that it is not genuinely trying to reach agreement. The change at this point is only proposed and is contingent on circumstances arising where TWU members consider they have been forced to take protected industrial action.  It is evident that there had not been an endorsement of the agreement in principle prior to the proposed change in claims occurring.[41] 

Genuinely trying to reach an agreement – misrepresentation

1. A deliberate misrepresentation made by an employee or official of a union that is a bargaining representative, in relation to the negotiations, or the position of another party in those negotiations, could trigger the Commission’s discretion to make a bargaining order to correct the misrepresentation, on the basis that it has unfairly undermined collective bargaining.[42]  Again, it is important to reiterate however that the Full Bench has cautioned against conflating the need for good faith bargaining requirements with s 443(1)(b).

1. In NUW v Patties Foods[43], whilst considering an alleged breach of the good faith bargaining requirements, Vice President Watson observed that:

Although the integrity of communications is important, it must be remembered that there will inevitably be extensive communications between the various parties and stakeholders engaged in the negotiations of an enterprise agreement. The parties will adopt an approach to their communications which they believe will best achieve their objectives. Some of these communications could well be robust, controversial and at times even disrespectful or mistaken. In my view, in the absence of a pattern of deliberate improper communications, an applicant will find it difficult to establish that a single communication constitutes capricious or unfair conduct of the requisite type.

1. It was the evidence of Mr Cutrali that there was a misrepresentation in the flyer that had been distributed in the access period prior to the vote of the Proposed Agreement on 11 September 2018 (Exhibit A1 Attachment A).  The flyer read:

….G4S haven’t changed their offer from last time.  They’re putting the same offer out to another vote that includes: …

1. Mr Cutrali’s evidence was that there had been a change made by G4S to the offer.  That change made was to the term of the Proposed Agreement which had been reduced from four years to three years.  This was, according to Mr Gheller, an issue that employees had raised regarding a four year term and it could have swayed the vote on 11 September 2018.

1. Mr Cutrali gave evidence that the error occurred because a template for the flyer had been utilised and not amended.  I consider that Mr Cutrali presented as a credible witness who at times provided answers to the questions asked which likely did not advance the TWU’s case. 

1. A vote had been conducted on 28 August 2018 and subsequently on 11 September 2018.  In that period G4S had conceded its position regarding the term of the Proposed Agreement but it was the case, according to Mr Cutrali, that the error slipped through onto the flyer and it was stated that ‘G4S haven’t changed their offer from last time’.  The Commission was informed that in response to the flyer, G4S sent out communication to inform employees the flyer was not correct and highlighted the change G4S had made regarding the offer.  When asked whether G4S had placed the TWU on notice of the misrepresentation, Mr Gheller’s response was that he could not answer that. 

1. I do not consider that the actions of the TWU in these circumstances involved a deliberate misrepresentation that would give rise to a finding that the TWU has not been and is not genuinely trying to reach an agreement.  It is evident that the misrepresentation occurred due to the TWU’s lack of diligence to ensure its communications were correct.  A lack of diligence does not in turn suggest that there was a deliberate misrepresentation.  Further, G4S had taken the matter of the misrepresentation no further than to correct the record with its employees.  It appears that the issue had not warranted G4S seeking to escalate the issue of the misrepresentation further by putting G4S on notice about the misrepresentation or by making an application for bargaining orders. 

Ambiguity ballot question

1. Sections 414(6) and 437(3) both require that the ‘nature’ of the action (being the proposed industrial action the subject of the protected action ballot) must be specified.  The object of the relevant division as set out in s 436 is to ensure that those who are to be balloted are afforded a fair, simple and democratic process which leads to the view of employees who vote on the question being expressed in the ballot. 

1. Mr Gheller submitted that some of the questions on the draft order lacked the requisite clarity required for the employees to understand what work would not be undertaken and the implications of their industrial action.  To this extent Mr Gheller directed the Commission’s attention in the written submissions of G4S regarding questions one, two, and five, which are as follows:

Question 1
A ban on extending shifts to work hospital sits
Yes
No

Question 2
An unlimited number of indefinite bans on the completion of paperwork?
Yes
No

Question 5
An unlimited number of bans on the staggering of morning rest breaks?
Yes
No

1. It is observed from the outset that the TWU removed question one from the draft order.

1. Mr Gheller submitted that question two did not explain the risks of not completing paperwork, which included the potential unlawful release or detention of persons in custody and there being no mechanism to alert staff that a person in custody is at risk of self-harm or has a mental illness.  Further Mr Gheller advanced it was not clear what paperwork could be completed and that which would not.  In cross examination Mr Cutrali stated that it would not be all paperwork but that it would be just selected paperwork, observing that it would not be practical if it were all paperwork. 

1. Mr Gheller observed that question five referred to the staggering of morning rest breaks.  He submitted that there were no scheduled rest breaks as the timing of such breaks is subject to operational requirements.  Mr Cutrali’s evidence was that there were staggered breaks at the Central Law Courts and the District Court Buildings and the ban would mean that employees would take their breaks together. 

1. In his oral submissions, Mr Gheller raised issue with question 3 and question 4 that referred to an unlimited number of bans on the performance of work after a certain time.  It was the submission of the TWU that these questions were not ambiguous.

1. It is said that s 437 itself, seen in its statutory context, requires that the questions should describe the industrial action in such a way that employees are capable of responding to them.[44]  I am appreciative that questions which are ambiguous or lack clarity may result in consequences for the bargaining representative and the employees if reliance is placed on the result of the ballot in taking industrial action.[45]  That is, the risks associated with the drafting of questions are initially taken by the bargaining representatives making the application.[46]

1. However, there remains an absolute necessity that sense must be able to be made of the question posed.  In this case I am satisfied that question two is absent the clarity required to engender an informed response where a proper assessment has taken place.  The question will not be included in the Commission’s Order.  With regards to the other questions asked, I do not consider that they suffer from the same difficulties and I consider that the employees are capable of responding to them in an informed manner. 

Extension of the three day period

1. Section 443(5) provides the Commission can require a longer period of notice to be given where it is satisfied that there are exceptional circumstances justifying this. The onus is on G4S to provide evidence that would satisfy the Commission that there are exceptional circumstances in this instance.

1. The approach to exceptional circumstances in this context was discussed by Vice President Lawler in CEPU v Australian Postal Corporation[47] which concerned an equivalent provision of the Workplace Relations Act 1996[48]:

[10] In this passage his Honour was concerned with the ordinary meaning of the expression “exceptional circumstances” and the approach identified is, in my view, equally applicable to the use of that expression in s.465(3). In summary, the expression “exceptional circumstances” requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.

[11] However, it is important to note that when considering whether to make an order pursuant to s.463(5) the Commission is not simply concerned with determining whether there are exceptional circumstances. There must be exceptional circumstances “justifying” the specification of a longer notice period. The notion of justification is critical and calls for a consideration of the purpose of the notice required by s.441.

1. The Vice President went on to state:

[21] Essentially, what is required in determining whether exceptional circumstances justify an extension of the required notices [sic] period is a weighing of the interests of the employer and third parties in the employer having a greater opportunity to take appropriate defensive action as against the diminution in the effectiveness of the employees’ bargaining power that results from such an extension. The fact that the legislature has seen fit to condition the ordering of an extension of the required notice period on the presence of exceptional circumstances justifying it, as distinct from merely conferring a simple discretion to extend the required notice period, indicates that ordinarily there should be no extension.

[22] The first example provided in Davids Distribution provides an illustration of where exceptional circumstances may justify an extension of the required notice period. A sophisticated piece of plant, such as a smelter, may take many days to shut down without damage. The employer is exposed to wholly disproportionate damage if it is prevented by too limited a notice period from undertaking an orderly shutdown of the plant. A further example may be afforded by a strike by teachers where the school needs to be able to notify parents of the strike so as to give them an opportunity to make alternative arrangements for the care of their children on the days of the strike. Typically, three working days will be insufficient for this purpose.

1. In order to warrant an extended period of notice, the Commission must be satisfied both as to the existence of exceptional circumstances and the fact that these justify the granting of the extended notice. This requires a weighing up of the opportunity for G4S to take appropriate defensive action against the diminution of the effectiveness of the TWU members’ bargaining power that is contemplated by the scheme of the Act.[49]  In that light, it would not be a relevant exercise of discretion to grant additional notice simply to allow the employer to neutralise the impact of the industrial action.[50]

1. It was clear from the evidence of Ms Smart that G4S provides a critical service to the
   Western Liberty Group Pty Ltd.  In turn the Western Liberty Group Pty Ltd provides court and custodial services to the Western Australia Department of Justice.  Further, it was evident that G4S is notified 3 months in advance of listings but ultimately with regard to confirmation of listings at the Central Law Courts and the District Court Buildings, this does not occur until the day before the listing.  It is the case that G4S has no control over the listings.

1. In cross examination, Mr Cutrali was asked whether G4S would find it very difficult to mitigate the impact of the industrial action, he responded ‘yes it would’.  Ms Smart’s evidence, whilst overlapping into opinion, was that a considerable amount of planning would be required to mitigate the impact of industrial action and that such industrial action would affect the security of the court areas.  Ms Smart referred to ‘significant planning’. 

1. Considering this evidence I accept that there may be a significant impact on the operations of and potentially then parts of the criminal justice system of Western Australia, should protected industrial action be taken.  Albeit that the number of TWU members that may take such action is unclear.  The industrial action may nevertheless pose a threat to public safety, and the safety of persons in custody and service providers working within the Central Law Courts and District Court Buildings.

1. It is true that the extent and degree of the impact will be dependent upon the nature of any protected industrial action that might be taken and there remains recourse under the Act regarding such action. Evidence led as to what options G4S has, to take steps to ameliorate the impact of protected industrial action was scant. Further, it was opinion that was expressed as to why in particular three working days’ notice of any protected industrial action would be insufficient in the circumstances to give the Department of Justice additional time to prepare itself. However, as acknowledged, Mr Cutrali appeared to be a credible witness and he expressed that G4S would find mitigation very difficult, as did Ms Smart.

1. I am appreciably aware that the evidence that has been led is limited.  However, the interests beyond that of the immediate parties may be significantly impacted by the taking of industrial action, and therefore the tendency is for an extension of the notice period to be provided.[51]

1. G4S has on this occasion met the onus of satisfying the Commission that there is in this instance exceptional circumstances justifying the period of notice of protected industrial action being longer than three working days as is prescribed in the Act. I have considered the evidence before me, and acknowledge that the request for a seven day period is premised on professional opinion. However, the evidence is such that I consider an extension of two days is warranted to the period specified in s 414(2)(a) and therefore the period of notice will be five working days.[52]

Conclusion

1. For the above reasons I have found that the TWU has met the statutory requirements of the Act and have found that the TWU has been and is genuinely trying to reach an agreement with G4S who is the employer of the employees who are to be balloted.

1. An order PR700275 is issued in conjunction with this decision.

DEPUTY PRESIDENT

Appearances:

A. Dzieciol on behalf the Applicant.

L. Gheller on behalf the Respondent.

Hearing details:

Perth:

2018.

September 12.

Final written submissions:

Applicant, 11 September 2018,

Respondent, 11 September 2018.

[1] Section 414(2)(b) of the Act.

[2] Respondent’s Particulars of Objection to the Application [1].

[3] Ibid [2].

[4] Ibid [3].

[5] Ibid [5].

[6] Ibid [4].

[7] Ibid.

[8] Statutory Declaration of Dulio John Cutrali [1].

[9] Ibid [2].

[10] Ibid [3].

[11] Ibid [4].

[12] Ibid.

[13]Ibid.

[14] Ibid.

[15] Ibid.

[16] Ibid.

[17] Ibid.

[18] Ibid.

[19] Respondent’s Particulars of Objection to the Application [7].

[20] Ibid [6].

[21] Ibid [8].

[22] Ibid [9].

[23] [2014] FWCFB 1317.

[24] [2015] FWCFB 7399 [27].

[25] [2016] FWCFB 1894 [15].

[26] [2014] FWCFB 2587 [34].

[27] Section 437(2A) of the Act.

[28] [2016] FWCFB 1894 [34].

[29] [2014] FWC 7469 [60].

[30] Ibid [23].

[31] Liquor, Hospitality and Miscellaneous Union -Western Australian Branch v CSBP Limited [2007] AIRC 469.

[32] Esso Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union[2015] FWCFB 210 [57].

[33] Total Marine Services Pty Ltd v Maritime Union of Australia[2009] FWAFB 368 [32]; National Union of Workers (NUW), Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU) v Sakata Rice Snacks Australia Pty Ltd[2016] FWC 6262 [25].

[34] Esso Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union[2015] FWCFB 210 [54].

[35] [2015] FWCFB 210.

[36] Ibid [18].

[37] Ibid.

[38] [2007] AIRC 112.

[39] Ibid [38].

[40] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Engie Fire Services Australia Pty Ltd[2018] FWC 5000.

[41] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Engie Fire Services Australia Pty Ltd[2018] FWC 5000 [33].

[42] Jupiters Limited v United Voice [2011] FWA 8317.

[43] [2011] FWA 4103.

[44] John Holland Pty Ltd v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) The Australian Workers’ Union[2010] FWAFB 526.

[45] Ibid.

[46] Ibid.

[47] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation[2007] AIRC 848.

[48] Section 463(5) Workplace Relations Act 1996 (Cth).

[49] Australian Federation of Air Pilots v Alliance Airlines Pty Ltd T/A Alliance Airlines[2017] FWC 6748 [12].

[50] Ibid.

[51] Transport Workers’ Union of Australia[2012] FWA 133; Transport Workers’ Union of Australia v the Chief Executive of the ACT Internal Omnibus Network (ACTION) on behalf of the Australian Capital Territory; Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU) v the Chief Executive of the ACT Internal Omnibus Network (ACION) on behalf of the Australian Capital Territory[2010] FWA 3355.

[52] Section 414(2)(b) of the Act.

Printed by authority of the Commonwealth Government Printer

<PR700274>