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

[2015] FWC 6654

[2015] FWC 6654

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

Transport Workers' Union of Australia
v
G4S Custodial Services Pty Ltd
(B2015/1348)

COMMISSIONER WILLIAMS PERTH, 29 SEPTEMBER 2015

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

[1] These reasons for decision concerns an application by the Transport Workers’ Union of Australia (the TWU or the applicant) for a protected action ballot order under section 437 of the Fair Work Act 2009 (the Act). The respondent is G4S Custodial Services Pty Ltd (the respondent).

[2] The respondent opposed the application on the ground that the applicant had not been and was not genuinely trying to reach agreement. The respondent also objected to the nature of some of the questions proposed to be included in the ballot order. Finally the respondent submitted that the period of written notice referred to in section 414(2) (a) of the Act be longer than three working days.

[3] These reasons for decision follow the decision given at the conclusion of this hearing and recorded in transcript.

[4] At the hearing of this matter evidence was given by Mr John Cutrali an Organiser employed by the TWU-Western Australia branch and by Ms Robyn Smart (Ms Smart) the respondent’s Contract Manager-District and Central Law Courts Perth. I accept the evidence of both witnesses.

[5] Considering the evidence and other material provided I am satisfied that the application has been properly made under section 437 of the Act and the application was not made earlier than 30 days before the nominal expiry date of the previous enterprise agreement.

[6] I am further satisfied that the respondent was provided with a copy of the application within 24 hours of it being made as required by section 440 of the Act.

[7] Section 443 of the Act set out below prescribes when the Commission must make a protected action ballot order.

“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.

(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.”

[8] In this case the respondent argues that the applicant has not been and is not genuinely trying to reach an agreement with the respondent.

[9] The evidence is the last meeting of the parties to negotiate over the agreement was in mid July 2015. Next as a consequence of an application made by the respondent the Commission convened a conference of the parties under section 240 of the Act on 27 August 2015. The next day the respondent put a revised offer to the TWU and its employees 1. Since that time the evidence is that the TWU has been canvassing the views of its members including undertaking a survey as to their willingness to accept the respondent’s offer or to take industrial action to progress the employees’ claims. In these circumstances the timing of this application does not demonstrate that the applicant has not been and is not genuinely trying to reach agreement.

[10] Separately the respondent argues that the fact the TWU has not formally replied to its most recent offer made on 28 August 2015 demonstrates that it has not been and is not genuinely trying to reach agreement. The latest offer made by the respondent included some change to wording regarding requirements for personal leave and an adjustment to one allowance. This amended offer put by the respondent on 28 August 2015 did not include any change to the pay increases offered which the evidence discloses is the central issue in dispute from the employees’ perspective. In these circumstances what the respondent complains of is not sufficient to demonstrate that the applicant has not been and is not now genuinely trying to reach agreement.

[11] With respect to the complaint the respondent has about the clarity of the questions to be put to employees in the ballot I am satisfied that the employees undertaking the work in question will be able to sufficiently understand the questions put to them to answer whether they do or do not agree to take the particular forms of industrial action mentioned.

[12] Finally the respondent submits that under section 443(5) of the Act the Commission should in any protected action ballot order specify a longer period of written notice be given than the statutorily specified three working days before industrial action is taken.

[13] Section 443(5) of the Act 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 then is on the respondent to provide evidence that would satisfy the Commission that there are exceptional circumstances in this instance.

[14] The respondent’s employees involved in this application working at the District Court and Central Law Courts in Perth provide 24 hours a day, seven days a week security services. This includes uniformed front of house security, security checkpoint, operation of the control rooms and the security management system and in-court management including Gallery Guards and Court Orderly duties. In addition the custody operation involves the management of two custody centres, linked by an underground tunnel between buildings, with the capacity to hold approximately 140 persons. The respondent’s employees are also involved in the secure escort of persons to and from the courts and associated meeting rooms with a focus on their care, welfare and security.

[15] The evidence of Ms Smart in support of the respondent’s position is limited to the fact that any ban by employees on the completion of paperwork may impact on the security of the courts and that in mid-October she understands there will be a high profile case in a court which will run for six weeks and involves a high risk prisoner and that industrial action such as no longer staggering lunch breaks would not allow the respondent to monitor the custody cells to ensure the security and safety of persons held therein.

[16] Considering this evidence I accept that there will be a significant impact on the operations of the respondent and potentially then the Courts however the extent and degree of this will be dependent upon the nature of any protected industrial action that might be taken. Self-evidently however there are actions the respondent can take to reduce the impact of any protected industrial action. No evidence was led as to what options the respondent has to take steps to ameliorate the impact of protected industrial action and no evidence was led as to why three working days notice of any protected industrial action is insufficient in the particular circumstances. In short the respondent has not met the onus of satisfying the Commission that there are 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 decline to specify a longer period than the three working days referred to in paragraph 414(2) (a) of the Act.

Conclusion

[17] As explained above I am satisfied that the applicant has met the statutory requirements of the Act and in particular I am satisfied that the applicant has been and is genuinely trying to reach an agreement with the respondent who is the employer of the employees who are to be balloted.

[18] In those circumstances then as provided for in section 443 of the Act the Commission must make a protected action ballot order in relation to the proposed enterprise agreement. An order [PR572255] to this effect was issued on 25 September 2015.

COMMISSIONER

Appearances:

A. Dzieciol of the applicant.

L. Gheller of the respondent.

Hearing details:

2015.

Perth:

September 25.

 1   Exhibit R1.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR572323>