Health Services Union v Alfred Health

[2022] FWC 874

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Health Services Union

Alfred Health

(B2022/304)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 13 APRIL 2022

Proposed protected action ballot of employees of Alfred Health.

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 Alfred Health (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 PR740344.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Health Services Union (HSU) applied to the Fair Work Commission (FWC) for an order allowing a protected action ballot of certain employees of Alfred Health. The application was made under section 437 of the Fair Work Act 2009, which provides a mechanism for workers to take protected industrial action following failed bargaining. Alfred Health did not oppose the application but expressed concerns about the form and content of the ballot order. After negotiations, the parties reached a consensus.

The primary legal issue before the FWC was whether the conditions for granting a protected action ballot order were satisfied. This required establishing that there was a notification period in relation to the proposed agreement, and that the HSU had genuinely tried to reach an agreement with Alfred Health. Another matter was whether TrueVote Pty Ltd was a fit and proper person to act as the ballot agent.

The FWC Deputy President found that the HSU had met the requirements for a protected action ballot order. The declaration of Mr Craig McGregor of the HSU confirmed that the union had genuinely tried to reach an agreement with Alfred Health. The Deputy President also found that TrueVote was a suitable ballot agent, capable of ensuring the secrecy and security of the votes and conducting the ballot efficiently. TrueVote agreed to comply with the Privacy Act 1998. Therefore, the FWC appointed TrueVote as the ballot agent.

The final order appointed TrueVote as the ballot agent for the protected action ballot of Alfred Health employees. The order was issued separately in PR740344.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established