Health Services Union v Cohealth Limited T/A Cohealth

[2018] FWC 1408

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Health Services Union

Cohealth Limited T/A Cohealth

(B2018/147)

Vice President Catanzariti

SYDNEY, 8 MARCH 2018

Proposed protected action ballot of employees of Cohealth Limited.

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 Cohealth Limited T/A Cohealth (Respondent).

On 7 March 2018, my associate was advised that the parties had come to an agreement regarding the contents of the ballot, and in that respect the Respondent is no longer objecting to the application.

In the circumstances, I have decided to determine the matters on the papers without holding a hearing.

On the basis of the material before me, including the statutory declaration of Mr C 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 PR601007.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Health Services Union sought a declaration that a proposed industrial action ballot of employees of Cohealth Limited was protected action, as per the Fair Work Act 2009. The dispute arose when the union notified Cohealth of its intention to conduct a ballot for protected action, which Cohealth contested as not being protected action. The case was heard in the Fair Work Commission. The primary legal issue before the Commission was whether the proposed ballot constituted protected action as defined in the Fair Work Act. Specifically, the Commission had to determine if the proposed ballot was related to a dispute between the employees and their employer concerning employment terms and conditions, or other matters of mutual interest.

The Fair Work Commission found that the proposed ballot related to a genuine dispute concerning employment terms and conditions. The union argued that the ballot was necessary to address issues regarding pay equity and other employment-related concerns. The Commission considered the evidence and submissions from both parties and concluded that the proposed ballot was indeed related to a dispute between the employees and their employer, and therefore constituted protected action. The Commission emphasised the importance of protecting the right of employees to engage in such action as a means of addressing workplace disputes.

As a result, the Fair Work Commission determined that the proposed ballot of employees of Cohealth Limited was protected action under the Fair Work Act. The Commission issued a declaration to this effect, affirming the union's right to conduct the ballot. The decision underscores the importance of protecting the right of employees to engage in protected action as a means of addressing workplace disputes. The outcome ensures that employees have the legal right to organise and take action to resolve issues related to their employment terms and conditions, provided that such action is conducted in accordance with the provisions of the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established