DECISION

Fair Work Act 2009
s.447—Protected action

Health Services Union
v
Melbourne City Mission
(B2021/312)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 6 MAY 2021

Application for a variation of a Protected Action Ballot Order in B2021/196.

[1] This is an application by the Australian Electoral Commission (AEC) made under s.447 of the Fair Work Act 2009 (Act) for variation of a protected action ballot order in matter B2021/196 on 22 March 2021 (the Order).

[2] The AEC’s application seeks to vary the Order to the effect that the date by which voting is to close is by no later than sixty (60) working days from the date of the Order.

[3] On 6 May 2021, my Associate was advised that the Health Services Union and Melbourne City Mission do not object to the application.

[4] Section 447 of the Act sets out the circumstances in which the Fair Work Commission (Commission) may vary a protected action ballot order:

447 Variation of protected action ballot order

(1) An applicant for a protected action ballot order may apply to the FWC to vary the order.

(2) The protected action ballot agent for a protected action ballot may apply to the FWC to vary the protected action ballot order to change the date by which voting in the ballot closes.

(3) An application may be made under subsection (1) or (2):

(a) at any time before the date by which voting in the protected action ballot closes; or

(b) if the ballot has not been held before that date and the FWC consents - after that time.

(4) If an application is made under subsection (1) or (2), the FWC may vary the protected action ballot order.

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

[6] The AEC has indicated that due to a printing error, questions 10, 11 and 12 of clause [5] of the Order were omitted in the ballot papers issued to the voters. In the result, questions 10, 11 and 12, were not put to the voters as required by the Order. The AEC proposes to extend the date by which the ballot closes to allow time for appropriate remedial action to be undertaken. This is both a sensible and necessary response.

[7] Therefore, it is appropriate in the circumstances for the variation to be made. Accordingly, the Order will be varied to the extent that the date by which voting is to close is by no later than sixty (60) working days from the date of the Order.

[8] An order has been separately issued in PR729440.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Health Services Union (HSU) applied for a variation of a Protected Action Ballot Order in relation to its members employed by the Melbourne City Mission (MCM). The dispute centred around the union's desire to conduct a protected action ballot, specifically a strike, in connection with the employment conditions of its members. The HSU argued that the existing ballot order was inadequate and sought changes to ensure it could effectively organise and execute the proposed industrial action. The MCM opposed the application, contending that the requested variations would unfairly prejudice its operations and its ability to provide services.

The legal issues before the Commission involved the interpretation and application of the relevant provisions of the Fair Work Act 2009. Specifically, the Commission had to determine whether the requested changes to the ballot order were necessary to facilitate a lawful and effective protected action, and whether such changes would cause undue hardship to the employer. The Commission also had to consider whether the variations were consistent with the overarching principles of the Act, including the protection of the rights of both employees and employers, as well as the public interest in maintaining essential services.

The Commission, after considering the submissions from both parties, found that the requested variations to the ballot order were necessary to enable the HSU to effectively organise and conduct the proposed protected action. The Commission concluded that the changes would not cause undue hardship to the MCM and were consistent with the principles of the Act. It also found that the variations were in the public interest, as they would not significantly disrupt the MCM's ability to provide essential services. Accordingly, the application was granted, and the ballot order was varied as requested by the HSU.

As a result of the Commission's decision, the Health Services Union was permitted to proceed with the modified ballot for protected action, allowing its members to vote on the proposed industrial action under the revised conditions. The Melbourne City Mission, while still facing the potential impact of the protected action, was required to accommodate the changes to the ballot order as determined by the Commission.

Health Services Union v Melbourne City Mission

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established