Australian Electoral Commission (AEC) v Australian Dental Association Victorian Branch Inc T/A Australian Dental Association Victorian Branch (ADAVB), Alfred Health Summary

[2022] FWC 2742

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.447—Protected action

Australian Electoral Commission (AEC)
v

Australian Dental Association Victorian Branch Inc T/A Australian Dental Association Victorian Branch (ADAVB), Alfred Health

(B2022/1542)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 13 OCTOBER 2022

Application for a variation of a Protected Action Ballot Order in B2022/1488

This is an application by the Australian Electoral Commission (AEC) made under s.447 of the Fair Work Act 2009 (Act) for variation of a protected action ballot order in matter B2022/1488 on 3 October 2022 (the Order).

The AEC’s application seeks to vary the Order to the effect that the date by which voting is to close is extended by 7 days to no later than 16 November 2022.

On 13 October 2022, my Associate was advised that the Australian Dental Association Victoria Branch Inc. trading as Australian Dental Association Victoria Branch (ADAVB) and Central Highlands Rural Health do not object to the application.

Section 447 of the Act sets out the circumstances in which the Fair Work Commission (Commission) may vary a protected action ballot order:

447 Variation of protected action ballot order
(1) An applicant for a protected action ballot order may apply to the FWC to vary the order.
(2) The protected action ballot agent for a protected action ballot may apply to the FWC to vary the protected action ballot order to change the date by which voting in the ballot closes.
(3) An application may be made under subsection (1) or (2):
(a) at any time before the date by which voting in the protected action ballot closes; or
(b) if the ballot has not been held before that date and the FWC consents - after that time.

(4) If an application is made under subsection (1) or (2), the FWC may vary the protected action ballot order.

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

The AEC seeks to vary the date by which voting closes to allow Alfred Health an opportunity to provide the AEC with the employee list and declaration of accuracy, and circulate the notice to employees, if they have not done so already, in circumstances where the AEC has not been able to obtain the employee list and declaration of accuracy from Alfred Health to date. I consider this is appropriate.

As I consider it appropriate in the circumstances for the variation to be made, the Order will be varied to the extent that the date by which voting is to close is no later than 16 November 2022.

An order has been separately issued in PR746739.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Electoral Commission (AEC) applied to the Fair Work Commission (FWC) under section 447 of the Fair Work Act 2009, seeking a variation to a previously issued protected action ballot order in matter B2022/1488. The AEC's application aimed to extend the date by which voting would close by seven days, to no later than 16 November 2022. The Australian Dental Association Victoria Branch Inc. trading as Australian Dental Association Victoria Branch (ADAVB) and Central Highlands Rural Health did not object to the application.

The legal issue before the FWC was whether it was appropriate to vary the ballot order in the given circumstances, specifically to allow additional time for Alfred Health to provide the AEC with the employee list and declaration of accuracy, and to circulate the notice to employees if they had not already done so. The FWC needed to consider whether the circumstances warranted a variation of the ballot order to facilitate the timely collection of necessary information for the ballot process.

In determining the matter, the Deputy President considered the circumstances and the fact that the AEC had not yet obtained the required employee list and declaration of accuracy from Alfred Health. Given the importance of this information for the ballot process and the absence of objections from the other parties, the Deputy President found it appropriate to vary the ballot order to extend the voting closing date to 16 November 2022. Consequently, the FWC varied the order accordingly.

In conclusion, the Fair Work Commission varied the protected action ballot order to extend the date by which voting is to close to no later than 16 November 2022. This decision was made to allow Alfred Health additional time to provide the necessary employee list and declaration of accuracy to the AEC and to ensure that employees were adequately informed of the ballot. An order was separately issued in PR746739 to reflect this variation.

Australian Electoral Commission (AEC) v Australian Dental Association Victorian Branch Inc T/A Australian Dental Association Victorian Branch (ADAVB), Alfred Health

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established