DECISION

Fair Work Act 2009
s.437—Protected action

Health Services Union
v
Bendigo Health
(B2020/483)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 2 SEPTEMBER 2020

Proposed protected action ballot of employees of Bendigo 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 Bendigo 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 PR722387.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Health Services Union (HSU) sought a declaration from the Fair Work Commission (FWC) that a proposed protected action ballot by employees of Bendigo Health was lawful. Bendigo Health opposed the application. The FWC found in favour of the HSU. Bendigo Health appealed to the Federal Circuit Court of Australia. The court was required to determine whether the FWC erred in finding that the proposed ballot was lawful.

The court considered the scope of the FWC's power to approve protected action ballots, and whether the FWC erred in finding that the ballot was not in breach of section 35(1)(a) of the Fair Work Act 2009 (Cth). The court found that the FWC had not erred in its decision, as the proposed ballot related to employees of Bendigo Health, and was not in breach of section 35(1)(a) of the Act. The court also found that the FWC had the power to approve the proposed ballot, and that the FWC's decision was not flawed by any jurisdictional error of law.

The court dismissed the appeal and affirmed the decision of the FWC. The court found that the proposed ballot was not in breach of the Act, and that the FWC had the power to approve it. The court also found that the FWC's decision was not flawed by any jurisdictional error of law.

Health Services Union v Bendigo Health

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established