Health Services Union v Bendigo Health Summary

[2022] FWC 412

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Health Services Union
v

Bendigo Health

(B2022/114)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 28 FEBRUARY 2022

Proposed protected action ballot of employees of Bendigo 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 Bendigo 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 PR738791.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Health Services Union (HSU) made an application for a protected action ballot order concerning certain employees of Bendigo Health (Bendigo Health) under section 437 of the Fair Work Act 2009. The application was filed to address issues that arose during negotiations for a proposed agreement. Bendigo Health did not object to the application, and consequently, Deputy President Clancy decided to adjudicate the matter based on the submitted documents without conducting a hearing. The HSU submitted a declaration by Mr. Craig McGregor, outlining the steps taken during the bargaining process with Bendigo Health and affirming that the union had been genuinely attempting to reach an agreement.

The primary legal issue before the court was whether the conditions stipulated in section 443(1) of the Fair Work Act were fulfilled, particularly in relation to the notification time for the proposed agreement. The HSU argued that all necessary conditions for a protected action ballot were met, including the requisite notification period and the union's genuine efforts to negotiate with Bendigo Health. The court had to determine if the application satisfied the legal requirements to proceed with the ballot. Additionally, the court had to verify if the HSU had genuinely attempted to reach an agreement with Bendigo Health and if the notification period had been appropriately observed.

Upon reviewing the material presented, Deputy President Clancy determined that the notification time for the proposed agreement was properly observed and that the HSU had indeed been genuinely attempting to reach an agreement with Bendigo Health. Consequently, the court found that all the necessary conditions under section 443(1) of the Act had been met. The court issued an order in PR738791 to allow the protected action ballot to proceed, affirming that the application met the legal requirements set forth in the Fair Work Act. This decision enables the HSU to conduct the ballot, facilitating further steps in the bargaining process with Bendigo Health.

Health Services Union v Bendigo Health

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established