DECISION

Fair Work Act 2009
s.437—Protected action

Health Services Union
v
Barwon Health
(B2020/482)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 2 SEPTEMBER 2020

Proposed protected action ballot of employees of Barwon Health.

[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 Barwon Health (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 PR722384.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Health Services Union, acting on behalf of its members who are employees of Barwon Health, sought an order against Barwon Health to allow a proposed industrial action ballot. The matter was heard in the Fair Work Commission. The primary dispute revolved around whether the proposed protected action, which aimed to ascertain employee support for potential industrial action, was lawful under the Fair Work Act 2009. The court had to determine if Barwon Health had valid grounds to prevent the ballot.

The key legal issues addressed were whether the proposed ballot complied with the procedural requirements outlined in the Fair Work Act and if Barwon Health's objections to the ballot were justified. The union argued that the ballot was a legitimate means of gauging employee sentiment for potential industrial action, while Barwon Health contended that the ballot could disrupt essential health services and was therefore unlawful. The court examined the specifics of the ballot, including its timing, content, and potential impact on patient care.

The Fair Work Commission found that the proposed ballot was procedurally compliant with the Act, as it met the necessary requirements for informing employees and allowing them to express their views. However, the Commission also considered the potential impact on patient care and concluded that the proposed ballot could cause significant disruption to health services, which was not in the public interest. Consequently, the Commission decided that the ballot should not proceed, balancing the employees' right to engage in protected action with the need to maintain essential services. The court's decision was grounded in a careful assessment of the statutory provisions and the specific circumstances of the case, ensuring that both the rights of the employees and the public interest were adequately considered.

Barwon Health was granted an order to prevent the proposed ballot, recognising the potential for significant disruption to health services. The court's order was designed to protect the public interest while also acknowledging the employees' right to organise and take industrial action.

Health Services Union v Barwon Health

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established