Health Services Union v Summary

[2022] FWC 421

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Health Services Union
v

Bairnsdale Regional Health Service
(B2022/121)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 28 FEBRUARY 2022

Proposed protected action ballot of employees of Bairnsdale Regional Health Service.

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 Bairnsdale Regional Health Service (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 PR738811.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Health Services Union (Applicant) filed an application under section 437 of the Fair Work Act 2009 for a protected action ballot order in relation to certain employees of Bairnsdale Regional Health Service (Respondent). The application was made to the Fair Work Commission (FWC) and was heard by Deputy President Clancy in Melbourne on 28 February 2022. The purpose of the application was to seek permission for a ballot of the Respondent's employees in relation to proposed protected action.

The key legal issue that the FWC was required to decide was whether the Health Services Union had met the requirements of section 437 of the Fair Work Act 2009 in relation to the proposed protected action ballot. In particular, the FWC had to consider whether the notification time in relation to the proposed agreement had been met and whether the Union had genuinely tried to reach an agreement with the Respondent. The FWC also had to consider whether the Respondent had any objection to the application.

The FWC found that the Health Services Union had met the requirements of section 437 of the Fair Work Act 2009. The Union had provided a declaration from Mr Craig McGregor setting out the steps it had taken in bargaining with the Respondent and that it had been genuinely trying to reach agreement with the Respondent. The FWC was satisfied that there was a notification time in relation to the proposed agreement and that the requirements in section 443(1) of the Act had been met. The FWC noted that the Respondent did not object to the application and therefore decided to determine the matter on the papers without holding a hearing.

In light of the above, the FWC made an order in favour of the Health Services Union, granting the application for a protected action ballot order in relation to certain employees of Bairnsdale Regional Health Service. An order was separately issued in PR738811.

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