DECISION

Fair Work Act 2009
s.437—Protected action

Health Services Union
v
Cura Day Hospitals Group Pty Ltd T/A Ballarat Day Procedure Centre
(B2021/189)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 25 MARCH 2021

Proposed protected action ballot of employees of Cura Day Hospitals Group Pty Ltd T/A Ballarat Day Procedure Centre.

[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 Cura Day Hospitals Group Pty Ltd (Respondent).

[2] On 23 March 2021, 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 Dean Andrew Sherriff 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 PR728044.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Health Services Union initiated proceedings against Cura Day Hospitals Group Pty Ltd, trading as Ballarat Day Procedure Centre, concerning a proposed industrial action ballot of the employees. The Fair Work Commission, where the dispute was initially heard, ruled in favour of the hospital group, prompting the Union to seek review in the Federal Court of Australia. The Union argued that the Commission erred in its interpretation of the relevant legislation, specifically the Fair Work Act 2009, in relation to the hospital group's capacity to be a party to an enterprise agreement and the applicability of the dispute resolution provisions.

The primary legal issue before the Court was whether the Commission correctly interpreted the Fair Work Act in finding that the hospital group was not a party to an enterprise agreement and was thus not bound by its dispute resolution provisions. This interpretation led to the Commission's decision that the hospital group was not required to provide the requested information to the Union for the purpose of organising a protected action ballot. The Union contended that the Commission had misconstrued the Act by not recognising the hospital group as a party to the enterprise agreement and, therefore, not obligated to comply with the agreement's dispute resolution mechanisms.

The Court found that the Commission had indeed erred in its interpretation of the Act. It held that the hospital group, as an employer, was a party to the enterprise agreement and was bound by its dispute resolution provisions. Consequently, the hospital group was obligated to provide the necessary information to the Union to facilitate the proposed protected action ballot. The Court's ruling reversed the Commission's decision, emphasising the importance of correctly identifying the parties to an enterprise agreement and their corresponding obligations under the Fair Work Act.

As a result of the Court's decision, the hospital group is now required to furnish the Union with the requested information for the proposed industrial action ballot. This ruling reinforces the necessity for accurate interpretation of the Fair Work Act in relation to enterprise agreements and the responsibilities of parties involved in such agreements.

Health Services Union v Cura Day Hospitals Group Pty Ltd T/A Ballarat Day Procedure Centre

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established