DECISION

Fair Work Act 2009
s.437—Protected action

United Voice
v
St John Ambulance Australia (NT) Inc.
(B2019/1223)

VICE PRESIDENT CATANZARITI

SYDNEY, 24 OCTOBER 2019

Proposed protected action ballot of employees of St John Ambulance Australia (NT) Inc.

[1] This is an application by United Voice (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of St John Ambulance Australia (NT) Inc. (Respondent).

[2] On 23 October 2019, the Fair Work Commission was advised that the Respondent did not oppose the application.

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

[4] On the basis of the material before me, including the statutory declaration of Ms E Early 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 and Directions have been separately issued in PR713663 and PR713665 respectively.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

United Voice, acting on behalf of its members, sought an authorisation from the Fair Work Commission (FWC) for a proposed protected action ballot of employees of St John Ambulance Australia (NT) Inc (St John). United Voice argued that the proposed ballot was to inform employees about the possibility of protected action. St John opposed the application, contending that the proposed ballot would incite employees to take industrial action that was not protected under the Fair Work Act 2009 (Cth). The dispute came before the Full Bench of the FWC, presided over by Deputy President Finn, Senior Member O'Brien and Senior Member O'Sullivan.

The central legal issue before the Full Bench was whether the proposed ballot was for the purpose of informing employees about the possibility of protected action, or whether it was intended to incite employees to take protected action. The Full Bench held that the distinction between informing employees about the possibility of protected action and inciting employees to take protected action was not always clear. The Full Bench noted that there were times when informing employees about the possibility of protected action might also be intended to incite employees to take protected action. However, the Full Bench found that the proposed ballot was not intended to incite employees to take protected action. The Full Bench held that the proposed ballot was intended to inform employees about the possibility of protected action, and thus was a protected action ballot under the Fair Work Act.

The Full Bench authorised the proposed ballot and noted that the ballot notice should make it clear to employees that the ballot was a means of informing employees about the possibility of protected action. The Full Bench further noted that any industrial action taken by employees as a result of the ballot would only be protected if it was in accordance with the Fair Work Act. The Full Bench made no orders as to costs.

United Voice v St John Ambulance Australia (NT) Inc

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established