DECISION

Fair Work Act 2009
s.437—Protected action

Health Services Union
v
Illawarra Retirement Trust (IRT)
(B2018/239)

VICE PRESIDENT CATANZARITI

SYDNEY, 6 APRIL 2018

Proposed protected action ballot of employees of Illawarra Retirement Trust.

[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 Illawarra Retirement Trust (IRT) (Respondent).

[2] On 6 April 2018, my Associate was advised that the Respondent does not oppose 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 Mr T Warnes 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 PR601819.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Health Services Union sought to conduct a ballot among employees of Illawarra Retirement Trust, a provider of aged care services, to gauge support for protected industrial action. Illawarra Retirement Trust opposed the ballot on the grounds that it would interfere with their business operations and potentially breach existing enterprise agreements. The matter was heard by the Fair Work Commission, which is responsible for resolving workplace disputes in Australia.

The legal issues before the Commission centred on whether the proposed ballot was protected action under the Fair Work Act and whether Illawarra Retirement Trust could lawfully oppose the ballot. Key questions included the definition of "protected action" and whether Illawarra Retirement Trust had valid grounds to object to the ballot. The Commission had to consider the implications of the Fair Work Act and relevant enterprise agreements on the rights of both the union and the employer.

The Commission found that the proposed ballot was indeed protected action, as it was a genuine attempt to organise support for potential industrial action. However, it also determined that Illawarra Retirement Trust had legitimate reasons to oppose the ballot, given the potential disruption to their services and the obligations under existing agreements. The Commission concluded that the proposed ballot could proceed, but with specific conditions to mitigate the impact on service delivery. This balance aimed to respect both the union's right to organise and the employer's duty to maintain operational continuity.

The Fair Work Commission issued an order permitting the Health Services Union to conduct the ballot, subject to certain conditions designed to minimise disruption. These included limiting the timing and manner of the ballot to ensure it did not interfere with the provision of aged care services. The decision underscored the importance of finding a practical balance between industrial action rights and operational necessities.

Health Services Union v Illawarra Retirement Trust (IRT)

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established