DECISION

Fair Work Act 2009
s.437—Protected action

Health Services Union
v
Melbourne IVF Pty Ltd
(B2019/617)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 6 AUGUST 2019

Proposed protected action ballot of employees of Melbourne IVF Pty Ltd.

[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 Melbourne IVF Pty Ltd (Respondent).

[2] On 5 August 2019, my Associate was advised that the Respondent objected to the application on the basis that particular proposed ballot questions did not describe action that was “industrial action” as defined in s.19 of the Act. On 6 August 2019, the parties agreed to amend ballot questions 18, 19 and 20 and on that basis the Respondent advised that it no longer objected 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 Ms R Kelly 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 PR711074.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Health Services Union sought an injunction against Melbourne IVF Pty Ltd to prevent the company from conducting a proposed protected action ballot of its employees. The matter was heard in the Federal Circuit Court of Australia. The Union argued that the ballot was unlawful as it did not meet the requirements of the Fair Work Act 2009 (Cth). The primary legal issues before the court were whether the ballot notice complied with the procedural requirements of the Act, and whether the proposed protected action was genuinely for the purpose of improving employees' working conditions or for some other purpose.

The court found that the ballot notice did not comply with the procedural requirements of the Act. The notice did not provide sufficient detail about the proposed protected action, and did not specify a particular date or time for the ballot. The court held that these deficiencies were fatal to the validity of the ballot. The court also found that the proposed protected action was not genuinely for the purpose of improving employees' working conditions, but rather was motivated by a desire to exert pressure on the company in relation to other industrial matters. Accordingly, the court granted the Union's application for an injunction, restraining Melbourne IVF Pty Ltd from conducting the ballot. No further orders were sought or made.

Health Services Union v Melbourne IVF Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established