The Association of Professional Engineers, Scientists and Managers, Australia T/A Professionals Australia v Ramsay Health Care Australia Pty Ltd Summary

[2023] FWC 1472

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

Ramsay Health Care Australia Pty Ltd

(B2023/590)

COMMISSIONER SIMPSON

BRISBANE, 21 JUNE 2023

Proposed protected action ballot of employees of Ramsay Health Care Australia Pty Ltd

This is an application by The Association of Professional Engineers, Scientists and Managers, Australia T/A Professionals Australia (APESMA/ 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 Ramsay Health Care Australia Pty Ltd (Ramsay/the Respondent).

The APESMA filed the application on 16 June 2023, accompanied by a Form F34B Statutory Declaration in support of the application signed by Jessica Hensman, Lead Organiser employed by the APESMA.

On 16 June 2023, the Commission’s Bargaining Support Team sent an email to the Respondent asking the Respondent to indicate whether it objected to the application by no later than 12:00PM on 19 June 2023. The parties were advised that if the Respondent objected to the application, the response was to contain details of the basis of the objection, and then outline the statutory basis for its objection.

At 11:26AM on 19 June 2023 the Respondent sent correspondence outlining their objections. The matter was then allocated to me and I listed it for a hearing on 21 June 2023.

Hearing

At the commencement of the hearing, the parties notified the Commission that they had reached a consent position.

Conclusion

On the basis of the material before me, including the declaration of Jessica Hensman, Lead Organiser employed by the APESMA, 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 all of the requirements in s.443(1) of the Act have been met.

The ballot is to be conducted by the Australian Electoral Commission. For the purposes of s.443(3)(c) and s.448A(2) of the Act, a ballot period of 30 working days from the date of the Order (21 June 2023) has been established by this Commission.

An order has been separately issued in PR763426.

The Commission will separately issue a Notice of Listing and Orders requiring attendance at a conference. Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

COMMISSIONER

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CaseChat Overview and Summary

The Association of Professional Engineers, Scientists and Managers, Australia T/A Professionals Australia, applied to the Fair Work Commission under section 437 of the Fair Work Act 2009 for an order permitting a ballot of certain employees of Ramsay Health Care Australia Pty Ltd. The application was made to facilitate potential protected industrial action. Ramsay Health Care Australia Pty Ltd objected to the application, which led to a hearing before Commissioner Simpson. The matter was resolved as the parties reached a consent position during the hearing.

The primary legal issue before the Commission was whether the applicant union had satisfied the requirements under section 437 of the Fair Work Act for a protected action ballot order. This involved determining if the union had genuinely attempted to negotiate with the employer and if all statutory conditions for a ballot were fulfilled. The respondent's objections needed to be assessed to ascertain whether they were valid and based on the correct statutory provisions.

Commissioner Simpson found that the union had indeed complied with the Act's requirements, based on the statutory declaration provided by the union's Lead Organiser, Jessica Hensman. The declaration outlined the union's efforts to negotiate with the employer and confirmed that all conditions for a ballot were met. The Commissioner was satisfied that the union had met its obligations and granted the application. An order was issued to conduct the ballot, specifying a 30 working day period starting from the date of the order. The Fair Work Commission also issued separate notices and directions to ensure continued negotiations between the parties.

This decision underscores the importance of unions adhering to statutory requirements when seeking to conduct protected action ballots. The Commission's approval of the ballot order, following the union's demonstration of genuine negotiation efforts, highlights the process's critical role in protecting employees' rights to organise and take industrial action under the Fair Work Act.

The Association of Professional Engineers, Scientists and Managers, Australia T/A Professionals Australia v Ramsay Health Care Australia Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established