Health Services Union v Healthe Care South Eastern Pty Ltd Summary

[2022] FWC 2498

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Health Services Union
v

Healthe Care South Eastern Pty Ltd

(B2022/1397)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 16 SEPTEMBER 2022

Proposed protected action ballot of employees of Healthe Care South Eastern Pty Ltd

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 Healthe Care South Eastern Pty Ltd (the Respondent).

On 16 September 2022, my Associate was advised that the Respondent does 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 John Ryan 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 also 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 Mr Stephen Donaldson (Business Owner of TrueVote Pty Ltd). I am satisfied that Mr Donaldson is a fit and proper person to conduct the ballot. I am also satisfied that he is capable of ensuring the secrecy and security of the votes and of conducting the ballot expeditiously. Mr Donaldson 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 Mr Stephen Donaldson as the protected action ballot agent.

An order has been separately issued in PR745965.

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 Healthe Care South Eastern Pty Ltd (Respondent). The dispute arose from the union's efforts to reach an agreement with the employer and their subsequent intention to conduct a ballot among the employees to authorise protected action, such as industrial action. The Fair Work Commission, represented by Deputy President Clancy, was tasked with determining the application on 16 September 2022. The Respondent did not object to the application, leading the Deputy President to decide on the matter without a hearing.

The primary legal issues before the court involved verifying the procedural requirements for the protected action ballot. Specifically, the court needed to confirm whether the union had genuinely attempted to reach an agreement with the employer and if the notification period for the proposed agreement had been met, as stipulated under section 443(1) of the Act. Additionally, the court had to consider the appropriateness of the proposed ballot agent, Mr Stephen Donaldson, to conduct the ballot, ensuring that he was a fit and proper person capable of maintaining the secrecy and security of the votes.

Upon reviewing the declarations and submissions, Deputy President Clancy was satisfied that the union had genuinely engaged in bargaining and met the notification requirements. Furthermore, the Deputy President concluded that Mr Donaldson was a suitable candidate to act as the ballot agent. Mr Donaldson's agreement to comply with the Privacy Act 1998 regarding the handling of ballot-related information was also taken into account. Consequently, the court appointed Mr Stephen Donaldson as the ballot agent for the protected action ballot.

Following the determination, the Fair Work Commission issued an order appointing Mr Stephen Donaldson as the ballot agent for the protected action ballot, as separately noted in PR745965.

Health Services Union v Healthe Care South Eastern Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established