Health Services Union v Monash Health

[2022] FWC 432

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Health Services Union
v

Monash Health

(B2022/128)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 28 FEBRUARY 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 (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 PR738836.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission heard an application by the Health Services Union (HSU) for an order allowing a protected action ballot among certain employees of Monash Health (Monash). The application was made under section 437 of the Fair Work Act 2009, seeking permission for the union to conduct a ballot among its members regarding potential protected action. Monash Health did not object to the application, leading the Deputy President to decide the matter based on the provided documentation without a formal hearing.

The legal issues before the court involved determining whether the conditions for a protected action ballot were met under the Fair Work Act 2009. Specifically, the court needed to ascertain if the union had genuinely attempted to reach an agreement with Monash Health and whether the requisite notification period had been observed. The union submitted a declaration from Mr. Craig McGregor, asserting their efforts in bargaining and the fulfillment of statutory requirements. Monash Health's lack of objection was also a significant factor in the decision-making process.

Upon reviewing the evidence, the Deputy President concluded that the union had met the legal criteria for a protected action ballot. The declaration from Mr. McGregor, coupled with Monash Health's non-objection, satisfied the court that the union had genuinely attempted to reach an agreement and that the notification period under section 443(1) of the Act had been met. Consequently, the Deputy President issued an order permitting the ballot.

This decision underscores the importance of proper procedural adherence and genuine bargaining efforts in the context of protected actions under the Fair Work Act. The court's decision to proceed without a hearing highlights its efficiency in handling uncontested applications. The final order was issued separately, ensuring that the union could proceed with the ballot as planned.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established