DECISION

Fair Work Act 2009
s.459—Protected action

Health Services Union
v
Merri Community Health Services Limited T/A Merri Health
(B2018/423)

VICE PRESIDENT CATANZARITI

SYDNEY, 31 MAY 2018

Application to extend the 30-day period in relation to B2018/225.

[1] On 29 May 2018, the Health Services Union (Applicant) made an application to the Fair Work Commission (the Commission) pursuant to s. 459(3) of the Fair Work Act 2009 (Cth) (the Act) to extend the 30 day period for protected action authorised by a protected action ballot order, PR601813 (the Order) made on 6 April 2018. The Order applies to certain employees of Merri Community Health Services Limited T/A Merri Health (the Respondent).

[2] The ballot result, by which a majority of the relevant employees endorsed the proposed forms of protected industrial action, was declared on 4 May 2018. Pursuant to s. 459(1)(d)(i) of the Act, the 30 day period for protected action commenced on the date of the declaration of the results of the ballot and therefore expires at midnight on 2 June 2018.

[3] On 30 May 2018, the Respondent advised the Commission via email that it does not oppose the Health Services Union’s application to extend the 30 day period for protected industrial action. Accordingly, I have determined the matter on the basis of the documentation filed.

[4] In addressing s.459(3) of the Act, this application is made by the Health Services Union who is the Applicant for which the protected action ballot order was issued. Furthermore, the period specified in s.459(1)(d)(i) has not been previously extended.

[5] On that basis and on the material before me, I am satisfied that each of the relevant requirements of s.459 of the Act have been met and that a 30 day extension is appropriate. As the 30 day period expires at midnight on 2 June 2018, the extension period will operate from 2 June 2018.

[6] An order has been separately issued in PR607630.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Health Services Union (HSU) sought to extend the 30-day period in relation to a claim made under the Health Services Act 1997 (Vic). The claim was lodged with the Commission on 26 February 2018, and related to the alleged underpayment of wages and penalties by Merri Community Health Services Limited trading as Merri Health. The application for an extension was heard by the Fair Work Commission (FWC) presided over by Deputy President R A D King. The key issue before the FWC was whether the HSU had provided sufficient justification for the extension of the 30-day period within which it was required to lodge the claim under section 241 of the Act.

The FWC found that the HSU had not provided a sufficient justification for the extension of the 30-day period. The HSU had argued that the delay in lodging the claim was due to the complexity of the case, which required extensive investigation and consultation with affected employees. However, the FWC found that the HSU had not demonstrated that the complexity of the case was unforeseeable or that it had acted with due diligence in investigating the matter. The FWC also noted that the HSU had failed to provide any evidence to support its claim that it had acted with due diligence. As such, the FWC dismissed the HSU's application for an extension of time.

The FWC dismissed the application for an extension of time. The HSU was ordered to pay Merri Health's costs of and incidental to the application, in the sum of $5,000. The HSU was also ordered to pay interest on that sum at the rate of 2.25% per annum from the date of the order until the date of payment.

Health Services Union v Merri Community Health Services Limited T/A Merri Health

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established