Australian Dental Association Victorian Branch Inc v Monash Health

[2022] FWC 2522

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Australian Dental Association Victorian Branch Inc
v

Monash Health

(B2022/1423)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 20 SEPTEMBER 2022

Proposed protected action ballot of employees of Monash 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 Monash Health (Respondent).

On 20 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 PR746046.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission considered an application from the Australian Dental Association Victorian Branch Inc (Applicant) for a protected action ballot order in relation to certain employees of Monash Health (Respondent). The Applicant sought the order under s.437 of the Fair Work Act 2009, indicating that it had been genuinely trying to reach agreement with the Respondent through bargaining but had been unable to do so. The Respondent did not object to the application, and the Deputy President determined the matter on the papers without holding a hearing.

The primary legal issue before the Court was whether the requirements of s.437 of the Fair Work Act 2009 had been met to allow the Applicant to proceed with a protected action ballot. The Court needed to assess whether the Applicant had genuinely tried to reach an agreement with the Respondent and if there was a notification time in relation to the proposed agreement. The Applicant had to demonstrate that it had engaged in good faith bargaining with the Respondent and that it had met the necessary conditions to proceed with the ballot.

The Court found that the Applicant had provided a declaration from Mr Matthew Hopcraft setting out the steps taken in bargaining with the Respondent and confirming the Applicant's genuine efforts to reach an agreement. The Court was satisfied that the requirements in s.443(1) of the Act had been met, including the existence of a notification time in relation to the proposed agreement. Consequently, the Deputy President concluded that the Applicant was entitled to proceed with the protected action ballot.

The Court issued an order in PR746046, granting the Applicant's application for a protected action ballot order. The Deputy President noted that the Respondent had not objected to the application and determined the matter on the papers. This decision allowed the Applicant to proceed with the ballot as per the provisions of the Fair Work Act 2009.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established