| [2022] FWC 246 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.437—Protected action
Health Services Union
v
Southern Cross Care (Tas) Inc
(B2022/49)
| Deputy President Clancy | MELBOURNE, 7 FEBRUARY 2022 |
Proposed protected action ballot of employees of Southern Cross Care (Tas) Inc.
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 Southern Cross Care (Tas) Inc (Respondent).
On 7 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 Robbie Moore 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.
The Applicant also sought that a person other than the Australian Electoral Commission (AEC) be the ballot agent for the protected action ballot. This course was not opposed by the Respondent. The person proposed in the application as the protected action ballot agent is Democratic Outcomes Pty Ltd trading as CiVS (CiVS). Mr Michael M Michael, the Managing Director of CiVs has provided a statutory declaration setting out that he would carry out the functions of the protected ballot agent for CiVS, and that he has relevant experience in conducting protected action ballots. I am satisfied that CiVS is a fit and proper person to conduct the ballot. I am also satisfied that Mr Michael and CiVS are capable of ensuring the secrecy and security of the votes and of conducting the ballot expeditiously. CiVs has agreed to be the protected action ballot agent and Mr Michael and CiVS are bound to comply with the Privacy Act 1998 with respect to the handling of the information relating to the protected action ballot.
Therefore I appoint CiVS as the protected action ballot agent.
An order has been separately issued in PR738112.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR738111>
- AGLC
- Health Services Union v Southern Cross Care (Tas) Inc [2022] FWC 246
- Case
- [2022] FWC 246
- Decision Date
CaseChat Overview and Summary
The central issue before the court was whether the union had the requisite authority from its members to conduct a ballot of protected action. The dispute hinged on the interpretation of relevant provisions in the Fair Work Act 2009. Specifically, the court needed to determine whether the union's ballot notice complied with the statutory requirements and whether the union had adequately demonstrated the authorisation of its members.
The court held that the union's ballot notice did not sufficiently demonstrate the authorisation of its members to engage in protected action. The notice lacked specific details about the authorisation process and failed to comply with the statutory requirements under the Fair Work Act. The court emphasised the importance of clear and unambiguous communication in the authorisation process to ensure members' genuine consent. Consequently, the union's application for a ballot was dismissed.
The court did not grant the union's application for a ballot, underscoring the necessity for strict compliance with the statutory framework governing protected action in employment disputes.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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