Health Services Union v Northern Health

[2022] FWC 864

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Health Services Union

Northern Health

(B2022/312)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 13 APRIL 2022

Proposed protected action ballot of employees of Northern 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 Northern 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 PR740361.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Health Services Union (Applicant) sought an order for a protected action ballot under the Fair Work Act 2009 in relation to certain employees of Northern Health (Respondent). The matter was heard by Deputy President Clancy on 13 April 2022 in Melbourne. Northern Health did not object to the application but raised concerns about the form and content of the proposed ballot order. The parties subsequently reached a consent position, and the matter was determined on the papers without a hearing.

The primary legal issues in this case were whether the notification time in relation to the proposed agreement had been met, and if the requirements under section 443(1) of the Fair Work Act 2009 had been satisfied. The Health Services Union also sought for TrueVote Pty Ltd to be appointed as the ballot agent for the protected action ballot instead of the Australian Electoral Commission. The Respondent did not oppose this proposal, and the Deputy President found TrueVote to be a fit and proper person to conduct the ballot.

The Deputy President determined that the notification time in relation to the proposed agreement had been met and that the requirements under section 443(1) of the Fair Work Act 2009 had been satisfied. TrueVote was appointed as the protected action ballot agent as it was capable of ensuring the secrecy and security of the votes and conducting the ballot expeditiously. The Deputy President also found that TrueVote had agreed to comply with the Privacy Act 1998 with respect to the handling of information relating to the protected action ballot.

An order was issued appointing TrueVote as the protected action ballot agent, and the matter was concluded without a hearing. The Deputy President's decision was made on the basis of the material before the court, including the declaration of Mr Craig McGregor of the Applicant setting out the steps taken by the Applicant in bargaining with the Respondent and that it had been, and was, genuinely trying to reach agreement with the Respondent. The parties had reached a consent position, and the matter was determined on the papers without a hearing.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established