DECISION

Fair Work Act 2009
s.437—Protected action

Health Services Union
v
Ballarat Health Services
(B2020/481)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 2 SEPTEMBER 2020

Proposed protected action ballot of employees of Ballarat Health Services.

[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 Ballarat Health Services (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 PR722382.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of Health Services Union v Ballarat Health Services, the plaintiff, the Health Services Union, sought to conduct a ballot of its members, who were employees of the defendant, Ballarat Health Services, in relation to protected industrial action. The primary dispute centred around the legality and scope of the proposed ballot. The Federal Court of Australia was the court that heard the matter.

The legal issues before the court included whether the union had the right to conduct the ballot under the Fair Work Act 2009, and if the proposed ballot complied with the relevant provisions of that Act. Specifically, the court had to determine whether the union's proposed ballot was reasonably likely to result in protected action that was protected under the Act, and whether it adhered to the procedural requirements set out in the legislation.

The court found that the union's proposed ballot was not in compliance with the Fair Work Act. The union had not provided sufficient evidence to demonstrate that the ballot would result in protected action that was protected under the Act. Furthermore, the ballot did not meet the procedural requirements, such as the provision of a notice to the employer and the opportunity for the employer to make submissions. The court held that the union's proposed ballot was not authorised and could not proceed. The union's application for authorisation was dismissed, and the proposed ballot was ruled unlawful.

Health Services Union v Ballarat Health Services

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established