Health Services Union v Baptcare Ltd T/A Baptcare Karingal
[2024] FWC 3181
•19 NOVEMBER 2024
| [2024] FWC 3181 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
Health Services Union
v
Baptcare Ltd T/A Baptcare Karingal
(B2024/1480)
| COMMISSIONER CONNOLLY | MELBOURNE, 19 NOVEMBER 2024 |
Proposed protected action ballot of employees of Baptcare Ltd.
This is an application by the Health Services Union (HSU 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 Baptcare Ltd T/A Baptcare Karingal (Baptcare or Employer).
On 18 November 2024, the Commission was advised that the Employer objected to the application due to a lack of clarity in the questions proposed in the application and sought further information from the Applicant. The Respondent also objected on grounds that the Applicant has failed to meet the requirements of s.443(1) in not been genuinely trying to reach an agreement. The objections related to questions concerning proposed stoppages of work and/or clarification of the particulars of relevant protected industrial action. The Respondent provided written submissions in support of its position, identifying further health, safety and compliance concerns.
In receipt of this objection, my Chambers wrote to the parties and sought whether the parties wished to be heard further in relation to this matter, in writing or at a Hearing. I provided the parties a further opportunity to file additional submissions or evidence in support of their positions by 10:00am on 19 November 2024 and to indicate if they wished to be heard in.
The HSU indicated it relied on its written submissions filed on 18 November 2024. The Respondent made further written submissions at 5.44pm on 18 November 2024. Neither party sought to be heard further at a Hearing. Therefore, I have considered it appropriate in the circumstances to determine the application on the material filed.
Submissions of the Parties
The HSU submit the questions in its application are sufficiently clear and in line with the decision of the Full Bench in John Holland Pty Ltd v AMWU and AWU[1] and presses its application be made in accordance with requirements on the Commission in section 443(1). The Respondent relies on its objections and concerns raised as indicated above at [2].
There is no dispute the application has been made under s.437 of the Act. Nor are there any other grounds of objection relied upon by the Respondent.
Consideration
In respect of the objection on grounds of ambiguity, based on the material before me, I do not consider there is any lack of clarity or specificity in the questions proposed such that they are incapable of being answered “yes” or “no” by employees participating in the ballot as identified by the Full Bench of the Commission in NTEU v Curtin University.[2]
With respect to the ground of objection that the HSU is not genuinely trying to reach agreement, the evidence before the Commission is that since 12 December 2023, the HSU and its representative have attended a series of negotiation meetings and served claims on the employer. The HSU submits it has been, and is, seeking to reach an agreement between its members and the employer on these claims.
This submission is supported in evidence by the statutory declaration of Ms Odette Seabourne, that the HSU has been, and is continuing, trying to reach an agreement with the Respondent. In JJ Richards & Sons v Fair Work Australia,[3] the Full Court of the Federal Court affirmed that all that is required is that the party seeking the protected action ballot order be “genuinely trying” to reach an agreement.
With regards to the Respondent’s concerns in relation its wish to seek clarity on the details of any proposed industrial action, I consider these to have been addressed by the submissions of the Applicant and its obligations pursuant to s.414.
As the Applicant has identified, s.443 of the Act sets out when the Commission must make a protected ballot order as follows:
“443 When the FWC must make a protected ballot order
(1) The FWC must make a protected ballot order in relation to a proposed enterprise agreement if:
(a)an application has been made under 437; and
(b)the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.”
On the basis of the material before me, including the declaration of Odette Seabourne, setting out the steps taken by the HSU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with Baptcare, 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 Democratic Outcomes Pty Ltd T/A CiVS (CiVS). CiVS 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 3 December 2024. This also establishes the ballot period for the purpose of s.448A(2) of the Act.
An Order has been separately issued in PR781366.
In due course, another Member of the Commission will take the steps necessary to conduct the s.448A compulsory conciliation conference. An Order requiring the attendance of all bargaining representatives in the proposed enterprise agreement at the conference will be issued. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations
COMMISSIONER
Final written submissions:
18 November 2024.
[1] [2010] FWAFB 526.
[2] [2022] FWCFB 204.
[3] [2012] FCAFC 53
Printed by authority of the Commonwealth Government Printer
<PR781365>
0
0
0