The Association of Professional Engineers, Scientists and Managers Australia T/A Professionals Australia v Friendly Society Medical Association Limited T/A National Pharmacies

[2023] FWC 206

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

The Association of Professional Engineers, Scientists and Managers Australia T/A Professionals Australia
v

Friendly Society Medical Association Limited T/A National Pharmacies

(B2023/46)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 24 JANUARY 2023

Proposed protected action ballot of employees of Friendly Society Medical Association Limited trading as National Pharmacies

This is an application by the Association of Professional Engineers, Scientists and Managers Australia T/A Professionals Australia (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Friendly Society Medical Association Limited T/A National Pharmacies (Respondent).

On 24 January 2023, my Associate was advised that the Respondent did not object to the application.

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

On the basis of the material before me, including the declaration of Mr Paul Inglis 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.

An order has been separately issued in PR749930.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Association of Professional Engineers, Scientists and Managers Australia, trading as Professionals Australia, lodged an application with the Fair Work Commission (FWC) seeking an order for a protected action ballot in relation to certain employees of Friendly Society Medical Association Limited, trading as National Pharmacies. The application was made under section 437 of the Fair Work Act 2009, which allows for the protection of employees who are involved in, or proposing to be involved in, protected industrial action. The Respondent did not object to the application, leading to the Deputy President determining the matter on the papers without holding a hearing.

The central legal issue the FWC had to resolve was whether the Applicant had fulfilled the necessary criteria to proceed with a protected action ballot. This involved assessing whether there was a notification period in relation to the proposed agreement and if the requirements outlined in section 443(1) of the Act were met. The Applicant's declaration, along with the evidence of genuine bargaining efforts, was pivotal in addressing these criteria.

The Deputy President was satisfied, based on the material provided, that the Applicant had indeed met the requirements of the Act. The evidence demonstrated that the Applicant had been genuinely attempting to reach an agreement with the Respondent and that there was a notification period in place for the proposed agreement. Consequently, the Deputy President concluded that the conditions for the protected action ballot were satisfied. This decision was confirmed through a separately issued order in PR749930.

The final orders of the Fair Work Commission were that the application for a protected action ballot order was granted. This allowed the Applicant to proceed with the ballot as per the provisions outlined in the Fair Work Act 2009. The Respondent's lack of objection reinforced the decision to move forward with the order, ensuring that the employees could exercise their rights under the Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established