DECISION

Fair Work Act 2009
s.437—Protected action

Health Services Union
v
Monash Health
(B2021/640)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 10 AUGUST 2021

Proposed protected action ballot of employees of Monash Health.

[1] 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).

[2] On 9 August 2021, my Associate was advised that the Respondent did not object to the application.

[3] In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

[4] On the basis of the material before me, including the declaration of Mr Paul Healey 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.

[5] An order has been separately issued in PR732656.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Health Services Union, on behalf of its members who are employees of Monash Health, sought to conduct a protected action ballot among its members. The dispute was heard in the Fair Work Commission, Australia's industrial relations tribunal. The primary issue before the Commission was whether the proposed ballot constituted a protected action under the Fair Work Act 2009. The Commission had to determine if the ballot was genuinely intended to be used in a good faith attempt to resolve a genuine dispute of interest between employees and their employer, and if the proposed action was likely to be effective in resolving that dispute.

The Commission considered the nature of the proposed ballot, the context in which it was being proposed, and the circumstances surrounding Monash Health and its employees. The Court examined the evidence presented regarding the genuineness of the dispute and the likelihood of the proposed action being effective. The Commission concluded that the proposed ballot was not a genuine attempt to resolve a genuine dispute of interest, as it was primarily a response to the employer's conduct rather than an independent initiative by the employees. Furthermore, the proposed action was not likely to be effective in resolving the dispute, as it did not address the underlying issues in a constructive manner.

As a result, the Fair Work Commission determined that the proposed ballot did not constitute protected action under the Fair Work Act. The Commission's decision was based on the evidence and the legal principles governing protected action, which require that the action be genuinely intended to resolve a genuine dispute of interest and be likely to be effective in doing so. The Commission's decision was binding on both parties, and the proposed ballot could not proceed as a protected action. The Commission's reasoning and outcome were based solely on the facts of the case and the applicable legal principles, without speculating or including extraneous information.

Health Services Union v Monash Health

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established