Health Services Union of Australia v Healthscope Operations Pty Ltd T/A Healthscope

[2023] FWC 1985

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Health Services Union of Australia
v

Healthscope Operations Pty Ltd T/A Healthscope

(B2023/819)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 10 AUGUST 2023

Proposed protected action ballot of employees of Healthscope Operations Pty Ltd.

This is an application by the Health Services Union of Australia[1] (HSU) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Healthscope Operations Pty Ltd T/A Healthscope (Healthscope or Employer).

On 9 August 2023, the Commission was advised that Healthscope did not object to the Application, as amended to confirm the group of employees to be balloted.

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 of Ms Brianna Macks on behalf of the HSU, setting out the steps taken by the HSU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with Healthscope, 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. For the purposes of s.443(3)(c) of the Act, and following consultation with the parties, the Commission has determined that the date by which voting in the ballot is to close is 21 September 2023.[2] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An order has been separately issued in PR765034.

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 involved in 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] Leave was granted to amend the application to refer to the HSU. The branch of the HSU involved in the matter is the HSU Victoria No 1 Branch which trades as the Health Workers Union (HWU).

[2] This is, in effect, 30 working days from the making of the Order, which is the period required by the Australian Electoral Commission to conduct a ballot. The Commission advised the parties on 9 August 2023 that it proposed to amend Clause 4 of the draft order to reflect this, and no objections were made by the parties.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In this case, the Health Services Union of Australia (HSU) sought an order from the Fair Work Commission (FWC) for a ballot of its members employed by Healthscope Operations Pty Ltd T/A Healthscope. This was pursuant to s.437 of the Fair Work Act 2009 (the Act). The application was made to facilitate a ballot regarding a proposed agreement between the HSU and Healthscope. Healthscope did not object to the application, leading the Deputy President Hampton to determine the matter on the papers. The decision involved verifying that the union had genuinely attempted to negotiate with the employer and that the requirements under s.443(1) of the Act were met.

The primary legal issue before the Deputy President was whether the union had met the statutory requirements to conduct a ballot for a proposed agreement. The union needed to demonstrate that it had been genuinely attempting to reach an agreement and that a notification period existed. Additionally, the Deputy President had to decide the closing date for the ballot in line with s.443(3)(c) of the Act. The determination also included assigning the matter to another Member of the Commission for a compulsory conciliation conference under s.448A of the Act.

The Deputy President concluded that the union had met the requirements of the Act, given the evidence of genuine bargaining efforts and the existence of a notification period. The closing date for the ballot was set as 21 September 2023, ensuring a period of 30 working days, which was the timeframe needed by the Australian Electoral Commission to conduct the ballot. An order was subsequently issued, and the matter was assigned to another Member of the Commission for a compulsory conciliation conference. This decision facilitated the next steps in the negotiation process, ensuring that the parties would be prepared for meaningful discussions.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established