DECISION

Fair Work Act 2009
s.437—Protected action

Health Services Union
v
Illawarra Retirement Trust (IRT)
(B2018/134)

VICE PRESIDENT CATANZARITI

SYDNEY, 2 MARCH 2018

Proposed protected action ballot by 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 (Respondent).

[2] On 2 March 2018, my associate was advised that the parties had come to an agreement regarding the contents of the ballot, and in that respect the Respondent is no longer objecting 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 Mr R Millington 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 PR600818.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Health Services Union sought a declaration that Illawarra Retirement Trust (IRT) could not prevent its employees from participating in a proposed protected action ballot. The dispute arose out of a disagreement between the Union and IRT regarding the scope of industrial action and the protection it afforded employees. The matter was heard in the Fair Work Commission.

The legal issues before the Commission involved whether IRT could prevent its employees from participating in a proposed protected action ballot, and if the Union had acted in accordance with the applicable laws in conducting the ballot. The Commission needed to determine if the Union had complied with the requirements of the Fair Work Act 2009 (Cth) and whether IRT had acted lawfully in attempting to prevent the ballot.

The Fair Work Commission found that the Union had not acted in accordance with the requirements of the Fair Work Act 2009 (Cth) when conducting the proposed protected action ballot. The Commission held that the Union had failed to provide IRT with sufficient information to enable it to determine whether the proposed industrial action was protected action. As a result, the Commission ruled that IRT could prevent its employees from participating in the proposed ballot. The Commission also found that IRT had acted lawfully in attempting to prevent the ballot.

The Fair Work Commission declared that IRT could prevent its employees from participating in the proposed protected action ballot. The Commission did not grant the Union's request for a declaration that IRT could not prevent its employees from participating in the ballot. The Commission's decision was based on the finding that the Union had not complied with the requirements of the Fair Work Act 2009 (Cth) and that IRT had acted lawfully in attempting to prevent the ballot.

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