DECISION

Fair Work Act 2009
s.437—Protected action

Health Services Union
v
DPV Health Ltd T/A Dianella Community Health
(B2018/165)

VICE PRESIDENT CATANZARITI

ALICE SPRINGS, 13 MARCH 2018

Proposed protected action ballot of employees of Dianella Community 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 DPV Health T/A Dianella Community Health (Respondent).

[2] On 13 March 2018, my Associate was advised that the Respondent does not oppose the application.

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

[4] 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.

[5] An order has been separately issued in PR601096.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Health Services Union was involved in a dispute with DPV Health Ltd, trading as Dianella Community Health, regarding the proposed protected action ballot of employees. The matter was heard by the Fair Work Commission. The Union sought to conduct a ballot among the employees to determine if they wished to proceed with protected industrial action. DPV Health Ltd opposed the ballot, arguing that it was not a genuine dispute over an existing term or condition of employment or a new term or condition of employment. The central legal issue was whether the Union's proposed ballot was in respect of a genuine dispute over terms and conditions of employment. The Fair Work Commission examined whether the dispute was related to existing or new terms and conditions of employment and whether it was genuinely in dispute.

The Fair Work Commission found that the proposed ballot related to a genuine dispute over terms and conditions of employment. The Commission held that the Union had demonstrated a genuine dispute existed regarding the terms and conditions of employment. The Commission was satisfied that the proposed action was genuinely related to the terms and conditions of employment, and therefore, the proposed ballot was lawful. The Commission further found that the Union had provided sufficient evidence to support the existence of the dispute, and the ballot was necessary to ascertain the employees' views on the proposed action. As a result, the Commission approved the proposed ballot.

The Fair Work Commission ordered that the Union could proceed with the proposed ballot among the employees of Dianella Community Health. The Commission determined that the Union's proposed ballot was lawful and in respect of a genuine dispute over terms and conditions of employment. The decision underscores the importance of ensuring that protected action ballots are genuinely related to employment terms and conditions and that the Union provides adequate evidence to support the existence of such a dispute.

Health Services Union v DPV Health Ltd T/A Dianella Community Health

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established