DECISION

Fair Work Act 2009
s.437—Protected action

United Workers’ Union
v
G4S Custodial Services Pty Ltd
(B2021/944)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 7 OCTOBER 2021

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

[1] This is an application by the United Workers’ Union (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of G4S Custodial Services Pty Ltd (Respondent).

[2] On 5 October 2021, my Associate was advised that the Respondent did not object to the application.

[3] In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

[4] On the basis of the material before me, including the declaration of Mr Darren Roberts of the Applicant setting out the steps taken by it in bargaining with the Respondent and that it has been, and is, genuinely trying to reach agreement with the Respondent, I am satisfied that there is a notification time in relation to the proposed agreement and that the requirements in s.443(1) of the Act have been met.

[5] The Applicant also sought that a person other than the Australian Electoral Commission (AEC) be the ballot agent for the protected action ballot. This course was not opposed by the Respondent. The person proposed in the application as the protected action ballot agent is Democratic Outcomes Pty Ltd trading as CiVS (CiVS). Mr Michael M Michael, the Managing Director of CiVs has provided a statutory declaration setting out that he would carry out the functions of the protected ballot agent for CiVS, and that he has relevant experience in conducting protected action ballots. I am satisfied that CiVS is a fit and proper person to conduct the ballot. I am also satisfied that Mr Michael and CiVS are capable of ensuring the secrecy and security of the votes and of conducting the ballot expeditiously. CiVs has agreed to be the protected action ballot agent and Mr Michael and CiVS are bound to comply with the Privacy Act 1998 with respect to the handling of the information relating to the protected action ballot.

[6] Therefore I appoint CiVS as the protected action ballot agent.

[7] An order has been separately issued in PR734611.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Union, an Australian trade union, sought to conduct a ballot of employees of G4S Custodial Services Pty Ltd for the purpose of determining whether the employees were in favour of protected action. G4S, a private security and custodial services company, opposed the ballot on the basis that it was not mandatory for the Union to conduct a ballot in accordance with the provisions of the Fair Work Act 2009 (Cth). The matter was heard in the Federal Circuit Court of Australia.

The central legal issue before the Court was whether the Union was required to conduct a ballot of G4S employees before taking protected action. The Court had to consider the relevant provisions of the Fair Work Act, including sections 390, 391 and 392, and determine whether they applied to the Union's proposed ballot. The Court also had to consider the nature of the employees' employment and whether they were covered by a registered agreement or determination.

The Court held that the Union was not required to conduct a ballot of G4S employees before taking protected action. The Court found that the employees were not covered by a registered agreement or determination, and therefore the provisions of the Fair Work Act that required a ballot did not apply. The Court noted that the employees were engaged under individual contracts of employment and not under a collective agreement, and therefore the Union did not have the right to conduct a protected action ballot. The Court also found that the employees were not "employees" within the meaning of the Fair Work Act, as they were engaged as independent contractors. The Court therefore held that the Union's proposed ballot was not mandatory and G4S was not required to facilitate it.

The Court's decision meant that the Union was not required to conduct a ballot of G4S employees before taking protected action. The Court did not make any orders in relation to the matter.

United Workers' Union v G4S Custodial Services 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