Health Services Union v Peninsula Health

[2022] FWC 423

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Health Services Union
v

Peninsula Health

(B2022/123)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 28 FEBRUARY 2022

Proposed protected action ballot of employees of Peninsula 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 Peninsula 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 PR738815.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Health Services Union applied under section 437 of the Fair Work Act 2009 for an order allowing a protected action ballot for employees of Peninsula Health. The application was made to address issues arising from the parties' negotiations regarding a proposed agreement. Peninsula Health did not oppose the application, leading to the decision being made on the submitted documentation without a formal hearing.

The primary legal issue before the Commission was whether the conditions for a protected action ballot were satisfied, particularly focusing on whether there was a notification time in relation to the proposed agreement and whether the union had genuinely attempted to reach an agreement with the employer. The Commission needed to verify if the union's declaration, which outlined the steps taken during bargaining and their genuine efforts to reach an agreement, met the statutory requirements set out in section 443(1) of the Act.

Upon reviewing the material, including the union's declaration by Mr Craig McGregor, the Deputy President was satisfied that the notification time existed and that the union had genuinely attempted to reach an agreement. The Commission found that the union had followed the necessary procedures and acted in good faith, thus fulfilling the requirements of the Act. Consequently, the Commission granted the union's application for a protected action ballot.

The Fair Work Commission issued an order allowing the protected action ballot, reflecting the Commission's determination that the union had satisfied the necessary criteria for the ballot to proceed. This decision ensures that the union can proceed with the ballot as part of the ongoing negotiations with Peninsula Health.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established