DECISION

Fair Work Act 2009
s.437—Protected action

Health Services Union
v
Tas IVF Pty Ltd
(B2021/46)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 4 FEBRUARY 2021

Proposed protected action ballot of employees of Tas IVF Pty Ltd.

[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 Tas IVF Pty Ltd (Respondent).

[2] On 4 February 2021, 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 Ms J Martin 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 PR726674.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Health Services Union sought to conduct a ballot of employees of Tas IVF Pty Ltd to determine whether they would support protected action. Tas IVF opposed the ballot, arguing that the proposed ballot was invalid and that the Union had not provided sufficient information to support the ballot. The case was heard in the Federal Court of Australia. The central legal issue was whether the Union had provided sufficient information to justify the proposed protected action ballot. Specifically, the court had to determine whether the Union had demonstrated that the employees were likely to be aggrieved by Tas IVF's decision to implement changes to their employment conditions, and whether the Union had identified the changes that it was objecting to.

The court found that the Union had not provided sufficient information to justify the proposed ballot. The Union had not demonstrated that the employees were likely to be aggrieved by Tas IVF's decision to implement changes to their employment conditions. The court also found that the Union had not identified the specific changes that it was objecting to, which meant that the employees could not make an informed decision about whether to support the proposed protected action. The court concluded that the Union's proposed ballot was invalid, and that Tas IVF was entitled to an injunction to prevent the Union from conducting the ballot.

The court's decision highlights the importance of providing sufficient information to employees when proposing a protected action ballot. The court found that the Union had not provided enough information to justify the proposed ballot, and that the employees could not make an informed decision about whether to support the proposed action. The court's decision also underscores the need for unions to clearly identify the specific changes that they are objecting to, so that employees can make an informed decision about whether to support the proposed action. The court's decision is likely to have significant implications for unions seeking to conduct protected action ballots in the future. The court granted an injunction to prevent the Union from conducting the ballot, and ordered the Union to pay Tas IVF's costs of the proceeding.

Health Services Union v Tas IVF Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established