Health Services Union v Mercy Hospitals Victoria Limited Summary

[2022] FWC 431

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Health Services Union
v

Mercy Hospitals Victoria Limited

(B2022/127)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 28 FEBRUARY 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 (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 PR738834.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Health Services Union sought a protected action ballot order from the Fair Work Commission in relation to employees of Mercy Hospitals Victoria Limited. The application was made under section 437 of the Fair Work Act 2009. The Union sought to conduct a ballot for potential protected action, which in this case, likely referred to industrial action such as strikes or other forms of protest. Mercy Hospitals Victoria Limited did not oppose the application, allowing the Deputy President to decide the matter based on the provided documentation without the need for a hearing.

The legal issues that arose from this application included whether the Union had genuinely attempted to reach an agreement with Mercy Hospitals Victoria Limited and if the requirements for a notification time under section 443(1) of the Act were met. The Union's declaration, which detailed their bargaining efforts and their genuine attempts to reach an agreement, was central to these issues. The Deputy President examined these declarations and other documentation to determine if the Union had fulfilled its obligations under the Act.

The Deputy President concluded that the Union had indeed been genuinely trying to reach an agreement with Mercy Hospitals Victoria Limited and that all requirements for a notification time had been met. The Union's declaration and the lack of opposition from Mercy Hospitals Victoria Limited supported these findings. Consequently, the Deputy President determined the application on the papers and issued an order permitting the Union to proceed with the protected action ballot.

The final orders issued by the Deputy President allowed the Health Services Union to conduct the protected action ballot as per the provisions of the Fair Work Act 2009. These orders were issued separately and reflected the Deputy President's decision that the Union had satisfied the legal requirements for such an action.

Health Services Union v Mercy Hospitals Victoria Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established