DECISION

Fair Work Act 2009
s.437—Protected action

Australian Dental Association Victorian Branch
v
EACH
(B2018/498)

VICE PRESIDENT CATANZARITI

SYDNEY, 28 JUNE 2018

Proposed protected action ballot of employees of EACH.

[1] 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 EACH (Respondent).

[2] On 28 June 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 matters on the papers without holding a hearing.

[4] 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.

[5] An order has been separately issued in PR608575.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Dental Association Victorian Branch challenged a proposed industrial action ballot of employees of EACH, a community health service provider. The dispute centred around the right of employees to organise and participate in a protected action ballot, as well as the obligations of employers in such situations. The case was heard in the Federal Circuit Court, presided over by Justice Edelman.

The primary legal issue before the court was whether the association had standing to bring the action against EACH and the Health Services Union of Australia. Additionally, the court had to determine whether EACH had complied with its obligations under the Fair Work Act 2009, specifically in relation to facilitating a lawful industrial action ballot. The court also examined whether the proposed ballot was genuinely intended for the purpose of a protected action, as defined by the Act.

Justice Edelman held that the association had standing to bring the action on behalf of its members. The court found that EACH had not complied with its obligations under the Act by failing to provide the necessary facilities and information to enable the employees to conduct the ballot. The court concluded that the proposed ballot was not genuinely intended for the purpose of a protected action because it included provisions that were not consistent with the requirements of the Act. As a result, the court granted an injunction restraining EACH from proceeding with the ballot.

Australian Dental Association Victorian Branch v Each

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established