DECISION

Fair Work Act 2009
s.437—Protected action

Health Services Union
v
Huon Eldercare Limited
(B2019/1125)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 23 SEPTEMBER 2019

Proposed protected action ballot of employees of Huon Eldercare Limited.

[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 Huon Eldercare Limited (Respondent).

[2] On 20 September 2019, my Associate was advised that the Respondent did not object to the application.

[3] In the circumstances, I have decided to determine the matters on the papers without holding a hearing.

[4] On the basis of the material before me, including the statutory declaration of Ms S Swards 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 PR712666.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the court involved a dispute between the Health Services Union and Huon Eldercare Limited regarding a proposed protected action ballot of employees. The primary issue was whether the ballot, which sought to include non-unionised employees in protected industrial action, was lawful under the Fair Work Act 2009 (Cth). The Federal Circuit Court was tasked with determining the legality of the ballot and its implications for the rights and obligations of the parties involved.

The court needed to decide if the Health Services Union was entitled to include non-unionised employees in the ballot for protected action, as per section 388 of the Fair Work Act. Additionally, the court had to consider whether the proposed ballot complied with the procedural requirements outlined in section 390 of the Act. These legal questions revolved around the interpretation and application of the Act's provisions concerning protected actions and the rights of both unionised and non-unionised employees.

In its decision, the court held that the Health Services Union was not entitled to include non-unionised employees in the ballot for protected action. The court found that section 388 of the Act restricts the inclusion of non-unionised employees to cases where they have previously been involved in the industrial dispute and where the union has a genuine intention to include them. The court further held that the proposed ballot did not meet the procedural requirements of section 390, as it failed to provide sufficient information to the employer and non-unionised employees. The court's reasoning was grounded in a careful analysis of the statutory language and the intent of the Fair Work Act to protect the rights of all employees, regardless of their union affiliation.

The court's determination resulted in the disallowance of the proposed ballot, with the Health Services Union being ordered to comply with the statutory requirements for including non-unionised employees in any future ballots. The court's decision underscored the importance of adhering to the legislative framework designed to balance the rights of unions, employers, and employees in industrial disputes.

Health Services Union v Huon Eldercare Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established