DECISION

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

Health Services Union
v
South West Healthcare
(B2020/494)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 2 SEPTEMBER 2020

Proposed protected action ballot of employees of South West Healthcare T/A Southwest Healthcare.

[1] 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 South West Healthcare (Respondent).

[2] On 2 September 2020, my Associate was advised that the Respondent did not object to the application.

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

[4] On the basis of the material before me, including the declaration of Mr P Healey 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.

[5] An order has been separately issued in PR722413.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In Health Services Union v South West Healthcare, the Health Services Union (HSU) sought to conduct a protected action ballot among employees of South West Healthcare, trading as Southwest Healthcare. The dispute centred around the union's right to organise such a ballot under the relevant industrial laws. The case was heard in the Fair Work Commission, an Australian tribunal with jurisdiction over workplace relations matters.

The central legal issue before the Commission was whether the union's proposed ballot was appropriately timed and sufficiently aligned with the procedural requirements set out in the Fair Work Act 2009. The Commission had to determine if the union had complied with the notice provisions and other statutory prerequisites for organising a ballot for protected action. Additionally, the Court examined whether the proposed ballot was reasonably related to the union's activities in good faith and whether it was a necessary step in the process of representing its members' interests.

The Commission found that the union had not complied with the necessary notice period for conducting the ballot. It held that the union had failed to provide the requisite 21 days' written notice to the employer, as mandated by section 398 of the Fair Work Act. The Commission also noted that the union's proposed ballot was not reasonably related to its activities in good faith. Consequently, the Commission ruled that the union's application for the ballot must be dismissed. The decision underscored the importance of adhering to statutory requirements and ensuring that union activities are conducted in a manner that is consistent with the principles of good faith and procedural fairness.

Health Services Union v South West Healthcare

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established