Health Services Union v Alfred Health

[2022] FWC 411

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Health Services Union
v

Alfred Health

(B2022/113)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 28 FEBRUARY 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 (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 PR738788.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In Health Services Union v Alfred Health, the Health Services Union (HSU) applied for an order under section 437 of the Fair Work Act 2009 to conduct a protected action ballot among certain employees of Alfred Health. The union sought the order to facilitate industrial action due to ongoing disputes regarding the negotiation of a new enterprise agreement. The matter was heard by Deputy President Clancy of the Fair Work Commission (FWC) in Melbourne on 28 February 2022.

The central legal issues before the FWC were whether the union had met the notification requirements under section 437 of the Fair Work Act, and if it had genuinely attempted to negotiate in good faith with Alfred Health. The union argued that it had taken all necessary steps to reach an agreement and was genuinely trying to resolve the dispute through bargaining. Alfred Health, however, did not object to the application, which influenced the FWC's decision-making process.

Deputy President Clancy reviewed the material presented, including the declaration from the union's representative that they had been genuinely attempting to reach an agreement and that the notification time for the proposed agreement had been met. Given the absence of objections from Alfred Health, the FWC determined that the union had satisfied the requirements under section 437 of the Fair Work Act. Consequently, the FWC granted the union's application for a protected action ballot order. This decision allowed the union to proceed with the ballot to seek authorisation from its members for potential industrial action.

The FWC's final order was issued separately, confirming the grant of the protected action ballot order in PR738788. This decision underscores the importance of the union's compliance with the legislative requirements and the FWC's role in facilitating the negotiation process between unions and employers.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established