Health Services Union v Melbourne Health

[2022] FWC 866

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Health Services Union

Melbourne Health

(B2022/314)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 13 APRIL 2022

Proposed protected action ballot of employees of Melbourne Health.

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 Melbourne Health (the Respondent).

On 13 April 2022, I held a mention where the Respondent advised it did not object to the application. However, it raised a number of concerns in relation to the form and content of the draft order. The parties were able to reach a consent position.

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

On the basis of the material before me, including the declaration of Mr Craig McGregor 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.

The Applicant sought that a person other than the Australian Electoral Commission be the ballot agent for the protected action ballot. This course was not opposed by the Respondent. The person proposed in the application as the protected action ballot agent is TrueVote Pty Ltd (TrueVote). I am satisfied that TrueVote is a fit and proper person to conduct the ballot. I am also satisfied that TrueVote is capable of ensuring the secrecy and security of the votes and of conducting the ballot expeditiously. TrueVote has agreed to be the protected action ballot agent and is bound to comply with the Privacy Act 1998 with respect to the handling of the information relating to the protected action ballot.

Therefore I appoint TrueVote as the protected action ballot agent.

An order has been separately issued in PR740365.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Health Services Union applied to the Fair Work Commission for a protected action ballot order concerning certain employees of Melbourne Health. The application was made under section 437 of the Fair Work Act 2009, seeking to conduct a ballot for protected action, which is a form of industrial action protected from legal action under the Act. Melbourne Health did not object to the application but raised concerns about the form and content of the draft order. The parties reached a consent position, and the Deputy President determined the matter without a hearing.

The primary legal issues before the Deputy President were whether the notification period for the proposed agreement had been met, and whether the requirements of section 443(1) of the Act had been fulfilled. Additionally, the court had to determine if the proposed ballot agent, TrueVote, was fit and proper to conduct the ballot, ensuring the secrecy and security of the votes and conducting the ballot expeditiously. The Deputy President also needed to consider TrueVote's compliance with the Privacy Act 1998 in handling information relating to the protected action ballot.

The Deputy President was satisfied that the notification period for the proposed agreement had been met and that the requirements of section 443(1) of the Act had been fulfilled, based on the declaration of Mr Craig McGregor of the Applicant. The Deputy President found TrueVote to be a fit and proper person to conduct the ballot, capable of ensuring the secrecy and security of the votes and of conducting the ballot expeditiously. TrueVote agreed to be the protected action ballot agent and is bound to comply with the Privacy Act 1998 with respect to the handling of the information relating to the protected action ballot. Consequently, TrueVote was appointed as the protected action ballot agent.

An order has been separately issued in PR740365.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established