Nicole Hiney v National Patient Transport Pty Ltd

[2014] FWC 2725

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.459—Protected action

Nicole Hiney
v
National Patient Transport Pty Ltd
(B2014/719)

COMMISSIONER JOHNS

MELBOURNE, 28 APRIL 2014

Application to extend protected action ballot by employees of National Patient Transport Pty Ltd.

[1] On 17 April 2014 Nicole Hiney made an application (pursuant to s.459(3) of the Fair Work Act 2009 (Act)) to extend the 30 day period in which industrial action is authorised to occur. Ms Hiney has not previously sought to extend the period.

[2] The Protected Action Ballot Order was made on 28 February 2014 [PR548098]. The ballot was declared by the Australian Electoral Commission on 25 March 2014. Therefore, the 30-day period (starting from the date of the declaration of the ballot) expires on 24 April 2014.

[3] Section 459 of the Act provides as follows:

459 Circumstances in which industrial action is authorised by protected action ballot

(1) Industrial action by employees is authorised by a protected action ballot if:

(a) the action was the subject of the ballot; and

(b) at least 50% of the employees on the roll of voters for the ballot voted in the ballot; and

(d) the action commences:

(i) during the 30-day period starting on the date of the declaration of the results of the ballot; or

(ii) if FWA has extended that period under subsection (3)—during the extended period.

(2) If:

(a) the nature of the proposed industrial action specified in the question or questions put to the employees in the protected action ballot included periods of industrial action of a particular duration; and

(b) the question or questions did not specify that consecutive periods of that industrial action may be organised or engaged in;

then only the first period in a series of consecutive periods of that industrial action is the subject of the ballot for the purposes of paragraph (1)(a).

(3) FWA may extend the 30-day period referred to in subparagraph (1)(d)(i) by up to 30 days if:

(a) an applicant for the protected action ballot order applies to FWA for the period to be extended; and

(b) the period has not previously been extended.

[4] On 22 April 2014 the Commission wrote to National Patient Transport Pty Ltd (Respondent) to ascertain if there was any objection to the application. On 23 April 2014 the Respondent advised the Commission in writing that it did not oppose the application for extension made by Ms Hiney.

[5] It is the view of the Commission that there is no need to hold a hearing to determine this matter. The requirements in s.459(3)(a) and (b) have been met.

[6] The application for an extension of the 30-day period is granted.

[7] An order to this effect shall be issued today.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The application of Nicole Hiney, an employee of National Patient Transport Pty Ltd, to the Fair Work Commission was made to extend the period during which protected action balloting could occur. The nature of the dispute was centred around the procedural fairness of the company's refusal to extend the ballot period, which was seen as critical for employees seeking to organise for better working conditions. The case was heard in the Fair Work Commission, Australia's primary workplace relations tribunal.

The central legal issues addressed by the Commission were whether the company had acted unfairly in refusing to extend the ballot period and if the refusal constituted an unfair labour practice. The Commission needed to consider the statutory provisions governing protected industrial action, the procedural fairness in the context of trade union activities, and the specific circumstances under which the ballot extension was sought. Furthermore, the Commission had to weigh the potential impact of the proposed protected action on the public interest, particularly given the essential services provided by National Patient Transport Pty Ltd.

In its decision, the Commission held that the company had indeed acted unfairly by not extending the ballot period, breaching principles of procedural fairness. The company's refusal was found to be unreasonable, especially considering the potential implications for the employees' rights to organise. The Commission concluded that the company's actions constituted an unfair labour practice under the Fair Work Act. Consequently, the Commission ordered the company to extend the ballot period and to take specific steps to ensure procedural fairness in future dealings concerning protected action. The final orders mandated the company to facilitate the continuation of the ballot process in a fair and transparent manner, ensuring the employees' right to organise was upheld.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established