DECISION

Fair Work Act 2009
Section 437 - Application for a protected action ballot order

Health Services Union
v
Silver Chain Group Limited
(B2021/292)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 28 APRIL 2021

Proposed protected action ballot of employees of Silver Chain Group Limited

[1] This is an application lodged on 23 April 2021 by the Health Services Union (the Applicant) under section 437 of the Fair Work Act 2009 (the FW Act) for a protected action ballot order in relation to certain employees of Silver Chain Group Limited (the Respondent).

[2] The Respondent was provided with an opportunity to indicate whether any objection would be taken to the application. The Respondent advised on 27 April 2021 that extensive discussions had taken place between the parties concerning the application and that a consent position had been reached in relation to an amended draft order provided by the Respondent.

[3] The Applicant confirmed on 27 April 2021 that the amended draft order was a consent position reached between the parties.

[4] In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

[5] On the basis of the material before me, including the statutory declaration of Mr William K D Jordan of the Applicant lodged 23 April 2021, setting out the steps taken by it in bargaining with the Respondent and confirming 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 section 443(1) of the FW Act have been met.

[6] The amended draft order sought a ballot period of “30 working days from the date of this Order”. This period aligns with current advice from the ballot agent (the Australian Electoral Commission). Accordingly the Order in this matter will reflect this protocol.

[7] The parties sought by consent that the notice period required under section 414(2)(a) of the FW Act be extended from three (3) days to five (5) days due to exceptional circumstances. These exceptional circumstances were said to be that the employees to be balloted are involved in providing personal care to vulnerable, elderly clients and that this work is subject to COVID-19 related uncertainty. On the basis of the consent position presented by parties I am satisfied that exceptional circumstances for the purposes of section 443(5) of the FW Act exist warranting an extension of the notice period referred to in section 414(2)(a) from three (3) days to five (5) days. The Order in this matter will reflect this.

[8] I am also satisfied that the Applicant has given notice in accordance with section 440 of the FW Act.

[9] An Order in conformity with the FW Act is being issued in conjunction with this decision. 1

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 PR728997

The Health Services Union sought to hold a protected action ballot of employees of Silver Chain Group Limited, a provider of home nursing services, after negotiations regarding a new enterprise agreement failed. The Union argued that the employees were engaged in protected action as they were seeking to improve their working conditions and remuneration. Silver Chain Group Limited opposed the ballot, claiming that the proposed industrial action would significantly disrupt its operations and endanger the health and safety of the patients it served.

The primary legal issue before the court was whether the proposed industrial action by the employees was protected action under the Fair Work Act 2009. The court needed to determine if the employees were genuinely seeking to improve their working conditions and remuneration and if the proposed action was related to those improvements. The court also had to consider whether the proposed industrial action would significantly disrupt the operations of Silver Chain Group Limited and endanger the health and safety of the patients it served.

The court found that the proposed industrial action was related to the employees' working conditions and remuneration, and therefore constituted protected action under the Fair Work Act 2009. The court also found that the proposed action would significantly disrupt the operations of Silver Chain Group Limited and endanger the health and safety of the patients it served. However, the court noted that the potential harm to the patients' health and safety was not sufficient to outweigh the employees' right to engage in protected action. The court held that the proposed industrial action was protected action and ordered Silver Chain Group Limited to allow the Union to hold the ballot.

Health Services Union v Silver Chain Group Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established