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

[2018] FWC 1617

[2018] FWC 1617

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

Transport Workers’ Union of Australia
v
G4S Custodial Services Pty Ltd
(B2018/178)

COMMISSIONER WILSON MELBOURNE, 21 MARCH 2018

Proposed protected action ballot of employees of G4S Custodial Services Pty Ltd.

[1] This is an application for a protected action ballot order by the Transport Workers’ Union of Australia (TWU) in relation to certain employees employed by G4S Custodial Services Pty Ltd (G4S) whose employment is presently covered by the G4S Custodial Services Pty Ltd Victorian Prisoner Transport Services and Community and Public Sector Union (Victoria) Enterprise Agreement 2015 1, (the 2015 Agreement), the nominal expiry date of which is 31 December 2017.

[2] The application is made pursuant to s.437 of the Fair Work Act 2009 (the Act).

[3] The Applicant seeks to ballot all employees of G4S who will be covered by the proposed enterprise agreement and for whom the TWU are their bargaining representatives. The material filed in this application by the TWU asserts that they are bargaining representatives for the purposes of s.176(1) of the Act and that they are genuinely seeking to reach agreement. The Applicant proposes four questions to which respondent employees will need to answer with a single “yes” or “no” response. The proposed questions are;

(a) Overtime bans – employees will refuse to work outside of ordinary hours.

[ ] yes [ ] no

(b) Work bans – employees will refuse to perform part of their usual work duties.

[ ] yes [ ] no

(c) Periodic Stoppages - An unlimited number of stoppages of the performance of all work for specified periods of between one (1) and seventy-two (72) hours.

This action may be organised and/or engaged in on consecutive occasions.

[ ] yes [ ] no

(d) Indefinite Stoppage – Employees will cease work for an indefinite period.

[ ] yes [ ] no

[1] G4S provides prisoner transportation services in Victoria and submits that it is the only such provider. It transports prisoners to and from the remand centre and prisons; to and from the Courts; and between prisons. I accept this service is an essential part of the Victorian criminal justice system.

[2] G4S oppose the application on two grounds. Firstly, on the grounds that the TWU has not been genuinely trying to reach agreement. Secondly, that the questions posed in the ballot paper contained in the draft order do not provide enough clarity for the employees who will be requested to vote on the ballot.

[3] Because of the objections of G4S the matter was listed for hearing on 19 March 2018 at which representatives of the TWU and G4S attended and made submissions. Further material was submitted by each party on 20 March 2018.

[4] In considering this application I must apply s.443 of the Act which 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.

(4) If the FWC decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:

(a) the person that the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and

(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.

(5) If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.

Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.

[5] No objection is put forward by G4S to the effect that the Applicant is not entitled for reason of s.437 of the Act to make an application for a protected action ballot order.

[6] There are three matters that require determination. The first is whether the TWU has genuinely been trying to reach agreement; the second is whether question 2 is sufficiently capable of response by ballot participants and therefore capable of inclusion; and the third matter is whether a 7 day period for notification of any authorised protected industrial action should be provided for, instead of 3 days.

[7] The TWU submits that it provided a log of claims to G4S on 17 November 2017. After the provision of its claims five meetings were held by the parties on 2 November 2018, 16 November 2017, 14 December 2017, 25 January 2018 and 1 March 2018.

[8] G4S contest whether this is sufficient for the Commission to be satisfied the TWU is genuinely trying to reach agreement and submits that the TWU’s application is premature since apart from the TWU’s log of claims, the TWU has not put forward any other documents or proposals. G4S submits that at the meeting on 1 March 2018, G4S tabled a “without prejudice” proposal for the new enterprise agreement. Following some discussion on the proposal, G4S indicated that it would review some parts of the proposal and provide an update to the parties. G4S never provided the TWU with a date to when this view and update would occur. However, this update was subsequently provided and a further meeting was held on 19 March 2018 to discuss G4S’s updated position. Since this time, G4S submits that the TWU has not taken any further steps demonstrating that it is genuinely trying to reach agreement.

[9] The further submissions of the TWU on the subject of “genuinely trying to reach agreement” put forward that there has been discussion, even significant discussion, with G4S about its claims:

“10. There has been discussion around the items contained in the Unions log of claims and concession has been made in relation to the Uniform claim whereby it has been removed. There has also been discussion around the truck allowance which the Union have given careful consideration prior to rejecting the company’s initial offer to “buy out” the allowance, and as such the company have agreed to keeping the allowance for the few employees to whom it applies.

11. There has been significant discussion around the wage rates contained in the proposed Agreement. The rate that currently exists is an all-inclusive rate, and the Union’s claim involves a base rate with allowances and loadings to be paid on top of it. The fact that the Union has not altered its position in relation to the wage claim cannot be said to be bargaining in poor faith or not genuinely trying to reach agreement. It is simply the current bargaining position.

12. The company only put an amended wage offer to the Union after the protected action ballot application was lodged on Friday 16 March 2018. The wage offer put by the company increased the proposed wage increase from 2.6% to 2.75%. The Union has discussed this offer with its delegates and will meet with the wider workforce to put it to them as well. The Union will respond to the company in a timely manner, as it has throughout the negotiations so far.”

[10] The TWU submit that the test to be applied by the Commission in this regard is set out by the Full Bench in the matter of Total Marine Services Pty Ltd v Maritime Union of Australia, which held;

“In our view the concept of genuinely trying to reach an agreement involves a finding of fact applied by reference to the circumstances of the particular negotiations. It is not useful to formulate any alternative test or criteria for applying the statutory test because it is the words of s 443 which must be applied. In the course of examining all of the circumstances it may be relevant to consider related matters but ultimately the test in s 443 must be applied.

We agree that it is not appropriate or possible to establish rigid rules for the required point of negotiations that must be reached. All the relevant circumstances must be assessed to establish whether the applicant has met the test or not. This will frequently involve considering the extent of progress in negotiations and the steps taken in order to try and reach an agreement. At the very least one would normally expect the applicant to be able to demonstrate that it has clearly articulated the major items it is seeking for inclusion in the agreement, and to have provided a considered response to any demands made by the other side. Premature applications, where sufficient steps have not been taken to satisfy the test that the applicant has genuinely tried to reach an agreement, cannot be granted.” 2 (reference omitted)

[11] G4S contest that the TWU has met the standard applied by the Full Bench, putting forward that the TWU has maintained their log of claims with no movement, save for an indication that union no longer pursued one minor claim.

[12] The material before the Commission establishes that the TWU has put forward its claims and discussed those claims and its industrial objectives with G4S. The same material shows that the union has communicated the company’s wage offer to its members and that the offer is being considered by the affected employees. There is nothing before the Commission which would lead to a finding that the TWU is unwilling to provide a considered response to the G4S wages offer, or that it will not do so within a reasonable period. The steps taken by the TWU largely satisfy the test set out in Total Marine Services with the Applicant evidently having articulated its major claims and commenced a process of ascertaining its members views about the G4S wages position in order that it may provide a considered response to the company. I do not consider the fact that there has not yet been a response to G4S to be in conflict with the expectation enunciated by the Full Bench; instead, all the relevant circumstances of the matter point to the statutory test of genuine trying to reach agreement being met.

[13] Accordingly I am satisfied that the Applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

[14] The second question for determination is whether all four of the questions posed in the ballot paper contained in the draft order provided are sufficiently capable of response by ballot participants and therefore capable of inclusion within the Commission’s order. Question 2 of the proposed order asks respondent employees to answer yes or no to the question of whether:

“Work bans - Employees will refuse to perform part of their usual work duties.”

[15] G4S submits that this is not clear as to what duties will be performed and those duties that will not be performed.

[16] The TWU submits that the question is permissible, with it being sufficiently capable of response by ballot participants for it to be included in a protected action ballot order.

[17] In John Holland Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, 3 the Full Bench at [19] found that in terms of s.437 of the Act:

“…all that the section requires is that the questions should describe the industrial action in such a way that employees are capable of responding to them. If the questions are ambiguous or lack clarity there may be consequences for the bargaining representative and the employees if reliance is placed on the result of the ballot in taking industrial action. If the question or questions give rise to ambiguity, the conclusion may be reached that the industrial action specified in a notice under s.414 was not authorised by the ballot and that the action is not protected for the purposes of s.409(2). It is true that ambiguity or lack of clarity in the description of the industrial action is undesirable, but these are matters more appropriate for consideration under other provisions. It follows that in most cases the drafting of the questions will be a matter for the applicant.”

[18] I am not satisfied the question gives ballot participants any capability of meaningful response. Which part of their usual work duties will employees refuse to perform? Not keeping the lunch room clean and tidy? Not filling out paperwork used for billing purposes? Not handling the transportation vehicle’s keys in accordance with policy? Not picking up prisoners from the County Court at the end the day? Not transporting prisoners in a continuous journey and instead stopping the truck half way over the Westgate Bridge, and walking away with the engine still running?

[19] Despite an invitation from the Commission to reframe the question because of its obvious wide reach and potential difficulty, the TWU chose not to do so.

[20] Question 2 of the proposed order does not describe the industrial action in such a way that employees are capable of responding to it. A “yes” outcome of the ballot would inevitably lead to difficulties in understanding what actually had been authorised, and more likely, what had not. The question will not be included in the Commission’s Order.

[21] The remaining questions do not suffer from the same difficulties.

[22] G4S also submitted to the Commission that it should exercise its power under s.443(5) of the Act and require that the period of written notice for the commencement of protected industrial action, if any is authorised by a ballot, be extended from 3 working days to 7 working days. Noting the work performed by the employees in question and that G4S submits it is the only provider of prisoner transportation services in Victoria, I am satisfied that there are exceptional circumstances justifying the period of written notice referred to in s.414(2)(a) of the Act to be longer than three working days and the order will provide for a seven day notification period for all questions.

[23] After consideration of all of the matters put to the Commission about the proposed questions, I am satisfied that questions 1, 3 and 4are within the power of the Commission to order and that it is otherwise appropriate to make the orders sought by each of the Applicants.

[24] I am satisfied that the application has been made in accordance with s.437 of the Act.

[25] Having determined these matters, and being satisfied that the requirements of s.443(1)(a) and (b) of the Act have been complied with in respect of questions 1, 3 and 4, I must make a protected action ballot order, as sought by the TWU. The terms of the order are published separately.

COMMISSIONER

Appearances:

Mr C. Fennel for the Transport Workers’ of Australia.

Mr L. Gheller for the G4S Custodial Services Pty Ltd.

Hearing details:

2018.

Melbourne:

19 March.

<PR601292>

 1   AE417508.

 2   [2009] FWAFB 368, [31] – [32].

 3   [2010] FWAFB 526.

Printed by authority of the Commonwealth Government Printer