Health Services Union v The Royal Children's Hospital Summary

[2022] FWC 437

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Health Services Union
v

The Royal Children’s Hospital

(B2022/132)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 28 FEBRUARY 2022

Proposed protected action ballot of employees of The Royal Children’s Hospital.

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 The Royal Children’s Hospital (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 PR7388451.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Health Services Union (HSU) filed an application under section 437 of the Fair Work Act 2009 with the Fair Work Commission seeking a protected action ballot order in relation to certain employees of The Royal Children's Hospital (RCH). The application was made to facilitate a ballot process for the proposed industrial action, and the Commission was asked to determine whether the requirements for such a ballot were satisfied. The Royal Children's Hospital did not object to the application, leading the Deputy President to decide to determine the matter based on the written submissions and evidence provided.

The primary legal issue before the Deputy President was whether the conditions for a protected action ballot, as stipulated in section 443(1) of the Act, were met. This involved examining the evidence of the HSU's attempts to reach an agreement with RCH and whether a notification time for the proposed agreement existed. The Deputy President needed to ensure that the HSU had genuinely tried to negotiate with the employer and that the necessary procedural requirements were fulfilled before granting the ballot order.

After reviewing the material submitted, including the declaration by Mr Craig McGregor of the HSU, the Deputy President was satisfied that the HSU had indeed been genuinely attempting to reach an agreement with RCH and that the notification time in relation to the proposed agreement had been established. The Deputy President found that the HSU had met the conditions required by section 443(1) of the Act, leading to the conclusion that the order for a protected action ballot should be granted. This decision was made without the need for a hearing, given the lack of objection from RCH.

An order was issued separately in PR7388451, permitting the HSU to proceed with the ballot for the proposed protected action among the employees of RCH. This decision underscores the importance of adhering to the statutory requirements when seeking to organise industrial action, ensuring that both parties have genuinely engaged in bargaining efforts and that all procedural prerequisites are met.

Health Services Union v The Royal Children's Hospital

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established