Health Services Union v Life Without Barriers

[2014] FWC 6820

[2014] FWC 6820

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

Health Services Union
v
Life Without Barriers
(B2014/1383)

COMMISSIONER ROE MELBOURNE, 29 SEPTEMBER 2014

Proposed protected action ballot of employees of Life Without Barriers.

[1] This is an application for a protected action ballot by members of the Health Services Union (HSU) in respect to those the HSU represents in bargaining employed by Life Without Barriers (the Respondent). The application is made pursuant to s.437 of the Fair Work Act 2009 (the Act). Life Without Barriers indicated that it opposed the Application and the parties agreed that it should be determined on the basis of written submissions. I have considered the submissions which were provided in accordance with the directions.

[2] The nominal expiry date of the current Enterprise Agreement the coverage of which included those who are sought to be covered by the proposed new agreement has passed.

[3] The applicant seeks to ballot employees of the Respondent who would be subject to a proposed enterprise agreement and who are represented by the bargaining representative the HSU.

[4] In considering this matter I must apply s.443 of the Act which provides:

“443 When FWA must make a protected action ballot order

(1) FWA must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and

(b) FWA 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.

(2) FWA must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

(3) A protected action ballot order must specify the following:

(a) the name of each applicant for the order;

(b) the group or groups of employees who are to be balloted;

(c) the date by which voting in the protected action ballot closes;

(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(4) If FWA decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:

(a) the person that FWA decides, under subsection 444(1), is to be the protected action ballot agent; and

(b) the person (if any) that FWA decides, under subsection 444(3), is to be the independent advisor for the ballot.

(5) If FWA is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.

Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.”

[5] To begin, I am satisfied that the Application has been made in accordance with Section 437 of the Act. I am satisfied that the Application was served upon the Respondent and the AEC as the ballot agent as required by Section 440 of the Act. I am satisfied that the Application was not made earlier than 30 days prior to the nominal expiry date of the current agreement, as required by Section 438 of the Act.

[6] The only matter in contention is whether or not the Applicant has been, and is, genuinely trying to reach an agreement with the employer on behalf of the employees who are to be balloted. This matter was the subject of the submissions by the parties.

[7] I note that the bargaining for the proposed Agreement was the subject of a majority support determination made by Deputy President Leary on 23 July 2012. The fact that the HSU successfully sought and obtained a majority support determination more than two years ago is an indication that the HSU is genuinely trying to reach an agreement.

[8] Life Without Barriers submits that there is no impasse in the bargaining. There does not have to be an impasse in the bargaining for the Fair Work Commission to find that the applicant is genuinely trying to reach an agreement. Life Without Barriers submit that the HSU has prima facie breached the good faith bargaining requirements because Life Without Barriers provided some issues at a meeting on 15 August 2014 which they claim the HSU has not properly considered and responded to. Life Without Barriers also submit that the HSU have failed to set future meeting dates for bargaining. The HSU submit that Life Without Barriers have been surface bargaining and have failed to respond to matters in a timely manner. The HSU submit that they are open to further meetings but that given the very long period since bargaining commenced the members they represent are frustrated with the progress of bargaining and want the opportunity to take protected industrial action. The HSU also submit that the employer has made no substantial proposals during the bargaining over a two years period. The HSU submits that it has provided detailed proposals and has reported back to members the responses received during bargaining.

[9] The application before me is not a good faith bargaining application.

[10] I am not satisfied that the matters raised by Life Without Barriers demonstrate that the HSU is not genuinely trying to reach an agreement. In fact when the history of the bargaining is considered as a whole I am satisfied that the HSU has been and is genuinely trying to reach an agreement.

[11] Having decided that s.443(1)(a) and (b) have been complied with, I must make a protected action ballot order, as sought by the Applicant. I have published that Order separately.

COMMISSIONER

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