Australian Dental Association Victorian Branch Inc T/A Australian Dental Association Victorian Branch (Adavb) v Barwon Health

[2022] FWC 2390

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Australian Dental Association Victorian Branch Inc T/A Australian Dental Association Victorian Branch (Adavb)
v

Barwon Health

(B2022/1350)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 8 SEPTEMBER 2022

Proposed protected action ballot of employees of Barwon Health

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 Barwon Health (Respondent).

On 8 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 PR745629.

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 Victorian Branch Inc (ADAVB) seeking a protected action ballot order in relation to certain employees of Barwon Health. The dispute centred on the proposed protected action ballot of employees, as outlined in section 437 of the Fair Work Act 2009. The application was made by the ADAVB, and the Respondent, Barwon Health, did not object to the application. The Deputy President of the Commission, Clancy, decided to determine the matter on the papers without holding a hearing.

The legal issues before the court involved determining whether the ADAVB had genuinely tried to reach an agreement with Barwon Health and if the requirements of section 443(1) of the Fair Work Act 2009 had been met. The ADAVB had to demonstrate that it had been genuinely trying to reach an agreement with Barwon Health, and that there was a notification time in relation to the proposed agreement. The court needed to consider the declaration of Mr Matthew Hopcraft of the ADAVB, which set out the steps taken by the ADAVB in bargaining with Barwon Health.

After reviewing the material before the court, the Deputy President of the Commission, Clancy, was satisfied that the ADAVB had genuinely tried to reach an agreement with Barwon Health, and that the requirements of section 443(1) of the Fair Work Act 2009 had been met. Consequently, the court determined that an order for a protected action ballot should be issued. The court separately issued an order in PR745629.

The court's decision was based on the material provided by the ADAVB, which demonstrated that it had been genuinely trying to reach an agreement with Barwon Health and that the notification time in relation to the proposed agreement had been met. The Deputy President of the Commission, Clancy, found that the requirements of section 443(1) of the Fair Work Act 2009 had been satisfied, and therefore, the application for a protected action ballot order was granted. This decision was made without the need for a hearing, as the Respondent did not object to the application.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established