United Workers' Union v Sullivan Nicolaides Pty Ltd

[2022] FWC 2717

[2022] FWC 2717

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

United Workers’ Union
v

Sullivan Nicolaides Pty Ltd

(B2022/1510)

DEPUTY PRESIDENT DEAN CANBERRA, 13 OCTOBER 2022

Proposed protected action ballot of employees of Sullivan Nicolaides Pty Ltd.

1. The United Worker’ Union (UWU or the Union) has made an application pursuant to s.437 of the Fair Work Act 2009 for a protected action ballot order (PABO) in respect of employees of Sullivan Nicolaides Pty Ltd (Respondent).

1. The application seeks to ballot employees of the Respondent who are members of, and represented by, the UWU for a proposed enterprise agreement (Relevant Employees). The Relevant Employees are presently covered by the Sullivan Nicolaides Pathology Collective Workplace Agreement No. 3 which has passed its nominal expiry date of 27 October 2010.

1. The Respondent does not consent to the making of the PABO and provided written submissions outlining its position. In summary, the Respondent disputes that the UWU has been or is genuinely trying to reach an agreement with the employer. It is further argued that six of the proposed ballot questions should not be included if the Commission decides to issue the order.

1. Both the Union and the Respondent provided submissions and both through correspondence indicated that they did not seek to be heard and were content for the Commission to make a determination on the basis of the material and submissions provided by the parties.

Relevant legislation

1. Section 443 of the Act sets out the circumstances in which a protected action ballot order must be made. Relevantly, it provides:

443      When the FWC must make a protected action ballot order

(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and

(b) the FWC is 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.

(2) The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

1. I am satisfied, and it is not in dispute, that the requirement in s 443(1)(a) has been met.

Genuinely trying to reach an agreement

1. In relation to s 443(1)(b) and by way of background, the Respondent commenced bargaining for a new enterprise agreement in around September 2021. A proposed agreement was voted on in July 2022 and a majority of Relevant Employees did not vote to approve the agreement. Discussions have been continuing between the Union and the Respondent since that time to progress the proposed agreement.

1. According to the Respondent, this application was made during the access period for a vote on the proposed agreement which would commence on 11 October 2022. On that basis, the Respondent submits that the Commission cannot be satisfied that the Union is genuinely trying to reach agreement as required by s.443(1)(b).

1. The Union submitted that the words ‘genuinely trying’ are to be given their ordinary meaning, and determining whether an applicant “has been, and is, genuinely trying to reach agreement” is a question of fact to be decided having regard to all the facts and circumstances of a particular case.

1. The Union further submitted that notwithstanding the Respondent had unilaterally put a proposal to Relevant Employees for approval, it remained ready, willing and able to bargain.

1. The only evidence filed by either party (as opposed to the extensive submissions made) was the statutory declaration of Quan Chuc of UWU made on 4 October 2022 setting out the steps taken by them in bargaining with the Respondent. Based on this uncontested evidence, I am satisfied that the Union has been, and is, genuinely trying to reach an agreement with the Respondent.

The ballot questions

1. The Respondent submitted that six of the proposed ballot questions, ie questions 8-13 of the draft order (the disputed questions), should not be included in any order the Commission may make, on the basis that the questions are ambiguous or lack clarity, or are not industrial action.

1. In response, the Union filed an amended draft order which sought to clarify questions 10, 11 and 13, and pressed the inclusion of the remaining disputed questions.

1. The Respondent filed further submissions in response, outlining why it contended that the remaining disputed questions should be removed, and I have taken this to mean that questions 10, 11 and 13 are no longer the subject of any objection.

1. Given time constraints, the detailed submissions made by both parties are not set out in this decision.

1. Having considered the submissions made by the parties, I am satisfied that the remaining disputed questions are capable of being included in an order for the reasons set out in the Unions submission in that they set out, with sufficient clarity, what work would be undertaken and what conduct would be protected. Further, I am not satisfied that in relation to question 12, the term ‘patient’ is ambiguous in the context of healthcare, and accordingly is capable of being included in an order.

Conclusion

1. Having made the above findings, I am satisfied that the order sought by the UWU, as modified to reflect this decision, must be made.

1. An order will be separately issued.

DEPUTY PRESIDENT

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