Health Services Union v Eastern Health Summary

[2022] FWC 414

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Health Services Union
v

Eastern Health

(B2022/115)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 28 FEBRUARY 2022

Proposed protected action ballot of employees of Eastern Health.

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 Eastern Health (Respondent).

On 25 February 2022, my Associate was advised that the Respondent did not object to the application.

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

On the basis of the material before me, including the declaration of Mr Craig 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 PR738794.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Health Services Union filed an application under section 437 of the Fair Work Act 2009 for a protected action ballot order concerning specific employees of Eastern Health. The application was made due to the Union's contention that it had been genuinely attempting to reach an agreement with Eastern Health through bargaining. The Fair Work Commission, presided over by Deputy President Clancy, heard the matter on February 28, 2022, in Melbourne. Eastern Health did not object to the application, leading the Deputy President to decide to determine the case based on the provided documentation without a hearing.

The legal issues before the court centred on whether the Union had genuinely attempted to negotiate with Eastern Health and whether the notification time for the proposed agreement had been met, as required by section 443(1) of the Fair Work Act. The Union argued that it had fulfilled all the necessary requirements and had been actively engaged in bargaining. The Deputy President examined the material presented, including a declaration from Mr. Craig McGregor of the Union, to ascertain whether these conditions were satisfied.

The Deputy President found that the Union had indeed been genuinely trying to reach an agreement and that the notification time in relation to the proposed agreement was valid. The Deputy President was satisfied with the evidence provided by the Union, including the steps taken during the bargaining process, and concluded that the requirements of section 443(1) of the Act were met. Consequently, the application for a protected action ballot order was granted.

An order was separately issued in PR738794, formalising the decision. The Health Services Union was authorised to proceed with the protected action ballot for the employees of Eastern Health, as per the provisions of the Fair Work Act 2009.

Health Services Union v Eastern Health

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established