Health Services Union v Summary

[2022] FWC 419

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Health Services Union
v

Latrobe Regional Hospital
(B2022/118)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 28 FEBRUARY 2022

Proposed protected action ballot of employees of Latrobe Regional Hospital.

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 Latrobe Regional Hospital (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 PR738807.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Health Services Union filed an application under section 437 of the Fair Work Act 2009 for a protected action ballot order concerning certain employees of Latrobe Regional Hospital. The matter was brought before the Fair Work Commission and was decided on 28 February 2022 by Deputy President Clancy in Melbourne. The application was made to facilitate a ballot of employees regarding proposed protected action, which typically involves industrial action such as strikes or lockouts. The Latrobe Regional Hospital did not object to the application, allowing the Deputy President to proceed without a hearing, based on the provided documentation.

The legal issues before the court involved determining whether the union had met the statutory requirements for a protected action ballot, specifically under section 437 of the Fair Work Act. The court had to assess whether the union had genuinely attempted to reach an agreement with the employer and whether the notification time for the proposed agreement was appropriately set. Additionally, the court needed to confirm that all procedural requirements outlined in section 443(1) of the Act had been fulfilled, ensuring the legitimacy and legality of the proposed industrial action.

Deputy President Clancy reviewed the declaration by Mr Craig McGregor of the Health Services Union, which detailed the union's bargaining efforts with Latrobe Regional Hospital. The declaration included evidence that the union had been genuinely trying to reach an agreement and that the necessary notification time for the proposed agreement was in place. The declaration, along with other submissions, satisfied the Deputy President that the union had met all the requirements for a protected action ballot. Consequently, the court granted the application and issued the necessary order for the ballot to proceed.

This decision underscores the importance of thorough documentation and genuine efforts in bargaining for unions seeking to organise a protected action ballot. The court's decision affirmed the union's right to proceed with the ballot, provided all legal prerequisites were met.

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