Health Services Union v Australian Capital Territory

[2023] FWC 1398

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Health Services Union
v

Australian Capital Territory

(B2023/573)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 16 JUNE 2023

Proposed protected action ballot of employees of Australian Capital Territory

This is an application by the Health Services Union (HSU) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of the Respondent, Australian Capital Territory (ACT). The application was subsequently amended to confirm the identity of the respondent employer.

The Commission has been advised that the Respondent did not object to the amended 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 Andrew Gallagher, Industrial Officer, of the HSU, 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 all of the requirements in s.443(1) of the Act have been met.

I observe that some of the action proposed in the ballot questions may only be industrial action if it were to be taken in a manner that meets the definition of industrial action in s.19 of the Act.

The ballot is to be conducted by the Australian Electoral Commission. For the purposes of s.443(3)(c) and s.448A(2) of the Act, a ballot period of 30 working days from the date of the Order has been established by the Commission.[1]

An order has been separately issued in PR763068.

DEPUTY PRESIDENT

[1] This is the minimum period required by the Australian Electoral Commission.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Health Services Union (HSU) has applied to the Fair Work Commission (FWC) for a protected action ballot order in relation to employees of the Australian Capital Territory (ACT). The application was made under section 437 of the Fair Work Act 2009 and was subsequently amended to confirm the identity of the employer, the ACT. The FWC was advised that the ACT did not object to the amended application. The FWC determined to decide the matter on the papers without holding a hearing, based on the material before it, including a declaration by Mr Andrew Gallagher, Industrial Officer of the HSU, outlining the steps taken by the union in bargaining with the ACT and that it had been genuinely trying to reach an agreement with the employer.

The legal issues that the FWC was required to decide were whether the HSU had met all the requirements of section 443(1) of the Act, including the notification time for the proposed agreement, and whether the proposed action in the ballot questions met the definition of industrial action in section 19 of the Act. The FWC was also required to establish a ballot period of at least 30 working days from the date of the order, as required by sections 443(3)(c) and 448A(2) of the Act.

The FWC found that the HSU had met all the requirements of section 443(1) of the Act and that the proposed action in the ballot questions may only be industrial action if it were to be taken in a manner that meets the definition of industrial action in section 19 of the Act. The FWC established a ballot period of 30 working days from the date of the order, which is the minimum period required by the Australian Electoral Commission.

The final orders issued by the FWC are that a ballot be conducted by the Australian Electoral Commission and that a ballot period of 30 working days from the date of the order be established. The orders were issued separately in PR763068 and PR763069. The FWC's decision provides clarity on the legal requirements for a protected action ballot order and ensures that the rights of both the union and the employer are protected.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established