Health Services Union v Melbourne Health

[2022] FWC 430

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Health Services Union
v

Melbourne Health

(B2022/126)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 28 FEBRUARY 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 (Respondent).

On 25 February 2022, my Associate was advised that the Respondent did not object to the application.

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.

An order has been separately issued in PR738831.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Health Services Union, acting on behalf of certain employees of Melbourne Health, applied to the Fair Work Commission under section 437 of the Fair Work Act 2009 for a protected action ballot order. The Union sought the order to facilitate industrial action by its members in the context of ongoing negotiations with Melbourne Health regarding a proposed agreement. Melbourne Health did not object to the application, leading the Deputy President to determine the matter on the papers without the need for a hearing.

The key legal issue before the court was whether the conditions under section 437 of the Fair Work Act were satisfied, specifically whether the Union had genuinely attempted to reach an agreement with Melbourne Health, and if the notification time for the proposed agreement had been met. The Union submitted a declaration by Mr. Craig McGregor affirming their efforts in bargaining and their intent to reach an agreement.

The Deputy President, reviewing the material provided, including the declaration, was satisfied that the Union had genuinely attempted to reach an agreement and that the notification time for the proposed agreement was valid. Consequently, the Deputy President determined that the requirements under section 443(1) of the Act had been fulfilled, warranting the issuance of a protected action ballot order.

The Fair Work Commission issued an order under section 437 of the Fair Work Act, allowing the Health Services Union to proceed with a protected action ballot among its members employed by Melbourne Health. This decision was documented in the separate order issued in PR738831.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established