Health Services Union and Jessica Gailitis v Melbourne City Mission

[2024] FWC 1032

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Health Services Union and Jessica Gailitis
v

Melbourne City Mission

(B2024/455)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 19 APRIL 2024

Proposed protected action ballot of employees of Melbourne City Mission

This is an application by the Health Services Union (HSU)[1] and Jessica Gailitis (Applicants) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Melbourne City Mission (Employer).

On 18 April 2024, the Commission was advised that the Employer did not object to 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 declarations of Lisa Anne Alcock, Branch Assistant Secretary, Health Services Union Victoria No. 4 Branch, trading as the Victorian Psychologists Association, Craig McGregor, Branch Secretary, Health Services Union Victoria No. 3 Branch, and Jessica Gailitis, Bargaining Representative, setting out the steps they have taken in bargaining with the Employer and that they have been, and are, genuinely trying to reach agreement with Melbourne City Mission, 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 TrueVote Pty Ltd (Agent) TrueVote has been approved as an eligible protected action ballot agent under s.468A of the Act and is authorised to conduct the ballot.[2]

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 9 May 2024.[3] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR773703.

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] The HSU comprising of two branches; namely, the Victorian No.3 branch and the Victorian No.4 Branch.

[2] TrueVote Pty Ltd [2023] FWC 1446.

[3] This is, in effect, fourteen (14) working days from the date of the Order, as sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Health Services Union and Jessica Gailitis lodged an application with the Fair Work Commission under section 437 of the Fair Work Act 2009 for a protected action ballot order. The application was in relation to certain employees of Melbourne City Mission. The union, represented by two branches and Ms Gailitis, sought to conduct a ballot to enable employees to vote on whether to take protected industrial action. Melbourne City Mission did not oppose the application. The Commission determined the matter on the papers without a hearing, given the employer's lack of objection.

The legal issues before the Commission were whether the union and bargaining representative had genuinely attempted to reach an agreement with the employer and whether the notification period for the proposed agreement had been met. The Commission was satisfied that the union and Ms Gailitis had genuinely attempted to reach an agreement, as evidenced by the declarations from the union representatives. Additionally, the Commission found that all requirements under section 443(1) of the Fair Work Act had been met, including the notification period for the proposed agreement.

The Deputy President concluded that the union and Ms Gailitis had met the necessary criteria for a protected action ballot. The Commission ordered that the ballot be conducted by TrueVote Pty Ltd, which had been approved as an eligible ballot agent. The Commission set the closing date for voting as 9 May 2024, which also established the ballot period for the purposes of the Act. A separate order was issued to require the attendance of all bargaining representatives for a compulsory conciliation conference. The matter was to be assigned to another member of the Commission to conduct the conference and issue necessary directions.

The final orders included the approval of the ballot agent, the setting of the voting closing date, and the scheduling of a compulsory conciliation conference. The Commission also noted that the matter would be reassigned to another member to oversee the conference and issue any required directions to facilitate meaningful negotiations.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established