Australian Dental Association Victoria Branch Inc v Summary

[2022] FWC 2645

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Australian Dental Association Victoria Branch Inc
v

Dental Health Services Victoria
(B2022/1486)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 3 OCTOBER 2022

Proposed protected action ballot of employees of Dental Health Services Victoria.

This is an application by the Australian Dental Association Victorian Branch Inc (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Dental Health Services Victoria (Respondent).

On 30 September 2022, my Associate was advised that the Respondent did not object to the application.

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

On the basis of the material before me, including the declaration of Mr Matthew Hopcraft 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.

An order has been separately issued in PR746399.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission considered an application by the Australian Dental Association Victoria Branch Inc (Applicant) seeking a protected action ballot order in relation to employees of Dental Health Services Victoria (Respondent). The matter was brought under section 437 of the Fair Work Act 2009. The Applicant sought to hold a ballot to allow the employees to vote on proposed protected action, likely related to industrial action such as strikes or lockouts, due to ongoing disputes in their negotiations with the Respondent.

The primary legal issue the Deputy President had to decide was whether the requirements for a protected action ballot under the Fair Work Act 2009 had been satisfied. Specifically, the Deputy President had to determine if there was a notification period in relation to the proposed agreement, and whether the Applicant had genuinely attempted to reach an agreement with the Respondent. The Deputy President also needed to confirm that the application met the criteria set out in section 443(1) of the Act.

After reviewing the material submitted, including a declaration from Mr Matthew Hopcraft of the Applicant, the Deputy President was satisfied that the Applicant had genuinely been trying to reach an agreement with the Respondent and that the notification period for the proposed agreement had been met. Furthermore, the Deputy President noted that the Respondent did not object to the application, which supported the granting of the ballot order. Consequently, the Deputy President determined that the requirements for a protected action ballot had been satisfied and issued an order accordingly.

The final orders were issued in PR746399, allowing the proposed protected action ballot to proceed. This decision underscores the importance of the genuine negotiation requirement and the notification period in the context of industrial relations under the Fair Work Act 2009.

Australian Dental Association Victoria Branch Inc v

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established