United Voice v National Patient Transport Pty Ltd

[2013] FWC 8906

[2013] FWC 8906

FAIR WORK COMMISSION

DECISION

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

United Voice
v
National Patient Transport Pty Ltd
(B2013/1412)

- and-

Nicole Hiney
v
National Patient Transport Pty Ltd
(B2013/1417)

COMMISSIONER JOHNS MELBOURNE, 15 NOVEMBER 2013

Proposed protected action ballot by employees of National Patient Transport Pty Ltd

[1] This is an edited version of the decision announced in transcript on 13 November 2013.

[2] This decision relates to applications made for protected action ballot orders.

[3] The applications were made by United Voice and Nicole Hiney, a bargaining representative, on 11 and 12 November 2013 respectively in relation to a group of employees of National Patient Transport Pty Ltd (Employer). The Employer was served with the applications within 24 hours after the making of them to the Fair Work Commission (Commission).

[4] The employees to be balloted are presently covered by the National Patient Transport Pty Ltd Employees Enterprise Agreement 2010 which passed its nominal expiry date on 1 July 2013. Accordingly, the applications are made well after the nominal expiry date.

[5] The applications are substantively identical in nature. Further, the draft orders sought be each of the applicants are the substantively the same. Both ballots are to be conducted by the Australian Electoral Commission. In accordance with section 442 of the Fair Work Act 2009 (FW Act) and by consent of the applicants the two applications were dealt with together.

[6] The applications were listed for hearing on 13 November 2013. United Voice was represented by one of its Industrial Officers, Brenda Forbath. Ms Hiney represented herself.

[7] The Employer was represented by its CEO, Jeff Wilson and its Business Improvement Manager, Russell Truman.

[8] The Employer does not oppose the application and it does not contest that the applicants have been genuinely trying to reach agreement. It agrees that the statutory requirements have been met. However, the company says its offer in terms of a wages increase is reasonable. The Commission notes what the parties say in relation to the content of the bargaining for the proposed enterprise agreement, but that is not a relevant issue in relation to the question that is presently before the Commission. However, should the parties desire the assistance of the Commission in relation to resolving any outstanding issues, the parties are directed to the operation of section 240 of the FW Act.

[9] The Employer further says it has further concerns with the proposed actions listed in the application for protected ballot action. It says that the proposed actions 1 to 8 in particular are not industrial action. If they are correct in that submission, then there is no requirement that the applicants seek a protected action ballot in respect of them. No doubt, for the avoidance of doubt, the applicants have included items 1 to 8 in their applications to make certain that, in the event that those things occur, they are covered by the statutory protections.

[10] It is not the role of the Commission at this stage of the proceeding to make an assessment whether those items are properly to be described as industrial action or whether or not they satisfy the statutory definition. It is only necessary that the Commission be satisfied that the statutory requirements in section 443(1) of the FW Act are met.

[11] The applications are made pursuant to s.437 of the FW Act. Accordingly, the first limb of s.443(1) of the FW Act has been met.

[12] The second limb of s.443(2) of the FW Act requires the Commission to be “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”. United Voice says it has been genuinely trying to reach an agreement. It says it served a log of claims on 17 April 2013 that it has met with the Employer on six occasions since. It has exchanged six versions of a draft enterprise agreement. During the course of those negotiations, concessions have been made but to date an agreement has not been reached. Further, United Voice says that it continues to desire to reach an agreement with the employer. Ms Hiney says in respect of herself and those that she represents that she has been and is genuinely trying to reach an agreement. She says she has attended five out of the six meetings, has responded to all proposals and consulted with the employees who she represents.

[13] The Commission has considered all that has been put in the proceedings. The Commission notes the submissions that have been made.

[14] Consequently, the Commission is satisfied that all of the requirements of subsection 443(1) of the FW Act have been met. Accordingly, an Order must be made.

COMMISSIONER

Appearances:

Ms Brenda Forbath representing United Voice.

Ms Nicole Hiney represented herself.

Mr Jeff Wilson represented National Patient Transport Pty Ltd.

Hearing details:

2013.

Melbourne.

13 November.

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<Price code A, PR544475>