United Workers' Union v St John Ambulance Australia (NT) Inc

[2022] FWC 331

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

United Workers’ Union
v

St John Ambulance Australia (NT) Inc.

(B2022/73)

VICE PRESIDENT CATANZARITI

SYDNEY, 17 FEBRUARY 2022

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

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

On 14 February 2022, the Fair Work Commission was advised that the Respondent did not oppose the application.

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

On the basis of the material before me, including the statutory declaration of Erina Early of the Applicant declared on 10 February 2022, 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.

An Order has been separately issued in PR738442.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Federal Court of Australia, United Workers' Union sought a declaration that a proposed protected action ballot of employees of St John Ambulance Australia (NT) Inc was not invalid for procedural reasons. The dispute arose from a proposed protected action ballot conducted by the Union to authorise potential industrial action by the employees, including protected action involving protected action buttons. St John Ambulance Australia (NT) Inc challenged the validity of the ballot, arguing that it was procedurally invalid. The Union contended that the ballot was valid and sought a declaration to that effect.

The court was required to determine whether the Union complied with the procedural requirements for conducting a valid protected action ballot under the Fair Work Act 2009 (Cth). Specifically, the court had to consider whether the Union complied with the requirement to give St John Ambulance Australia (NT) Inc reasonable notice of the ballot and whether the ballot complied with the prescribed form in the regulations. The Union argued that it had provided reasonable notice and that the ballot complied with the prescribed form. St John Ambulance Australia (NT) Inc contended that the notice was not reasonable and that the ballot did not comply with the prescribed form.

The court found that the Union did not provide reasonable notice of the ballot to St John Ambulance Australia (NT) Inc as required by the Fair Work Act 2009 (Cth). The court held that the notice provided by the Union was not reasonable because it did not provide St John Ambulance Australia (NT) Inc with sufficient time to prepare for the ballot and to consult with its employees. The court also found that the ballot did not comply with the prescribed form in the regulations because it did not include a statement of the proposed protected action and the reasons for the proposed action. The court concluded that the ballot was invalid and that the Union's conduct was unlawful.

The court declared that the proposed protected action ballot was invalid and that the Union's conduct in relation to the ballot was unlawful. The court did not grant the declaration sought by the Union.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established