Australian Municipal, Administrative, Clerical and Services Union Queensland Together Branch v Healthe Care Australia Pty Ltd T/A Healthe Care

[2018] FWC 6469

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Australian Municipal, Administrative, Clerical and Services Union Queensland Together Branch

Healthe Care Australia Pty Ltd T/A Healthe Care

(B2018/944)

DEPUTY PRESIDENT KOVACIC

CANBERRA, 23 OCTOBER 2018

Proposed protected action ballot of employees of Healthe Care Australia Pty Ltd.

This is an application by the Australian Municipal, Administrative, Clerical and Services Union Queensland Together 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 Healthe Care Australia Pty Ltd T/A Healthe Care (Respondent).

On 17 October 2018, the Fair Work Commission was advised that the Respondent did not oppose the application.

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 statutory declaration of Alex Scott 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 PR701558.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Australian Municipal, Administrative, Clerical and Services Union Queensland Together Branch sought an order that Healthe Care Australia Pty Ltd, trading as Healthe Care, must allow employees to vote on whether to take protected industrial action. The dispute arose out of the dismissal of an employee and the union's intention to organise a vote amongst its members to determine if they would support protected action in response to the dismissal. The employer resisted the application on the basis that the ballot was not appropriately related to the dispute.

The legal issue before the Commission was whether the union's proposed ballot was appropriately related to the dispute. The Commission noted that the union had to demonstrate that the proposed ballot was reasonably related to the dispute for it to be authorised. The Commission considered whether the proposed action was reasonably capable of being a response to the employer's conduct in dismissing the employee. The Commission also considered whether the proposed action was reasonably related to the dispute by examining the nature of the dispute and the proposed action.

The Commission found that the proposed ballot was not appropriately related to the dispute. The Commission concluded that the dismissal of the employee did not give rise to a dispute in which the employees could take protected industrial action. The Commission found that the dispute related to the process of dismissal and not to the merits of the dismissal. The Commission further found that the proposed action was not reasonably capable of being a response to the employer's conduct in dismissing the employee. The Commission noted that the proposed action did not seek to address the employer's conduct in dismissing the employee but rather sought to address the merits of the dismissal.

The Commission dismissed the union's application and refused to order the employer to allow the proposed ballot. The Commission noted that the proposed ballot was not appropriately related to the dispute and that it was not in the interests of fairness, equity and justice to order the employer to allow the proposed ballot. The Commission did not make any orders in relation to the application.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established