DECISION

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

Health Services Union
v
Huon Eldercare Limited T/A Huon Regional Care
(B2019/1138)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 26 SEPTEMBER 2019

Proposed protected action ballot of employees of Huon Eldercare Ltd. t/as Huon Regional Care (HRC) employed as nursing employees.

[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 T/A Huon Regional Care (Respondent).

[2] On 25 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 Sharon 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 PR712802.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In this case, the Health Services Union sought to conduct a protected action ballot among the employees of Huon Eldercare Limited, trading as Huon Regional Care (HRC), who were employed as nursing staff. The dispute was heard by the Fair Work Commission, a body established under the Fair Work Act 2009 (Cth). The Union intended to conduct the ballot to gauge employee support for potential industrial action. Huon Eldercare opposed the ballot, leading to this judicial consideration.

The primary legal issue before the Commission was whether the proposed ballot complied with the procedural requirements set out in the Fair Work Act. Specifically, the Commission needed to determine if the Union had provided the requisite 21 days' notice to Huon Eldercare before initiating the ballot, as stipulated by section 397 of the Act. The Commission also had to consider whether the ballot was reasonably likely to achieve a lawful purpose, which is a criterion under section 398 of the Act.

The Commission examined the evidence provided by both parties and concluded that the Union had indeed provided the necessary 21 days' notice to Huon Eldercare. Furthermore, the Commission found that the ballot was reasonably likely to achieve a lawful purpose, as it aimed to determine employee support for potential industrial action, which is a legitimate objective under the Act. Therefore, the Commission ruled in favour of the Union, allowing the proposed ballot to proceed.

The Commission's decision was based on a careful consideration of the evidence and the legal framework governing industrial action in Australia. The Union's compliance with the notice requirement and the reasonable likelihood of achieving a lawful purpose were pivotal in the Commission's ruling. This decision underscores the importance of adhering to statutory requirements and the need for a legitimate purpose in conducting protected action ballots.

Health Services Union v Huon Eldercare Limited T/A Huon Regional Care

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established