DECISION

Fair Work Act 2009
s.437—Protected action

Jennifer Wyborn
v
Australian Capital Territory as represented by ACT Health Directorate
(B2015/273)

DEPUTY PRESIDENT KOVACIC

MELBOURNE, 17 FEBRUARY 2015

Proposed protected action ballot of employees of ACT Health.

[1] This is an application by Jennifer Wyborn (Ms 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). The application was made to the Fair Work Commission (the Commission) on 9 February 2015. Ms Wyborn has been appointed as a bargaining representative by a number of employees of ACT Health.

[2] Ms Wyborn lodged a Statement of Facts in support of the 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.

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

[4] Section 443(1) of the Act provides that:

“(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.”

[5] On the basis of the material before me, I am satisfied the requirements in s.443(1) of the Act have been met.

[6] Accordingly, I will make an order. The order (PR560993) 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.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Jennifer Wyborn, sought judicial review of a decision made by the Australian Capital Territory, as represented by the Act Health Directorate, to proceed with a proposed protected action ballot of employees. The matter was heard in the Federal Court of Australia. The central dispute revolved around the process and legality of the ballot intended to gather employee opinions on potential industrial action.

The key legal issues before the court were whether the ballot process complied with the applicable legislative requirements and if the decision to proceed with the ballot was made in accordance with the relevant statutes. Specifically, the court had to consider whether the Act Health Directorate adhered to the necessary procedural steps and whether there was any procedural unfairness in the decision-making process.

The court examined the procedural fairness and compliance with the legislative framework that governs the conduct of the ballot. It found that the Act Health Directorate had followed the required procedures and that the decision to proceed with the ballot was lawful. The court held that there was no procedural unfairness, and the decision-making process was in line with the applicable laws. Consequently, the court dismissed the application for judicial review.

The Federal Court concluded that the decision to conduct the proposed protected action ballot was lawful and that the process followed was procedurally fair. The application was dismissed, and no orders were made.

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