United Workers' Union v Clifford Hallam Healthcare Pty Ltd

[2019] FWC 7819

[2019] FWC 7819

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

United Workers’ Union
v
Clifford Hallam Healthcare Pty Ltd
(B2019/1312)

DEPUTY PRESIDENT CLANCY MELBOURNE, 15 NOVEMBER 2019

Proposed protected action ballot of employees of Clifford Hallam Healthcare Pty Ltd.

[1] On 13 November 2019, the United Workers’ Union (UWU) applied for a protected action ballot order (the Application). In doing so, the UWU seeks an order that those employees of Clifford Hallam Healthcare Pty Ltd who are members of the UWU and who will be covered by the proposed enterprise agreement intended to replace the Clifford Hallam Healthcare Pty Ltd (Victoria, Tasmania, Queensland, New South Wales and South Australia) & National Union of Workers Enterprise Agreement 2016 be balloted to see if they support the taking of protected industrial action.

[2] The Application was accompanied by a statutory declaration declared on 13 November 2019 by Ms Chloe Holliday, the UWU’s Lead Organiser.

[3] Later on 13 November 2019, correspondence was sent by the Fair Work Commission to Clifford Hallam Healthcare Pty Ltd (CHH) seeking advice as to whether it opposed the Application. In an email from its lawyers sent on 14 November 2019, CHH advised it objected to the Application and the following bases:

1. The FWC could not be satisfied that the UWU has been, and is, genuinely trying to reach agreement; and

2. The Application did not sufficiently specify the nature of the proposed industrial action, in that proposed Question 5 sought to ask whether UWU members authorised industrial action in the form of “An unlimited number bans on all data collection and/or data entry and/or paperwork of indefinite duration.”

[4] Further, it was contended by CHH that exceptional circumstances exist justifying the period of written notice for the proposed industrial action being longer than 3 working days.

[5] The file was the allocated to my chambers and I caused a Notice of Listing to be dispatched, setting the matter down for a Mention by telephone at 4.00pm on 14 November 2019.

[6] At the Mention, Ms Holliday and Ms Monique Segan attended for the UWU and Mr Bradley Cagney of HMB Employment Lawyers was granted permission to represent CHH. During discussion with the parties’ representatives, the UWU advised that proposed Question 5 (referred to above at [3]) was withdrawn. Further, the UWU indicated that if CHH withdrew its opposition to the Application, it would consent to the period of written notice for the proposed industrial action being 5 working days. To this, Mr Cagney indicated he would need to seek his client’s instructions.

[7] In order that the Application be progressed, I determined to list this matter for a Hearing at 12:00pm on 15 November 2019 and directed the parties to file any witness material, outlines of argument and authorities upon which they intended to rely by 10:00am on 15 November 2019.

[8] Following the Mention, Mr Cagney advised by email CHH would not object to the Application or seek to be heard at the scheduled hearing provided the Order granted by the Commission removed proposed Question 5 and reflected that the period of written notice referred to in s.414(2)(a) of the Fair Work Act 2009 (the Act) should be 5 working days. In response, the UWU confirmed its consent to an Order in the terms outlined by Mr Cagney.

[9] Having noted what has now been agreed between the parties, I now outline my reasons for granting the Application and Order sought.

Has the UWU been and is it genuinely trying to reach agreement with CHH?

[10] In the Form F34B Statutory declaration in support of an application for a protected action ballot order, Ms Holliday declared that a log of claims had been served on CHH on or about 15 August 2019 which was then followed by 7 meetings, during which time the UWU had changed its bargaining position and had withdrawn some claims. Further, in the email to the Commission dated 14 November 2019, CHH indicated that a further bargaining meeting is scheduled for 26 November 2019.

[11] In these circumstances, I am satisfied that the UWU has been and is genuinely trying to reach agreement with CHH. 1

[12] As to matters relating to s.443(1)(a) of the Act, I am satisfied based on the material before me that:

1. The UWU is a bargaining representative for the employees 2 and the restriction in s.437(2A) of the Act does not apply;

2. The Application specifies the group of employees to be balloted and the questions to be put to the employees; 3

3. CHH received a copy of the Application when it was filed with the Commission and in her statutory declaration declared on 13 November 2019, Ms Holliday declared that the AEC was to be given a copy within 24 hours of the making of the Application; 4 and

4. The nominal expiry date of the applicable agreement has passed. 5

Conclusion

[13] On the basis of the material before me, I am satisfied the UWU has fulfilled the statutory prerequisites for a protected action ballot order, and accordingly, I must make a protected action ballot order. An Order will be issued separately to this decision.

DEPUTY PRESIDENT

Appearances:

Ms C Holliday and Ms M Segan for the Applicant.

Mr Bradley Cagney of HMB Employment Lawyers on behalf of the Respondent.

Mention details:

2019.

Melbourne:

November 14.

Printed by authority of the Commonwealth Government Printer

<PR714322>

 1   Fair Work Act 2009 (Cth) s.443(1)(b).

 2   Ibid at s.437(1).

 3   Ibid at s.437(3).

 4   Ibid at s.440.

 5   Ibid at s.438(1).