Health Services Union v Mercy Hospitals Victoria Limited

[2022] FWC 868

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Health Services Union

Mercy Hospitals Victoria Limited

(B2022/316)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 13 APRIL 2022

Proposed protected action ballot of employees of Mercy Hospitals Victoria Limited.

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 Mercy Hospitals Victoria Limited (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 PR740369.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission dealt with an application by the Health Services Union, who sought a protected action ballot order concerning employees of Mercy Hospitals Victoria Limited. The application was made under section 437 of the Fair Work Act 2009. The core of the dispute was the proposed protected action ballot, which Mercy Hospitals Victoria Limited did not oppose but had concerns about the form and content of the draft order. The Commission decided to determine the matter based on the submitted documents and the declaration of Mr. Craig McGregor from the Applicant, who attested to the bargaining efforts and the genuine attempt to reach an agreement with the Respondent.

The legal issues before the Commission involved verifying the notification time in relation to the proposed agreement and ensuring that the requirements outlined in section 443(1) of the Act were fulfilled. Additionally, the Commission had to assess whether the proposed ballot agent, TrueVote Pty Ltd, was a fit and proper person to conduct the ballot, ensuring the secrecy, security, and expeditious conduct of the voting process. The Respondent did not oppose the Applicant's request for TrueVote to be the ballot agent.

In its decision, the Commission concluded that the notification time was appropriate and that the requirements of the Act had been met. The Commission was satisfied that TrueVote was qualified to act as the ballot agent and capable of maintaining the integrity of the ballot process. Given the Applicant's declaration and the lack of opposition from the Respondent, the Commission appointed TrueVote as the protected action ballot agent. The Commission emphasized that TrueVote was bound to comply with the Privacy Act 1998 regarding the handling of ballot-related information.

The Commission issued a separate order appointing TrueVote as the protected action ballot agent. The decision was made without a hearing, as the parties reached a consent position on the concerns raised by Mercy Hospitals Victoria Limited. The final order was issued in PR740369, formalizing the appointment of TrueVote as the ballot agent for the proposed protected action ballot.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established