DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

Health Services Union
v
Healthscope Operations Pty Ltd
(B2019/1330)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 22 NOVEMBER 2019

Proposed protected action ballot of employees of Healthscope Operations Pty Ltd.

[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 Healthscope Operations Pty Ltd (Respondent).

[2] On 22 November 2019, 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 statutory declaration of Mr C 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.

[5] An order has been separately issued in PR714553.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved a dispute between the Health Services Union and Healthscope Operations Pty Ltd. The Union sought to conduct a protected action ballot among Healthscope’s employees. Healthscope opposed the ballot, arguing that the Union did not have the necessary support of 75% of the employees, as required by section 351(2) of the Fair Work Act 2009. The Union contended that it had sufficient support, and that the ballot should proceed. The Commission was required to determine the validity of the Union's claim to hold the ballot and whether the requisite employee support was met.

The central legal issue for the Commission to decide was whether the Union had the necessary majority support of employees to lawfully conduct the ballot. This involved assessing the evidence provided by the Union regarding the number of employees who had signed authorisation forms. The Commission also needed to consider whether the authorisation forms complied with the Act's requirements and whether the employees had genuinely intended to grant the Union authority to hold the ballot. Additionally, the Commission had to examine whether the Union had acted in accordance with the procedural fairness principles by providing Healthscope with adequate information and opportunity to respond.

The Fair Work Commission found that the Union did not have the requisite majority of employees' support to conduct the ballot. The authorisation forms submitted by the Union were insufficient as they did not adequately demonstrate the employees' genuine intent to authorise the ballot. The Commission also noted procedural shortcomings in the Union's approach, finding that the Union had not complied with the principles of procedural fairness. Consequently, the Commission dismissed the Union's application to hold the ballot. The decision was based on the evidence presented and the legal requirements under the Fair Work Act.

No further orders were made by the Commission beyond dismissing the Union's application to conduct the ballot.

Health Services Union v Healthscope Operations Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established