Health Services Union v St Luke's Care Summary

[2025] FWC 1291

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Health Services Union
v

St Luke's Care

(B2025/765)

COMMISSIONER RIORDAN

SYDNEY, 9 MAY 2025

Proposed protected action ballot of employees of St Luke's Care

This is an application by the Health Services Union (HSU or Applicant) made under s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot order in relation to certain employees of St Luke's Care (St Luke's or Employer).

On 8 May 2025, the Commission was advised that the Employer objected to the Application.

However, during a Telephone Conference on 9 May 2025, the Employer advised that it withdrew its objection 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 Prudence Irvine, Organiser, setting out the steps taken by the HSU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with St Luke's, I am satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in s.443(1) of the Act have been met.

The ballot is to be conducted by Fair Vote Services (Fair Vote). Fair Vote has been approved as an eligible protected action ballot agent under s.468A of the Act and consequently is authorised to conduct the ballot.

For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 23 May 2025.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR787169.

A notice of listing will issue shortly for a s.448A compulsory conciliation conference on 15 May 2025. An Order will be issued requiring the attendance of all bargaining representatives in the proposed enterprise agreement at the conference.

COMMISSIONER

[1] This is, in effect, 10 working days from the making of the Order and was the period sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of an application by the Health Services Union (HSU) under section 437 of the Fair Work Act 2009, the Federal Court was asked to consider whether a protected action ballot order should be issued for certain employees of St Luke's Care. The HSU sought to conduct a ballot to potentially authorise industrial action in response to ongoing bargaining issues with St Luke's. The employer, St Luke's Care, initially objected to the application but subsequently withdrew its objection during a telephone conference with the Commission. The Court was tasked with determining whether the application met the criteria under section 443 of the Act, and if so, issuing the requisite protected action ballot order.

The primary legal issue before the Court was whether the conditions outlined in section 443 of the Fair Work Act had been satisfied, which include the necessity for a notification period and evidence that the union had genuinely attempted to reach an agreement with the employer. The HSU provided a declaration from Prudence Irvine, an Organiser, detailing the union's efforts in bargaining and its ongoing attempts to reach an agreement with St Luke's Care. The Court had to assess the validity of these efforts and determine if the statutory requirements were fulfilled to warrant the issuance of a ballot order. Additionally, the Court needed to decide on the appropriate closing date for the ballot voting period.

The Court found that the HSU had indeed met all the statutory requirements under section 443 of the Act. The declaration from Prudence Irvine was deemed sufficient evidence of the union's genuine bargaining efforts and the existence of a notification period. Fair Vote Services, the approved ballot agent, was authorised to conduct the ballot. The Court set the closing date for voting as 23 May 2025, which aligns with the period sought in the application. This decision also established the ballot period for the purposes of section 448A(2) of the Act. Consequently, the Court issued the required protected action ballot order.

An additional notice of listing was issued for a compulsory conciliation conference under section 448A, scheduled for 15 May 2025, requiring the attendance of all bargaining representatives involved in the proposed enterprise agreement.

Health Services Union v St Luke's Care

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established