Fair Work Act 2009

s.437 - Protected action

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

[1] This decision concerns an application made by the Community and Public Sector Union (CPSU) 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 (company) who are employed as correctional workers at Port Phillip Prison in Victoria. The company does not oppose the application but asks the Commission to specify a longer period of notice of industrial action, namely five working days, pursuant to s 443(5).

[2] Section 443(5) states that 'if the Commission is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days'.

[3] The CPSU's application was allocated to my chambers on the afternoon of 27 February 2020, following certain correspondence between the parties and the Commission. At a telephone mention on 28 February 2020, the CPSU stated that it would be prepared to provide the company with five working days' notice, as defined in s 12 of the Act, of any protected industrial action, by stipulating this requirement in the questions submitted to employees in the ballot. That is, the ballot would ask employees whether they supported the taking of various forms of protected industrial action in support of claims for a new enterprise agreement, subject to the union providing the company with five working days' notice.

[4] The CPSU stated however that it did not consent to the exercise of the Commission's power under s 443(5) to extend the minimum notice requirement, because it did not agree that there were 'exceptional circumstances' justifying a longer period of notice. In this regard it relied on an email submission sent to the Commission on 27 February 2020.

[5] The company pressed its application for an extended notice period under s 443(5), and relied on a statutory declaration of Ms Patricia Sellman, the General Manager of Port Phillip Prison. In her statement, Ms Sellman addressed the various forms of industrial action that were referred to in the union's draft ballot order, the effects or implications of such action occurring, and why she believes the company requires 5 working days' notice of relevant industrial action.

[6] The CPSU then withdrew its proposal to extend the notice period through the question to be put to employees. It maintained its position that there were no exceptional circumstances. It did not however wish to lead any evidence in relation to the issue of whether the notice period should be extended and did not seek to cross-examine Ms Sellman.

[7] On Monday 2 March 2020 the company lodged a brief written submission. In reply, the union reiterated that it did not agree that there were exceptional circumstances for the purpose of s 443(5). The parties requested that I determine the CPSU's application for a protected action ballot order, and the company's application to extend the notice period under s 443(5), on the papers. I consider it appropriate to do so.

[8] First, I will address the CPSU's application under s 437 for a protected action ballot order. I have considered the application and statutory declaration of Mr Clay OBrien, CPSU industrial organiser, which sets out the steps taken by the union to try to reach agreement with the company. I am satisfied, and it is not in dispute, that there is a notification time in relation to the proposed agreement, that the applicant union has been, and is, genuinely trying to reach agreement with the company, and that the other requirements for the making of a protected action ballot order have been met. As I am satisfied of these matters, I am required by s 443(1) to make a protected action ballot order.

[9] Before considering the company's application under s 443(5), I wish to briefly address the union's earlier proposal to extend the notice period through the question to be put to employees in the ballot order. This was evidently a compromise, the practical effect of which would be to provide the company with the additional notice period it sought, namely five clear working days' notice, but without acknowledging that there are exceptional circumstances justifying an additional period of notice. This appeared to be a pragmatic proposal in the circumstances.

[10] However, the company apprehended some concern about whether this course would be legally effective, on the basis, as I understand it, that it might be said to derogate from s 414(2), which states that the minimum period of notice that must be given before taking protected industrial action is 3 working days, or any longer period specified pursuant to s 443(5). In my opinion, there is no reason to doubt the validity or effectiveness of including a notice requirement in the questions that are put to employees in a protected action ballot. Section 414 deals with the minimum period of notice of industrial action that must be given to the employer. That period is 'at least' 3 working days, or any longer period (up to seven days) specified in a ballot order pursuant to s 443(5). The minimum notice period in s 414 is one of the 'common requirements' in s 413 that must be met in order for industrial action to attract the immunity in s 415 (see s 413(4)). A separate requirement attaching to 'employee claim action' under s 409(2) is that the industrial action must be authorised by a protected action ballot. If the employees approve proposed forms of industrial action that are contingent upon the giving of a certain period of notice, or some other step being taken, the industrial action will not be authorised or protected unless this occurs.

[11] I record my view of this matter as it may be of assistance in other cases where a bargaining representative is prepared to afford a longer period of notice of industrial action but does not agree that the circumstances are exceptional for the purpose of s 443(5).

[12] In the present case however, the company has pressed its application under s 443(5). The company contends that there are 'exceptional circumstances' and the union disagrees.

[13] The discretion afforded to the Commission to specify a period of notice in excess of 3 working days is qualified by the requirement that I be satisfied that there are exceptional circumstances justifying a longer period of notice. The Commission must have a sound basis for its satisfaction; generalised predictions as to the consequences of industrial action are not sufficient. I take note of and adopt the approach of the Full Bench in National Tertiary Education Union v Charles Darwin University.[1]

[14] The company contends that, based on the evidence of Ms Sellman, who has extensive experience in senior positions in correctional management, the Commission should be satisfied that there are exceptional circumstances justifying a notice period of five working days. Ms Sellman explained in her statement that Port Phillip Prison is a maximum-security facility which holds some 1,087 male prisoners, the majority of whom have been charged with or convicted of serious criminal offences. The prisoners are segregated into various populations, including mainstream, medical, intellectually disabled and youth.

[15] Ms Sellman said that the company requires a significant number of correctional staff to be rostered at any given time to ensure that it has appropriate resources available to manage prisoners and respond to incidents. The company employs some 535 permanent correctional staff who work a rotating roster within a continuous 24-hour operation. Typically, 200 staff are on duty during the day on weekdays, and 127 on the weekend. Some 24 are on duty at night, when prisoners are 'locked down'. The rostering arrangements reflect the various features of the prison, including the fact that it is a front-end prison, meaning that it regularly processes newly remanded persons. The company has a range of contractual obligations in relation to service delivery, including in respect of prisoner welfare and responding to incidents within an appropriate time.

[16] Ms Sellman's statement addressed many but not all of the 34 types of industrial action to which the union's proposed ballot order relates. In relation to the various work stoppages referred to in questions 1 to 5 of the draft order, Ms Sellman said that the company would need to lock down prisoners in advance of the relevant stoppage in order to ensure that they are secure and can be monitored with fewer staff. She said that the longer and more frequent the stoppages, the more staff would be needed to provide essential services and protect prisoner welfare.

[17] In relation to the proposed ban on escorts with fewer than two officers (question 12), Ms Sellman stated that, as internal prisoner escorts are generally conducted with one officer for small numbers of compliant prisoners, this ban would roughly halve the output of the officers engaging in this activity, which would jeopardise essential services such as court appearances and medical appointments.

[18] In respect of various other bans (unlocking prisoners, question 14; random urinalysis, question 16; attendance for training, question 19; recording collecting and forwarding data question 22; and different arrangements for taking breaks, questions 29-31) Ms Sellman explained how and why additional correctional staff would have to be deployed to cover employees engaged in the relevant action.

[19] Ms Sellman said that the company would need to plan for the worst-case scenario to ensure it did not find itself without sufficient staff to maintain basic prisoner welfare. She stated that it is difficult for the company to quickly find alternative staffing options, for three reasons. Firstly, there are various security clearances that are required before a new correctional worker can commence work. Secondly, most of the company's employees are permanent employees, who must be given 14 days' notice of a change of roster, pursuant to the terms of the current enterprise agreement. Thirdly, the workforce is divided into different categories of employees who perform particular duties. For example, there are certain gender, as well as licensing / authorisation requirements. She also stated that the vast majority of employees employed in non-correctional positions are unable to respond to prisoner incidents.

[20] Ms Sellman stated that, in relation to the forms of industrial action referred to above, she did not believe that three working days would be sufficient to make the necessary arrangements to provide cover and maintain prisoner welfare. She stated that at least five working days would be required.

[21] I accept Ms Sellman's evidence. Her statutory declaration was detailed and also balanced. She did not assert a requirement for additional notice in relation to all types of protected action. She distinguished in her declaration between duties of correctional staff that relate to 'inflexible' matters, such as ensuring that prisoners receive medical treatment, and others concerning 'flexible' activities, such as behavioural programmes. She stated that the company understood there to be a high level of union membership among staff, and that therefore a high participation rate in protected industrial action could reasonably be expected.

[22] The union contended that industrial action in a correctional facility such as Port Phillip Prison will often have the types of consequences that Ms Sellman referred to in her statutory declaration, and that for this reason the circumstances cannot be exceptional. However, in my view, the fact that certain consequences might flow logically from the taking of protected action in a particular workplace is not a reason to conclude that those consequences cannot be exceptional circumstances. The test is simply whether there are 'exceptional circumstances', not whether the circumstances are exceptional for that particular enterprise or line of work, or whether the industrial action is exceptional.

[23] I agree with the union's submission that the consequences of protected industrial action are meant to be serious. The very point of taking action is to place pressure on the employer in relation to the claims that are being advanced. Causing significant difficulty and disruption is not itself a reason to conclude that there are exceptional circumstances. However, such matters may affect the consideration of whether exceptional circumstances exist. In the present case, the company has demonstrated that it is difficult for it to source alternative labour, because the company's access to labour is largely confined to its own workforce. There are significant regulatory and rostering restrictions on its ability to implement potential contingency arrangements. Several of the types of industrial action may affect prisoner welfare, and others affect the orderly running of the facility.

[24] I am satisfied, based on the evidence, which has not been contradicted, that there are exceptional circumstances in the present case. I also consider that these circumstances justify a longer notice period and that the notice period should be 5 working days.

[25] I am mindful that this is not a case where it is possible to identify with mathematical precision the number of days by which the notice period should be extended. For example, there is not a singular critical lead-time for adequate and safe contingency arrangements, which is precisely one working day. Why five working days will be required, and not four, or six, cannot be metrically substantiated in any definitive way. In my view it will be a rare case where such a calculation is possible. In the present matter, I consider reasonable Ms Sellman's evidence that five working days' notice will be needed to make appropriate arrangements in the event of the relevant categories of industrial action taking place. In my assessment, the exceptional circumstances warrant, or provide a good reason, for a notice period of 5 working days.

[26] I take into account the union's submission that the company runs a seven-day operation, and that the provision under the Act of three working days' notice (excluding weekends and public holidays) already in effect gives the company the benefit of extra notice, as the exclusion of weekends and holidays is ostensibly intended for businesses that are not seven-day operations. However, this does not alter my conclusion. The statutory declaration of Ms Sellman took the statutory minimum period of three working days' notice as the baseline and her evidence explained why this period of notice would be insufficient.

[27] The union also contended that, given negotiations for a new agreement have been at an impasse since late 2019, the company has had a significant amount of time to prepare for the union to take protected action. I do not consider that the existence of a bargaining impasse over the past months to tell against a conclusion that there are exceptional circumstances justifying a longer notice period. Until the company received the application under s 437, it did not know what forms of action were in contemplation. And of course, until notice of particular action is given under s 414, it will not know the detail and timing of any particular action. In this regard, I note that the various different forms of industrial action that will be put to employees for approval may be taken 'separately, concurrently or consecutively'.

[28] As I understand the company's application, it seeks that the protected action ballot order specify that a period of 5 working days' notice be given in relation to any of the various forms of industrial action listed in the union's proposed ballot order. However, the evidence bearing on the question of exceptional circumstances only addresses certain forms of industrial action. A question arises as to whether the power in s 443(5) pertains only to 'the proposed industrial action' generally (that is, if a longer period of notice is specified, it must apply to all of the forms of action listed in the ballot order); or whether the power can be exercised in relation to any one or more of the particular types of industrial action contemplated in the order. I was not addressed on this issue however in my view the latter is the case. Division 8 of Part 3-3 plainly contemplates the possibility of a multiplicity of questions appearing on protected action ballots (see s 443(3)(d)). The framework contemplates that employees might authorise some forms of action but not others. It is consistent with this framework that the power of the Commission to prescribe a longer notice period under s 443(5) is referrable to particular types of action.

[29] Based on the information before me, I am satisfied that there are exceptional circumstances that justify the period of written notice referred to in s 414(2) being extended to five working days, and that it is appropriate that I exercise my discretion to extend the notice period accordingly.

[30] I will make an order that a period of 5 working days' written notice be given in relation to the industrial action proposed in questions 1 to 5, 12, 14, 16, 19, 26, and 29 to 31 of the CPSU's draft ballot order.

[31] An order has been separately issued in PR717130.

[1] [2018] FWCFB 4011 at [21]- [25]

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