Australian Medical Association (ACT) Limited T/A AMA Act v Australian Capital Territory Government Summary

[2024] FWC 2519

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Australian Medical Association (ACT) Limited T/A AMA ACT
v

Australian Capital Territory Government

(B2024/1204)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 17 SEPTEMBER 2024

Proposed protected action ballot of employees of the Australian Capital Territory Government

This is an application by the Australian Medical Association (ACT) Limited trading as AMA ACT (AMA ACT or Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Australian Capital Territory Government (ACT Government or Employer).

On 13 September 2024, the Commission was advised that the Employer, in effect, did not object to the Application as amended to clarify the group of employees to be balloted. I also observe that ballot question 1 was amended following an issue being raised by the Commission.

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

On the basis of the material before me, including the declaration of Peter Somerville, Chief Executive Officer, setting out the steps taken by the AMA ACT in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with the ACT Government, I am satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in s.443(1) of the Act have been met.

The ballot is to be conducted by Vero Engagement & Voting Solutions Pty Ltd (Vero). Vero has been approved as an eligible protected action ballot agent under s.468A of the Act and consequently is authorised to conduct the ballot.

For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 4 October 2024.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

I am satisfied that there are relevant exceptional circumstances required by s.443(5), justifying an extended period of written notice for the purposes of s.414(2)(b) of the Act when taking industrial action set out in the Order made by the Commission. The extended notice period of five (5) working days applies to the specific items listed within Clause 15 of the Order.

An Order has been separately issued in PR779267.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference. That Member will issue an Order requiring the attendance of all bargaining representatives in the proposed enterprise agreement at the conference. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

DEPUTY PRESIDENT

[1] This is, in effect, 13 working days from the making of the Order and was the period sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Medical Association (ACT) Limited, trading as AMA ACT, has applied to the Fair Work Commission for a protected action ballot order concerning employees of the Australian Capital Territory Government. The applicant seeks to conduct a ballot to determine if employees wish to take protected industrial action. The application was made under section 437 of the Fair Work Act 2009. The Australian Capital Territory Government did not object to the application, effectively consenting to the process. Consequently, the Deputy President of the Fair Work Commission, Hampton, proceeded to determine the matter based on the written submissions and evidence presented.

The primary legal issue before the Deputy President was whether the conditions stipulated in section 443 of the Fair Work Act had been met to permit the protected action ballot. Specifically, the Commission needed to ascertain if the applicant had genuinely attempted to reach an agreement with the employer and if the requisite notification periods had been adhered to. Additionally, the Deputy President had to determine if there were exceptional circumstances warranting an extension of the notice period for the proposed industrial action, as per section 443(5) of the Act.

Upon reviewing the evidence, including the declaration from the Chief Executive Officer of the AMA ACT, the Deputy President was satisfied that the applicant had genuinely attempted to reach an agreement with the employer and that all procedural requirements under the Fair Work Act had been met. The Deputy President also found that exceptional circumstances existed, justifying an extension of the notice period for the proposed industrial action. The Commission determined that voting would close on 4 October 2024, allowing for a ballot period that complied with the statutory requirements. An extended notice period of five working days was set for the specific items outlined in Clause 15 of the Order, as required by section 443(5) of the Act.

The Deputy President issued an Order permitting the ballot to proceed and scheduled a compulsory conciliation conference to be conducted by another member of the Commission. This conference aimed to facilitate meaningful negotiations between the parties to resolve the dispute and avoid the need for protected action. The Deputy President also issued separate orders to ensure the attendance of all bargaining representatives at the conference.

Australian Medical Association (ACT) Limited T/A AMA Act v Australian Capital Territory Government

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established