Health Services Union v Healthe Care Vaucluse Pty Ltd

[2022] FWC 2496

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Health Services Union
v

Healthe Care Vaucluse Pty Ltd

(B2022/1396)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 16 SEPTEMBER 2022

Proposed protected action ballot of employees of Healthe Care Vaucluse 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 Vaucluse 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 PR745959.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Health Services Union (Applicant) applied to the Fair Work Commission for a protected action ballot order in relation to certain employees of Healthe Care Vaucluse Pty Ltd (the Respondent). The application was made under section 437 of the Fair Work Act 2009 (Act) to hold a ballot on proposed protected action. The Respondent did not object to the application, and the matter was determined on the papers without a hearing.

The key legal issues before the Deputy President were whether there was a notification time in relation to the proposed agreement and whether the requirements in section 443(1) of the Act were met. The Applicant also sought to appoint a ballot agent other than the Australian Electoral Commission. The Respondent did not oppose this request.

The Deputy President found that there was a notification time in relation to the proposed agreement and that the requirements of section 443(1) of the Act had been met based on the material before the Court. The Deputy President also found that the proposed ballot agent, Mr Stephen Donaldson, was a fit and proper person to conduct the ballot and capable of ensuring the secrecy and security of the votes. Mr Donaldson agreed to be the ballot agent and comply with the Privacy Act 1998.

Therefore, the Deputy President issued an order appointing Mr Stephen Donaldson as the protected action ballot agent for the proposed ballot. A separate order was issued in PR745959.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established