Health Services Union v Northern Health Summary

[2022] FWC 435

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Health Services Union
v

Northern Health

(B2022/130)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 28 FEBRUARY 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 (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 PR738844.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Health Services Union (HSU) applied to the Fair Work Commission for a protected action ballot order in relation to certain employees of Northern Health (NH). The application was made under section 437 of the Fair Work Act 2009. The HSU sought the order in order to allow its members to take protected industrial action. The primary legal issue for the Fair Work Commission to decide was whether the HSU had satisfied the requirements for a protected action ballot order under section 437 of the Act. This involved considering whether the HSU had genuinely tried to reach agreement with NH, whether a notification time had passed, and whether the requirements in section 443(1) of the Act had been met.

The Fair Work Commission found that the HSU had satisfied the requirements for a protected action ballot order. This was based on the declaration of Mr Craig McGregor of the HSU which outlined the steps taken by the HSU in bargaining with NH and that it had been, and was, genuinely trying to reach agreement with NH. The Commission was also satisfied that there was a notification time in relation to the proposed agreement and that the requirements in section 443(1) of the Act had been met. The Commission determined the matter on the papers without holding a hearing as NH did not object to the application.

The Fair Work Commission issued an order allowing the HSU to conduct a protected action ballot of its members employed by NH. The order was made in relation to the proposed agreement and on the basis of the material before the Commission. The Commission also issued a separate order in PR738844. The decision of the Commission was printed by authority of the Commonwealth Government Printer.

Health Services Union v Northern Health

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established