Health Services Union v Silver Chain Group Limited

[2021] FWC 2327

[2021] FWC 2327

FAIR WORK COMMISSION

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

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