Health Services Union v South West Healthcare Summary

[2022] FWC 440

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Health Services Union
v

South West Healthcare

(B2022/135)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 28 FEBRUARY 2022

Proposed protected action ballot of employees of South West Healthcare.

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).

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 PR738858.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Health Services Union (Applicant) filed an application under section 437 of the Fair Work Act 2009 for a protected action ballot order concerning certain employees of South West Healthcare (Respondent). The case was heard by Deputy President Clancy of the Fair Work Commission in Melbourne on 28 February 2022. The Applicant sought to hold a ballot to allow its members to take protected industrial action due to a dispute over a proposed agreement with the Respondent. Notably, the Respondent did not object to the application, which facilitated the determination of the matter on the papers without the need for a hearing.

The primary legal issue before the court was whether the requirements under section 437 of the Fair Work Act had been satisfied for the Applicant to hold a protected action ballot. This involved assessing whether there was a notification time in relation to the proposed agreement and whether the Applicant had genuinely tried to reach an agreement with the Respondent. The court had to determine if the conditions set forth in section 443(1) of the Act had been met, based on the declaration by Mr Craig McGregor of the Applicant and other relevant material.

The Deputy President concluded that the requirements under section 437 of the Fair Work Act had been met. The court was satisfied with the evidence presented, including the declaration by Mr McGregor, which detailed the steps taken by the Applicant in bargaining with the Respondent and affirmed that the Applicant had been genuinely trying to reach an agreement. Consequently, the Deputy President issued an order permitting the protected action ballot. A separate order was also issued in PR738858.

The court's decision was based on the evidence and submissions provided, affirming the Applicant's right to proceed with the ballot. The Deputy President's reasoning underscored the importance of the notification period and the necessity for genuine bargaining efforts, both of which were satisfactorily demonstrated in this case.

Health Services Union v South West Healthcare

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established