Health Services Union v Barwon Health

[2022] FWC 422

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Health Services Union
v

Barwon Health

(B2022/122)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 28 FEBRUARY 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 (Respondent).

On 25 February 2022, my Associate was advised that the Respondent did not object to the 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 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.

An order has been separately issued in PR738813.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission heard an application from the Health Services Union against Barwon Health for a protected action ballot order concerning certain employees. The Union sought the order under section 437 of the Fair Work Act 2009, which pertains to protected action. Barwon Health did not object to the application, leading the Deputy President to decide the matter based on the papers without holding a hearing. The Union submitted a declaration from Mr Craig McGregor, which outlined the steps taken during bargaining with Barwon Health and affirmed the Union's genuine efforts to reach an agreement.

The primary legal issue before the court was whether the requirements for a protected action ballot order were met, specifically under section 443(1) of the Act. The Union needed to demonstrate that it had been genuinely attempting to reach an agreement with Barwon Health and that a notification period for the proposed agreement had been established. The court examined the declaration and the bargaining steps as evidence of the Union's efforts and compliance with the statutory requirements.

The Deputy President found that the Union had adequately demonstrated its genuine bargaining efforts and that a notification period for the proposed agreement was in place. The declaration provided by Mr Craig McGregor, which detailed the bargaining process and the Union's attempts to reach an agreement, supported these findings. Consequently, the Deputy President was satisfied that all necessary conditions for the protected action ballot order were fulfilled.

As a result of the Deputy President's decision, an order was issued in PR738813, granting the Health Services Union's application for a protected action ballot. The order allows the Union to proceed with the ballot concerning the specified employees of Barwon Health.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established