Health Services Union v Royal Victorian Eye & Ear Hospital

[2022] FWC 426

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Health Services Union
v

Royal Victorian Eye & Ear Hospital

(B2022/125)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 28 FEBRUARY 2022

Proposed protected action ballot of employees of Royal Victorian Eye & Ear Hospital.

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 Royal Victorian Eye & Ear Hospital (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 PR738822.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Health Services Union filed an application under section 437 of the Fair Work Act 2009 for a protected action ballot order on behalf of certain employees of the Royal Victorian Eye and Ear Hospital. The application was heard by Deputy President Clancy of the Fair Work Commission in Melbourne on 28 February 2022. The Royal Victorian Eye and Ear Hospital did not object to the application, leading the Deputy President to decide the matter on the papers without a hearing.

The central legal issue before the Deputy President was whether the Health Services Union had satisfied the requirements of section 443(1) of the Fair Work Act 2009 for conducting a protected action ballot. This involved assessing whether there was a notification time in relation to the proposed agreement and whether the Union had genuinely tried to reach an agreement with the Hospital. The Union's declaration, which outlined the bargaining steps taken and their genuine efforts to reach an agreement, formed the basis of the decision.

The Deputy President reviewed the material presented, including the Union's declaration and the absence of objections from the Hospital. Based on the evidence, the Deputy President was satisfied that the notification time for the proposed agreement existed and that the Union had genuinely attempted to reach an agreement. Consequently, the Deputy President granted the application and issued an order for a protected action ballot, as detailed in PR738822.

This decision underscores the importance of the Union's good faith efforts in bargaining and the procedural requirements under the Fair Work Act for conducting a protected action ballot. The Deputy President's ruling highlights the need for unions to document their negotiation processes and efforts to reach an agreement to support their applications for protected action ballots.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established