Health Services Union v Monash Health

[2022] FWC 857

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Health Services Union

Monash Health

(B2022/305)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 13 APRIL 2022

Proposed protected action ballot of employees of Monash 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 Monash Health (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 PR740346.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Health Services Union v Monash Health, the Health Services Union applied to the Fair Work Commission for a protected action ballot order concerning certain employees of Monash Health. The application was made under section 437 of the Fair Work Act 2009. The primary issue before the Deputy President was whether the requirements for a protected action ballot order had been met and if the proposed ballot agent, TrueVote Pty Ltd, was fit and proper to conduct the ballot.

The Deputy President examined the material before him, including a declaration from Mr Craig McGregor of the Applicant, which detailed the bargaining process and the genuine efforts made by the Applicant to reach an agreement with Monash Health. The Court determined that there was a notification period for the proposed agreement and that the requirements of section 443(1) of the Act were satisfied. Furthermore, the Respondent did not oppose the appointment of TrueVote as the ballot agent, and the Applicant demonstrated that TrueVote was a suitable choice for conducting the ballot while ensuring the secrecy and security of the votes.

Given these findings, the Deputy President appointed TrueVote as the protected action ballot agent. The decision was made on the papers without a hearing due to the consent reached by the parties regarding the form and content of the draft order. The Deputy President also noted that TrueVote had agreed to comply with the Privacy Act 1998 in handling the information related to the ballot.

An order was issued separately in PR740346, appointing TrueVote as the protected action ballot agent for the Health Services Union's proposed ballot concerning Monash Health employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established