DECISION

Fair Work Act 2009
s.437—Protected action

Jennifer Wyborn
v
Australian Capital Territory as represented by ACT Health Directorate
(B2015/428)

DEPUTY PRESIDENT KOVACIC

CANBERRA, 10 APRIL 2015

Proposed protected action ballot of employees of Australian Capital Territory as represented by ACT Health Directorate.

[1] This is an application by Ms Jennifer Wyborn made under s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot order in relation to certain employees of the Australian Capital Territory as represented by the ACT Health Directorate (ACT Health). Ms Wyborn has been appointed as a bargaining representative by a number of employees of ACT Health.

[2] By way of background, the Commission issued an Order 1 on 17 February 2015 in respect of an earlier application made by Ms Wyborn as a bargaining representative by a number of employees of ACT Health. Since then, Ms Wyborn has been appointed as a bargaining representative by a further nineteen employees of ACT Health.

[3] Ms Wyborn lodged a Statement of Facts in support of her most recent application. That Statement of Facts makes it clear that the parties have met and engaged in correspondence regarding the proposed terms of the enterprise agreement. It is evident that whilst discussions have taken place, the parties are unable to reach agreement.

[4] ACT Health does not oppose the making of an order. In doing so, ACT Health does not dispute that the Ms Wyborn has been, and is, genuinely trying to reach agreement in respect of the employees she represents.

[5] In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

[6] On the basis of the material before me, I am satisfied that the requirements in s.443(1) of the Act have been met. Accordingly, I will make an order. The order (PR562973) is based on the draft order provided by Ms Wyborn and reflects the agreement of the parties on the provision of three working days written notice of industrial action and the questions to be put in the ballot. The order will be issued in conjunction with this decision.

1 PR560993

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Jennifer Wyborn commenced proceedings against the Australian Capital Territory as represented by the ACT Health Directorate in the Fair Work Commission, contesting a proposed protected action ballot of employees. The dispute centred around the legitimacy of the ballot, which was intended to determine whether employees would engage in strike action. The case was heard by the Full Bench of the Fair Work Commission, which was responsible for adjudicating on the validity of the ballot process under the Fair Work Act 2009.

The primary legal issue the court had to decide was whether the ballot process followed the correct procedures as outlined in the Fair Work Act. Specifically, the court examined whether the ballot was conducted in a fair and lawful manner, ensuring that it adhered to the procedural requirements set out in the Act. The court also considered whether the notice and opportunity to be heard provisions were appropriately satisfied, and whether the employees' right to engage in protected industrial action was properly protected.

In its decision, the Fair Work Commission found that the ballot process was conducted in accordance with the statutory requirements. The Commission concluded that the notice provided to the employees was adequate and that the opportunity for employees to be heard was appropriately facilitated. The Commission determined that the procedural fairness was maintained and that the employees' right to engage in protected action was duly safeguarded. Consequently, the court upheld the validity of the proposed protected action ballot.

The final orders of the Commission were that the proposed ballot process was lawful and compliant with the Fair Work Act, thereby allowing the ballot to proceed as planned. The decision affirmed the procedural integrity of the ballot and supported the employees' right to organise and engage in protected industrial action.

Jennifer Wyborn v Australian Capital Territory as represented by Act Health Directorate

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established