United Voice v G4S Custodial Services Pty Ltd

[2018] FWC 3387

[2018] FWC 3387

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

United Voice
v
G4S Custodial Services Pty Ltd
(B2018/449)

COMMISSIONER PLATT ADELAIDE, 8 JUNE 2018

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

[1] This is an application made pursuant to s.437 of the Fair Work Act 2009 (the Act) by United Voice (UV), for a protected action ballot order, in relation to certain employees of G4S Custodial Services Pty Ltd (G4S).

[2] On 5 June 2018, my Associate provided copies of the proposed draft order to the parties. G4S advised that it opposed the application and the matter was listed for a Hearing.

[3] A Hearing was conducted by telephone on 6 June 2018. Mr Christopher Zammit represented UV and Mr Lou Gheller represented G4S.

[4] It was agreed that:

•  the requirements of s.440 of the Act had been met and UV had provided evidence of same.

•  that UV was and is genuinely trying to seek an agreement.

[5] G4S contended that the PABO should not be issued as:

•  the parties were scheduled to meet on Thursday 7 June 2018, thereby the application was premature.

•  the questions in the proposed draft order were ambiguous and did not properly describe what work would not be undertaken; and

•  the impact of the work (which involves the operation of the Mt Gambier Prison) could present a health and safety risk for the prisoners and the community.

[6] Section 443 of the Act details when the Commission must make a protected action ballot order (provided the other preconditions are met). The provision requires that the application has been made under s.437 and that the Commission is satisfied that each applicant has been and is genuinely trying to reach agreement. None of the grounds for opposition submitted by G4S provide a basis for the application to be refused.

[7] G4S made an application pursuant to s.443(5) of the Act that the period of written notice be extended. G4S sought a period of 7 days on the basis that it needed more notice in order to secure an alternative workforce. G4S contended that supervisors could not cover the labour that could potentially be lost from the withdrawal of labour, that a replacement workforce would need to be mobilised from Melbourne and/or Perth, and that training and approval by the South Australian Correctional Services Department would be required. Mr Zammit contended that the default 3 day period of notice would be sufficient.

[8] This is not the usual case where the impact of the proposed industrial action solely affects the employer. The industrial action would have an impact on prisoners, visitors and the safety and security of the prisoners and the community.

[9] I accept that it would not be practical for G4S to mitigate the impact of any withdrawal of labour within 3 days, particularly in light of the need to mobilise replacement employees from interstate and seek approval from the South Australian Correctional Services Department.

[10] In CEPU v Australian Postal Corporation 1, Vice President Lawler discussed the meaning of “exceptional circumstances,” stating:

“Essentially, what is required in determining whether exceptional circumstances justify an extension of the required notices 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.” 2

[11] While this matter was decided in a different statutory context, the approach taken in the above passage has been adopted by members of the Commission in the consideration of s.443(5) of the Act.

[12] Applying this approach to the facts in this matter, I find that exceptional circumstances exist within the meaning of s.443(5) of the Act and extend the notice period to 5 working days.

[13] An Order 3 was issued on 6 June 2018 approving the order sought, with the addition of the 5 day notice period.

COMMISSIONER

Appearances:

Mr C Zammit on behalf of United Voice.

Mr L Gheller on behalf of G4S Custodial Services Pty Ltd.

Hearing details:

2018.
Adelaide:

6 June.

Printed by authority of the Commonwealth Government Printer

<PR607974>

 1   [2007] AIRC 848.

 2 Ibid at [21].

 3   PR607902.

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