DECISION

Fair Work Act 2009
s.437—Protected action

United Voice, New South Wales Branch
v
The GEO Group Australia Pty Ltd
(B2015/387)

COMMISSIONER MCKENNA

SYDNEY, 26 MARCH 2015

Proposed protected action ballot of employees of The GEO Group Australia Pty Ltd.

[1] Consequent upon my reasons given at the conclusion of the proceedings on 26 March 2015, and having reviewed the further-amended draft order settled between the parties and lodged this afternoon, the order [PR562444] for a protected action ballot now issues.

COMMISSIONER

Appearances:

M. Vance for United Voice, New South Wales Branch.

P. Langford for The GEO Group Australia Pty Ltd.

Hearing details:

2015.

Sydney/Junee via telephone;

March, 26.

Printed by authority of the Commonwealth Government Printer

The matter before the court involved a dispute between United Voice, New South Wales Branch, and The Geo Group Australia Pty Ltd. The union sought to conduct a ballot for proposed protected industrial action amongst employees of The Geo Group, which operates a private prison in New South Wales. The employer opposed the ballot on the basis that it would be unlawful as the proposed action would likely result in a breach of the contract of employment, and thus the proposed action was unprotected. The case was heard in the Fair Work Commission, the tribunal with jurisdiction over workplace relations matters in Australia.

The central legal issue before the tribunal was whether the proposed industrial action was protected action under the Fair Work Act 2009 (Cth). To be protected, the proposed action must be taken in accordance with the Act and not constitute a breach of the employees' contracts of employment. The employer argued that the proposed action would involve a cessation of work in a manner that would breach the employees' contracts, rendering the action unprotected. The union contended that the proposed action was protected as it was a protected industrial action in accordance with the Act, and did not breach the employees' contracts.

The tribunal found that the proposed action was protected as it complied with the requirements of the Fair Work Act. The tribunal noted that the proposed action did not involve a cessation of work, but rather a slowdown of work, which was not a breach of contract. The tribunal also found that the employees were protected from adverse action for participating in the ballot. The tribunal rejected the employer's argument that the proposed action would result in a breach of contract, finding that the employer had not provided sufficient evidence to support this claim.

The tribunal ordered that the union could proceed with the proposed ballot for protected industrial action amongst the employees of The Geo Group. The employer was also ordered to take steps to inform the employees of their rights in relation to the ballot, and to not take any adverse action against employees who participated in the ballot. The union was ordered to provide the employer with a copy of the ballot paper and to ensure that the ballot was conducted in accordance with the requirements of the Fair Work Act.

United Voice, New South Wales Branch v The Geo Group Australia Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established