United Workers' Union v The Jane Franklin Hall Summary

[2024] FWC 2633

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

United Workers' Union
v

The Jane Franklin Hall

(B2024/1246)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 25 SEPTEMBER 2024

Proposed protected action ballot of employees of The Jane Franklin Hall

This is an application by the United Workers’ Union (UWU or Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of The Jane Franklin Hall (Jane Franklin or Employer).

On 24 September 2024, the Commission was initially advised that the Employer objected to the Application on various grounds. In that light I scheduled a hearing for today to determine the application. In the lead up to the scheduled hearing, the UWU filed additional submissions and evidence and the Employer advised that it no longer pressed its objections.

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 declaration and statement of Ashley Wilton, Union Organiser, setting out the steps taken by the UWU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with Jane Franklin, I am satisfied that there is a notification time in relation to the proposed agreement and that all of  the requirements in s.443(1) of the Act have been met.

The ballot is to be conducted by the Australian Electoral Commission (AEC).

For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 6 November 2024.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR779556.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference. That Member will issue an Order requiring the attendance of all bargaining representatives for the proposed enterprise agreement at the conference. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

DEPUTY PRESIDENT

[1] This is, in effect, 30 working days from the making of the Order, which is the minimum period required by the AEC.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission has ruled on an application by the United Workers' Union for a protected action ballot order concerning employees of The Jane Franklin Hall. The union sought the order under section 437 of the Fair Work Act 2009, with the aim of enabling its members to vote on potential protected actions, such as strikes or lockouts, due to ongoing disputes over an enterprise agreement. Initially, the employer, The Jane Franklin Hall, had objected to the application; however, these objections were withdrawn before the scheduled hearing. Consequently, the Deputy President Hampton decided to adjudicate the matter based on the submitted documents without the need for a hearing.

The key legal issues the court had to resolve were whether the union had genuinely tried to reach an agreement with the employer and whether all the requirements of section 443(1) of the Fair Work Act had been met. These requirements include the necessity for a notification period and the union's genuine efforts in bargaining. The court examined the union organiser's declaration and statement, which detailed the steps taken in bargaining and affirmed the union's genuine attempts to reach an agreement. The court found that the union had satisfied the notification time requirement and fulfilled all the conditions set out in section 443(1) of the Act.

The Deputy President Hampton concluded that the union had met all the necessary criteria for the protected action ballot order. The court set the closing date for voting on the ballot as 6 November 2024, which also established the ballot period under section 448A(2) of the Act. Additionally, the Commission assigned another member to conduct a compulsory conciliation conference to facilitate meaningful negotiations between the parties. The union's application was thus granted, and the ballot will be managed by the Australian Electoral Commission.

United Workers' Union v The Jane Franklin Hall

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established