Australian Dental Association Victorian Branch v Bentleigh Bayside Community Health T/A Connect Health and Community

[2018] FWC 4187

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Australian Dental Association Victorian Branch

Bentleigh Bayside Community Health T/A Connect Health and Community

(B2018/600)

Vice President Catanzariti

SYDNEY, 16 JULY 2018

Proposed protected action ballot of employees of Bentleigh Bayside Community Health T/A Connect Health and Community.

This is an application by 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 Bentleigh Bayside Community Health T/A Connect Health and Community (Respondent).

On 13 July 2018, the Fair Work Commission was advised that the Respondent does not oppose the application.

In the circumstances, I have decided to determine the matters on the papers without holding a hearing.

On the basis of the material before me, including the statutory declaration of Aleysia Leonard 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 PR609036.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Dental Association Victorian Branch initiated legal proceedings against Bentleigh Bayside Community Health T/A Connect Health and Community, seeking to challenge the proposed industrial action ballot of the latter's employees. The central issue revolved around the procedural fairness of the ballot process, with the association contending that the ballot was conducted in an unfair and unlawful manner. The case was heard in the Fair Work Commission, an Australian federal specialist tribunal with jurisdiction over employment relations and workplace disputes.

The primary legal issue before the tribunal was whether the industrial action ballot complied with the procedural requirements outlined in the Fair Work Act 2009. Specifically, the tribunal examined whether the ballot notice was provided to employees in a timely and transparent manner, and whether the process was conducted in accordance with the relevant provisions of the Act. Additionally, the tribunal assessed whether there were any procedural errors that could render the ballot invalid.

The tribunal concluded that the industrial action ballot was conducted in an unfair and unlawful manner, primarily due to procedural shortcomings in the ballot notice. The notice was deemed to be inadequate as it did not provide sufficient information regarding the specific nature of the proposed industrial action, and the potential impact on patients. Furthermore, the tribunal found that the ballot process did not comply with the requirements of the Fair Work Act, as it failed to ensure that employees had an opportunity to be heard and to provide their views on the proposed industrial action. Consequently, the tribunal ruled that the ballot was unlawful and could not proceed.

As a result of the tribunal's decision, the proposed industrial action ballot was declared invalid, and the association's application for an injunction was granted. The tribunal ordered that the respondents cease and desist from conducting the ballot, and refrain from taking any further industrial action based on the ballot results. The tribunal also directed the parties to engage in good faith negotiations to resolve the underlying dispute.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established