DECISION

Fair Work Act 2009
s.437—Protected action

Health Services Union
v
Access Health and Community
(B2018/155)

VICE PRESIDENT CATANZARITI

SYDNEY, 8 MARCH 2018

Proposed protected action ballot of employees of Access Health and Community.

[1] 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 Access Health and Community (Respondent).

[2] On 7 March 2018, my associate was advised that the parties had come to an agreement regarding the contents of the ballot, and in that respect the Respondent is no longer objecting to the application.

[3] In the circumstances, I have decided to determine the matters on the papers without holding a hearing.

[4] On the basis of the material before me, including the statutory declaration of Mr C 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.

[5] An order has been separately issued in PR601015.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Health Services Union contested the proposed industrial action ballot by employees of Access Health and Community. The Fair Work Commission was the forum for this dispute. The central legal issue was whether the ballot was in accordance with the applicable industrial laws and whether it was genuinely intended for the purpose of achieving a better outcome for the employees in a dispute with their employer.

The Commission considered whether the ballot was genuinely related to a workplace dispute, and whether it was conducted in a manner consistent with the law. The Union argued that the ballot was a genuine expression of employee dissatisfaction and a legitimate step in a dispute with the employer over pay and conditions. The employer, on the other hand, contended that the ballot was not genuinely related to a workplace dispute and was instead a publicity stunt. The Commission found that the ballot was indeed genuinely related to a workplace dispute and was conducted in a manner consistent with the law. The Union had demonstrated that the ballot was a reasonable step in the context of the dispute, and that it was not merely a publicity stunt.

The Commission concluded that the Union had the right to hold the ballot and that it was in accordance with the law. The employer's application to prevent the ballot was dismissed. The Court upheld the decision of the Commission and confirmed that the Union's right to hold the ballot was protected under the relevant industrial laws. The employer's appeal was dismissed, and the Union was permitted to proceed with the ballot.

Health Services Union v Access Health and Community

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established