Health Services Union v Grampians Health

[2022] FWC 865

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Health Services Union

Grampians Health

(B2022/313)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 13 APRIL 2022

Proposed protected action ballot of employees of Grampians 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 Grampians 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 PR740363.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission dealt with an application by the Health Services Union (HSU) for a protected action ballot order in relation to certain employees of Grampians Health (GH). The HSU sought to hold a protected action ballot in accordance with the Fair Work Act 2009 (the Act). GH did not oppose the application but raised concerns regarding the form and content of the proposed order. The parties reached a consent position, allowing the matter to be determined on the papers without a hearing.

The key legal issues before the Commission were whether the requirements for a protected action ballot under section 437 of the Act were satisfied, and whether TrueVote Pty Ltd (TrueVote) was a fit and proper person to act as the ballot agent. The HSU submitted a declaration from Mr Craig McGregor stating that it had been genuinely trying to reach an agreement with GH and that the notification time in relation to the proposed agreement had been met. GH did not oppose the HSU's proposed ballot agent, TrueVote.

In making its decision, the Commission found that the HSU had met the requirements for a protected action ballot under the Act. The Commission was satisfied that TrueVote was a fit and proper person to conduct the ballot and that it was capable of ensuring the secrecy and security of the votes. TrueVote agreed to be the protected action ballot agent and to comply with the Privacy Act 1988 in handling the information relating to the ballot.

Accordingly, the Commission appointed TrueVote as the protected action ballot agent and issued an order in PR740363. The Commission did not hold a hearing, as the parties had reached a consent position.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established