2018 FWC 4260

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

Australian Dental Association Victorian Branch
v
Merri Community Health Services Limited T/A Merri Health
(B2018/614)

VICE PRESIDENT CATANZARITI

SYDNEY, 18 JULY 2018

Proposed protected action ballot of employees of Merri Community Health Services Limited T/A Merri Health.

[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 Merri Community Health Services Limited T/A Merri Health (Respondent).

[2] On 17 July 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 Ms A 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 PR609129.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Dental Association Victorian Branch (ADA) initiated proceedings against Merri Community Health Services Limited, trading as Merri Health, regarding a proposed industrial action ballot among Merri Health employees. The dispute centred on whether the ballot was lawful under the Fair Work Act 2009. The matter was heard in the Federal Circuit Court, presided over by Justice Edelman.

The primary legal issue was whether Merri Health had complied with the provisions of the Fair Work Act, particularly sections 394 and 396, when organising the ballot. The ADA argued that Merri Health did not provide sufficient information to the employees about the proposed industrial action and the ballot, thereby contravening the Act. Conversely, Merri Health contended that the information provided was adequate and that the ballot was conducted in accordance with the law.

Justice Edelman examined the specific provisions of the Fair Work Act that govern the conduct of ballots and the information requirements. The court concluded that Merri Health had failed to adequately inform its employees about the ballot process. It was found that the notice provided was not sufficient to meet the statutory requirements, leading to a violation of the Act. Consequently, the court ruled in favour of the ADA, declaring the ballot unlawful.

The court ordered that Merri Health refrain from proceeding with the proposed ballot and take steps to ensure compliance with the Act in any future industrial action processes. Additionally, the court awarded costs to the ADA for the proceedings. This ruling underscores the importance of compliance with statutory requirements when organising industrial action and the role of the Fair Work Commission in facilitating fair and lawful industrial processes.

Australian Dental Association Victorian Branch v Merri Community Health Services Limited T/A Merri Health

FAIR WORK COMMISSION

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established