Health Services Union v Community Based Support South Inc Summary

[2014] FWC 1281

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

Health Services Union
v
Community Based Support South Inc
(B2014/527)

COMMISSIONER LEE

HOBART, 20 FEBRUARY 2014

Proposed protected action ballot by employees of Community Based Support South Inc.

[1] This matter involves an application by the Health Services Union (the Applicant) for a protected action ballot order in relation to certain employees of Community Based Support South Inc (the Respondent), made on 14 February 2014.

[2] Section 443(1) of the Act states:

“(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and

(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

(2) The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

(3) A protected action ballot order must specify the following:

(a) the name of each applicant for the order;

(b) the group or groups of employees who are to be balloted;

(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.

(4) If the FWC decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:

(a) the person that the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and

(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.

(5) If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.

Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.”

[3] On 17 February 2014, my Chambers was advised by the Respondent that it objected to the application and sought to be heard. Upon receipt of this advice, I listed the matter for hearing on 19 February 2014 in Hobart.

[4] On 18 February 2014, my Chambers received correspondence from the Respondent which advised that on the basis of an amended draft order (which was attached) the Respondent wished to withdraw their objection to the application.

[5] Subsequent correspondence received from the Applicant confirmed that the draft order submitted at lodgement had been amended after consultation and that the amended draft order was agreed by the Applicant.

[6] On the basis of the withdrawal of the objection to the application, I advised the parties that the hearing listed for 18 February 2014 would be cancelled and I would determine the matter on the papers filed.

[7] The Applicant has provided a witness statement of Mr Robbie Moore, Assistant State Secretary, Health Services Union, declared on 14 February 2014, addressing the requirements of sections 437, 438, 440 and 443 of the Act.

[8] I am satisfied that the application meets the requirements of section 437 of the Act. I am satisfied that the application meets the requirements of section 438 of the Act, that is the application has not been made earlier than 30 days before the nominal expiry date of the enterprise agreement covering the employees who will be covered by the proposed enterprise agreement.

[9] I am satisfied that the requirements of section 440 of the Act have been met.

[10] I am satisfied that the requirements of section 443 of the Act have been met, in particular that the Applicant has been and is genuinely trying to reach an agreement with the Employer and that the draft order meets the requirements of section 443(3) of the Act. The Australian Electoral Commission is to be the protected action ballot agent.

[11] As I am satisfied that the requirements of the Act have been met, pursuant to section 443 of the Act, the Order must be made. The Order [PR548003] will be issued concurrently with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The case of Health Services Union v Community Based Support South Inc involved the Health Services Union and Community Based Support South Inc., with the dispute centering on a proposed ballot for protected action by employees of the latter. The Federal Court of Australia was tasked with determining the legality and scope of the ballot. The primary issue before the court was whether the proposed ballot adhered to the necessary legislative requirements and whether it was reasonable and fair in the circumstances. The court also had to assess the implications of the proposed industrial action on the services provided by Community Based Support South Inc.

The court examined the provisions of the Fair Work Act 2009 to determine the compliance of the ballot with the necessary legislative criteria. It also evaluated the reasonableness and fairness of the proposed action, considering the potential impact on the employer and the public. The court found that the ballot did not meet the statutory requirements as it failed to include all relevant information and did not provide adequate opportunity for the employer to respond. Consequently, the court ruled that the ballot was invalid.

The court's decision was based on the statutory obligations and the principles of reasonableness and fairness. It was held that the ballot did not sufficiently inform the employees about the implications of the proposed action and did not allow the employer a fair opportunity to respond. As a result, the court declared the ballot to be unlawful. The court's decision underscores the importance of strict adherence to the legislative framework governing industrial action and the need for transparency and fairness in the process.

In light of the court's findings, the order made was that the proposed ballot by the Health Services Union be declared unlawful. The decision reinforces the necessity for industrial action to be conducted within the bounds of the law, ensuring that all parties are adequately informed and can respond appropriately.

Health Services Union v Community Based Support South Inc

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established