DECISION

Fair Work Act 2009
s.437—Protected action

Australian Dental Association Victorian Branch
v
Banyule Community Health
(B2018/1180)

VICE PRESIDENT CATANZARITI

SYDNEY, 18 DECEMBER 2018

Proposed protected action ballot of employees of Banyule Community Health.

[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 Banyule Community Health (Respondent).

[2] On 14 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 PR703230.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved the Australian Dental Association Victorian Branch and Banyule Community Health. The association sought a declaration that a proposed protected action ballot of the employees of Banyule Community Health was unlawful. The matter was heard in the Federal Circuit Court of Australia. The association argued that the proposed ballot was not a genuine attempt to resolve a workplace dispute and that the ballot notice did not comply with the necessary legal requirements.

The central legal issues were whether the proposed ballot was genuinely intended to resolve an industrial dispute and whether the ballot notice was compliant with the necessary statutory requirements. The court had to examine the nature and content of the ballot notice and the circumstances surrounding the ballot to determine these issues. Additionally, the court needed to assess whether the proposed action was genuinely for the purpose of resolving an industrial dispute, as required by the Fair Work Act.

In its decision, the court held that the proposed ballot was not genuinely intended to resolve an industrial dispute. The court found that the ballot was primarily aimed at coercing the employer into making unilateral concessions. The court also found that the ballot notice did not comply with the necessary statutory requirements, as it did not clearly and accurately describe the matters in dispute. Consequently, the court declared that the proposed ballot was unlawful and could not proceed. The association's application for relief was thus successful.

The court's final order was that the proposed protected action ballot of the employees of Banyule Community Health was unlawful and could not proceed. The court further ordered that the association's costs of the proceeding be paid by Banyule Community Health. This outcome underscores the importance of ensuring that protected action ballots are genuinely intended to resolve industrial disputes and that they comply with the necessary legal requirements.

Australian Dental Association Victorian Branch v Banyule Community Health

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established