Health Services Union v Barwon Health

[2022] FWC 859

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Health Services Union

Barwon Health

(B2022/307)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 13 APRIL 2022

Proposed protected action ballot of employees of Barwon 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 Barwon Health (the Respondent).

On 13 April 2022, I held a mention where the Respondent advised it did not object to the application. However, it raised a number of concerns in relation to the form and content of the draft order. The parties were able to reach a consent position.

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.

The Applicant sought that a person other than the Australian Electoral Commission be the ballot agent for the protected action ballot. This course was not opposed by the Respondent. The person proposed in the application as the protected action ballot agent is TrueVote Pty Ltd (TrueVote). I am satisfied that TrueVote is a fit and proper person to conduct the ballot. I am also satisfied that TrueVote is capable of ensuring the secrecy and security of the votes and of conducting the ballot expeditiously. TrueVote has agreed to be the protected action ballot agent and is bound to comply with the Privacy Act 1998 with respect to the handling of the information relating to the protected action ballot.

Therefore I appoint TrueVote as the protected action ballot agent.

An order has been separately issued in PR740350.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Health Services Union (HSU) sought an order from the Fair Work Commission (FWC) for a protected action ballot of certain employees of Barwon Health. This was pursuant to section 437 of the Fair Work Act 2009 (FWA). Barwon Health did not oppose the application but raised concerns about the form and content of the draft order. The FWC Deputy President Clancy decided to determine the matter on the papers, as the parties had reached a consent position. The HSU had genuinely attempted to reach an agreement with Barwon Health, and the notification time for the proposed agreement had been met. The HSU had also proposed TrueVote Pty Ltd as the ballot agent, and this was not opposed by Barwon Health. Deputy President Clancy was satisfied that TrueVote was a fit and proper person to conduct the ballot and could ensure the secrecy and security of the votes.

The legal issues before the FWC were whether the HSU had met the requirements for a protected action ballot under section 437 of the FWA, and whether TrueVote was a suitable ballot agent. The FWC considered the declaration of Mr Craig McGregor of the HSU, which outlined the steps taken by the HSU in bargaining with Barwon Health and its efforts to reach an agreement. The FWC also examined TrueVote's capability to conduct the ballot and ensure the secrecy and security of the votes. The FWC determined that TrueVote was a suitable ballot agent, as it had agreed to comply with the Privacy Act 1998 with respect to the handling of the information relating to the protected action ballot.

In conclusion, the FWC Deputy President Clancy granted the HSU's application for a protected action ballot order and appointed TrueVote as the ballot agent. The FWC was satisfied that the HSU had met the requirements for a protected action ballot under section 437 of the FWA and that TrueVote was a fit and proper person to conduct the ballot. An order has been separately issued in PR740350. This decision is a significant step towards resolving the dispute between the HSU and Barwon Health and ensuring that the employees' voices are heard in the bargaining process. The FWC's decision provides clarity on the legal issues and sets a precedent for future cases involving protected action ballots.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established