Health Services Union v Summary

[2022] FWC 424

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Health Services Union
v

Peter MacCallum Cancer Institute
(B2022/124)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 28 FEBRUARY 2022

Proposed protected action ballot of employees of Peter MacCallum Cancer Institute.

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 Peter MacCallum Cancer Institute (Respondent).

On 25 February 2022, my Associate was advised that the Respondent 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 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.

An order has been separately issued in PR738817.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Health Services Union, represented by Mr Craig McGregor, applied to the Fair Work Commission (FWC) for a protected action ballot order concerning employees of the Peter MacCallum Cancer Institute. The dispute revolves around the proposed industrial action by the union and whether the necessary conditions for such action have been met according to the Fair Work Act 2009. The Peter MacCallum Cancer Institute, while not objecting to the application, did not contest the union's claims. The matter was determined by Deputy President Clancy on 28 February 2022, following a review of the documents submitted.

The legal issues before the FWC centred on whether the Health Services Union had genuinely attempted to negotiate with the Peter MacCallum Cancer Institute and whether the statutory notification period for a protected action ballot had been observed. Under section 437 of the Fair Work Act 2009, the union needed to demonstrate that it had made a genuine attempt to reach an agreement with the employer. Additionally, the union had to establish that the notification period outlined in section 443(1) of the Act was met for the proposed action.

Deputy President Clancy reviewed the declaration from Mr Craig McGregor, which detailed the union's efforts in bargaining with the employer. Based on the evidence provided, the Deputy President was satisfied that the union had genuinely attempted to negotiate and that the notification period was appropriately observed. Consequently, the application for a protected action ballot order was approved, and an order was issued in PR738817.

The FWC granted the Health Services Union's application for a protected action ballot order. The decision was made on the basis of the union's genuine attempts to negotiate and compliance with the notification requirements stipulated in the Fair Work Act 2009. The Peter MacCallum Cancer Institute did not contest the union's claims, leading to the approval of the ballot without the need for a hearing.

Health Services Union v

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established