Australian Dental Association Victorian Branch Inc v Goulburn Valley Health

[2022] FWC 2494

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Australian Dental Association Victorian Branch Inc
v

Goulburn Valley Health

(B2022/1400)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 16 SEPTEMBER 2022

Proposed protected action ballot of employees of Goulburn Valley 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 Goulburn Valley Health (Respondent).

On 16 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 PR745954.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Dental Association Victorian Branch Inc (Applicant) lodged an application under the Fair Work Act 2009 with the Fair Work Commission (FWC), seeking an order for a protected action ballot for certain employees of Goulburn Valley Health (Respondent). The dispute arose from the Applicant's assertion that it had been genuinely attempting to reach an agreement with the Respondent but had been unable to do so, prompting the need for a ballot to potentially authorise protected action. The Respondent did not object to the application, leading to the Deputy President deciding to determine the matter based on the submitted documentation without a formal hearing.

The primary legal issue before the Deputy President was whether the conditions set out in s.437 and s.443 of the Act had been satisfied to warrant a protected action ballot. This required an examination of the steps taken by the Applicant in its bargaining process with the Respondent, and whether there was a notification period in relation to the proposed agreement. The declaration of Mr Matthew Hopcraft of the Applicant, outlining the bargaining efforts and the failure to reach an agreement, formed the core of the evidence presented to the Deputy President.

The Deputy President, after reviewing the material submitted, including Mr Hopcraft's declaration, found that the Applicant had indeed been genuinely trying to reach an agreement with the Respondent. Furthermore, the Deputy President was satisfied that there was a notification period as required by the Act and that the procedural requirements under s.443(1) were met. This led to the conclusion that the application should be granted, thereby authorising a protected action ballot for the employees in question.

The court issued an order in PR745954, allowing the protected action ballot to proceed. The Deputy President's decision was based on the evidence of the Applicant's good faith efforts in bargaining and the compliance with the legal requirements set out in the Act. This decision underscores the importance of procedural compliance in applications for protected action ballots under the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established