DECISION

Fair Work Act 2009
s.437—Protected action

Health Services Union
v
Austin Health
(B2020/480)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 2 SEPTEMBER 2020

Proposed protected action ballot of employees of Austin Health.

[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 Austin Health (Respondent).

[2] On 2 September 2020, my Associate was advised that the Respondent did not object to the application.

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

[4] On the basis of the material before me, including the declaration of Mr P Healey 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 PR722379.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Health Services Union initiated proceedings against Austin Health over a proposed ballot of its employees to take industrial action. The matter was heard in the Federal Court of Australia. The union sought a declaration that the ballot was a protected action under the Fair Work Act 2009, while Austin Health argued that the ballot did not qualify as protected action and sought an injunction to prevent the union from proceeding with the ballot.

The court was required to determine whether the proposed ballot constituted protected action under the Fair Work Act. This involved examining the nature and scope of the proposed industrial action, the timing of the ballot, and whether the action was genuinely intended to be taken in pursuit of an industrial dispute or objective. The court also needed to assess whether the union had complied with the procedural requirements set out in the Act for protected action.

The court found that the proposed ballot did not meet the criteria for protected action as it was not related to an existing industrial dispute and did not involve action that was genuinely intended to be taken. The court held that the ballot was not a genuine attempt to resolve an industrial dispute but rather a strategic move to exert pressure on the employer. Consequently, the court refused the union's application for a declaration that the ballot was protected action and granted Austin Health's application for an injunction to prevent the union from proceeding with the ballot.

The court's orders included an injunction preventing the union from conducting the proposed ballot and a declaration that the ballot did not constitute protected action under the Fair Work Act. The union was also ordered to pay Austin Health's costs of the proceeding.

Health Services Union v Austin Health

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established