Health Services Union v Eastern Health Summary

[2022] FWC 862

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Health Services Union

Eastern Health

(B2022/310)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 13 APRIL 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 (the Respondent).

On 13 April 2022, I held a mention where the Respondent advised it did not object to the application. However, it raised a number of concerns in relation to the form and content of the draft order. The parties were able to reach a consent position.

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.

The Applicant sought that a person other than the Australian Electoral Commission be the ballot agent for the protected action ballot. This course was not opposed by the Respondent. The person proposed in the application as the protected action ballot agent is TrueVote Pty Ltd (TrueVote). I am satisfied that TrueVote is a fit and proper person to conduct the ballot. I am also satisfied that TrueVote is capable of ensuring the secrecy and security of the votes and of conducting the ballot expeditiously. TrueVote has agreed to be the protected action ballot agent and is bound to comply with the Privacy Act 1998 with respect to the handling of the information relating to the protected action ballot.

Therefore I appoint TrueVote as the protected action ballot agent.

An order has been separately issued in PR740357.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Health Services Union (Applicant) made an application under section 437 of the Fair Work Act 2009 for a protected action ballot order concerning certain employees of Eastern Health (Respondent). The application was made on the basis that the union had been genuinely trying to reach an agreement with Eastern Health and had followed the required notification time for the proposed agreement. The matter was heard by Deputy President Clancy of the Fair Work Commission in Melbourne on 13 April 2022.

The legal issues before the court were whether the union had met the requirements under section 443(1) of the Act for a protected action ballot and whether TrueVote Pty Ltd was a fit and proper person to conduct the ballot. The Respondent did not object to the application but raised concerns about the form and content of the draft order. After discussions, the parties were able to reach a consent position.

The Deputy President found that the union had met the requirements for a protected action ballot and that TrueVote was a fit and proper person to conduct the ballot. TrueVote had agreed to be the ballot agent and was bound to comply with the Privacy Act 1998. Therefore, the Deputy President appointed TrueVote as the protected action ballot agent and issued a separate order in PR740357.

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