United Workers' Union v ISS Security Pty Ltd

[2022] FWC 3041

[2022] FWC 3041

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

United Workers’ Union
v

ISS Security Pty Ltd

(B2022/1718)

DEPUTY PRESIDENT DEAN CANBERRA, 16 NOVEMBER 2022

Proposed protected action ballot of employees of ISS Security Pty Ltd at Gold Coast Airport.

1. The United Workers’ Union of Australia (UWU) has made an application for a protected action ballot order (PABO) pursuant to s. 437 of the Fair Work Act 2009.

1. The application seeks to ballot employees of ISS Security Pty Ltd (Respondent) who are members of, and represented by, the UWU for a proposed agreement to replace the ISS Security Queensland Aviation Security Enterprise Agreement 2019 (the Agreement) which has a nominal expiry date of 30 June 2022.

1. The Respondent did not oppose the making of the PABO, however it sought to extend the period of written notice required for the taking of industrial action beyond three working days.

1. On 15 November 2022, the UWU advised that the parties reached a consent position to an extension of the notice period required from 3 working days to 5 working days.

1. Section 443(5) of the Act provides that if there are exceptional circumstances justifying the period of written notice referred to in s.414(2)(a) being longer than three working days, the protected action ballot order may specify a longer period of up to seven working days.

1. I am satisfied, based on the submissions made by the Respondent, that there are exceptional circumstances to justify an extension of the notice period specified in s.414 (2)(a) of the Act. The exceptional circumstances include that aviation security screening requires employees to have aviation security identification cards (ASICs) which can only be issued to persons who have undergone a background check. An ASIC is required to perform security work at a security-controlled airport. Additionally, all aviation security screening officers must also complete a Certificate II in Transport Security Protection. The extension of the notice period will allow the Respondent to coordinate with Airports, the Australian Federal Police and other stakeholders to minimise the risk to safety of the travelling public associated with the proposed industrial action. This would involve additional non-screening security, additional AFP and other stakeholders from the Airports to manage the large landside crowds that will be created by interruptions to screening.

1. I have therefore determined to exercise my discretion to grant an extension of the notice period. I am satisfied that an extension of the notice period from three working days to five working days is appropriate in all the circumstances.

1. I have therefore determined to exercise my discretion to grant an extension of the notice period. I am satisfied that an extension of the notice period from three working days to five working days is appropriate in all the circumstances.

1. On the basis of the material before me, including the statutory declaration of Mr Damien Davie of UWU which set out the steps taken in bargaining with the Respondents, I am satisfied that the UWU has been, and is, genuinely trying to reach agreement with the Respondent, that there is a notification time in relation to the proposed agreement and that the requirements in section 443(1) of the Act have been met. Accordingly, the protected action ballot order must be made.

1. The UWU sought that a person other than the Australian Electoral Commission be the ballot agent for the protected action ballot. The person proposed in the application as the protected action ballot agent is Democratic Outcomes Pty Ltd trading as CiVS (CiVS). On the basis of the declaration provided by Mr Michael M Michael, Managing Director of CiVs, I am satisfied that CiVS is a fit and proper person to conduct the ballot and that the requirements prescribed by Reg3.11 of the Fair Work Regulations 2009 are met. Accordingly, CiVS is appointed as the protected action ballot agent.

1. Directions for the conduct of the protected action ballot in accordance with s.450 of the Act have been incorporated into the Order, issued separately in PR747966.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR747965>