United Workers' Union (the Applicant) v Clifford Hallam Healthcare Pty Ltd (the Respondent)

[2020] FWC 141

[2020] FWC 141

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.459—Protected action

United Workers’ Union
(the Applicant)
v
Clifford Hallam Healthcare Pty Ltd
(the Respondent)

(B2020/12)

DEPUTY PRESIDENT MANSINI MELBOURNE, 14 JANUARY 2020

Application to extend the 30-day period for the commencement of protected industrial action.

[1] The United Workers’ Union of Australia (the Union) has applied for an order to extend the 30-day period within which protected industrial action must commence, pursuant to s.459(3) of the Fair Work Act 2009 (Cth) (the Act).

[2] On 10 January 2020, I issued an order extending the 30 day period with reasons to be published later. Those reasons are as follows.

Relevant context

[3] The Union is a bargaining representative for a proposed enterprise agreement to cover certain employees of Clifford Hallam Healthcare Pty Ltd (the Respondent).

[4] On 15 November 2019, Deputy President Clancy issued an order for a ballot of employees of the Respondent who are members of the Union and who would be covered by the proposed enterprise agreement (Employees). Pursuant to the order in PR714323, the ballot was conducted by the Australian Electoral Commission. The results of the ballot were declared on 13 December 2019.

[5] There were six questions posed by the ballot, seeking authorisation of particular forms of proposed industrial action. The results of the ballot were, in summary:

a) 100 of 155 Employees on the roll of voters participated in the vote;

b) 97 Employees (or 63% of those on the roll of voters) cast a valid vote;

c) A majority (at least 90 Employees in each case) voted to authorise each of the forms of industrial action. 1

[6] None of the forms of industrial action authorised by the ballot have been engaged in by Employees during the 30 day period. The Union said this was due to a combination of the holiday period and an offer discussed with the Respondent on 19 December 2019 (immediately prior to Union office closure on 20 December 2019). The Union had not commenced discussing the Respondent’s offer with Employees until 9 January 2020, after its office reopened on 6 January 2020.

Statutory framework

[7] Section 459 of the Act relevantly provides that industrial action by employees is authorised by a protected action ballot if the action commences during the 30 day period starting on the day of the declaration of the results of the ballot or, if the period has been extended by the Commission, during the extended period.

[8] Section 459(3) provides the Commission with a discretion to extend the period within which protected industrial action must commence by up to 30 days if the applicant for a protected action ballot order applies for the period to be extended, and that period has not previously been extended. There are two discretionary elements:

a) whether to extend the 30 day period; and, if the Commission is so minded

b) the period of the extension (confined to an extension of no greater than 30 days).

[9] The discretion under s.459(3) is to be exercised having regard to the evident statutory purpose of the provision, read in the context of Part 3-3 and the Act as a whole, and taking into account the circumstances of the relevant application. The object of the Division 8 of Part 3-3, in which s.459(3) appears, is to establish a fair, simple and democratic process to allow a bargaining representative to determine whether employees wish to engage in particular protected industrial action for a proposed enterprise agreement. 2

The dispute before the Commission

[10] In support of its application to extend the 30 day period, the Union contended that there is nothing controversial about seeking to preserve the ability to engage in protected industrial action authorised by the ballot. It argued that Employees should not be prejudiced for taking the time to consider the Respondent’s offer before exercising their right to take protected industrial action. Ms Chloe Holliday, an employee of the Union, gave evidence that the Respondent’s offer was “unanimously voted down” by Employees at a meeting she attended in Victoria, and she was informed by her colleagues at the Union that the offer was also rejected by a majority of Employees in the States of New South Wales and Queensland. Ms Holliday’s evidence was that protected industrial action was endorsed in Victoria, New South Wales and Queensland, with discussions imminent in Tasmania and South Australia. The Union said that, if an extension were not granted, it would make a new application for a protected action ballot order under s.437 of the Act, which would result in a further postal ballot being conducted. It said that this would entail unnecessary time and expense, compounded by delays in the initial postal ballot. The Union submitted that it has been and is genuinely trying to reach an agreement with the Respondent. Finally, the Union contended that granting the extension would be consistent with the objects of the Act.

[11] The Respondentopposed the grant of an extension. It contended that there was nothing before the Commission to warrant the exercise of the discretion to grant an extension of the 30-day period under s.459(3). It submitted that the ordinary period within which industrial action must commence is 30 days, as provided in s.459(1)(d)(i), and that this period should only be extended if there is sufficient evidence that the “will of the majority” of Employees remained in support of the taking of protected industrial action. It pointed to the ballot results at first instance to indicate that such majority may no longer exist and argued that the evidence of the Union was not sufficiently robust to warrant the Commission’s satisfaction to the contrary. It did not dispute that the Union has been and is genuinely trying to reach an agreement with the Respondent.

Consideration

[12] The Union is a bargaining representative and was the applicant for the protected action ballot order. It has made a valid application for an extension of the 30 day period. The period has not previously been extended. The jurisdictional prerequisites for extending the 30 day period are satisfied in this case.

[13] Section 459(3) confers a broad discretion, unlike other provisions in the Act where the exercise of discretion is confined to specified criteria or considerations. In weighing whether to exercise the discretion, I adopt the approach of Deputy President Colman in Australian Workers’ Union v Otway Coast Committee Incorporated [2019] FWC 111.

[14] It is not disputed that the Union has been and is genuinely trying to reach agreement with the Respondent. The evidence of the negotiations to date is consistent with this.

[15] In the circumstances, I do not consider it would be compatible with the object of Division 8 of Part 3-3 to require the Union to seek a fresh protected action ballot order, including because:

a) No good reason was presented to cause the Commission to doubt that, should the Union apply for a further protected action ballot order, the further application would be granted; and

b) I am not persuaded that the ballot outcome reported in the 13 December 2019 declaration of results, in the absence of any other factor or evidence (for example of a significant change in operational circumstances or composition of the workforce), supports a finding that the result would likely differ in another ballot.

[16] I have had regard to the cost, inconvenience and delay that would be associated with a further protected action ballot application, and the lack of evidence of any change in the circumstances that would be relevant to the consideration of a further ballot application.

[17] On the materials before the Commission, I can not identify any consideration that tells against the exercise of the discretion in this case.

[18] In the event that the Commission was minded to exercise its discretion, the parties sought the extension for 30 days. In the circumstances I consider that it is appropriate to extend the period by 30 days.

[19] For the above reasons, pursuant to s.459(3) of the Act, I grant the Union’s application to extend the 30 day period in s.459(1)(d)(i) by a further 30 days.

[20] An order has separately been issued in PR715842.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR715841>

 1   Australian Electoral Commission Declaration of Results dated 13 December 2019.

 2   Section 436 of the Act.