Health Services Union v

[2022] FWC 863

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Health Services Union

Goulburn Valley Health
(B2022/311)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 13 APRIL 2022

Proposed protected action ballot of employees of Goulburn Valley Health.

This is an application by the Health Services Union (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Goulburn Valley Health (the Respondent).

On 13 April 2022, I held a mention where the Respondent advised it did not object to the application. However, it raised a number of concerns in relation to the form and content of the draft order. The parties were able to reach a consent position.

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 Mr Craig McGregor of the Applicant 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.

The Applicant sought that a person other than the Australian Electoral Commission be the ballot agent for the protected action ballot. This course was not opposed by the Respondent. The person proposed in the application as the protected action ballot agent is TrueVote Pty Ltd (TrueVote). I am satisfied that TrueVote is a fit and proper person to conduct the ballot. I am also satisfied that TrueVote is capable of ensuring the secrecy and security of the votes and of conducting the ballot expeditiously. TrueVote has agreed to be the protected action ballot agent and is bound to comply with the Privacy Act 1998 with respect to the handling of the information relating to the protected action ballot.

Therefore I appoint TrueVote as the protected action ballot agent.

An order has been separately issued in PR740359.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Health Services Union applied to the Fair Work Commission under section 437 of the Fair Work Act 2009 for an order to hold a protected action ballot for certain employees of Goulburn Valley Health. The dispute centred around the proposed agreement between the Union and the Health organisation. The Union claimed it had genuinely tried to reach an agreement but was unable to do so and therefore needed to proceed with a ballot to potentially take protected action. The Health organisation did not object to the application but raised concerns about the form and content of the draft order. The matter was determined on the papers without a hearing as the parties reached a consent position.

The legal issues before the Court were whether the Union had genuinely tried to reach an agreement, whether a notification period had passed, and whether the requirements of section 443(1) of the Act were met. The Court found that the Union had genuinely tried to reach an agreement and that a notification period had passed. The Court also found that the requirements of section 443(1) of the Act were met based on the material before it, including the declaration of Mr Craig McGregor of the Applicant.

The Court appointed TrueVote as the protected action ballot agent for the ballot. The Union sought to have a person other than the Australian Electoral Commission be the ballot agent, and this was not opposed by the Health organisation. The Court was satisfied that TrueVote was a fit and proper person to conduct the ballot, capable of ensuring the secrecy and security of the votes, and able to conduct the ballot expeditiously. The Court also noted that TrueVote had agreed to be bound by the Privacy Act 1998 in handling the information relating to the protected action ballot.

The Court issued an order appointing TrueVote as the protected action ballot agent, and a separate order was issued in PR740359.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established