United Workers' Union v Sydney Night Patrol & Inquiry Co Pty Ltd Summary

[2022] FWC 3062

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

United Workers’ Union
v

Sydney Night Patrol & Inquiry Co Pty Ltd

(B2022/1733)

DEPUTY PRESIDENT DEAN

CANBERRA, 18 NOVEMBER 2022

Proposed protected action ballot of employees of Sydney Night Patrol & Inquiry Co Pty Ltd.

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.

The application seeks to ballot employees of Sydney Night Patrol & Inquiry Co Pty Ltd (Respondent) who are members of, and represented by, the UWU for a proposed agreement to replace the Canberra Airport Security Services Enterprise Agreement 2017 (the Agreement) which has a nominal expiry date of 25 June 2020.

On 17 November 2022, the UWU filed an amended application and draft order, varying the date by which voting closes from 15 working days to 7 calendar days.

The Respondent initially advised the Commission that it opposed the making of the PABO. Subsequent to discussions between the parties, the Respondent advised that a consent position was reached to an extension of the notice period required for the taking of industrial action from 3 working days to 5 working days. On that basis, the Respondent withdrew its objection to the amended PABO.

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.

In support of an extension to the notice period, the Respondent provided written submissions. Briefly stated, it is submitted that the services provided by the Respondent at the Sydney Airport involve a full suite of security services including to screen and restrict prohibited items and access to security restricted and sterile areas of the airport. These services are integral to the running of Canberra Airport, to passenger safety and to aviation security. The proposed industrial action has the potential to cause significant impacts upon third party stakeholders, passengers and workers of the Respondent. The extension of the notice period will allow the Respondent to notify impacted third party stakeholders so that they can implement measures to reduce the impact of industrial action. It will also allow the Respondent to implement sufficient measures to minimise the impact of the specified industrial action on the safety of the passengers at Canberra Airport.

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.

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.

On the basis of the material before me, including the statutory declaration of Mr Fletcher Beverley 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.

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.

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 PR748045.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the Fair Work Commission, the United Workers’ Union of Australia (UWU) sought a protected action ballot order (PABO) from Sydney Night Patrol & Inquiry Co Pty Ltd (SNP) under section 437 of the Fair Work Act 2009. The union sought to ballot its members employed by SNP to approve a proposed enterprise agreement to replace the Canberra Airport Security Services Enterprise Agreement 2017. SNP initially opposed the PABO but later reached a consent position with the union to extend the notice period required for industrial action from three working days to five working days. SNP submitted that the extended notice period would allow it to notify third party stakeholders and take measures to mitigate the impact of industrial action on passenger safety and airport operations. The union sought Democratic Outcomes Pty Ltd trading as CiVS to conduct the ballot. The Commission accepted SNP’s submissions and granted the PABO with the extended notice period. The Commission also appointed CiVS as the ballot agent.
The legal issues before the Commission were whether exceptional circumstances justified an extension of the notice period beyond the statutory minimum of three working days and whether the union met the requirements for a protected action ballot order. The Commission found that the nature of SNP’s airport security services and the potential impacts of industrial action on passengers and third parties did constitute exceptional circumstances warranting the five day notice period. The Commission was also satisfied that the union had genuinely tried to reach agreement with SNP and met the other statutory requirements for a protected action ballot order.
In reaching its decision, the Commission considered the submissions from SNP outlining the exceptional circumstances and the statutory declaration from the union demonstrating its bargaining efforts. The Commission determined that the extended notice period was appropriate given the circumstances. The Commission also accepted that CiVS met the requirements to be appointed as the ballot agent. Accordingly, the Commission exercised its discretion to grant the PABO with the extended notice period and appointed CiVS as the ballot agent.
The Commission issued directions for the conduct of the ballot in accordance with section 450 of the Fair Work Act 2009. The final orders granted the protected action ballot order with the five day notice period and appointed CiVS as the ballot agent. Directions for the conduct of the ballot were issued separately.

United Workers' Union v Sydney Night Patrol & Inquiry Co Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established