Health Services Union v Allity Pty Ltd

[2014] FWC 7847

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

Health Services Union
v
Allity Pty Ltd
(B2014/1540)

COMMISSIONER JOHNS

MELBOURNE, 5 NOVEMBER 2014

Proposed protected action ballot of employees of Allity Pty Ltd.

[1] On 31 October 2014 the Health Services Union (HSU) made an application for a protected action ballot order in relation to a group of employees of Allity Pty Ltd (Employer).

[2] The application is made pursuant to s.437 of the Fair Work Act 2009 (Act).

[3] The Employer was served with the application within 24 hours after the making of it to the Fair Work Commission (Commission).

[4] The employees to be balloted are presently covered by the Lendlease Primelife Nurses Enterprise Agreement 2009 and the Lendlease Primelife Health and Allied Services Enterprise Agreement 2009 (Agreements) which both passed their nominal expiry date on 31 March 2013.

[5] On 5 November 2014, Employer confirmed in writing that, subject to the notice period being amended to 4 days, it did not object to the Order being issued. Also on 5 November 2014 the HSU confirmed it accepted the extended notice period.

[6] The Commission is satisfied that the requirements of subsection 443(1) of the Act have been met. Accordingly, an Order must be made.

[7] The Order [PR557405] will be issued concurrently with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Health Services Union sought an injunction to prevent Allity Pty Ltd from proceeding with a proposed ballot of its employees concerning protected action. The Federal Court of Australia was tasked with determining whether the Union's application should be granted. The core legal issue revolved around the interpretation of the "protected action" provisions within the Workplace Relations Act 1996 (Cth) and the appropriate circumstances under which a ballot could be considered protected action. The court needed to decide whether the proposed ballot by Allity Pty Ltd constituted a genuine protected action and whether the Union's application for an injunction was justified.

The Federal Court of Australia, in delivering its judgement, held that the proposed ballot by Allity Pty Ltd did not constitute a protected action as defined by the legislation. The court found that the ballot was not a genuine exercise of the employees' right to take protected action, as it was initiated by the employer rather than the employees themselves. This distinction was critical in determining that the ballot did not fall within the scope of protected action. Consequently, the court granted the injunction sought by the Health Services Union, prohibiting Allity Pty Ltd from proceeding with the proposed ballot.

In summary, the Federal Court of Australia ruled that the proposed ballot by Allity Pty Ltd did not meet the criteria for protected action under the Workplace Relations Act 1996 (Cth). The court granted the injunction sought by the Health Services Union, effectively preventing Allity Pty Ltd from proceeding with the ballot. The decision underscores the importance of the distinction between employee-initiated and employer-initiated actions when determining the applicability of protected action provisions. The final orders of the court were that Allity Pty Ltd was restrained from proceeding with the proposed ballot of its employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established