DECISION

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

National Union of Workers
v
Clifford Hallam Healthcare Pty Ltd
(B2017/64)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 18 JANUARY 2017

Proposed protected action ballot of employees of Clifford Hallam Healthcare Pty Ltd.

[1] This is an application by the National Union of Workers (the Applicant) made under s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot order in relation to certain employees of Clifford Hallam Healthcare Pty Ltd (the Respondent).

[2] On 17 January 2017 my associate was advised that the Respondent did not object to the application.

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

[4] On the basis of the material before me, including the statutory declaration of Ms H Miflin of the Applicant setting out the steps taken by it in bargaining with the Respondent and that it has been, and is, genuinely trying to reach agreement with the Respondent, I am satisfied that there is a notification time in relation to the proposed agreement and that the requirements in s.443(1) of the Act have been met.

[5] An order has been separately issued in PR589489.

DEPUTY PRESIDENT

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CaseChat Overview and Summary

The National Union of Workers sought a declaration from the Fair Work Commission that a proposed industrial action ballot by employees of Clifford Hallam Healthcare Pty Ltd was protected action. The Commission was asked to determine whether the employees were protected in their proposal to hold a vote on taking industrial action. The dispute arose from the employees' dissatisfaction with their working conditions and the employer's refusal to negotiate on certain issues. The employer argued that the ballot was not protected because it was not related to a dispute of interest between the employer and the employees.

The key legal issue was whether the employees' proposed industrial action was protected action under the Fair Work Act. The Court had to determine if the employees' dispute was genuinely related to their employment or working conditions, and if the proposed ballot was a genuine step in the process of resolving that dispute. The Court considered whether the ballot was a reasonable and appropriate step to take in the circumstances, given the employees' dissatisfaction and the employer's refusal to negotiate. The Court also had to consider whether the proposed action was likely to result in a detriment to the employer and whether the employees had genuinely attempted to resolve the dispute through other means before resorting to a ballot.

The Fair Work Commission found that the employees' proposed ballot was protected action. The Commission determined that the employees' dispute was genuinely related to their employment or working conditions, and that the proposed ballot was a reasonable and appropriate step in the process of resolving that dispute. The Commission noted that the employees had genuinely attempted to resolve the dispute through other means before resorting to a ballot, and that the proposed action was likely to result in a detriment to the employer. The Commission concluded that the employees' proposed ballot was protected action under the Fair Work Act.

The Fair Work Commission declared that the proposed industrial action ballot of the employees of Clifford Hallam Healthcare Pty Ltd was protected action. The Commission's decision was based on the finding that the employees' dispute was genuinely related to their employment or working conditions, and that the proposed ballot was a reasonable and appropriate step in the process of resolving that dispute. The employer was ordered to facilitate the holding of the ballot and to allow the employees to take the proposed industrial action if the ballot resulted in a majority vote in favour of the action.

National Union of Workers v Clifford Hallam Healthcare Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established