Health Services Union v Banyule Community Health Service

[2014] FWC 597

[2014] FWC 597

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

Health Services Union
v
Banyule Community Health Service & Ors
(B2013/1587) (B2013/1588) (B2013/1589)

VICE PRESIDENT WATSON SYDNEY, 7 FEBUARY 2014

Proposed protected action ballot by employees of Banyule Community Health, Sunbury Community Health Centre and Whitehorse Community Health Service - concurrent multi-employer negotiations - whether applicant genuinely trying to reach a single enterprise agreement - applications dismissed.

Introduction

[1] This decision, edited from a decision on transcript on 20 December 2013, concerns three applications for an order under section 437 of the Fair Work Act 2009 (the Act). At the hearing of this matter on 20 December 2013, Ms L Jenkin appeared on behalf of the Health Services Union (HSU) and Mr P Clarke appeared on behalf of the Victorian Hospitals Industrial Association (VHIA).

The proposed protected action ballot orders

[2] There are three applications before the Commission made under section 437 of the Act for protected action ballot orders. The grounds for approving the making, or making a protected action ballot order are essentially governed by section 443 of the Act and the Commission is required to make a protected action ballot order if it is satisfied that paragraphs (a) and (b) of section 443(1) are met.

[3] The cases presented by the parties today have largely been by way of submissions from the bar table and there was no evidence submitted by either side that goes comprehensively to the various communications and negotiations that have occurred. It does appear apparent, however, that logs of claims have been served by the HSU on each of the community health centres and that at least one meeting has been held with the representative of the health centre, being the VHIA, at which there has not been significant progress in relation to those claims. Those meetings were held at various dates from 3 September through to the end of October 2013.

[4] It is also clear on the material before me that in parallel with those processes, and from an earlier date, through to as recently as the week of 9 December 2013, there have been communications and meetings between the HSU and the VHIA concerning the establishment of a multi-enterprise agreement. In recent times the HSU has written to the VHIA in a letter dated 13 November seeking agreement to the terms of an enterprise agreement applying to a large number of employer parties, including the three community health centres that are subject to the three applications before me.

The right to engage in protected action and to obtain a protected action ballot order

[5] The scheme of the Fair Work Act in relation to protected action itself and protected action ballot orders is quite clear. It provides for a right to engage in protected action and to obtain a protected action ballot order in circumstances where negotiations are occurring for a single enterprise agreement. No protected action ballot order can be made and no protected action is available in the case of negotiations for a multi-enterprise agreement.

[6] The dual processes which the evidence establishes have been occurring, and as recently as the last week or so, in my view create significant confusion as to the precise nature of the processes which are currently in train. Those processes have been continuing jointly and indeed the more recent steps have been in relation to a multi enterprise agreement. It is therefore not clear to me that the negotiations in relation to a single enterprise agreement have been sufficiently separate and sufficiently advanced after any failure in the multi-enterprise negotiations to enable a finding that the applicant in this case has been negotiating or genuinely trying to reach an agreement with the employer of the employees to be balloted in relation to a single enterprise agreement.

[7] In my view the joint processes of negotiations regarding a multi-enterprise agreement have affected the negotiations that have occurred and I am not satisfied on the material before me that the requirement in section 443(1)(b) has been satisfied. Nor am I satisfied that the nature of the negotiations taken as a whole are such that it satisfies the requirements of section 437, which contains an exclusion for negotiations for a multi-enterprise agreement. In essence it appears to me that the dual processes have precluded the full and proper negotiations for a single enterprise agreement and that the preconditions for granting an order for a protected action ballot have not been met in this case.

[8] That is not to say that at some point in the future an appropriate point might be reached where negotiations for single enterprise agreements can satisfy that test under the legislation. I would propose in those circumstances to dismiss the applications in each case. I do not think it is appropriate that I adjourn the applications and revisit the situation later. But of course if circumstances change, another application can of course be made at an appropriate time in the future. That is something entirely for the applicant to consider.

Conclusion

For the above reasons, the applications in each case will be dismissed.

VICE PRESIDENT WATSON

Appearances:

Ms L Jenkin on behalf of the Health Services Union.

Mr P Clarke on behalf of the Victorian Hospitals Industrial Association.

Hearing details:

2013.

Melbourne.

December 20.

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