Health Services Union v Ibis (No 3) Pty Ltd T/A Wynyard Care Centre

[2017] FWC 1578

[2017] FWC 1578

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

Health Services Union
v
IBIS (No 3) Pty Ltd T/A Wynyard Care Centre
(B2017/208)

DEPUTY PRESIDENT WELLS HOBART, 17 MARCH 2017

Proposed protected action ballot of employees of IBIS (no 3) Pty Ltd t/as Wynyard Care Centre.

[1] This is an application for an order for a protected action ballot of members of the Health Services Union (HSU) employed by IBIS (No 3) Pty Ltd trading as Wynyard Care Centre (IBIS).

[2] The application was filed by the HSU on 10 March 2017 pursuant to s.437 of the Fair Work Act 2009 (the FW Act). The application provided that the employer was Synovum Care Group trading as Wynyard Care Centre. The application was accompanied by a Statutory Declaration (Form F34B) of Mr Robbie Moore with comprehensive attachments relating to the agreement negotiation process.

[3] On 10 March 2017 IBIS wrote to the Fair Work Commission (the Commission) advising that it opposed the making of the protect action ballot order (PABO). On 13 March 2017 Ms Megan Bowe of FCB Group filed a Form F53 Notice of representative commencing to act, on behalf of IBIS. Ms Bowe provided written submissions advising that IBIS opposed the making of the PABO on the basis that the application provided for the wrong legal entity as the employer; that the HSU was not genuinely trying to reach agreement; and that the proposed questions with the PABO were not sufficiently clear as to enable the relevant employees to make an informed choice during any voting process. Further, IBIS requested that should the Commission determine that a PABO be made, the notice period required in order to take protected industrial action, be extended, pursuant to s.443(5) of the FW Act, from three to seven working days.

[4] The application was set down for hearing at the first available opportunity, for 17 March 2017 and directions for the filing of further materials were provided to the parties on Tuesday 14 March 2017.

[5] At 5:06pm on Thursday 16 March 2017, Mr James Eddington for the HSU, wrote to the Commission in the following terms:

“The parties have corresponded regarding the Form F34 PAB application and the respondent’s letter with objecting submissions of 13 March 2017.

We have considered the employer’s submissions and the parties have agreed on aspects of the application that should be amended.

We note the FWC has direction to allow an amendment to an application on terms that it considers appropriate (s.586(a)).

We now request that you allow the application to be amended such that the attached revised Form F34 and draft orders become the application document for FWC’s determination.

The attached Form F34 makes the following amendments to the original application:

1. The name of the employer has been changed throughout to reflect the correct employer’s name: IBIS (No 3) Pty Ltd t/as Wynyard Care Centre.

2. At 2.2 the list of questions has been amended as follows:

(i) The original question (a) has been removed. This has caused all other questions to have new letters;
(ii) The original questions (g) and (i) have been removed and replaced with a new question which is not at (f);
(iii) The original questions (k) has been removed and replaced with a new question which is not at (i);
(iv) The original question (l) has been removed and replaced with a new question which is now at (j).

On the basis of there being agreed amendments to the application the respondent employer has informed us that they no longer wish to pursue their objection regarding:

A. The name of the Respondent not being the employer;
B. The HSU, Tasmanian Branch genuinely trying to reach agreement;
C. The proposed questions being sufficiently clear to enable employees to make an informed choice;
D. The notice period for industrial action being the 3 working days set out in s.443(5).

Given the respondent no longer opposes the application we submit that the amended application Form F34 and originally provides Form F34B meets the legislative requirements for the FWC to make the order for PAB sought.

We ask that the hearing listed for tomorrow be vacated and the matter be determined on the papers provided.”

[6] My associate emailed Ms Bowe of FCB Group, seeking her confirmation as to the content of Mr Eddington’s email of 16 March 2017. At 5:28pm on 16 March 2017 Ms Bowe wrote stating “I confirm that the Respondent’s position is as set out in the email from Mr Eddington this afternoon and note the Respondent’s consent to the matter proceeding in the matter proposed.”

[7] I am satisfied, having considered the submissions of Mr Eddington and Ms Bowe’s confirmation of the consent position, that the HSU’s Form F34 application should be amended in the terms of the amended application filed on 16 March 2017, and that the matter should be determined on the papers without holding a hearing.

[8] In determining this matter, I have had regard for the Form F34 application, the Form F34B statutory declaration of Mr Moore, and the attachments to that statutory declaration.

Conclusion

[9] I am satisfied that the requirements in s.443(1) of the Act have been met, and therefore an order must be made. An order based on the draft order provided by the HSU is issued accordingly with effect from today.

DEPUTY PRESIDENT

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