Health Services Union v Tas IVF Pty Ltd

[2016] FWC 8320

[2016] FWC 8320

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

Health Services Union
v
Tas IVF Pty Ltd
(B2016/1215)

COMMISSIONER LEE MELBOURNE, 21 NOVEMBER 2016

Proposed protected action ballot of employees of Tas IVF Pty Ltd.

[1] This matter involves an application by the Health Services Union of Australia (the Applicant) for a protected action ballot order in relation to certain employees of Tas IVF Pty Ltd (the Respondent), pursuant to section 437 of the Fair Work Act 2009 (the Act).

[2] Section 443(1) of the Act states:

“(1) The FWC 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) 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.

(2) The FWC 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.

(3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.

(4) If the FWC 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 the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and

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

(5) If the FWC 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.”

[3] On 17 November 2016 my chambers was advised that the Respondent objected to the application and wished to be heard on the matter. I listed the matter for hearing today 21 November 2016.

[4] On 18 November 2016 the Applicant filed submissions and a witness statement of Tammy Munro in relation the Respondent’s objection to the application.

[5] At the commencement of the hearing the Respondent’s representative indicated that the Respondent wished to withdraw its original objection to the application. However, it still wished to make an application to extend the period of notice referred to in s.414(2)(b) of the Act in relation to some (but not all) of the proposed questions in the Applicant’s draft order. However, following a short adjournment of the hearing this application was subsequently withdrawn by the Respondent.

[6] The Applicant lodged with its application a witness statement of Tammy Munro, Lead Organiser with the Health Services Union of Australia 1, addressing the requirements of the Act.

[7] In particular, I note I am satisfied that the requirements of section 443 of the Act have been met, that the Applicant has been and is genuinely trying to reach an agreement with the Respondent and that the draft order meets the requirements of section 443(3) of the Act. The Australian Electoral Commission is to be the protected action ballot agent.

[8] As I am satisfied that the requirements of the Act have been met, pursuant to section 443 of the Act, the Order must be made. The Order [PR587712] will be issued concurrently with this decision.

COMMISSIONER

Appearances:

J Eddington for the Applicant

A Wells for the Respondent

Hearing details:

2016.

Melbourne by Video-Link to Hobart:

21 November.

Final written submissions:

18 November 2016.

 1   Exhibit A1, Witness Statement of Tammy Munro dated 15 November 2016.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR587711>