Health Services Union v Peninsula Health

[2011] FWA 7775

[2011] FWA 7775

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.437—Protected action

Health Services Union
v
Peninsula Health
(B2011/3849)

COMMISSIONER GOOLEY MELBOURNE, 9 NOVEMBER 2011

Proposed protected action ballot by employees of Peninsula Health.

[1] The Health Services Union (the HSU) applied for a protected action ballot order pursuant to section 437 of the Fair Work Act 2009 (the FW Act). The application was lodged in Fair Work Australia on 4 November 2011.

[2] At the hearing on 7 November 2011 Ms Leigh Svendsen appeared for the HSU and Mr Richard Corboy from the Victorian Hospitals Industrial Association appeared for Peninsula Health.

[3] At the hearing Mr Corboy advised that pursuant to an order 1 of the Tribunal made on 7 October 2011 a protected action ballot had been conducted and the Australian Electoral Commission (the AEC) had declared the results of the ballot on 3 November 2011. In that ballot only 36.2% of eligible voters had cast a vote. As at least 50% of the eligible voters had not cast a vote the industrial action was not authorised. Mr Corboy submitted that in these circumstances the HSU should not be able to seek orders for a further ballot.

[4] On 7 November 2011, I issued an order 2 in this matter. At the hearing I indicated that I was satisfied that the procedural requirements of the FW Act had been complied with and that I was satisfied that the HSU was genuinely trying to reach an agreement with Peninsula Health. These are my reasons for that decision.

Legislative Framework

[5] Sub-section 437(1) provides that a bargaining representative may make an application for a protected action ballot. There was no dispute that the HSU was a bargaining representative and able to make the application.

[6] Sub-section 437(2) provides that a protected action ballot does not apply if the proposed agreement is a greenfields agreement or a multi-enterprise agreement. There was no dispute that the proposed agreement was not a greenfields agreement or a multi- enterprise agreement.

[7] Sub-section 437(4) provides that the application must specify the group/s of employees to be balloted and the question/s to be put to the employees including the nature of the proposed industrial action. There was no dispute that the application complied with subsection 437(4).

[8] Sub-section 437(3) provides for the appointment of an alternative agent to conduct the ballot. There was no dispute that the HSU proposed that the AEC conduct the ballot.

[9] Section 437(5) provides that the group of employees specified may only include employees covered by the proposed agreement who are represented by the applicant for the order. There was no dispute that the group specified in the application met this criteria.

[10] Section 438 provides that the application must not be made earlier than 30 days prior to the nominal expiry date of the current agreement. The nominal expiry date of the current agreement is 1 November 2011.

[11] Section 440 provides that within 24 hours of making the application a copy of the application must be served on the employer and the AEC. There is no dispute that this occurred.

[12] Section 441 provides that Fair Work Australia must as far as practicable determine the application within two working days but must not determine the application unless the application has complied with section 440.

[13] Section 443 provides that Fair Work Australia must make a protected action ballot order if the application has been made under section 437 and Fair Work Australia is satisfied that the applicant has been or is genuinely trying to reach an agreement with the employer. There was no dispute that the HSU has been and is genuinely trying to reach an agreement.

Conclusion

[14] Section 443 does not provide Fair Work Australia with the discretion to decline to issue an order if the requirements set out in the FW Act have been complied with. Fair Work Australia is not able to have regard to an earlier failed ballot in determining whether to approve a protected action ballot. On the basis of the submissions made to Fair Work Australia I am satisfied that the requirements of the FW Act have been complied with.

COMMISSIONER

Appearances:

L Svendsen for the Health Services Union.

R Corboy from VHIA for Peninsula Health.

Hearing details:

2011.
Melbourne:
November 7.

 1   PR515436

 2   PR516527

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<Price code A, PR516616>