Health Services Union v Austin Health

[2022] FWC 406

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Health Services Union
v

Austin Health

(B2022/112)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 28 FEBRUARY 2022

Proposed protected action ballot of employees of Austin 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 Austin 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 PR738774.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case of Health Services Union v Austin Health involves an application made by the Health Services Union (Applicant) to the Fair Work Commission under section 437 of the Fair Work Act 2009. The Union seeks a protected action ballot order concerning certain employees of Austin Health (Respondent). The matter was decided by Deputy President Clancy on 28 February 2022. Austin Health did not object to the application, allowing the matter to be determined on the papers without a hearing.

The primary legal issue before the Deputy President was whether the conditions for a protected action ballot were met, specifically whether the notification time for the proposed agreement had been met and if the requirements under section 443(1) of the Act were satisfied. The Union had to demonstrate that it had genuinely attempted to reach an agreement with the Respondent and that a notification time was in place for the proposed agreement. The declaration by Mr Craig McGregor of the Applicant, outlining the Union's bargaining efforts and the steps taken to reach an agreement with Austin Health, was central to this determination.

Upon reviewing the materials, Deputy President Clancy concluded that the Union had met the requirements for a protected action ballot. The declaration provided by Mr McGregor was deemed sufficient to establish the Union's genuine attempts to negotiate with Austin Health and the existence of a notification period for the proposed agreement. Consequently, the Deputy President determined that the Union had satisfied the statutory criteria under the Fair Work Act for a protected action ballot order. An order was issued in PR738774, granting the Union's application for the ballot.

The Fair Work Commission's decision reinforces the importance of thorough documentation and evidence in establishing the prerequisites for a protected action ballot. By finding in favor of the Union, the Deputy President ensured that the employees' right to organise and take protected action was upheld, subject to the procedural requirements set forth in the Fair Work Act. This outcome underscores the role of the Commission in facilitating fair industrial relations practices and resolving disputes between employers and unions.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established