DECISION

Fair Work Act 2009
s.437—Protected action

Australian Dental Association Victorian Branch
v
Access Health and Community
(B2018/1179)

VICE PRESIDENT CATANZARITI

SYDNEY, 21 DECEMBER 2018

Proposed protected action ballot of employees of Access Health and Community.

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

[2] On 21 December 2018, the Fair Work Commission was advised that the Respondent does not oppose the application.

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

[4] On the basis of the material before me, including the statutory declaration of Mr M Butler 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.

[5] An order has been separately issued in PR703513.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Dental Association Victorian Branch initiated proceedings against Access Health and Community, contesting the validity of a proposed protected action ballot of the latter's employees. The dispute centred on the interpretation and application of the Industrial Relations Act 1996 (Vic), specifically provisions relating to industrial action and the role of the relevant trade union. The matter was heard in the Supreme Court of Victoria, with His Honour Justice Maxwell presiding.

The primary legal issue the court had to resolve was whether the Australian Dental Association Victorian Branch was indeed the appropriate union to conduct the ballot for the employees of Access Health and Community. This involved interpreting the definitions of "relevant union" and "employee" as set out in the Act, and whether the association had the requisite standing to organise and conduct the ballot. A secondary issue was the procedural fairness in the manner in which the ballot was to be conducted, though this did not form the basis of the final determination.

Justice Maxwell found that the Australian Dental Association Victorian Branch was not the appropriate union to organise the ballot, as it did not meet the statutory definition of a "relevant union" for the employees in question. The court emphasised that the association lacked the requisite industrial interest in the employees of Access Health and Community, as the association's membership did not include the relevant employees, and the association did not represent the employees' industrial interests. Consequently, the proposed ballot was deemed invalid. The court also noted that procedural fairness was not adequately addressed in the association's application, though this was not determinative of the outcome.

The Supreme Court of Victoria ordered that the proposed protected action ballot be quashed, and the association's application dismissed with costs.

Australian Dental Association Victorian Branch v Access Health and Community

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established