Health Services Union v

[2022] FWC 860

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Health Services Union

Northeast Health Wangaratta
(B2022/308)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 13 APRIL 2022

Proposed protected action ballot of employees of Northeast Health Wangaratta.

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 Northeast Health Wangaratta (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 PR740352.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Health Services Union made an application to the Fair Work Commission under section 437 of the Fair Work Act 2009 for a protected action ballot order in relation to certain employees of Northeast Health Wangaratta. The application was made in accordance with the statutory requirements for protected action ballots, which are a form of industrial action that is protected from certain legal consequences if certain conditions are met. The Union sought to conduct a ballot to determine whether the employees wished to take protected action in relation to their employment conditions. Northeast Health Wangaratta did not object to the application, but raised concerns about the form and content of the draft order. The parties were able to reach a consent position on the form and content of the order, and the matter was determined on the papers without a hearing.

The legal issues before the Commission were whether the Union had taken the necessary steps to bargain in good faith with the employer, and whether the proposed ballot agent was fit and proper to conduct the ballot. The Union was required to demonstrate that it had been genuinely trying to reach agreement with the employer, and that it had taken all reasonable steps to do so. The Union was also required to demonstrate that the proposed ballot agent was a fit and proper person to conduct the ballot, and that it was capable of ensuring the secrecy and security of the votes and of conducting the ballot expeditiously.

The Commission found that the Union had met the requirements of the Act, and that there was a notification time in relation to the proposed agreement. The Commission was satisfied that the Union had been genuinely trying to reach agreement with the employer, and that it had taken all reasonable steps to do so. The Commission was also satisfied that TrueVote was a fit and proper person to conduct the ballot, and that it was capable of ensuring the secrecy and security of the votes and of conducting the ballot expeditiously. TrueVote had agreed to be the protected action ballot agent and was bound to comply with the Privacy Act 1998 with respect to the handling of the information relating to the protected action ballot.

The Commission appointed TrueVote as the protected action ballot agent and made an order in PR740352. The order allowed the Union to conduct the ballot and provided for the secrecy and security of the votes. The order also provided for the handling of the information relating to the protected action ballot in accordance with the Privacy Act 1998. The Commission noted that the order was subject to the parties reaching a final agreement, and that the Union was required to give the employer at least ten days’ written notice of the proposed ballot.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established