DECISION

Fair Work Act 2009
s.437—Protected action

Health Services Union
v
Goulburn Valley Health
(B2020/485)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 2 SEPTEMBER 2020

Proposed protected action ballot of employees of Goulburn Valley 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 Goulburn Valley Health (Respondent).

[2] On 2 September 2020, 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 P Healey 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 PR722391.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of Health Services Union v Goulburn Valley Health, the Health Services Union sought to conduct a ballot among employees of Goulburn Valley Health to gauge support for protected action. Goulburn Valley Health opposed the ballot, leading to a legal dispute before the Fair Work Commission. The primary issue before the court was whether the ballot constituted protected action under the Fair Work Act 2009 and whether the Union had complied with the procedural requirements for such action. The court had to consider the statutory definitions and the procedural guidelines for protected actions, particularly focusing on the timing and content of the ballot notice.

The Fair Work Commission examined the legal framework governing industrial action and the specific provisions concerning protected action. It determined that the ballot in question did indeed constitute protected action as it was intended to ascertain employee support for potential industrial action. However, the Union's failure to comply with the procedural requirements, specifically the requirement to provide Goulburn Valley Health with the ballot notice and details, rendered the ballot unlawful. The Commission held that the Union's procedural non-compliance was a significant issue, as it undermined the transparency and fairness expected in such processes.

Consequently, the Fair Work Commission found in favour of Goulburn Valley Health, ruling that the ballot was unlawful due to the Union's failure to adhere to the necessary procedures. The court emphasised the importance of procedural compliance in ensuring that all parties can adequately prepare for and respond to potential industrial action. The decision underscores the necessity for unions to strictly follow the legal requirements when seeking to conduct a ballot for protected action. This ruling highlights the importance of procedural adherence in maintaining the integrity of the industrial action process.

Health Services Union v Goulburn Valley Health

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established